The FCC has promised to find and reallocate 500 MHz of radio frequencies to satisfy the burgeoning demand for high bandwidth mobile services such as video on cell phones. The idea, the hope, is that there are lots of unused bands to be repurposed. “Unused” is a tricky notion, though. I’ll take it to mean “radio quiet”: a radio energy detector doesn’t observe much if anything at certain frequencies, and the assumption is that a new service could transmit here.
Of course, nothing is as simple as that. Let’s assume that the services that actually operate in these quiet bands – and there are always incumbents, since every frequency has one if not many nominal users – can be found a new home, and that they’ll relocate. The harder problem is that a quiet band may not in fact be usable because of the equipment in neighboring bands. The LightSquared/GPS argument is a conveniently current example. The proposal to allow LightSquared to deploy lots of ground-based transmitters in a band where to date only satellite transmissions were allowed has caused shock and outrage among GPS users who claim that their receivers cannot distinguish between the LightSquared signal in the adjacent band and the satellite location signals in the GPS channel.
Since the FCC’s rules and precedents provide almost unlimited protection against "harmful interference" (a notoriously vague term) caused by new services, an incumbent is pretty much assured that it will be held harmless against any change. The situation is exacerbated because FCC licenses only specify transmission parameters and say nothing about the radio interference environment that receivers should be able to cope with. Radio receivers are thus designed and built as if their radio environment will never change; if a band has been quiet, none of the receivers in the adjacent frequencies can cope with more intensive use, since building in that protection costs money. (For complementary perspectives on this problem, and suggested remedies, see two short papers presented at a recent conference in Washington, DC: Kwerel and Williams, De Vries and Sieh.)
Thus, just because a band is quiet doesn’t mean that it’s unoccupied; it’s probably effectively occupied by the protection afforded to the cheap receivers next door that haven’t been required to, and therefore don’t, tolerate any substantial operation in the quiet channel. It’s as if the incumbent were a householder whose property used to be passed by track along which only ox wagons passed. She didn’t have to take any precaution against her dogs being run over by a wagon, such as building a fence, and this unlimited protection still holds even when the track is turned into an arterial road, holding passing vehicles completely responsible if a dog is run over.
Money could, but might not, solve the problem. Let’s say Tom Transmitter wants to deploy a new service
in the formerly quiet band, and that this would cost the incumbent neighbor, Rae Receiver, $300 million, either in lost revenue from diminished service and/or because of precautions such as new receiver filters that are needed to reject Tom’s adjacent band signals. If the benefit to Tom is big enough, if for example he could generate $500 million in profit, Tom could compensate Rae and still come out ahead. But how is the $200 million of potential gain ($500 million - $300 million) to be divided? This depends on Rae’s rights. If she has the right to prevent any operation by Tom (i.e. she can take out an injunction against him), she can demand essentially all his profits as a condition of operationlet’s say $499 million of his $500 million, whereas if she’s entitled to damages, she can only demand $300 million for actual losses. These are very different outcomes. Under an injunction, Tom’s incremental net profit is $1 million ($500 million - $499 million) and Rae’s is $199 million ($499 million - $300 million), whereas under damages, Tom’s net profit is $200 million and Rae’s is zero.
However, since the FCC doesn’t specify whether licenses are protected by damages or injunctions, Tom and Rae can’t begin to deal, since the legal basis of the negotiation is unclear. Tom will hope that he can get the whole $200 million incremental gain, and Rae will hope for it, too – a huge difference in expectations that will almost inevitably prevent the parties from coming to an agreement.
(There are further obstacles to reaching a settlement that I won’t go into here, such as uncertainty over what action by Tom actually constitutes damage to Rae due to ambiguity in the way FCC rules are currently formulated, and the freeloader/hold-out problems with negotiations involving many parties.)
What's to be done?
1. Any inventory of “unused” radio capacity should not only itemize radio quiet bands, but also the nature of the service and receivers next door, so that the cost of relocating, protecting or degrading the incumbent service can be estimated.
2. Any new licenses that are issued should specify whether they’re protected by injunctions or damages; this will facilitate negotiation.
3. Any new license should specify the receiver protection parameters the operator can rely on, and by implication what will not be protected.
4. Regulators should start retrofitting existing licenses to this new approach by specifying the remedy (#2) and laying out a timeline over which receiver protections (#3) will be dialed down from the current open-ended “no harmful interference” condition to more realistic and objective received energy levels.
The two page position paper I referenced above gives a quick introduction to these measures; for all the gory details, see the 15 page long version on SSRN.
