Got some spectrum in Jersey to sell you
Many people made resolutions for the new millennium. I made some resolutions for the new year. One of them is to stop patronizing misconceptions just to work and play nicely with others. So here goes: THIS IS NOT THE NEW MILLENNIUM! It’s next year. If I give you 100 pennies in change for a dollar, I’m not going to count them out into your hand starting with “0” and ending with “99.” Many may disagree with me now, but come next June there will be plenty of champagne distributors, travel agents and hotel reservations managers planning New Year’s Eve bookings, who will suddenly be in my corner. It’s OK; I love reruns.
The second misconception on my list, one I’m a little more passionate about, is treating spectrum like a commodity. It ain’t, and the FCC and NTIA don’t have any. Like the sound barrier in the 1940s, they’ll tell you its a farm in the sky you can buy, but it’s just a theoretical convenience, like an isotropic antenna.
At an industry conference in Washington last Fall, many of us in the audience bristled when one of the commission’s legal advisors (never mind which one; it’s a frequent offense) was discussing spectrum management policy. He punctuated his point with “… after all, we own the spectrum.” What really irritates me is not just that the commissioners (historically non-technical business and political types) rely on these people for formulating their opinions, but that these guys are lawyers-they ought to know better.
My prosecutorial argument can be found in a place near and dear to the Chairman Kennard’s heart right now: the Second Circuit decision in December in FCC vs. NextWave. Yes, it reaffirmed that the FCC and the federal Appeals Courts have the final say on the disposition of licenses (like grabbing them back from auction defaulters). But the judges repeatedly took pains to cite legal precedent about what spectrum is:
“The radio (or electromagnetic) spectrum belongs to no one. It is not property that the federal government can buy or sell. It is no more government-owned than is the air in which Americans fly their planes or the territorial waters in which they sail their boats.” And, later: “A license does not convey a property right; it merely permits the licensee to use the portion of the spectrum covered by the license in accordance with its terms.” And, finally: “The FCC had not sold NextWave something that the FCC had owned ….”
The FCC’s mandate, since 1934, has been to be an electromagnetic traffic cop, not a federal land office. A license gives a right to set a tuning knob on a base station to a certain position. It’s not a deed to a farm in the sky.