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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’�tre 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 toLegal Times . You can contact him at [email protected] . If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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