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Abstract:
The scarcity of wireless spectrum reflects a costly failure of regulation. In practice, large swaths of spectrum are vastly underused or used for low value activities, but the regulatory system prevents innovative users from gaining access to such spectrum through marketplace transactions. In calling for the propertyzing of swaths of spectrum as a replacement for the current command-and-control system, many scholars have wrongfully assumed the simplicity of how such a regime would work in practice. In short, many scholars suggest that spectrum property rights can easily borrow key principles from trespass law, reasoning that since property rights work well for land, they can work well for spectrum rights as well. But as we explain, spectrum is not the same as land, and a poorly designed property rights regime for spectrum might even be worse than the legacy model of spectrum regulation.

This Article addresses three central questions that confront the design and implementation of property rights in spectrum. First, it suggests how policymakers must develop a set of rights and remedies around spectrum property rights that reflect the fact that radio signals defy boundaries and can propagate in unpredictable ways. In particular, if policymakers simply created rights in spectrum and enforced them like rights in land (i.e., with injunctions for trespass), they would invite strategic behavior: spectrum speculators would buy licenses for the sole purpose of suing other licensees when their transmission systems created interference outside the permissible boundary (i.e., act as spectrum trolls). Second, it rejects the suggestion that policymakers establish a unitary property right for spectrum, arguing that policymakers should zone the spectrum by establishing different levels of protection against interference (i.e., an ability to transmit signals with more latitude) in different frequency bands. Finally, this Article discusses what institutional strategy will best facilitate the development of the property right and its enforcement, concluding that an administrative agency - be it a new one or a reformed FCC - is better positioned than a court to develop and enforce the rules governing the use of spectrum so as to facilitate technological progress and prevent parties with antiquated equipment from objecting to more efficient uses of spectrum.

spectrum policy, property rights, Coase, telecommunications regulation

Abstract:
In its rules for the auction of 700 MHz spectrum freed up as a result of the digital transition, the FCC has embraced the concept of a private/public partnership as an important step towards the development of a nationwide interoperable broadband communications network for public safety. For this effort to move forward successfully, however, policymakers must have realistic expectations about the time and effort it will take to implement it effectively. In particular, as the Article explains, there are notable challenges in developing a new policy direction that will transition public safety agencies from their current reliance on antiquated equipment that they own to one where they will become smart users of advanced information and communications technology provided by commercial vendors.

This Article highlights the critical challenges facing policymakers as they seek to facilitate the development of a nationwide interoperable broadband communications network for public safety. Notably, it sets forth the necessary technological changes in some detail, explaining the evolution of modern public safety communications systems and their attendant technological and operational limitations as well as the technological requirements, architecture, and possible constraints associated with a next generation network. It also highlights the strategies available to policymakers - the government as contractor model and the public safety spectrum licensee model - as means of spurring this transition. In so doing, it outlines the critical steps necessary to manage the transition to a new technological architecture, including the challenges of working within the current technological framework, building a sustainable funding base, and establishing clear requirements and standards for an next generation architecture. In short, the Article provides important guidance on the transition to an next generation network for public safety and also highlights critical governance, technological, and regulatory challenges that must be surmounted to make that transition a success.

public safety, spectrum policy, interoperability, homeland security

Abstract:
As described in Ronald Coase's seminal 1959 paper, property-like rights in electromagnetic spectrum and a secondary market for spectrum licenses will allocate spectrum to its highest and best uses, to the benefit of telecommunications consumers. However, defining rights to use spectrum is far more difficult than ordinarily suggested. More careful analysis is needed to determine what type of property regime will operate effectively to govern rights in spectrum. A number of questions must be answered for a transition to a property rights regime to be successful.

Cato, Dale Hatfield, Phil Weiser, property rights, electromagnetic spectrum, Ronald Coase, telecommunications, spectrum allocation, analysis

Abstract:
Our nation's 9-1-1 system's success to date belies the fact that its core premises will not continue to serve it effectively and it has come to a critical juncture. In particular, the balkanized nature of 9-1-1 operations that differ across jurisdictions and are supported by Byzantine funding mechanisms obscure a simple but profound development: our nation's emergency system is not keeping up with or taking advantage of technological change. Because the system continues to work and policymakers largely do not appreciate the system's technological limitations, decision makers not only fail to focus on this challenge but instead are all too willing to raid 9-1-1 funds to put them to other uses. Accordingly, our emergency communications networks are unable to accommodate what is increasingly viewed as basic functionality inherent in many of today's advanced technologies.

This Article sets forth a coherent vision concerning the opportunity to transition to a next generation 9-1-1 network. To be sure, the United States' 9-1-1 system is hardly a monolith and prescriptions for its evolution cannot be reduced to simple one size fits all solutions. In practice, the system is comprised of numerous jurisdictions (including over 6000 Public Safety Answering Points); myriad governance structures and controls which vary across jurisdictions; a ballooning number of service providers; and a diversity of funding amounts and models that differ across jurisdictional boundaries. The result, not surprisingly, is a fractured and complicated system where policy is highly contingent on parochial and often political perspectives.

To reform today's balkanized 9-1-1 landscape, we recommend that: (1) clear leadership and vision embrace the need to transition the 9-1-1 system to a next generation architecture; (2) more effective state oversight provide both the funding and logistical support necessary to make this happen; and (3) localities should remain responsible for providing access to 9-1-1, but that they must be supported from higher levels of government as well as industry to exercise that responsibility. In short, there is an important opportunity for thoughtful leadership and vigilant policy reform that will serve the goals of 9-1-1 emergency response far more effectively than the policies currently in place.

telecommunications regulation, public safety, 9-1-1