On November 30, the FCC launched its first wave of proposals to increase the availability and efficiency of spectrum in order to meet surging consumer demand for advanced new services such as wireless broadband. Of the three notices issued by the FCC, one is a proposed rulemaking that would help prepare the way for wireless broadband service on spectrum that is now primarily dedicated to TV broadcasting. The FCC's open TV spectrum proposal could play a positive role in making more spectrum available to fulfill the future promise of wireless broadband.
There is a pressing need to set aside more commercial spectrum to meet consumer demand for wireless broadband services. As NTIA's recent "Plan and Timetable" on making new spectrum available put it:
In recent years, owing in large part to the rise of smartphones, the amount of information flowing over some wireless networks has grown at over 250 percent per year, creating what is often referred to as a “spectrum crunch… For America to continue to lead the wireless revolution, we must put spectrum to its most effective uses and free up additional spectrum to meet the increasing demand for new technologies.
Whereas NTIA's report focuses on efforts to free up unused or underused government-owned spectrum for commercial wireless broadband services, the FCC's TV spectrum notice focuses on ways to make existing commercial spectrum in the UHF and VHF (or U/V bands) available for wireless broadband services. NTIA and the FCC are both committed to the goal of making 500 megahertz of spectrum available for commercial use in the next ten years.
The FCC's open TV spectrum notice proposes to give TV broadcast licensees in U/V bands greater flexibility, so as to allow such spectrum to be used for wireless broadband services on a co-primary basis with broadcasting. By adopting flexible use rules for the U/V band, the FCC would pave the road for future incentive auctioning for the use of such spectrum by wireless broadband service providers. The idea is that new rules would give TV broadcasting licensees incentive to voluntarily turn over a portion of their licensed spectrum to the FCC in exchange for a portion of the auction proceeds. The open TV spectrum notice also envisions the scenario in which some TV broadcast licensees might voluntarily turn over their spectrum in exchange for auction proceeds and the ability to co-locate their broadcasting on certain six-megahertz channels alongside other TV broadcasters.
The upshot of the FCC's proposed rulemaking is that TV broadcast licensees could continue to deliver over-the-air programming, while wireless broadband service providers would have more spectrum to meet future consumer demands, with the federal government generating auction proceeds for deposit in the U.S. Treasury.
The most immediate obstacle to spectrum auctions is the FCC's current lack of authority to turn over a portion of any auction proceeds to spectrum-vacating TV broadcasters. As the FCC's open TV spectrum notice stipulates, the agency requires authorization by Congress before it could successfully conduct and conclude such auctions. But circumstances should now favor the agency receiving congressional authorization. There is a growing recognition of the economic benefits -- indeed the economic necessity -- of freeing up additional spectrum for commercial use to meet future needs. And, while spectrum policy should not be dictated primarily by the nation's fiscal situation, Congress should find inviting the prospect of generating new revenue for a budget deficit-plagued federal government.
At this point it remains unclear just how eager TV broadcasting licensees would be to take such a deal. Reports about prior rounds of discussion between the FCC and broadcasters suggested broadcasters were wary if not outright resistant to even voluntary efforts to get TV broadcast licensees to relinquish a portion of their spectrum. But any continuing resistance by broadcasters to new flexible use rules and auction authority should be discounted to the extent that the FCC's proposal won't force any TV broadcaster to do anything.
In all, the FCC's open TV spectrum proposal is a shot worth taking. Giving spectrum licensees greater flexibility in how to maximize commercial use and value of spectrum makes good sense. Spectrum licensees in the business of serving consumers are in a better position to gauge consumer demands and meet them by deciding what uses spectrum should be put to than government bureaucracies.
The FCC should move quickly and decisively in advancing its open TV spectrum proposal. This means putting new flexible use rules in as soon as the process permits to tee up the work Congress must do to give the agency new auction authority.
This also means the FCC (as well as Congress) should remain focused on the small steps it now proposes to take, and not let itself get pulled into and distracted by other issues. To be sure, the property rights-driven spectrum reform movement and the spectrum "commons" counter-movement have raised a number of larger issues about spectrum policy that are worth debating in their own place. And in light of today's competitive media marketplace, there are a number of fundamental issues surrounding the efficacy of legacy public interest and other programming regulations, such as must-carry and retransmission consent. (The FCC's open TV spectrum notice's insistence that it is not trying either to enlarge or reduce must-carry and retransmission consent rules appears to be a sensible approach under the circumstances.) However interesting and important those surrounding issues ultimately may be, the FCC's open TV spectrum proposal should not be the occasion for deciding them.
But even for those who hope to eventually see more principled, sweeping changes in spectrum policy, there can be consolation in the FCC's open TV spectrum proposal. Professor Gerald W. Brock (a former FCC Common Carrier Bureau Chief and a member of FSF's Board of Academic Advisers) pointed out in his re-telling of FCC policy history in Telecommunications Policy for the Information Age that major policy changes have often begun with limited decisions narrowly focused on a specific issue brought before the agency. So it was, for instance, with the FCC's Carterfone ruling, which later led to the Computer Inquiry proceedings. Similarly, the FCC's initially limited grants of approval to MCI to operate long-distance private lines between major cities later led to competition in long-distance services. So perhaps there is room for optimism that the FCC's open TV spectrum proposal will eventually lead to a broader set of spectrum reforms. But again, just what that broader set of reforms might look like ought not to delay action on the open TV spectrum proposal.
Starting with the open TV spectrum proposed rulemaking, the FCC and Congress can take some modest but practical steps to bring about more flexible and efficient use of spectrum to sustain and spur economic growth. Hopefully, the agency and our elected officials will pursue this opportunity with focused determination and without delay.