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Roasting the Pig to Burn the House: A Modest Proposal:

I generally don't post my scholarship on this blog, but this essay is a bit different — short (12 pages) and (I hope) modestly amusing while trying to make a serious point. So, with apologies for the shameless self-promotion, here is an essay entitled Roasting the Pig to Burn the House: A Modest Proposal, and here is the abstract:

This essay addresses the question whether one should support regulatory proposals that one believes are, standing alone, bad public policy in the hope that they will do such harm that they will ultimately produce (likely unintended) good results. For instance, one may regard a set of proposed regulations as foolish and likely to hobble the industry regulated, but perhaps desirable if one believes that we would be better off without that industry. I argue that television broadcasting is such an industry, and thus that we should support new regulations that will make broadcasting unprofitable, to hasten its demise. But it cannot be just any costly regulation: if a regulation would tend to entrench broadcasting's place on the airwaves, then the regulation will not help to free up the spectrum and should be avoided. Ideal regulations for this purpose are probably those that are pure deadweight loss -- regulations that cost broadcasters significant amounts of money but have no impact on their behavior.

Am I serious in writing all this? Not entirely, but mostly. I do think that society would benefit if the wireless frequencies currently devoted to broadcast could be used for other services, and the first-best ways of achieving that goal may not be realistic. I am proposing a second-best --- a fairly cynical second-best, but a second-best all the same. I would prefer not to go down this path, but if that is the only way to hasten the shriveling of television broadcasting's spectrum usage, then it is probably a path worth taking.

paul lukasiak (mail):
does your proposal include free basic cable?

In general, however, I think that the thesis is pretty lame. It makes far more sense to tax something you want to get rid of out of existence than to create additional regulations (rather than try to regulate irresponsible risk arbitrage practices, simply make them unprofitable by imposing taxes/fees that are graduated based on how long an investment is held an/or how "derivative" it is), because regulatory bureaucracies are self-perpetuating.
10.14.2008 10:38am
wfjag:
How would you feel about similar regulations for the Law School industry? Couldn't the classroom and library space and computer resources be better devoted to teaching STEM (Science, Technology, Engineering, Math) subjects? Wouldn't the financial aid be better used if given to students pursuing STEM majors?
10.14.2008 10:52am
Gabriel McCall (mail):
The socialized bandwidth policy of this country is entirely a creature of statute. The argument that frequency space is limited doesn't hold any water with me; oil wells and gold mines are limited too, but that doesn't mean that the only way to produce gold or oil is to nationalize all of the resource and auction off leases.

Before Congress got involved, a perfectly usable system of homesteaded private property rights in frequency was being evolved in the courts, in exactly the same way that private property rights in water, schools of fish, and other interesting resources evolve in the courts. The creation of the Federal Radio Commission was both wholly unnecessary and wholly unconstitutional.

So, with all that said, I think that the specific case of broadcast television is so artificial as to make the question of "the proper" way to address it meaningless. There's no principled basis for the law in its current form; if you don't like the way the laws are, change them.

However, looking at the broader principle of whether it's appropriate to strangle undesirable activity by excessive regulation: absolutely not. That would be the very definition of economic planning and market distortion. If you're going to do that, do it whole hog and honestly, and ban it altogether- but by what rights or arrogange do you claim to know better than the supplier of a service AND the customers of that service whether that service should be provided at all? Certainly, if the only reason the industry exists is some other market distortion (such as the fuel ethanol industry), remove the distortion and let the industry collapse... but if the industry survives without governmental propping-up, it's nobody else's business.

Saying that we should regulate broadcast TV out of existence because the bandwidth could be better used elsewhere is largely analogous to suggesting that private homes in Kelo should be condemned because the town can get more tax revenue from a mall. Just because you think you can use a resource better than someone else doesn't entitle you to take it. Or, if it does, have enough pride to take it in the light of day.
10.14.2008 11:14am
Oren:
Gabriel, I suggest you take a course in radio engineering -- if every household were allowed to do as they please the spectrum would be entirely useless.

At the absolute minimum, some spectrum needs to be allocated exclusively to police/emergency services. The last thing we need is for firefighters to be battling interference while attempting to battle fires.
10.14.2008 11:34am
TomHynes (mail):
Channeling Coase, I propose an alternate law "Broadcasters have property rights in their allocated spectrum and can sell or lease it for any purpose".

Wouldn't this also get rid of the broadcast industry yet have their full support?
10.14.2008 11:47am
NI:
On the broader question, the strategy you propose has largely been adopted, with varying degrees of success, by death penalty opponents and abortion opponents. They know they can't ban either one, so their second choice is to try to regulate it to death. In the case of the former we now have a 20 year appeals process that has largely made the death penalty a joke; a murderer is almost as likely to get into Harvard law school as to ever see the inside of an execution chamber. In the case of the latter, anti-abortion states have passed waiting periods, licensing restrictions and other laws specifically designed to make actually getting an abortion more difficult. And in both cases the strategy seems to be working.
10.14.2008 12:15pm
catullus:
Television is s cultural cancer, no matter whether it's carried via the wireless spectrum or cable. Anything that can be done to abolish the medium is laudable.
10.14.2008 12:37pm
LarryA (mail) (www):
From your abstract I (cynically) see two huge problems with your approach.

First, Congress is heavily invested in broadcast TV. At the moment the only programming more ubiquitous than campaign ads are the "OMG you may need a converter box in only four months" PSAs. The FCC, the broadcasters themselves, the advertisers (has everyone forgotten them), and the "everybody has a right to TV" coalition have immense clout. Congress will be forced to "fix" whatever damage your initiative causes, probably in the least efficient manner.

The second problem is mission creep. Congress and the FCC are already making noises about expanding broadcast regulations to cover cable and satellite. Whatever power you give government to harm one industry will be used to harm others.
Does your proposal include free basic cable?
A better approach to freeing up the spectrum is to convert "free" (advertiser-supported) networks to cable. As the broadcasters are still in the process of converting to HD, that might have to wait a while. But it could be sold as a next step, particularly as you might be able to work with broadcasters and cable, instead of against them. It's a carrot v. stick thing.
Television is s cultural cancer, no matter whether it's carried via the wireless spectrum or cable.
Shakespeare's Globe Theater got much the same review.
10.14.2008 12:53pm
Oren:
catullus, surely you can't claim government power to abolish private cable systems delivering content (with the consent, nay, blessing of the owners) to their private residence. Actually, perhaps you can but I don't think many will take you seriously.

TomHynes, I would compare spectrum rights more to leasehold than outright ownership (although I would suggest 20-25 year terms). The broadcaster should absolutely have the right to sublet, divide, transfer or otherwise dispose of their leasehold in whatever way they see fit (so long as they don't 'trespass' on the spectrum of others).

That said, I echo your sentiment, if not your particulars.
10.14.2008 12:55pm
Oren:
At any rate, aren't we already seeing a market-driven increase in efficiency when traditional (analog) TV spectrum is/was auctioned off at whatever price the market will bear. That's prime spectrum too -- it would support massive wireless bandwidth etc . . .
10.14.2008 12:57pm
Jess A.:

I suggest you take a course in radio engineering


Oren, that is so 1940s of you. Although the entrenched carriers are fighting tooth and nail to prevent it, a new regime is coming. Modern radio chips allow ultrawideband, spread-spectrum, and various multiplexing schemes. Regulation of the electromagnetic spectrum (and its inherent stimulus to rent-seeking) is not required with these techniques. The obsolescence of carrier wave broadcast is a regulatory question, not a technological one.

The American consumer would have been better served had the FCC never existed, and if it ceased to exist tomorrow, within 6 months both rural and urban consumers would have a wider range of media and communication options for less cost.
10.14.2008 1:33pm
Gabriel McCall (mail):
Gabriel, I suggest you take a course in radio engineering

This is rude and unworthy. You don't have nearly enough information to form a valid opinion about my knowledge in this area.

if every household were allowed to do as they please the spectrum would be entirely useless.

One of the classic statist fallacies is to conflate "the federal government should not dictate this activity" with "this activity should be entirely uncontrolled." I explicitly advocated homesteadable private property rights in spectrum activity, which is not at all the same thing as "allowing everyone to do as they please."

It's also worth noting that Part 15 unlicensed wireless devices are apparently not "entirely useless".

At the absolute minimum, some spectrum needs to be allocated exclusively to police/emergency services. The last thing we need is for firefighters to be battling interference while attempting to battle fires.

Why is this a federal issue? Where's the constitutional authority? Why can't it be resolved at the state or municipal level? Why does if have to be uniform nationwide? Even if it does have to be uniform nationwide, couldn't voluntary standards bodies like the IEEE, Wi-Fi Alliance, etc. solve the same problems?
10.14.2008 2:39pm
Fub:
I do think that society would benefit if the wireless frequencies currently devoted to broadcast could be used for other services, and the first-best ways of achieving that goal may not be realistic.
Sheesh! The allocated TV broadcast spectrum may be Newton Minow's wasteland, but it's really only half vast.

Current VHF and UHF TV spectrum allocations:

55-72 and 77-88 MHz TV channels 2 through 6 (33 MHz total bandwidth)
175-216 MHz television channels 7 - 13 (41 MHz total bandwidth)

470--512 MHz: TV channels 14--20 (42 MHz total bandwidth)
512--698 MHz: TV channels 21--51 (186 MHz total bandwidth)
698--806 MHz: TV channels 52--69 (108 MHz total bandwidth)

Total VHF+UHF bandwidth: 410 MHz.

This doesn't count the band around ~960MHz allocated for point-to-point STL links and such that TV and radio broadcasters use, but that's not broadast per se, and other services share that band.

That's 410 MHz out of ~3 GHz TV broadcast bandwidth in VHF and UHF bands total.

So, if all of that 410 MHz out of the 0-3GHz (from DC through UHF band) were suddenly made available to other services, it would increase their available bandwidth by about 410/2590 or ~16%.

Bad regs seem like an expensive price to pay for such a small maximum possible benefit.

Any errors above are mine of course, but I think the figures above are substantially correct. See Wikipedia for sources.
10.14.2008 3:12pm
some sense:
The Volokh Conspiracy has sunk to an all-time low permitting this sort of drivel to be published. Some jerk who knows what is best for all of us has decided he has the right to make us better peoiple (by not letting us watch TV) by any means necessary.
Catullus: Have you heard anything about the first amendment? Or are you not able to read?
10.14.2008 3:56pm
wfjag:

The Volokh Conspiracy has sunk to an all-time low permitting this sort of drivel to be published. Some jerk who knows what is best for all of us has decided he has the right to make us better peoiple (sic) . . .

And, he's not even running for Congress or President!
10.14.2008 5:49pm
Oren:
<blockquote>
This is rude and unworthy. You don't have nearly enough information to form a valid opinion about my knowledge in this area.
</blockquote>
With all due respect, if you make a post that evinces a clear misunderstanding of the fundamental laws of physics and the actual application of radio technology (both of which happen to be my areas of expertise) that ought to be enough information to suggest that you make some further inquiries into the matter (note that no insult was intended — if I thought you were stupid, I wouldn't suggest that you attempt to learn something new).

Perhaps some review is in order. Shannon's Law provides an absolute (in the sense of code-independent) upper limit on the rate of useful information transfer that can be accomplished over a link with a given bandwidth and signal-to-noise ratio (SNR). In theory, then, you could always increase the rate of data transfer by pumping more power into your transmitter, thus increasing your SNR. The problem, however, is that my signal is someone else's noise and vice versa. Consider the following situation (suppose A and C are cell towers from different companies with D and B as their respective customers):
<blockquote>
A {-1-} B {——-10——} C {-1-} D
</blockquote>
Suppose A and C, likewise B and D, want to establish links. A and C are chatting over their link when B and D come on. If they are using the same frequency, then D will observe a SNR of 1:100 (neglecting A's contribution to the noise). Thus, D will not be able to effectively use this link unless B increases his power considerably. Of course, if B does that, then A will observe a large drop in his SNR, causing him to ask C to crank up his power.

At the end of the day, everyone is worse off because as the average power goes up, the SNR goes down. Perversely, however, every individual has the incentive to increase his own power levels. Given the opportunity to steal more bandwidth (that is, to transmit on a wider range of frequencies), the individual will likewise follow the incentive to spread his signal as widely as possible to the detriment of everyone around him. It's such a perfect archetype that, had it is been invented in the 20th century, the tragedy of the commons would have been named the tragedy of the airwaves.

Of course, Gabriel, you are correct that unlicensed parts of the spectrum are quite useful — 802.11 is a wonderful technology, cordless phones, RC cars and all that jazz. Those things all have one thing in common, though, the receivers and transmitters are closer in physical proximity to each other than to other competing transmitters — they do not spatially arrange themselves in the manner that I diagrammed above.

There is a very compelling interest in having large parts of the spectrum left open for such uses. On the other hand, I like my cell phone and, absent "enclosure" of the airwaves, it is just physically impossible for cell phone service to be reliably provided.
10.14.2008 9:43pm
Oren:

This is rude and unworthy. You don't have nearly enough information to form a valid opinion about my knowledge in this area.

With all due respect, if you make a post that evinces a clear misunderstanding of the fundamental laws of physics and the actual application of radio technology (both of which happen to be my areas of expertise) that ought to be enough information to suggest that you make some further inquiries into the matter (note that no insult was intended — if I thought you were stupid, I wouldn't suggest that you attempt to learn something new).

Perhaps some review is in order. Shannon's Law provides an absolute (in the sense of code-independent) upper limit on the rate of useful information transfer that can be accomplished over a link with a given bandwidth and signal-to-noise ratio (SNR). In theory, then, you could always increase the rate of data transfer by pumping more power into your transmitter, thus increasing your SNR. The problem, however, is that my signal is someone else's noise and vice versa. Consider the following situation (suppose A and C are cell towers from different companies with D and B as their respective customers):

A {-1-} B {——-10——} C {-1-} D

Suppose A and C, likewise B and D, want to establish links. A and C are chatting over their link when B and D come on. If they are using the same frequency, then D will observe a SNR of 1:100 (neglecting A's contribution to the noise). Thus, D will not be able to effectively use this link unless B increases his power considerably. Of course, if B does that, then A will observe a large drop in his SNR, causing him to ask C to crank up his power.

At the end of the day, everyone is worse off because as the average power goes up, the SNR goes down. Perversely, however, every individual has the incentive to increase his own power levels. Given the opportunity to steal more bandwidth (that is, to transmit on a wider range of frequencies), the individual will likewise follow the incentive to spread his signal as widely as possible to the detriment of everyone around him. It's such a perfect archetype that, had it is been invented in the 20th century, the tragedy of the commons would have been named the tragedy of the airwaves.

Of course, Gabriel, you are correct that unlicensed parts of the spectrum are quite useful — 802.11 is a wonderful technology, cordless phones, RC cars and all that jazz. Those things all have one thing in common, though, the receivers and transmitters are closer in physical proximity to each other than to other competing transmitters — they do not spatially arrange themselves in the manner that I diagrammed above.

There is a very compelling interest in having large parts of the spectrum left open for such uses. On the other hand, I like my cell phone and, absent "enclosure" of the airwaves, it is just physically impossible for cell phone service to be reliably provided.
10.14.2008 9:59pm
Oren:
My apologies for the double post, but sometimes if you put in a bad "tags" (I tried to use angle brackets for my diagram arrows), you lose all tags.
10.14.2008 9:59pm
Fub:
Oren wrote at 10.14.2008 8:59pm:
At the end of the day, everyone is worse off because as the average power goes up, the SNR goes down. Perversely, however, every individual has the incentive to increase his own power levels.
...

Of course, Gabriel, you are correct that unlicensed parts of the spectrum are quite useful — 802.11 is a wonderful technology, cordless phones, RC cars and all that jazz. Those things all have one thing in common, though, the receivers and transmitters are closer in physical proximity to each other than to other competing transmitters — they do not spatially arrange themselves in the manner that I diagrammed above.
Two things in common -- the regs also specify ERP maxima. Ultimately, that limitation is what prevents the "tragedy of the commons".

Spread spectrum has very nice noise rejection characteristics generally, but it ain't invulnerable.
10.14.2008 10:22pm
Oren:
Fub, you are correct. They are used at close range because emissions regulation makes it impossible to use them at long range.

This whole thing got me thinking about a larger problem in the context of regulation of technological gadgetry. I have no problem with Gabriels libertarian impulses (I share them) but I am forced by the technological (or in the case of Shannon's law, mathematical!) constraints to admit that regulation is required to prevent a particularly dire market failure.

Now, not knowing anything about radio transmission, I would be quite skeptical if someone told me that certain constraints require government regulation -- perhaps they are correct or perhaps they are just saying that to justify rent-seeking, etc . . . What is lacking is a credible way of presenting objective scientific/technological information that is convincingly bias free. I know that I personally would actually prefer freer airwaves than are actually possible -- how can I convince others of that.

That's enough for this idle offtopic ranting . . .
10.14.2008 10:35pm
Jess A.:
Oren, since you have some expertise in this area, what do you make of the wireless microphone mess described by Harold Feld?

To summarize, broadcasters and wireless microphone manufacturers made the FCC conduct a "field test" in which they hoped to prove that new sensing devices pose a serious threat to existing legal spectrum users. What happened instead was the exercise showed that unlicensed high-power, no-sensing wireless microphones are radiating like crazy every day, with few ill effects.
10.14.2008 10:57pm
Gabriel McCall (mail):
Oren, I'm very familiar with the physical characteristics of radio. I should be; I make my living in this field. Obviously, two communications cannot usefully happen on the same frequency in the same location at the same instant in time. But you have completely failed to address my point that governmental fiat is not the only alternative to complete chaos.

When the competing owners of cell towers A and C realize they're in the untenable situation you describe, there are any number of ways they might handle the situation without appeal to an FCC. Perhaps they'll negotiate for one of them to move to a different frequency. Perhaps they'll team to develop a protocol- and these protocols already exist for some wireless applications- which will allow them to interleave communications so as to share the same spectrum without interference. Perhaps the owner of tower A, built first, will go to the civil courts with a claim to exclude tower C's owner from interfering with A's pre-existing service to their customers.

Perhaps they'll find some other solution. But find a solution they will, because if they didn't then they'd both go out of business. This is called "spontaneous order." Cisco likes selling wireless routers, and Intel likes selling notebooks, and Broadcom likes selling Bluetooth chips. You surely don't imagine that those guys would be unable to figure out how to get wireless devices talking in a friendly manner without interfering with each other to the point of uselessness, if there were no ERP cap on Part 15 devices?
10.15.2008 12:00am
Fub:
Gabriel McCall wrote at 10.14.2008 11:00pm:
When the competing owners of cell towers A and C realize they're in the untenable situation you describe, there are any number of ways they might handle the situation without appeal to an FCC. ... [point understood and elided for brevity]

Perhaps they'll find some other solution. But find a solution they will, because if they didn't then they'd both go out of business. This is called "spontaneous order." ...
I can't speak for Oren, but I expect he understands your point and tends to agree that libertarian solutions are better, as I do.

On the particular matter of interfering point-to-point communications (related but not identical to cell phone issues you describe), the FCC regs do have some relatively libertarian solutions. I think such regulatory approaches should be encouraged by both licensees and the general voting public.

For STL point-to-point allocations in the band around 1 GHz, which most broadcasters use, the general approach (without quoting regs specifically) is this: Every STL license applicant notifies all licensees within a certain radius, stating his intent, and notifies the local frequency coordinating committee.

These are standard form letters specifying power, location, direction, etc. Broadcasters get them all the time. Existing licensees have a specified time period in which to object, contact the prospective licensee for tests, cooperation, working out interference bugs, etc.

The license is only granted after that period has expired with no objections, or the prospective licensee and existing licensees have signed off on interference tests. The frequency coordinating committee will make a decision if necessary, but it seldom is necessary.

Broadcasters tend to be very cooperative about working out any interference bugs, as well as very sensible about choices of STL link frequencies, locations and directions, so very few actual disputes occur. One reason for this cooperation is that nobody wants to be a jerk, because once the community decides you are a jerk you are not going to have an easy time of it on your next STL installation.
10.15.2008 2:21am
Oren:

Perhaps the owner of tower A, built first, will go to the civil courts with a claim to exclude tower C's owner from interfering with A's pre-existing service to their customers.

So really it's just a variant of our current system except that instead of auctioning off the spectrum, it's a first-come-first-serve. Everyone would rush to build as many towers (broadcasting at the highest intensity they can across the largest spread of frequency they can) in order to claim the largest geographic area for their "pre-existing service".

What's worse, they would have an incentive to the use the spectrum in the most wasteful way possible, since in your scheme that magnifies their claims. If any interference with a pre-existing radio communication service is tortious then A will just set up the most fragile spectrum-hogging service possible and sue C out of business (thus cementing his monopoly on the cell phone business in the area).

Like I said before, open-to-all spectrum is undoubtedly a public good. Wifi, bluetooth and their ilk are fantastic technologies and I probably agree that more spectrum should be left unlicensed. Still, you simply cannot build a reliable universal cellular phone network comparable without central coordination. Spontaneous order is a short-range phenomenon (well, technically stable spontaneous order -- the long correlation length stuff happens but it quickly decays) and cannot be used as the organizing principle for technologies that need to work at long range.
10.15.2008 11:16am
Oren:

You surely don't imagine that those guys would be unable to figure out how to get wireless devices talking in a friendly manner without interfering with each other to the point of uselessness, if there were no ERP cap on Part 15 devices?

Local-area wireless devices were never the problem. It's the long-range universal (not point-to-point!) services like cell-phones and police radios that require more coordination because in those cases, a particular transmitter is likely to be further from the intended receiver than from other receivers.

One of the other reasons that local-area wireless such as wifi and bluetooth are easy is that they use only a small fraction of the total available capacity. Pretty basic studies on the flow of traffic show that even with no rules, everyone can go pretty fast so long as total demand is less than half capacity. One you start increasing demand past that level, however, you get a very rapid slowdown.
10.15.2008 6:42pm
Bill McGonigle (www):
I'll preface this with saying that I'm not a domain expert, but still it seems unlikely to me that engineers couldn't come up with a radio protocol that would involve detection, frequency hopping, actual EIRP requirement detection, perhaps some sort of hidden node discovery through shared infrastructure, and coordinated respect for emergency work that would enable more efficient spectrum usage than currently exists.

At least a large part of my motivation is that the spectrum supposedly belongs to The People. But most of The People can't use anything by the most crap parts of it. The good parts are all gone to The Corporations. Even when the good parts are unused by The Corporations, The People still can't use the good parts, because they're reserved for The Corporations, just in case they want to, maybe, someday, use them. Hence my suckage of Internet connection at home. Clearly the system is antiquated.

However, I'll readily concede, it's certainly plausible to me that we don't have the technology to do this right yet. So, like any good engineering project, let's start with requirements for what a workable system looks like (rhetorically, not here), figure out what parts aren't there yet, and then build them. Then the government can coordinate deployment and compliance criteria but not have to be in the business of micromanaging the spectrum, just adherence to standards.

As to the land grab problem, it's not free to continuously run a transmitter, and while a corporation could probably afford to waste power forever, if the above idea of dynamic power requirement discovery were implemented, it would be easy enough to measure how used a particular service was. In fact, popularity might not be a bad way to dynamically allocate bandwidth.
10.15.2008 11:04pm
Gabriel McCall (mail):
So really it's just a variant of our current system except that instead of auctioning off the spectrum, it's a first-come-first-serve. Everyone would rush to build as many towers (broadcasting at the highest intensity they can across the largest spread of frequency they can) in order to claim the largest geographic area for their "pre-existing service".


If a territory has been explored and secured but kept artificially closed to settlement, you do indeed get land rush problems when you open the territory: witness the Oklahoma Sooners. I don't see how that phenomenon is relevant to this conversation, though.

In libertopia, homesteads in a new territory are developed by those who take the risks and expenses of exploring that territory. In a world where the FCC had never existed, spectrum ownership claims would have evolved gradually as the original radio pioneers developed new technologies, new applications, and new markets for those products. No land rush problem.

On the other hand, if we imagine that the FCC were to wink out of existence tomorrow, we'd have to start with today's usage patterns and broadcaster culture as the starting point for any evolving property rights; the territory is already settled, and since there's no possible way to determine who would have settled it in the natural course of events, current use is the next best option.

The land rush scenario you describe would only come into play in an alternate reality where the government has forbidden all radio activity until today, but somehow a mature radio technology and extensive demand for radio applications has come into existence despite that ban. In that precise scenario, I'd agree with you that first come, first serve is not the proper way to open the territory.


Spontaneous order is a short-range phenomenon (well, technically stable spontaneous order -- the long correlation length stuff happens but it quickly decays) and cannot be used as the organizing principle for technologies that need to work at long range.

Perhaps I'm misunderstanding your argument, but the fact that we're having this conversation over the internet disproves the point you seem to be making. The world-wide web is an exact example of a spontaneously orderly, stable, long-range communications medium.
10.16.2008 1:23pm

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