Wireless Localism: Beyond the Shroud of Objectivity in Federal Spectrum Administration
50 Pages Posted: 2 Apr 2013 Last revised: 30 Jan 2014
Date Written: March 31, 2013
Recent innovations in mobile wireless technology have instigated a debate between two camps of legal scholars about how policymakers should structure federal administration of the electromagnetic spectrum. The first argues that the Federal Communications Commission should define spectrum use rights more clearly and give spectrum licensees near fee-simple property rights in frequencies that they can use and sell in secondary markets as they wish. The second camp argues that, rather than award exclusive licenses to the highest bidder, the FCC ought to open much if not most of the spectrum to unlicensed use by smartphones and tablets equipped with the newest spectrum administration technology.
This Article shows that, first, both of these camps comprise a new orthodoxy that eschews conventions in public lawmaking in federal spectrum administration for an approach that is sealed away from direct public scrutiny. This emergent approach assumes that the market for emergent smart spectrum sharing technologies can more objectively realize the public interest than public participation in the policymaking processes.
Second, this Article challenges the new orthodoxy by arguing that local public participation in federal spectrum administration in particular can align the new technologies with the diverse priorities of each community in ways that neither the technologies alone nor the markets for them ever can. It is of no legal or normative consequence, it asserts, that substantive federal spectrum policy encourages commercial adoption of the newest technology. Rather, the Article posits, lawmakers in this field ought to create procedural mechanisms in federal spectrum administration that accommodate local communities’ diverging interests. In the end, the Article proposes a solution based on relatively recent legal scholarship and developments in public law administration.
Keywords: telecommunications, spectrum, FCC, wireless, unlicensed use, exclusive licenses, public law
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