Just got an email notification of a new law review article that looks to be quite good. Here's the abstract:
SUPERCOMMONS:You can find lots of similarly interesting papers from last week's Telecommunications Policy Research Conference here.
Toward a Unified Theory of Wireless Communication
(To be presented at the 31st TPRC Research Conference on
Communication, Information and Internet Policy, September 2003)
Since 1927, the federal government has controlled allocation and assignment of the electromagnetic spectrum, considered the lifeblood of wireless communications. A longstanding critique advocating exclusive property rights in spectrum has recently been joined by an argument for "spectrum commons." Commons proponents claim that emerging technologies call into question the basic rationale for exclusive control of wireless frequencies.
Yet both sides fail to come to grips with an essential point: there is no such thing as spectrum. It is an intellectual construct whose utility is rapidly decreasing as new avenues for communication develop. Because spectrum is not a concrete thing, oft-used analogies to land or to natural resources break down. Proposals based on spectrum as a physical asset denominated by frequencies artificially constrain transmission mechanisms, producing inefficient outcomes. A better approach is to draw analogies to legal domains that do not presuppose ownership.
The proper focus of wireless regulation is not the spectrum, but the devices that use it for communication. The property and commons regimes are just different configurations of usage rights associated with wireless equipment. Rethinking the spectrum debate in these terms allows a better assessment of the two proposals. It also shows that both are incomplete.
There is a vast new communications space emerging, whose full extent is unknown. The way to exploit this “supercommons” is to begin with a fundamental privilege for anyone to transmit anywhere, any time, for any purpose, in any way. Tort and intellectual property principles can effectively manage interference, while efficiently resolving disputes.