FCC in a Box

[Dave Farber <dave () farber net>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Tue, 09 Dec 2003 07:39:24 -0800
From: Dewayne Hendricks <dewayne () warpspeed com>

[Note:  This item comes from reader James Johnston.  DLH]

At 9:48 -0500 12/9/03, James H. Johnston wrote:
From: "James H. Johnston" <jimjohn () erols com>
To: "Dewayne Hendricks" <dewayne () dandin com>
Subject: FCC in a Box
Date: Tue, 9 Dec 2003 09:48:06 -0500

    Here's the piece that I did for Legal Times on Open Spectrum.

Jim Johnston

The Federal Communications Commission in a Box

James H. Johnston
Legal Times
12-08-2003


Michael Powell has suffered his share of slings and arrows in his time as 
chairman of the Federal Communications Commission, but now come the 
cruelest cuts of all, claims that he and his agency can be replaced by 
microchips. At least, this is one way of explaining what the Open Spectrum 
movement is all about. Actually, it wouldn't eliminate the FCC entirely, 
not right now, but it believes that advancements in radio technology have 
outpaced the regulatory scheme. It is a revolutionary idea with technical 
merit that is taken seriously by engineers, policy gurus, and some 
regulators. However, the telecommunications industry's addiction to 
regulation may make the economic and political obstacles to Open Spectrum 
greater than the technical ones.

The raison d'être for Powell's FCC - and its counterparts around the world 
- is to prevent radio transmitters, such as television, radio, and cell 
phones, from interfering with one another. This regulation, according to 
conventional wisdom, is the only thing that prevents those tall radio 
antennas from becoming Towers of Babel. Indeed, Congress passed the first 
Radio Act in 1912 in response to public outrage over reports that radio 
interference and false messages hampered rescue of the survivors from the 
Titanic.

Interference occurs when a radio receives signals from two or more 
transmitters at the same time and on the same frequency. One common 
manifestation is the static on an AM radio or the "snow" on a television 
set. To prevent interference, the FCC first allocates spectrum, for example 
declaring that certain frequencies can only be used for broadcast 
television, and then issues a license that permits a person to transmit on 
a specific frequency. It is a crime for anyone to operate a radio 
transmitter in violation of this regulatory scheme.

NEW WORLD ORDER

The Open Spectrum movement believes times have changed. It thinks that 
microchips, rather than the FCC, should oversee the airwaves. Thus, a box 
of electronics would take over the FCC's job of spectrum policeman.

Radio certainly has changed since Guglielmo Marconi invented it in 1894, 
when radio waves were thought to be carried through an "ether." What is 
more, the computer has come along to allow radios to do things that Marconi 
never imagined. Open Spectrum puts its faith in these technologies, many of 
which are already in use.

WiFi is one example. Built into a computer's microprocessor or added with a 
slide-in card, WiFi gives access to the Internet via high-speed wireless 
connections in the home and in public hot spots. WiFi is an intelligent 
two-way radio on microchips. Tens of millions of these devices are in 
operation - 16 million were sold last year alone - and yet they all share 
the same 83.5 MHz of spectrum allocated to them by the FCC. Compare this 
with the older technologies used by television. The FCC has allocated 402 
MHz to the medium, but only 1,714 stations are in operation.

Of course, WiFi's startling efficiency, compared with television, stems in 
part from the fact that it operates at a low power, not to exceed one watt, 
and its signals carry only a few hundred feet, whereas television 
transmitters may operate at a million watts of power and have a service 
radius measured in dozens of miles. Still, WiFi represents a more 
sophisticated technology than broadcast television and a legitimate success 
story for Open Spectrum.

Open Spectrum proponents point to a number of electronic tricks that permit 
the airwaves to be used more efficiently. The Ethernet protocol of 
listen-before-talk is one. WiFi transmitters don't talk if they hear 
another device transmitting. It takes children about four years to learn 
such good manners. It has taken radio 109 years. WiFi also uses "error 
correction." This means that if interference garbles a transmission, the 
receiver will ask that it be resent. Thus, the WiFi user never sees the 
"snow" of interference on her computer. (On the other hand, 
listen-before-talk and error correction can cause the computer to seem slow 
in a heavily used hot spot.)

"Dynamic frequency selection" is another trick. It allows devices to 
transmit on whichever frequency is available at the moment. Thus, the FCC 
doesn't need to micromanage the allocation of frequencies; 
computer-controlled transmitters can do that.

Even more smarts can be put into an Open Spectrum box. A device might use 
the global positioning system (GPS) to determine that it is in a rural 
area, where the airwaves are less congested. It could thus operate at 
higher power than a similar device would use in a city. The box might also 
have "automatic transmit power control" to adjust the transmitter's power 
in order to use no more than necessary to communicate with a distant 
receiver. People usually don't shout unless they must, but radio 
transmitters often do. Automatic controls on power reduce the potential for 
interference and permit more transmitters to operate in a given area.

Intelligence can be built into radio receivers too. They can be told to 
ignore low-power signals, thus allowing other devices to operate below a 
specified threshold. Radios can function like humans whose whispered 
conversations aren't heard by the hard of hearing. WiFi itself is an 
"underlay," meaning that there are other, higher-power uses of the same 
frequencies. What is more, by using different power levels and by altering 
other transmission properties, multiple devices can operate in close 
proximity on the same frequency without interfering.

For a dramatic illustration of what Open Spectrum means, attend a class at 
the nearest college or law school. In all likelihood, there will be a 
roomful of students with WiFi-equipped laptop computers that allow them 
wirelessly to surf the Internet, send and receive e-mail, communicate with 
classmates via instant messaging, and look up cases on Lexis or Westlaw 
while they sit in class. The students don't need the FCC to tell them which 
frequency to use or to issue licenses. All those functions are in a box of 
electronics in their computers.

Regulation has traditionally been justified with two related arguments. The 
first, a legal argument, is that spectrum is scarce. Because there is not 
enough to go around, so the courts have held, the government may decide 
which uses are the more important and allocate, or ration, and otherwise 
regulate radio. The second, more of a technical argument, is that overuse 
destroys the resource. In other words, the airwaves are not like a water 
well, which dries up if overused. Rather, overuse of radio means 
interference. It is like pouring poison into a well, preventing everyone 
from drinking the water.

Newer technologies, such as WiFi, aren't an antidote to poison; they don't 
repeal the laws of physics. But they do substantially alleviate the 
scarcity problem. They allow more people to use the same amount of spectrum 
than older technologies do. They also eliminate detailed FCC regulation.

DOUBLE REBUTTAL

Opponents of Open Spectrum advance two main arguments. First, they say, the 
electronic tricks do little good for high-power, one-way services like 
broadcasting. WiFi's success, they point out, stems in part from its short 
range. Another WiFi device located a few hundred feet away can operate on 
the same frequency without interference. Similar technologies, operating at 
low power on the same frequencies, successfully provide "last mile" 
wireless broadband services to homes and offices, delivering Internet 
access over distances of several miles. But television transmitters have 
ranges of 50 miles or more. They are intended to deliver signals to every 
user within range, and they do not engage in two-way conversations like 
Wi-Fi. Open Spectrum's opponents say that if its principles were applied to 
television, the high-power transmitters would overwhelm everyone else on 
their frequencies or would become Towers of Babel.

Second, opponents suggest, the better approach would be to let the FCC 
continue regulating the spectrum through licenses and to rely on the 
licensees to put these smart new technologies into the hands of consumers. 
This is essentially how cell phone service is offered today.

Of course, incumbent licensees don't want anything to infringe on their 
lucrative franchises. They oppose meddling in what they consider their 
spectrum, even for underlays such as WiFi. Thus, the technical questions 
surrounding Open Spectrum pale in comparison with the economic and 
political challenges to it. Regulation is the OxyContin of 
telecommunications. Since it was first prescribed in 1912, the patients 
have become addicted.

Media and telephone companies, for example, get alarmed by the slightest 
hint that the entry barrier of FCC regulation might be removed. Without 
regulation, any Tom, Dick, Jane, or Harry could start a television station 
or cell phone company.

Wall Street has a big stake in regulation. What would happen to all the 
money invested in the broadcast networks - NBC, CBS, ABC, and Fox - and in 
the cellular telephone companies if they faced free competition? The New 
America Foundation, a Washington think tank that considers such things, 
puts a theoretical value of $771 billion on spectrum rights based on the 
way they are now regulated. If broadly applied, Open Spectrum would require 
a whole new calculus for financing the telecommunications industry.

The public has a stake too. It wants products and services that are 
reliable, easy to use, and within the consumer's budget. Who would protect 
the public if the FCC weren't around? Economic theory says that free 
competition would, but the telecommunications industry has never 
experienced free competition. The transition might be painful for all 
concerned.

Nonetheless, Open Spectrum is the wave of the future in telecommunications. 
It may not completely do away with the FCC, but in the least it will mean 
more services on the WiFi model. WiFi gave the public a taste of spectrum 
freedom. The FCC doesn't require WiFi users to be licensed, nor does it 
decide which frequencies in the allocated spectrum an individual will use. 
Imagine if the FCC chose to regulate WiFi as tightly as it does television. 
WiFi users would need licenses. Each time they moved from one classroom to 
the next or from one hot spot to another, they would need FCC approval in 
advance.

Even Michael Powell likes Open Spectrum - although he is not yet a 
disciple. In a Nov. 13 ruling, the FCC gave WiFi an additional 255 MHz of 
spectrum. It also started an inquiry into a more flexible approach to 
spectrum management based on actual rather than theoretical frequency 
congestion. Still, the FCC seems to be seeking middle ground in the debate 
over Open Spectrum. So far, it has applied Open Spectrum principles only to 
the higher frequencies that are less amenable to profitable commercial uses.

Eventually, though, the FCC could find itself in a different kind of box. 
Open Spectrum could do for telecommunications what the personal computer 
did for computing. It could empower the individual, giving him the right to 
use the ether however he wants. In that case, Powell and his successors 
will face a dilemma: Will they side with the establishment, or will they 
join the revolution?

D.C. lawyer James H. Johnston is a frequent contributor to Legal Times. He 
may be contacted atjimjohn () erols com.




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