92 Pages Posted: 18 Nov 2003
The federal government has long controlled the allocation and assignment of electromagnetic spectrum, considered the lifeblood of wireless communication. Critics of government spectrum licensing advance two alternatives: exclusive property rights and unlicensed sharing through "spectrum commons." Yet both sides fail to come to grips with an essential point: there is no such thing as spectrum. It is an intellectual construct whose utility is rapidly decreasing as technology develops. Because spectrum is not a concrete thing, oft-used analogies to land or to natural resources break down.
There is a vast new communications space emerging, whose full extent is unknown. Proposals based on spectrum as a physical asset denominated by frequencies artificially constrain mechanisms that exploit this "supercommons," producing inefficient outcomes. A better approach is to draw analogies to legal domains that do not presuppose ownership, such as tort. A universal communication privilege, allowing anyone to transmit anywhere, any time, in any way, should be the baseline rule for wireless communication. Liability backstops and safe harbor mechanisms can effectively prevent ruinous interference, while efficiently resolving boundary disputes.
The supercommons approach properly refocuses wireless regulation away from spectrum and toward the devices used for communication. It can operate alongside the property and commons regimes, which are just different configurations of usage rights associated with wireless equipment. Bandwidth need not be infinite to justify a fundamental reconceptualization of the spectrum debate. Even with real-world scarcity and transaction-cost constraints, a default rule allowing unfettered wireless communication would most effectively balance interests to maximize capacity. Wireless could be an even more significant platform for innovation, user empowerment, and value creation in the twenty-first century than it was in the twentieth.
Keywords: spectrum, wireless, communications, regulation, commons, telecom, telecommunications, supercommons, property rights, technology
Suggested Citation: Suggested Citation
Werbach, Kevin D., Supercommons: Toward a Unified Theory of Wireless Communication. Texas Law Review, Vol. 82, March 2004. Available at SSRN: https://ssrn.com/abstract=456020 or http://dx.doi.org/10.2139/ssrn.456020