[Note: This comment comes from friend Charlie Brown. DLH]

From: Charles Brown <cbrown@flyingcircuit.com>
Date: December 29, 2009 10:56:11 AM PST
To: pozar@lns.com
Cc: Brown Charles <cbrown@flyingcircuit.com>, dave@farber.net, Dewayne Hendricks <dewayne@warpspeed.com>
Subject: Subject: FCC Brings On “Distinguished Scholar in Residence” shakes up the broadcasters…

Tim,

Mr. Benjamin uses a First Amendment argument to undermine the constitutional authority of the FCC, for the express purpose of assigning private property rights to the radio spectrum. This appears to be part of the continuing effort to build a legal framework to implement the economic arguments laid out by Mr. Coase (economist) to monetize the radio spectrum via market mechanisms. It seems reasonable to describe this phenomenon as “deterministic”, in the sense that the legal theories are designed to fit the “perceived” political imperative.

I interpret this as technocratic preparation for moving spectrum from the broadcasters and sell it to the cellcos. “Decisions based on facts”, as our fearless leader likes to say. Mr. Benjamin also states that auctions are the most efficient process, among other specious assumptions.

In considering the potential outcomes, The Supremes have always backed the FCC in these matters and we can count on Congress to continue its wanton desire for auction proceeds. This one could easily go over $1 million per member of Congress, not counting gratuitous local air time for political campaigns, legal/lobbying fees, and myriad forms of soft money.

However, there is another perspective: the common law rule of “priority-in-use” to govern spectrum allocation. Those who do the best job of productively utilizing the spectrum get the rights, whether it be a neighborhood, city, town, rural community, or other non-boundary definition. Before the FCC and the broadcasters there was common law.

Consider the case of wireless microphones as representing the “priority-in-use” legal theory under common law. The recent “white spaces” ruling provided wireless microphones with default, primary status as incumbent services. To my knowledge, these devices were never licensed by the FCC. Also, consider that the database requirements for white spaces devices enable a “command and control” system; privately owned and operated geolocation services. In effect, authorization services.

Since the public interest groups are too busy missing the point with Net Neutrality, they don’t seem to understand how to use spectrum politics to achieve a “bit commons”, the most efficient and politically acceptable outcome in my view. IANAL, but there seems to be a cogent, defensible legal theory based on the First Amendment and common law. It seems a straightforward argument that the radio spectrum as a “public good” and “communications medium” is vectored directly to the First Amendment. E.g., the public service obligations of the broadcast licensees.

The First Amendment was always relevant in this debate, if not for the reasons Mr. Benjamin has stated. It’s the elephant in the room.

Charlie

From: Tim Pozar <pozar@lns.com>
Date: December 28, 2009 4:47:32 PM EST
To: dave@farber.net, ip <ip@v2.listbox.com>, Dewayne Hendricks <dewayne@warpspeed.com

Subject: FCC Brings On “Distinguished Scholar in Residence” shakes
up the broadcasters…

Not sure if folks saw this announcement:

<http://legaltimes.typepad.com/blt/2009/12/fcc-distinguished-scholar-in-residence-1.html>