Stuart Benjamin on private vs. government control of spectrum

[Declan McCullagh <declan () well com>]

---

Date: Wed, 11 Feb 2004 09:32:37 -0500
From: "Stuart Benjamin" <benjamin () law duke edu>
To: <declan.mccullagh () cnet com>
Subject: Law Review Article on Private vs Government Control of the
        Spectrum

I have followed your work, and your debates with Larry Lessig (among 
others), over the years.

In any event, I have written a law review article that might interest 
you.  It's called "Spectrum Abundance and the Choice Between Private and 
Public Control" and it came out in the latest New York University Law Review.

Here is the abstract:

Prominent commentators recently have proposed that the government allocate 
significant portions of the radio spectrum for use as a wireless 
commons.  The problem for commons proposals is that truly open access leads 
to interference, which renders a commons unattractive.  Those advocating a 
commons assert, however, that a network comprising devices that operate at 
low power and repeat each other’s messages can eliminate the interference 
problem.  They contend that this possibility renders a spectrum commons 
more efficient than privately owned spectrum, and in fact that private 
owners would not create these “abundant networks” in the first place.  In 
this Article, Professor Benjamin argues that these assertions are not well 
founded, and that efficiency considerations favor private ownership of 
spectrum.

Those advocating a commons do not propose a network in which anyone can 
transmit as she pleases.  The abundant networks they envision involve 
significant control over the devices that will be allowed to transmit.  On 
the question whether private entities will create these abundant networks, 
commons advocates emphasize the transaction costs of aggregating spectrum, 
but those costs can be avoided via allotment of spectrum in large 
swaths.  The comparative question of the efficiency of private versus 
public control, meanwhile, entails an evaluation of the implications of the 
profit motive (enhanced ability and desire to devise the best networks, but 
also the desire to attain monopoly power) versus properties of government 
action (the avoidance of private monopoly, but also a cumbersome process 
that can be subject to rent-seeking).  Professor Benjamin contends that, on 
balance, these considerations favor private control.  An additional factor 
makes the decision clearer:  Abundant networks might not develop as 
planned, and so the flexibility entailed by private ownership—as well as 
the shifting of the risk of failure from taxpayers to shareholders—makes 
private ownership the better option.

The unattractiveness of a commons for abundant networks casts serious doubt 
on the desirability of spectrum commons more generally.  If private 
ownership is a more efficient means of creating abundant networks, then the 
same is almost certainly true for networks that run the risk of 
interference.  Most uses of spectrum are subject to interference, so the 
failure of the commons advocates’ arguments undermines the appeal of a 
commons for most potential uses of spectrum.

The URL for the article is 
http://www.nyu.edu/pages/lawreview/78/6/benjamin..html.

I would be happy to send you a hard copy, as well.

Anyway, I hope you find it interesting.  Please feel free to post it to 
politechbot, or otherwise circulate it, if you think that's appropriate.


Stuart M. Benjamin
Professor of Law
Duke Law School
Box 90360
Science Drive and Towerview Road
Durham, NC 27708-0360

benjamin () law duke edu

(919) 613-7275 (phone)
(919) 613-7231 (fax)
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