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Abolish the FCC:

Slate's Jack Shafer makes the basic case for abolishing the Federal Communications Commission and auctioning off property rights in the radio spectrum.

Alex C (mail):
Did I come across this piece here? Well, either way it's a good read for anyone interested in the subject. Clark sketches out the nastier details about the history of spectrum allocation.
1.21.2007 12:45pm
J. F. Thomas (mail):
It's interesting that the Slate article would use paper production and logging as an analogy of how ludicrous limiting access to the airwaves is. First of all, if anyone has seen pictures of the environmental disaster that was clearcutting in Maine, Michigan, Wisconsin or Minnesota in the late 19th or early twentieth century, which took almost a hundred years to recover from, its a pity the federal government didn't do more to control logging back then.

The analogy also is completely ridiculous. Your hometown newspaper is not going to turn into the Chicago Tribune when the sun goes down. But if you live between the Appalachian Mountains and the Rockies and your local radio station broadcasts at anywhere around 890 am, it is certainly going to be taken over by the signal from WGN in Chicago when the sun goes down. Just because the current system stinks, doesn't mean that a system where all the available bandwidth would be bought up by Viacom, AT&T, Verizon and a few other huge corporations would be any better and would probably be considerably worse.
1.21.2007 2:19pm
J. F. Thomas (mail):
Whoops, WGN broadcasts at 720 am, WLS is at 890.
1.21.2007 3:15pm
eeyn524:
Even if one is in favor of privatizing spectrum ownership, like I am, J.F.Thomas has a point that isn't easily dismissed. Electromagnetic waves easily can't be made to stop abruptly at geographic boundaries, unless you go to a cellular system with small cells. You can set field strength limits outside the "owned" area, but to set a reasonable limit one has to take into account the the modulation scheme, the quality of service desired, and the expected quality of the end user's receivers. For signals between 1-30MHz the field strength is strongly dependent on weather and sunspot conditions. If you set up a regulatory scheme to take all these factors into account you end with something that starts to look like the FCC, except that under a new system licenses are transferable without permission.

In the case of cellular type systems, there effectively is already transferable ownership of spectrum, isn't there?

Anyway, Congress is more of a problem than the FCC. When the FCC has tried to open things up (e.g. LPFM) Congress interfered on behalf of the current system.
1.21.2007 3:29pm
Fub:
Alex C wrote:
Did I come across this piece here? Well, either way it's a good read for anyone interested in the subject. Clark sketches out the nastier details about the history of spectrum allocation.
I just read the Drew Clark Spectrum Wars piece cited. While I can't critique every detail, I do find it seriously weakened by its failure to frame technical issues correctly.

My eyes glaze over when I read statements like:
For example, tune in FM radio station 90.9, and you are receiving a signal sent through the air at 90.9 megahertz. Both AM and FM radio are at the low-frequency end of the spectrum chart. Police radios and broadcast television occupy the middle bands, going up to around 800 megahertz. (Each television station gets a bundle of frequencies -- 6 megahertz of bandwidth -- because its signal has to carry more information than a radio signal.)
Fact: Every specific frequency allocated to every licensee, TV, AM &FM radio, police, etc. is a "bundle of frequencies". Specific frequency allocations consist of a center frequency and a guard band which varies according to the application for which the frequency is allocated. Clark's example of 6 MHz channel spacing for broadcast TV is correct, but misleading. TV is not a special case. Every modulation method has an inherent associated bandwidth that depends upon the signal's center or carrier frequency, the bandwidth of the information that modulates the signal, and the nature of the modulation method.

Fact: The FM broadcast band (~88 to ~108 MHz) lies in the middle of the VHF TV broadcast band, not at the "low-frequency end of the spectrum chart". The reason for this is an artifact of both history and the nature of signal propagation (primarily line of sight) in that particular frequency band. Only the AM broadcast band (~510 to ~1500 KHz) is at the "low-frequency end".
1.21.2007 4:17pm
Gaius Obvious (mail):
Even if you auctioned off frequency spectrum and eliminated the FCC, who would police the spectrum to be sure that no one strayed from their allocation or that harmonics were properly suppressed?
1.21.2007 4:26pm
Avatar (mail):
The newspaper analogy is spectacularly inapt. Talking about trees as the source of newspaper is like talking about electricity as a source of broadcast signals - neither one is being regulated because of the source materials. The difference is that the medium employed in newspapers is fundamentally non-interfering. Two newspapers stacked right next to each other don't blot out each others' words. Two broadcast signals -do-. (In fact, broadcast has interference patterns that affect other signals as well - read up on harmonics sometime.)

The airwaves need to be regulated because nobody wins if it turns into a pissing contest of "who has the biggest transmitter with the most power?" That said, reducing spectrum to private ownership and leaving it alone will simply not happen. What would you do if your county's emergency medical services happen to lie on the second harmonic of someone else's signal? Oh, well, I suppose you could sue the broadcaster when people die because the ambulance couldn't hear a signal through some Top 40 song or other. What I cannot see is how this result would somehow be superior to our current spectrum regime.

There are two problems with the FCC, sure. The first is broadcast regulation of content, which has lately been captured by people whose profession it is to be offended when they hear an obscenity. I wouldn't cry if this power were to be stripped from them (though the reader should keep in mind that eventually, should we head down that path, we'll have broadcast porn, as a few other countries do. Not saying we shouldn't, just pointing out the inevitable...)

The other problem is that the FCC has to deal with legacy devices. Yes, you can fit many more signals in a given spread of bandwidth if you're using modern devices. The FCC doesn't have the luxury of mandating that people have modern devices. TVs and radios are not modern devices, and the FCC is not about to mandate that every radio in the US be replaced with one that will work on a smaller sliver of spectrum. (They've been trying to do this with TVs for years, because that's a big chunk of bandwidth to free up and sell. Unfortunately, people are obstinately not buying new televisions at the required pace, and no politician is stupid enough to issue the order to turn off the old analog signal and render all the old TVs in the nation useless.)

Besides, what about the public spectrum? Your fancy cell phone won't work so well if a natural disaster knocks out the power, but a ham radio operator can set up pretty much anywhere, and put out a signal with equipment you can put together in a garage yourself... but not if you've sold his bandwidth so that there can be another sixteen channels of golf on the air!
1.21.2007 4:43pm
marghlar:
Even if you auctioned off frequency spectrum and eliminated the FCC, who would police the spectrum to be sure that no one strayed from their allocation or that harmonics were properly suppressed?

Well, what do we do when people stray over other types of property lines? Seems like it would be easy to regulate this with private civil enforcement, perhaps supplemented by criminal penalties for some types of willful and aggravted spectrum trespasses.

We typically think of broadcast spectrum as a natural, limited physical resource. But this is no reason to treat it as intrisically in need of government control. After all, most of our physical resources are also limited, but we generally think of private ownership as value maximizing. I have yet to hear the convincing argument over why the electromagnetic spectrum is so different from real property.
1.21.2007 5:37pm
Colin Fraizer (mail):
Marghlar has the better argument over Avatar. The FCC doesn't just regulate the boundaries. It regulates the content. It shouldn't. We don't accept that sort of regulation with newspaper and we shouldn't with broadcast.
1.21.2007 5:47pm
Fub:
marghlar wrote:
Well, what do we do when people stray over other types of property lines? Seems like it would be easy to regulate this with private civil enforcement, perhaps supplemented by criminal penalties for some types of willful and aggravted spectrum trespasses.
Which is where the analogy begins to fail in practice, not theory. In the case of trespass to land, the trespasser is fairly readily identifiable, at least if you catch them in the act. In the case of trespass to spectrum allocation, you have to use fairly sophisticated technical means to determine where the trespasser is geographically, and then you've only found where they are, not who they are.

The FCC has fairly readily available resources for that, somewhat like police have readily available resources, that even fairly large businesses are unlikely to have.

This is not an argument against the principle of auctioning spectrum (which the FCC already does for some applications, just not broadcast). This just says that practical enforcement of property rights in spectrum is not really the same, or as relatively easy as, the analogous enforcement of property rights in real property.
1.21.2007 6:05pm
Joel B. (mail):
Color me skeptical. All spectrum is not alike, and doesn't this "auction off" concept assume that the government already "owns" the spectrum. If so then how that current user decides to use the spectrum is up to them. I personally think that regulation as is is preferable to auctioning off, I don't see public airwaves (because that's what they are) as something desireable to be privatized.
1.21.2007 6:10pm
J. F. Thomas (mail):
The FCC doesn't just regulate the boundaries. It regulates the content. It shouldn't. We don't accept that sort of regulation with newspaper and we shouldn't with broadcast.

This isn't quite true. The FCC regulates that part of the spectrum that it allows broadcasters to use for free in exchange for serving the public. This may be a quaint and forgotten concept (that broadcast radio and tv get to use huge swaths of the broadcast spectrum for free in exchange for providing a public service) but that is the deal.
1.21.2007 6:13pm
Mary Katherine Day-Petrano (mail):
"Even if you auctioned off frequency spectrum and eliminated the FCC, who would police the spectrum to be sure that no one strayed from their allocation or that harmonics were properly suppressed?"

"Well, what do we do when people stray over other types of property lines? Seems like it would be easy to regulate this with private civil enforcement, perhaps supplemented by criminal penalties for some types of willful and aggravted spectrum trespasses.

We typically think of broadcast spectrum as a natural, limited physical resource. But this is no reason to treat it as intrisically in need of government control."



Very interesting comments. I think we all will be in trouble if the FCC is abolished.

These are some of the issues raised in The Vessel Mistress-admitted perjuring Vessel Captain appeals in the 11th Circuit US Court of Appeals, e.g. Petranos v. Hutto, 11th Cir. 06-12440-HH. (Foreign Vessel lacking registration papers and lacking FCC license onboard, photographed with RF antenna hanging over salvors' vessel, with the unsettling discovery at time of arrest by US Marshals that unknown materials (radiofrequency crystals?) had been removed from Vessel's antenna control box. Captain admitted Vessel was operating as a surveillance platform; he also admitted committing perjury in open-court over his "Ocean Unlimited Masters" licensure (he only had 100 ton license) 'to get the Vessel away from' the salvors -- i.e., to spoliate evidence).

Surveillance equipment emits RFs. How much? There is no way of knowing and no FCC license -- a completely unregulated foreign Vessel in US waters. This case involves injuries to four people who were in the zone of whatever was being emitted from this Vessel -- terminal brain cancer, epilepsy, vision deterioration, miscarried fetus.

This exemplifies exactly why human health will inevitably be placed in the zone of danger if FCC regulation is abolished -- in this case by an unregulated foreign Vessel operated by one or more individuals without the required FCC license with numerous other violations, the aggregate of which inescapably pose a threat to our National Ports Security.

We do need civil and criminal penalties, and they need to be enforced on FCC violators. The perjurer is still a free man, no one is prosecuting his admitted, congfessed perjury recognized by a federal judge.

I rest my case.
1.21.2007 6:17pm
nevins (mail):
You cannot change the laws of physics.
The distribution of paper pulpwood for the print media works just fine on the open market.
The distribution of the radio frequency spectrum defies a physical ownership and is subject to the abuses of the commons. Some entity needs to mediate the standards (bandwith use, not nipples) of broadcast on the available spectrum.
1.21.2007 7:31pm
Stating the Obvious:
In the former Soviet Union, shoes were once produced only by the state. It is said there was some discussion about privatizing shoe production. Knowledgeable Soviet intellectuals recognized significant production problems with their then current system, but still skepticism about privatization abounded. "How will poor people get shoes?" one asked. "Who will guarantee that there will always be a left shoe to match a right shoe?" another countered...

The purpose of this anecdote is to point out how amazingly wedded some commenters are to the status quo. Their singular inability to anticipate how the market will solve some problems is not equivalent to saying there are no solutions to the problems they envision. 20 years ago people anticipated many problems with cellular phones. This didn't prevent a competitive market developing in that area, adequate to deal with the problems regulators imagined.

Contrary to Joel B., the fact the govt "auctions off" the spectrum doesn't have to be interpreted as the govt. currently having legitimate or just ownership of the spectrum. It simply recognizes the fact that the government CONTROLS the spectrum now. In the antebellum South, some individual slaves achieved manumission by buying themselves out of slavery. The fact they paid the slaveholder for their freedom doesn't imply they recognized his legitimate ownership interests prior to the purchase.

As to why such placing such ownership rights into private hands and out of government control is important, JF Thomas' casual dismissal of first amendment rights and protections to those entities now supplying Americans with a majority of their news and opinion makes the case.
1.21.2007 7:49pm
marghlar:
This is not an argument against the principle of auctioning spectrum (which the FCC already does for some applications, just not broadcast). This just says that practical enforcement of property rights in spectrum is not really the same, or as relatively easy as, the analogous enforcement of property rights in real property.

Good points, Fub. I can imagine the FCC serving a perfectly legitimate purpose collecting disclosures about who owns what parts of the spectrum, and assisting owners in determining who has trespassed to their bandwith. Some amount of governmental civil enforcement for those who invade others bandwith via harmonics and whatnot might also make sense. I'm not anti-regulation, just anti-content-control, and having the government decide who gets the license will unavoidably be a form of content control.

And Mary: it seems like a better way to fight perjury is to prosecute perjury, not to have an intrusive beauracracy regulating what information we can get through the media. Likewise, I think that surveillance can be regulated directly via criminal privacy statutes. And those other consequences you describe (cancer and whatnot), if really caused by said vessel, could presumably be the subject of both criminal actions against said foreign vessel and civil actions for battery.
1.21.2007 10:09pm
marghlar:
The distribution of the radio frequency spectrum defies a physical ownership and is subject to the abuses of the commons. Some entity needs to mediate the standards (bandwith use, not nipples) of broadcast on the available spectrum.

Given that abuses of the commons arguments are most commonly made in favor of privatisation, this seems a somewhat unusual track to take. You've offered no reasons why private ownership and remedies couldn't adequately keep bandwiths from being trespassed.
1.21.2007 10:11pm
Joel B. (mail):
Contrary to Joel B., the fact the govt "auctions off" the spectrum doesn't have to be interpreted as the govt. currently having legitimate or just ownership of the spectrum. It simply recognizes the fact that the government CONTROLS the spectrum now. In the antebellum South, some individual slaves achieved manumission by buying themselves out of slavery. The fact they paid the slaveholder for their freedom doesn't imply they recognized his legitimate ownership interests prior to the purchase.

Whatever you say man, if not the government then who has legitimate "ownership rights" of the broadcast spectrum, who prey tell should the "legitimate owner" be. That's right, the government, for there's no other way to make it work.

Regardless, what this comes down to is that some people feel there's money to be made of the spectrum, I suppose there is, but it's going to be made off of me, and I don't see why I should support auctioning off the spectrum so that someone else can make more money off me. I don't like it, I don't support it. Worst of all, somebody's going to want to charge me to use this spectrum, and instead of getting a cut back of the initial sale, it's all just going to go back in to the government waste bucket. Lame. If anything, make this ultra super valuable spectrum an oil-trust type thing and lease out the spectrum annually, that would be a lot more interesting, and then give me money back.

It gets worse though, because not only do I get screwed once, (someone making money off me), or twice (government gets the case up front I get nothing), but three times, because then I get my free television taking away. Now maybe some people think that television should cost $100 a month. For the record, I think that person is crazy. People waste so much darn money, they think everyone else should be fine pouring money down a garbage disposal too, sorry I'll pass.
1.21.2007 10:46pm
marghlar:
Worst of all, somebody's going to want to charge me to use this spectrum, and instead of getting a cut back of the initial sale, it's all just going to go back in to the government waste bucket. Lame.

Ridiculous. Just because broadcasters currently license airwaves, doesn't mean they aren't in it to make a profit. You currently subsidize broadcast by viewing or hearing advertisements interspersed with their programs. I see no reason why this would change. It would be enormously inefficient, and probably impossible, to charge people to listen to radio or watch broadcast TV. The freerider problem is simply insurmountable. Hell, they can barely manage to make people pay for cable. Even print media are, in many cases, funded primarily by advertising rather than user fees. What makes you think this is likely to change, especially given the impossibility of enforcing payment?
1.21.2007 11:10pm
Joel B. (mail):
Ridiculous. Just because broadcasters currently license airwaves, doesn't mean they aren't in it to make a profit. You currently subsidize broadcast by viewing or hearing advertisements interspersed with their programs. I see no reason why this would change. It would be enormously inefficient, and probably impossible, to charge people to listen to radio or watch broadcast TV. The freerider problem is simply insurmountable. Hell, they can barely manage to make people pay for cable. Even print media are, in many cases, funded primarily by advertising rather than user fees. What makes you think this is likely to change, especially given the impossibility of enforcing payment?

I find it humorous that you quoted the part of my prior statement that largely complained about how the government's just going to waste the money. Regardless, ads aren't going away, but broadcast TV might be to cable. That's something I do not want, while print media are largely funded by ads, that's giving away the fact that I still have to pay for the paper. Broadcast TV would just cease to exist, and tv would be paid through cable. Of that idea, I am not a fan.

I also don't care that broadcasters are in it "to profit." They do it in a way that really costs me very little, to which I am happy.
1.22.2007 12:17am
Lev:
Dunno. I think the timber analogy isn't a very good one.

It seems to me a better analogy for regulation of the airwaves, would be regulation of the airways.
1.22.2007 12:30am
Avatar (mail):
Margh, keep in mind that the "commons" aren't really common here - nobody's going to blitz the entire electromagnetic spectrum. But if I own a station in two cities, and the station in one city occupies the same frequency as a competitor's station in another city, I definitely have incentive to dick with his signal as much as possible - the less people can listen to his station, the more they'll listen to mine.

If we're going to talk about "real property", the best metaphor isn't a newspaper, but land. There's only so much of it, you can't really make more. Any given bit of land can only be owned by one entity - competing claims on that bit of land prevent anyone from using it effectively. The government owns some land, because land is necessary for the government to perform certain of its functions (gotta put the buildings somewhere) and because having some land open to the general citizenry is beneficial (parks, roads). The government also has a fairly entrenched bureaucracy that regulates who owns what land, and what people are permitted and not permitted to do with their land. A major goal of such regulation is to prevent your rights to do what you want on your land from encroaching on other people's land rights (pollution regulations, say.)

Just because it's possible to transmit speech over the airwaves, doesn't mean that the airwaves are suddenly a regulation-free zone. You can't stand outside someone's house at midnight and yell at them will a bullhorn. You can't send out smoke signals with toxic emissions from your factory. You can't park a truck full of newspapers in the middle of the road and block traffic.

If you're not happy with provisions in your local zoning laws that impinge on free speech, you work to have them changed. You _don't_ suggest that the land office be disbanded - it's not helpful. If you oppose FCC regulation of broadcast content, that's okay, it's certainly a defensible position and one I have some sympathy for. But ask for policies that would have the desired result, don't just tear stuff up and hope it will shake out well.
1.22.2007 12:55am
David M. Nieporent (www):
The distribution of the radio frequency spectrum defies a physical ownership and is subject to the abuses of the commons.
Of all the arguments against privatization, this is the least coherent one. If you privatize, there are no commons. Privatization is a solution to the tragedy of the commons, not a cause of it.

That's not to say that there might not be other problems -- although nobody above has actually identified any convincing ones that are difficult to solve -- but this isn't an issue at all.


The FCC doesn't just regulate the boundaries. It regulates the content. It shouldn't. We don't accept that sort of regulation with newspaper and we shouldn't with broadcast.

This isn't quite true. The FCC regulates that part of the spectrum that it allows broadcasters to use for free in exchange for serving the public. This may be a quaint and forgotten concept (that broadcast radio and tv get to use huge swaths of the broadcast spectrum for free in exchange for providing a public service) but that is the deal.
Actually, it is quite true; you simply repeated what he said. Except he said it shouldn't be this way, and you said, "it is this way," which is non-responsive.
1.22.2007 12:56am
Matt (mail) (www):
Lev:

I agree. Timber is, imho, a terrible analogy. A much better one is one which all of us have dealt with in some capacity:

Land.

The government clearly plays a role, but real estate ownership vests in the individual. State legislatures and courts have created legal rights enforceable by those who own and cultivate their own piece of the land. Those rights include to be free from trespass (generally speaking) and nuisance, among others.

All of this takes place without PRC-style top-down control over all land use. Moreover, I fail to see how the scarce resource of spectrum differs from the scarce resource of land such that total government ownership is necessary. If anyone can articulate it, I'd appreciate it.
1.22.2007 12:58am
marghlar:
But if I own a station in two cities, and the station in one city occupies the same frequency as a competitor's station in another city, I definitely have incentive to dick with his signal as much as possible - the less people can listen to his station, the more they'll listen to mine.

Of course this is true; but private ownership implies an action for trespass in such circumstances, no?

If we're going to talk about "real property", the best metaphor isn't a newspaper, but land. There's only so much of it, you can't really make more. Any given bit of land can only be owned by one entity - competing claims on that bit of land prevent anyone from using it effectively. The government owns some land, because land is necessary for the government to perform certain of its functions (gotta put the buildings somewhere) and because having some land open to the general citizenry is beneficial (parks, roads).

I agree that land is the right metaphor. We currently allow real estate to be freely bought and sold, and do not require licenses before people can own it. There are some uses of land that harm others interests in their own land (or other protectible interests) and we properly prohibit people from using their land in a way that hurts other people. That is a far cry from what the FCC is doing with the airwaves. They say you can't buy a band without their permission. We don't need the government to exercise that sort of control in order to prevent people from misuing their spectra.

Just because it's possible to transmit speech over the airwaves, doesn't mean that the airwaves are suddenly a regulation-free zone.

Um, no duh. I didn't suggest that they would be. If you read upthread, you'll see that I was suggesting that the FCC could still play a useful role in detecting violations of property rights in spectra, and in prosecuting spectrum trespass. But that's different from the current regime of effective content regulation. I fundamentally disagree with the notion that the government should be in charge of telling us how to talk to each other.
1.22.2007 1:17am
JB:
Marghlar: There's no preemptive defense against signal-dicking. You can put up fences around private property, but the only defense against someone invading your frequency is to find them, sue them, and win in court.

In order to avoid the transaction costs associated with all that, it's good to have a registry of who is supposed to be doing what where. That's where the FCC comes in.

Content regulation, however, is useless if done halfway, and unconscionable if done all the way, so should not be done at all.
1.22.2007 2:12am
marghlar:
In order to avoid the transaction costs associated with all that, it's good to have a registry of who is supposed to be doing what where. That's where the FCC comes in.

Yeah. I don't have a problem with the registrar of deeds, and I wouldn't have a problem with the FCC keeping track of who owns what.
1.22.2007 2:20am
SB (www):
Matt:

Land is zoned, is it not? Even in a 'privatized' model, the FCC still has its place.
1.22.2007 7:27am
J. F. Thomas (mail):
JF Thomas' casual dismissal of first amendment rights and protections to those entities now supplying Americans with a majority of their news and opinion makes the case.

Your casual dismissal of the responsibilities of those entities who use valuable spectrum practically for free makes my case. And by the way I wholeheartedly agree that the FCC is overly concerned with exposed nipples and the occasional f-bomb, but the fact remains that in exchange for the practically free use of the airwaves, the broadcast networks have agreed to provide programming that serves the public interest.

Given that abuses of the commons arguments are most commonly made in favor of privatisation, this seems a somewhat unusual track to take.

The tragedy of the commons argument most commonly made in favor of government regulation, not privatization. It is used to extend the idea to "commons" that can not be easily subdivided like waterways, the air we breathe, or the electromagnetic spectrum that bounces all over the universe. You are arguing the opposite.
1.22.2007 8:44am
marghlar:
J.F., the "commons" was originally publically-shared real property in England. Which was later subdivided. Go read Hardin's essay, which brought the term into modern use. He's talking about land, which obviously we can and do subdivide.

And the idea that the elctromagnetic spectrum can't easily be subdivided is absurd, and you offer no reasons for it but ipse dixit. We subdivide it constantly by rule and by private ordering. The cell network is an excellent example of a highly complex subdivision. Since we already subdivide it, that is a big strike against any argument that it constitutes a resource that can't be effectively subdivided.

Likewise, it is perfectly easy to subdivide a waterway. We may not always wish to do so, as when the waterway functions primarily as a highway. But for other uses (see over-fishing) it's probably beneficial.
1.22.2007 9:48am
asdfjkl; (mail):
My favorite FCC story (as modified for use on Studio 60) has been the self-censorship of war footage to avoid fines.

PBS, for example, censored out curse words uttered by soldiers in battle. You have got to be kidding me. The role of government should not be shielding its citizens from reality.
1.22.2007 9:51am
Fub:
OK, I've read Slate Shafer piece, the National Journal Technology Daily Clark piece, and all the comments. I see what some of the fuss is about, but not all.

A primary issue seems to be content regulation, which some proponents of FCC abolition and private broadcast spectrum purchase would eliminate. For purposes of this discussion I'll stipulate that content regulation is evil and should be eliminated. J.F. Thomas above has stated the primary countervailing argument in that regard, by referring to the major statutory enabling clause for FCC regulation generally:
the fact remains that in exchange for the practically free use of the airwaves, the broadcast networks have agreed to provide programming that serves the public interest.
To that I'll add that content regulation can be eliminated without private purchase of spectrum or FCC abolition, by removing the secondary statutory requirement for it, the statutes that prohibit "indecency", "profanity" and "obscenity". With no statutes to enforce, FCC content regulation would cease.

But without adding a dog in the content regulation fight, there still seem to be several other characteristics of the current regulatory schema that spectrum ownership debaters on both sides are unaware of, or ignore:

First, broadcast licenses already are relatively freely alienable. A broadcast licensee may sell his license to another, subject to some legal limitations. That is, transfer of license ownership is not generally forbidden.

Among the limitations are:

1. The number of broadcast licenses a single entity can hold in a particular geographical area is limited.

2. An licensee entity can be no more than 20% foreign owned.

3. A licensee cannot hold a broadcast license indefinitely without actually broadcasting on the assigned frequency. In fact, currently a license may be challenged on those grounds and the license will be transferred to a prevailing challenger.

4. Currently broadcast licenses have a limited term, and renewal or transfer requires showing that, among other things, the continued authorization will serve the public interest, as J.F. Thomas pointed out above.

Would proponents of private spectrum eliminate any or all those restrictions on outright purchase of spectrum? I don't know. That's why I raise the question.

Second, it is currently possible for private parties to establish ex nihilo a broadcast license within the current regulatory schema. All you have to do is make engineering surveys that prove your proposed broadcast station will not interfere with those of existing licensees. This happens regularly, though obviously it is easier to establish a license in some geographical areas than in others. Like real estate, available spectrum is crowded in some areas and not in others.

Broadcast spectrum purchase would not appear to eliminate that aspect of the current regulatory schema, except to add the requirement that the newly discovered available license be purchased by competitive bidding. Or is that an incorrect conclusion? Again, I don't know, so I ask.

If the answer to these questions is negative, then it appears that the current regulatory schema is not very different from outright spectrum purchase and FCC abolition, except that a licensee would have to cut an additional check to the government that current licensees do not. FCC regulation would simply be replaced by DOJ civil or criminal enforcement of those rules.

In any case, it also appears that eliminating by only a few functions of the FCC would serve the same major results that proponents of private spectrum purchase seek by abolishing the FCC.

Does either side of the FCC abolition debate see a baby and bathwater issue here? Again, I don't know, which is why I ask.
1.22.2007 10:56am
J. F. Thomas (mail):
J.F., the "commons" was originally publically-shared real property in England. Which was later subdivided.

With devastating consequences for the people who used to share those commons. The enclosure acts forced countless thousands off the land as the land went to the large land holders who actually held title to the land, not the peasants who once farmed the land. Entire villages literally disappeared from the map. It was what began the migration to the cities in Britain and provided the manpower for the first phase of the Industrial Revolution.

When we speak about the "tragedy of the commons" nowadays it is used as an analogy (usually when making the case for environmental regulation) of what happens when person perceives that his small contribution to the pollution of a "common" (e.g., air or water) won't harm the common, but the cumulative effect of all users of the commons can be devastating.
1.22.2007 10:58am
J. F. Thomas (mail):
Likewise, it is perfectly easy to subdivide a waterway.

You may be able to subdivide the physical space of the waterway, but not the water flowing through it.
1.22.2007 11:08am
David M. Nieporent (www):
SB:
Land is zoned, is it not? Even in a 'privatized' model, the FCC still has its place.
Some land is zoned. I don't think the libertarians around here are big fans of zoning, either.


JFT:
Your casual dismissal of the responsibilities of those entities who use valuable spectrum practically for free makes my case.
Have you ever heard the phrase "begging the question"? In any case, the proposal here (as you know if you read the Shafer piece) is not to let people use anything "for free," but to auction it off to the highest bidder, which is pretty much the opposite of "practically for free."

With devastating consequences for the people who used to share those commons.
Except, of course, that there's a reason we call it the "tragedy" of the commons. In any case, the spectrum isn't treated as "commons" for the purposes of that analogy; we may nominally share the spectrum nowadays, but we don't get to use it. The government still "encloses" it and gives it to private landowners. It just does so inefficiently.
1.22.2007 11:47am
Avatar (mail):
David, speak for yourself. Some of us have a ham radio license. (And let me tell you, you can have our spectrum when you pry it from our cold, dead... er. You get the idea.) I'll point out that amateur radio has content restrictions that make the FCC's obscenity witch-hunts look like a hippie commune, but at the same time, it's quite possibly the nicest and most mature community of people I've ever had the pleasure to encounter. (Possibly excepting this blog. ;p) Especially if you compare it with the absolute pit that is citizen's band radio, it's easy to see that there are at least a few benefits to content regulation.

Can't disagree with Fub's analysis. Let the content regulation bits of public broadcasting go, save the useful part.

The point that I made earlier is that we know already that the spectrum is allocated inefficiently. However, the current allocation is used by, literally, billions of electronic devices, most of which are useless for operation on "efficient" spectrum allocations. (It's like trying to plug an Ethernet jack into a Commodore 64.) You could certainly take the current TV and radio spectra and sub-divide it much more finely with digital radio (and there are already digital TV broadcast channels.) But the transaction cost would be immense, because the installed base of legacy devices cannot be quickly converted to the new frequencies (and, moreover, the technologies that allow the reduction in bandwidth use that makes it worth doing all this in the first place.)

Obviously there is a need to use spectrum more efficiently in order to open extra bandwidth for other services. However, this is counterbalanced by a need to NOT use the spectrum more efficiently, in order to keep the current devices working. Until such a time as enough of the legacy devices are converted to work with digital technologies, turning off the old signals remains impractical.
1.22.2007 12:23pm
dew:
Marghlar: "J.F., the "commons" was originally publically-shared real property in England. Which was later subdivided. Go read Hardin's essay, which brought the term into modern use."

(a) It seems that Hardon was only using "commons" as just an example/allegory for "shared resource", so I think JF Thomas is probably correct in treating it so.
(b) "Commons" were simply lands shared "in common" by a group, not necessarily shared by the public. I understand (possibly incorrectly) some commons still in existence in England have interesting legal status, because the ownership and rights are still primarily controlled by fairly ancient unwritten local traditions.
(c) Some old English commons are still held "in common"; e.g. village greens. That is, it was not all subdivided.
(d) New England - obviously a bit different from England, but same idea - did have public commons in every town, and I know of none that were subdivided - some might have been, but I think those would be unusual exceptions. Boston Common, at ~50 acres, is probably the best known of those old "town commons" in the US; the town I live in still has 2 original town commons. I would have to check if I can graze animals in the commons in my town; I would not be especially surprised if I can. I expect New England mostly avoided the "tragedy of the commons" through local government control of the resource.

As for the original topic, what Fub said.
1.22.2007 1:05pm
marghlar:
If things really are as fub says, can anyone enlighten me as to the benefits of a licensing regime? It seems to serve no purpose except allowing the government to engage in ex ante content regulation. What is the serious argument against making the licenses freely alienable, as opposed to the current system of moderate alienability? (Keeping in mind that we have things like antitrust law to prevent extreme concentration of ownership in this area.)
1.22.2007 1:41pm
J. F. Thomas (mail):
J.F., the "commons" was originally publically-shared real property in England. Which was later subdivided.

The modern usage of the "tragedy of the commons" is a spectacularly bad one for those libertarians who want to look to the historical example that Hardin was using when he made the analogy about shared spaces. Because what happened in England with the enclosure acts was devastating to the peasants who previously farmed the commons. For the former poor peasant farmer, the cure was worse than the disease. It may be argued that overuse of common areas was causing agricultural problems in England but the enclosure acts of the 16th and 17th century which both deprived poor farmers of centuries old rights to graze on privately held land and converted previously unowned land to private hands had a devastating effect on the rural population of England. The number of smallholders dropped drastically and many were driven off the land completely while large landowners were able to charge higher rents and increase their holdings.
1.22.2007 3:21pm
J. F. Thomas (mail):
What is the serious argument against making the licenses freely alienable, as opposed to the current system of moderate alienability?

Try this on for size. The spectrum currently held by the licensees to broadcast television signals in New York are probably worth several billion dollars for each of the 9 available VHF channels. Consider how many entities in the entire world are capable of paying for that spectrum in just that one market. Now you may trust GE or Clear Channel over the Federal Government to decide the best use for that spectrum, but I sure as hell don't.

Let's consider a similar situation that is heavily regulated--telecommunications. Despite the government's best efforts, we are now approaching a situation where if they are not stopped AT&T will reemerge as a monopoly (or duopoly with Verizon) controlling the vast majority of the landlines and cell phone service in the country. Already we are down to four major cell phone companies and Sprint won't last much longer. Once Verizon or AT&T buys Qwest and Sprint sells off its internet backbone, the entire phone network will be owned by two companies. Only the government will be able to stop them from merging.
1.22.2007 3:32pm
marghlar:
JFT, when you write as if monopolization is the main concern, that makes me think that this is an antitrust issue, not something sui generis.
1.22.2007 4:18pm
Mary Katherine Day-Petrano (mail):
marghlar -- Good thoughts. The Middle District does not appear willing to pursue any criminal penalities. Maybe whit can explain why, because I can't. Apparently my disabilities are a bigger transgression than the other side's key witness perjury.
1.23.2007 2:53am
marghlar:
Mary,

I'm sorry to hear that -- if there is perjury going on, it's obviously shocking if the court won't deal with it appropriately. Are there any problems of proof in demonstrating the perjury?

Also, I just wanted to tell you how that I think it's really impressive that you can act as a courtroom advocate. It has to be a challenge conducting examinations given the different ways that you perceive a lot of human communication. On the one hand, I can see it being a real asset (you are less likely to be distracted by form, and more likely to perceive small differences in the substance of testimony that may be significant) but at the same time I can see it being frustrating, especially regarding such things as lying witnesses.

Good luck with the case!
1.23.2007 11:25am
gasman (mail):

Of all the arguments against privatization, this is the least coherent one. If you privatize, there are no commons. Privatization is a solution to the tragedy of the commons, not a cause of it.

David.
How does one privatize the radio spectrum. Unlike all other private things that can be owned, whether real objects or virtual (intellectual property, copyrights), the radio spectrum spills into and through the private space of all. Who will own the frequency that my bluetooth device runs upon. Will we owe a royalty to the future private owner. How will they enforce ownership; by beaming white noise into my home and body. Radio frequency emissions are pervasive and invasive. Privatization would be like privatizing water rights in Atlantis.

While I disagree with many of the policy decisions by the FCC, before we dismantle its core (and what should be sole) function we need a good idea of how a private model really will work.
1.23.2007 3:27pm