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CHAPTER VI - Strategies for Overcoming Impediments to General Purpose Spectrum

As their last assignment, participants were asked to propose strategies for overcoming the (non-technical) impediments to a general purpose spectrum regime. The strategies they proposed fell into two categories. The first was aimed at overcoming resistance from—or incentivizing desired actions on the part of—incumbents in legacy, single-use bands. The group focused largely on federal incumbents. The second category of strategies was aimed at overcoming one or more of the impediments to more efficient spectrum usage that the group had identified earlier.

Overcoming Resistance from Incumbents

The discussion of strategies to overcome resistance from incumbents dealt largely with federal spectrum. This marked a shift from the earlier discussion at the Roundtable, which by design had focused on non-federal spectrum. This shift in focus reflected participants’ views that the time is right for additional legislation to encourage federal agencies to dispose of or share underutilized federal spectrum. The group proposed three complementary strategies aimed at federal spectrum as well as a fourth that could apply to all spectrum: create transferable federal spectrum rights; address Congressional scoring of spectrum; exchange of federal spectrum rights for improved equipment; the “Shockwave” approach.

Strategy 1: Create Transferable Federal Spectrum Rights

Proposal: NTIA should convert federal agencies’ spectrum assignments into flexible licenses. Congress should authorize the largest spectrum-using federal agencies (or the FCC or NTIA, on their behalf) to sell or lease some or all of the rights provided under their licenses and to retain a significant share (say, 40 percent) of any proceeds. Agencies should also be given the authority to retain the proceeds from arrangements (already legal) that involve the sharing of federal spectrum with non-federal entities.

Rationale: Federal agencies use a significant amount of spectrum to meet their mission needs for wireless services, and they face relatively weak incentives to use it efficiently. NTIA assigns spectrum to federal agencies (there are no “licenses”), and the assignments are not transferable. Moreover, even if a federal agency had the legal authority to sell or lease its spectrum, under current law, it could not retain the proceeds (Miscellaneous Receipts Act) or spend them (Antideficiency Act). Giving federal agencies negotiable rights to their spectrum and the ability to retain a meaningful share of the proceeds would strengthen the incentives for efficient use directly. It would also contribute to that goal indirectly by creating a common “language” with which spectrum rights holders in federal and non-federal spectrum could converse.

The Spectrum Relocation Fund (SRF), which reimburses federal agencies for the costs they incur in clearing spectrum to be auctioned, reduces a major disincentive to federal spectrum clearing. Although the SRF is a key element of federal spectrum management, it stops short of creating a positive incentive for federal agencies to free up or share underutilized spectrum. This proposal is designed to provide that positive incentive. There are two sets of concerns with the proposal—one having to do with its desirability, the other with its efficacy. However, neither is a sufficient reason not to pursue the proposal.

With respect to the desirability of transferable federal spectrum rights, two somewhat conflicting concerns have been raised. The first is that such a policy could have the perverse effect of encouraging hoarding. According to this argument, if agencies had transferable rights, they might hang on to spectrum that they otherwise would clear in order to get a better price for the asset as it appreciates, generally, or as it becomes more critical to a particular buyer (i.e., hold-out strategy). Although it is important to consider the potential for unintended consequences, the reality is that agencies already hoard spectrum, and there is no penalty for doing so. If agencies were allowed to transfer or share spectrum and retain a meaningful share of the proceeds, hoarding would at least carry a penalty in the form of foregone proceeds.

A second argument (which runs counter to the first) is that budget-strapped agencies would be overly eager to trade spectrum for revenue and that multiple transactions by agencies acting individually would result in the sell-off of a vital federal asset. One Roundtable participant argued forcefully that this concern rose to the level of a constitutional issue—namely, the principle of the unified executive, which says that individual agencies do not have authority over federal assets that the executive branch happens to control. Other Roundtable participants acknowledged the need for safeguards but argued that putting such controls in place was not a difficult challenge. In fact, precedents for such controls already exist, including limits on federal disposal of real property.

With respect to the efficacy of transferable federal spectrum rights, skeptics have raised two concerns. One is that it would be difficult to sell or lease federal spectrum to a non-federal entity because most federal spectrum is shared by multiple agencies, and thus any individual deal would entail large transaction costs (including the cost of overcoming the kind of hold-out issues mentioned above). Although this is a valid concern, it should not be a basis for inaction. Some bands may lend themselves to transactions more than others. And even if the sale or lease of spectrum is impractical in a given federal band, spectrum sharing may be feasible. (Although federal agencies can share spectrum with non-federal entities now, the ability to be compensated for it should make sharing more attractive.)

A second efficacy argument—and the one that has gotten the most traction in the spectrum community—is that the ability to retain the proceeds will not motivate federal agencies to transfer their spectrum because of the nature of the budget process. According to this argument, if an agency were to take in, say, $50 million for the lease or sale of some of its spectrum rights, congressional appropriators would simply take $50 million out of the agency’s budget the following year. In anticipation of this zero-sum dynamic, agencies would forego the opportunity to trade spectrum for money.

However, there is a revisionist view that the ability to retain a meaningful share of the proceeds might in fact motivate federal spectrum users. Support for this view comes in part from a recent Brookings Institution paper by this rapporteur, which draws lessons for spectrum policy from the management of federal real property (buildings and land).i Lesson one of the paper is that “the ability to retain the proceeds from the disposal of real property (buildings, structures and land) is a key motivator for federal agencies.”

In 1987, when the Office of the Secretary of Defense (OSD) wanted to motivate the Services to undertake another round of base closures, it held out the prospect that they could retain the proceeds from the sale of excessed property. At the time, General Services Administration (GSA) was responsible for all federal property disposal, and the proceeds went into a land conservation fund. At the urging of the Department of Defense (DoD)—and despite opposition from GSA—Congress delegated GSA’s disposal authority to DoD for base closure property and created a Base Realignment and Closure (BRAC) Fund into which the proceeds would go, to be used for real property upkeep. The ability to retain proceeds from the sale of property was key to getting Service participation in the early BRAC rounds, and it continues to be a strong motivator.

Another, non-BRAC example from the Brookings paper underscores the lesson (federal agencies are motivated by the prospect of generating revenue) while cautioning that the details matter:

…DoD’s experience with Enhanced Use Leases (EULs) [shows] that agencies are sensitive to which organization within the agency gets to keep the revenue. An EUL is a long-term lease of underutilized property for which the developer pays the agency rent in the form of cash or in-kind services. Initially, DoD’s statutory EUL authority specified that “the Department” could keep 100 percent of the revenue. An EUL requires a significant commitment of time and effort by the staff of an individual military installation, and the installations at first showed little interest in using the new authority. However, after the statute was changed to allow 50 percent of the revenue to stay with the installation, “the projects flowed,” in the words of one observer.ii

In evaluating the relevance of these examples for federal spectrum, it is useful to ask why the prospect of a “take-back” by appropriators does not seem to deter federal property managers from pursuing BRAC and EUL transactions. One reason may be that the dollars involved are not large enough to get the attention of appropriators. Although the Navy received $850 million for the sale of property at two Marine Corps bases in California that were closed as part of the BRAC process, most BRAC property sales and leases yield far less, and the buyer (often the neighboring community) in many cases pays DoD for the property in installments. In the case of EULs, rent payments often take the form of in-kind services rather than cash, which are even less visible to appropriators. Finally, the Services use the money from the sale/lease of BRAC property exclusively to pay for BRAC-related expenses (e.g., environmental cleanup, property maintenance and relocation)—expenses that generally amount to small change in the context of DoD’s large military construction budget—and they can do so without prior authorization.

A second reason the skeptics’ budget argument may not explain the behavior of federal property managers is timing. Even if, over the long term, appropriators reduce an agency’s budget to offset the proceeds generated from property sales/leases, such an outcome is not apparent in the near term. Thus, to a budget-strapped federal agency, the proceeds from property transactions represent incremental funding.

In short, at least when it comes to federal real property, the budget process is “stickier” than the skeptics’ argument acknowledges. The transactions are too small to attract much notice from appropriators, at least in the short run. At the same time, they are large enough to make it worth the effort of cash-strapped agencies to pursue. Importantly, land and buildings require upkeep, which can make disposal of excess property attractive even if the proceeds are small.

The differences between real property and spectrum may or may not be that significant in this context. In sharp contrast to real property, there is no direct cost for hoarding spectrum. (Although spectrum-intensive equipment, such as antiquated radars, is typically very expensive to maintain, a federal agency can tackle that expense without ridding itself of the spectrum itself.) Moreover, the budget process may be less “sticky” insofar as the proceeds from spectrum transactions are larger. That said, the goal of this proposal is to enable a large spectrum-using federal agency to enter into transactions routinely (for example, one can imagine DoD leasing 10 megahertz of spectrum to, say, T-Mobile with the proviso that T-Mobile has to quit using it within 100 miles of a certain point within two minutes of being notified to do so). As with BRAC and EUL transactions, such routine spectrum transactions could provide much-needed cash to a federal agency without causing appropriators to react.

In sum, letting federal agencies transfer or share their spectrum rights and retain a meaningful share of the proceeds is an idea worth pursuing. The policy arguments against it are not showstoppers. Granted, the concerns about whether it will be effective may have some merit; however, those concerns should lead policymakers to lower their expectations for this approach, not to forego it altogether.

Strategy 2: Address Congressional Scoring of Spectrum

Proposal: Address the risk that the Congressional Budget Office (CBO) would “score” the legislation needed to carry out the first proposal unfavorably, thereby making the legislation prohibitively expensive. Do this by (a) limiting the scope of the legislation to selected bands, (b) attempting to demonstrate how this proposal would change the assumptions in CBO’s budget baseline and, if necessary, (c) identifying a source of offsetting revenues (a “pay-for”).

Rationale:
CBO calculates the impact on the budget of any proposed legislation (referred to as “scoring”), and a negative score—meaning that by CBO’s calculations, the legislation will impose a net loss on the federal budget—can doom a bill. Taken alone, legislation to let federal agencies keep a share of the proceeds from spectrum transactions should get a positive score because such legislation might generate additional revenue (proceeds from transactions that would not otherwise occur), and any costs (the proceeds that the federal agencies could keep) are conditional on those revenues coming in. However, CBO’s annual budget baseline anticipates, or assumes, the sale of some amount of federal spectrum. Stated differently, CBO has already incorporated some of the benefits of federal spectrum sales into its budget, and it has not incorporated any costs. Thus, depending on the specifics of the legislative proposal and CBO’s baseline assumptions on federal spectrum sales, CBO could score the proposal as having costs in excess of revenue.

CBO scoring of legislation authorizing the sale of spectrum, particularly federal spectrum, has long been a bone of contention. In the 1990s, when Congress began to propose legislation to allow the FCC to auction federal spectrum, CBO gave the bills a neutral score, because the federal government’s rules did not allow the revenues from federal asset sales to be counted in the budget. This caused a major riff because Congress saw spectrum auctions as a way to reduce the budget deficit. Eventually, the House and Senate Budget Committees overrode CBO.

As a more recent example, in 2013, Representatives Brett Guthrie (R-KY) and Doris Matsui (D-CA) introduced legislation to encourage federal agencies to vacate or share underutilized spectrum. Among other things, the bill authorized federal agencies to keep one percent of the revenue from the auction for commercial use of spectrum that had been assigned to them. Concerns about CBO scoring were reportedly one reason that the legislators limited the federal agency share to one percent.

Roundtable participants discussed three tactical steps to address the risk of a negative budget score. The first is to limit the legislation to selected bands. The Guthrie-Matsui bill covered all federal spectrum. A more targeted approach would pose less budget risk. Step two is to persuade CBO that the proposed policy would fundamentally alter the assumptions in its baseline. To the extent that CBO believes the legislation is likely to change the behavior of federal agencies and induce more spectrum to be sold than would otherwise be the case, it will reflect that in its score. CBO’s spectrum scorekeepers routinely meet with subject matter experts before they score a piece of legislation. Although they tend to take a fiscally conservative stance, they are willing to debate their analysis. New evidence, such as the results from federal real property management, might help change their minds. The steep prices paid for spectrum in the recent FCC auction may also affect CBO’s analysis. Step three is to identify a source of revenue to offset some or all of any positive score that CBO assigns to such legislation. Having a “pay-for” will be key to getting broad support for the legislation in Congress.

Strategy 3: Exchange of Federal Spectrum Rights for Improved Equipment

Proposal: Identify opportunities for federal agencies to exchange spectrum usage rights for spectrum-conserving upgrades to radar and other radio equipment. If necessary, get Congress to authorize one or more agencies to carry out such exchanges.

Rationale:
A small number of federal agencies have the authority to exchange an underutilized property (e.g., a building or a piece of land) for something else—either property or construction services—of equivalent value. (An EUL is a type of exchange, because the lessee can pay rent in the form of in-kind services rather than cash.) Among other advantages, a property exchange allows an agency to bypass certain steps in the budget process. If federal agencies had the necessary authority, they could receive upgrades to outdated radio systems in exchange for some of the spectrum that the upgrade would free up.

Exchanges, a form of barter, have long been common in the real estate sector, because they provide tax advantages and reduce transaction costs. Public agencies use exchanges to avoid risks associated with the budget or property disposal process.

To illustrate, consider the Department of Transportation’s (DOT) National Transportation Systems Center (Volpe Center), which occupies a large, antiquated building and 14 acres in Kendall Square in Cambridge, Massachusetts. Kendall Square, adjacent to the Massachusetts Institute of Technology, is some of the most valuable real estate in the country. GSA is exploring ways to use its exchange authority to convey significant portions of the valuable federal land to a developer or other buyer in exchange for construction services to transform the Volpe Center into a state-of-the-art facility.iii The alternative to an exchange would be a much more cumbersome and risky process requiring GSA to sell the excess land, bank the revenue, and then get an appropriation from Congress to renovate the Volpe Center. And with no guarantee that the revenue from the land sale would go to pay for the renovation, it is unlikely that DOT would agree to give up the land in the first place.

The concept of exchange is applicable to federal spectrum management. Federal agencies have radio systems that are the equivalent of the Volpe Center: they are antiquated, and they consume a large amount of valuable spectrum “real estate.” As with the Volpe Center, upgrading of equipment could be financed by the sale or lease of some of that valuable spectrum property—specifically, the spectrum that the upgrade would help make available for non-federal use.

Some participants questioned how many federal radio systems are good candidates for this type of exchange. In their view, the cost of upgrading most DoD radar systems is so high as to be prohibitive. Thus, they advised that spectrum reformers should focus on the systems that are in the development pipeline—and making them more efficient—rather than on trying to upgrade the ones that are already in place.

Strategy 4: “Shockwave” Approach for All Spectrum

Proposal: Convert all non-federal site-based assignments into exclusive, flexible-use licenses, and allow licensees to transfer the spectrum usage rights provided in these licenses. Include all federal site-based assignments as well, in keeping with the policy on federal spectrum proposed above.

Rationale:
Many incumbents in legacy fixed-use bands have little incentive to vacate the spectrum or use it more efficiently because they have no ability to transfer it. If they had rights to the spectrum, they would have an incentive to sell or lease some or all of it or in other ways take steps to use it more efficiently.

“Shockwave” represents the fastest and most efficient way to move legacy bands into the market—hence its name. It could be implemented using the exclusive-use model, the shared-use model or a combination of the two.

Significantly, it avoids the need for auctions, which means it could be carried out far more quickly. This is critical given that the benefits to consumers from additional spectrum are an order of magnitude greater than the auction proceeds. That said, Congress has supported spectrum reform in large part because of the prospects of auction revenue; because it would forego those revenues, this approach would have less appeal to many members. Moreover, because it foregoes the sale (auction) of rights, this approach provides a “windfall” to incumbents, which some Roundtable participants oppose. The FCC’s planned incentive auction to free up broadcast spectrum has been criticized on the same grounds.

Facilitating Decentralized Spectrum Management

The group discussed three mechanisms that are designed to overcome the impediments to efficient spectrum usage: interference protection rights, band agents and a fact-based adjudication system. All three are proposed in a recent Brookings Institution paper that was co-authored by one of the Roundtable participants, Pierre de Vries.iv The common denominator among the mechanisms is that they facilitate more decentralized spectrum management.

Mechanism 1: Interference Protection Rights

Proposal: The FCC (and ideally NTIA) should establish clearly defined interference protection rights that specify the level of aggregate third-party interference that any particular receiver will be expected to tolerate before the radio system can have a claim of harmful interference. One possible next step would be for the FCC to undertake a Notice of Inquiry aimed at developing a formal process for defining such interference protection rights.

Rationale:
The FCC policy on interference harm is a major impediment to more intensive use of spectrum. The FCC has traditionally regulated radio operation almost entirely through limits on transmitters, an approach that means transmitters must often remedy interference problems that it would be less expensive to fix on the receiver end. At the same time, the expectations for the performance of receivers have been so ambiguous as to create considerable downstream conflict. A set of clearly defined interference protection rights would facilitate private negotiations between spectrum rights holders, thus limiting the need for regulatory intervention, and in doing so help to achieve a more efficient trade-off between the rights of transmitters and those of receivers.

The Roundtable’s technical experts made as their principal recommendation that the federal government “instantiate a set of interference protection rights.” This is consistent with recommendations issued by the FCC’s TAC, the PCAST and other groups. (In addition to reception limits, other terms used for interference protection rights are harm claim thresholds and interference limits.)

Proponents of the shared-use model of spectrum management are particularly supportive of interference protection rights. Such rights are seen as key to an environment in which the FCC no longer has the luxury of being able to place “like services with like services” and must instead place new services in bands not previously allocated to that category of services (i.e., the spectrum-sharing model).v In particular, such rights are thought to be essential to the operation of spectrum access systems, which—in order to protect receivers in an automated way—will need an objective statement defining the protection to which the receivers are entitled.

However, some of the people who favor greater reliance on licensed use have concerns about this approach, which they see as an example of “exactitude.”vi They acknowledge that, all else being equal, more clarity is preferable to less clarity. However, perfect clarity is not achievable and additional clarity is costly, as can be seen from commercial contracts. The terms in commercial contracts are often ambiguous because it would be too cumbersome to try to anticipate every possible issue that might come up and specify a resolution to it (e.g., what happens if a branch from my neighbor’s tree falls on my gazebo and damages it?). Thus, the parties agree to live with a certain amount of ambiguity and to negotiate and/or adjudicate any issues that the contract doesn’t anticipate. Similarly with regulation, some level of ambiguity is unavoidable. Thus, the preferred remedy is to assign exclusive and exhaustive rights, leaving it to the rights holders to negotiate the most efficient trade-offs and to adjudicate any unanticipated issues that arise.

Mechanism 2: Band Agents

Proposal: The FCC and NTIA should facilitate the establishment of band agents that can represent the interests of large groups of fragmented rights holders/licensees, including by taking positions that bind all licensees in the band.

Rationale:
The fragmentation of spectrum rights makes it difficult for rights holders to reach mutually satisfactory, efficiency-enhancing agreements through direct negotiations with one another or with a third party. This collective-action problem is an impediment to efforts to change the use of a fragmented band. The establishment of band agents would empower end users and allow them to consolidate their interests, thus facilitating efficiency-enhancing agreements, including agreements to change spectrum use.

Band agents are a response to the problem of fragmentation. They would be similar to the band managers and frequency coordinators employed in the current regime but with additional powers. Band managers are responsible for managing the interference between operators in a band, and frequency coordinators facilitate the establishment of operating assignments that minimize in-band interference. By contrast, band agents could negotiate adjustments to the operating rules in a given band (known as “alteration rights”), including changes that reflect an agreement with a neighboring operator and that are binding on all licensees in the band.

The group was generally favorable to the idea of band agents, but participants identified three possible concerns. First, as with interference protection rights, some participants view the real problem as poor assignment of spectrum usage rights—fragmentation is only a symptom. If those rights were exclusively and exhaustively assigned, the market would aggregate the fragmented rights “naturally,” thus obviating the need for band agents.

Second, some participants cautioned that, by empowering incumbent end users, band agents could make it harder for others whose interests are hostile to those of incumbents. Preston Marshall said that band agents offered a great way to capture incremental improvements, but he argued that advances in wireless have come largely through creative destruction rather than incrementalism. He said the litmus test for this and other options should be, “Does it support creative destruction in the business concepts and business practices of an incumbent group?”

Proponents of the band agent proposal responded that facilitation of changes in spectrum use, including creative destruction, was precisely the goal. They contrasted band agents with band managers and frequency coordinators, whose job is to perpetuate the existing use of a band. However, the proponents acknowledged that the details of the proposal were critical and might still need to be refined.

Third, other participants acknowledged the logic of the band-agent proposal but questioned whether it should be a high priority for spectrum management reform. In a number of cases, individual entrepreneurs, companies or trade associations have taken it on themselves to play that role, as Morgan O’Brien did in the case of the 800 MHz SMR bands. More routinely, the FCC identifies the interest groups that speak for the vast majority of the rights holders in a band through its rule-making process. Granted, the FCC still needs to decide what to do about the minority of rights holders who are not represented by those groups, but that will be an issue even with band agents.

The broader point made by the participants who took this perspective is that there is a “realpolitik of spectrum.” No matter how you deal with spectrum rights and responsibilities in an effort to facilitate changes in the use of a band, at the end of the day, the groups and firms with an interest in that band are going to want to come to the table, and the same issues will need to get resolved. Perhaps the formalization of band agents could facilitate that process somewhat. However, there are other spectrum management reforms that would be more productive.

Mechanism 3: Fact-Based Adjudication

Proposal: The FCC should develop a specialized adjudication function, by (among other things) employing a cadre of administrative judges who would develop factual findings in spectrum disputes. In addition, Congress should establish a Court of Spectrum Claims, to be housed within the existing Court of Claims, to hear spectrum-related cases, including cases that involve the federal government as a party.

Rationale:
The FCC’s existing process for resolving disputes over spectrum usage rights relies heavily on a combination of notice-and-comment rulemaking and high-level negotiations with parties. The process tends to be slow and politically charged; and the rulemaking process, which is designed for making public policy, is not appropriate for handling individual disputes, which should be decided on the basis of objective criteria such as technical efficiency. The proposal would substitute a more fact-based adjudication process in which judges with expertise in spectrum policy would have the resources to adjudicate individual spectrum-related disputes in a timely way. Having such a process will become especially critical if the FCC and NTIA adopt a more calibrated system for defining spectrum use rights, such as interference protection rights.

This proposal found broad support among Roundtable participants. Specifically, it brought together those who favor flexible licensed use and those who support shared use (including unlicensed use) as the preferred approach to spectrum management.

To elaborate, those who advocate for spectrum sharing and interference protection rights see fact-based adjudication as a necessary complement. The institution of interference protection rights will necessarily invite disputes among spectrum rights holders. Having an effective adjudication regime in place will serve two key functions. One, the threat of litigation (and the opportunity for discovery) will encourage the parties to reach an agreement without resorting to adjudication. Two, if adjudication becomes necessary, the proposed regime will be able to handle disputes effectively. Moreover, the number of disputes involving the federal government will likely increase insofar as spectrum sharing between federal and non-federal users gains traction. The establishment of a specialized court outside the FCC would allow the federal government to sue or be sued as appropriate.

Those who favor exhaustive assignment of exclusive, flexible spectrum rights (some of whom are skeptical of the need for well-defined interference protection rights) likewise see effective adjudication as an essential element of their preferred approach. This is consistent with Coase’s analysis of spectrum management, which pointed to real property as a model, with its reliance on a body of common law that had been built over centuries of adjudication of disputes.

The broad support expressed for this proposal reflected the view of many Roundtable participants that the FCC “has gotten away from the adjudication mindset” that it once displayed. The FCC employs only one or two administrative law judges, and they rarely handle adjudicative proceedings. In the absence of such adjudication, most enforcement decisions are determined by negotiations between the FCC’s Enforcement Bureau and the rule-breaking parties. In other cases, disputes that are technical in nature get resolved through a process (notice-and-comment rulemaking) that is designed for making public policy based on public interest considerations.

The FCC’s critics maintain that the agency exercises too much discretion in its approach to dispute resolution. As noted earlier, technical disputes often get turned into public policy debates. In addition, the FCC at times uses its leverage in one area (e.g., merger approval) to get parties to comply or cooperate in another area (e.g., violation of spectrum license terms).vii The appeal of a fact-based adjudication process is that the decision makers, namely judges, generally have less discretion than the FCC.

Not all the Roundtable participants shared this perspective. John Leibovitz defended the Commission’s use of negotiation and arbitration, especially in cases that involve highly technical disputes. He described the FCC technical staff as “thick-skinned, skeptical people” who have a lot of repeat experience with the different claims that get made and “know how to sort out truth from BS.” Moreover, they have an incentive to get the parties to resolve the dispute at the Bureau level.

Some participants also pointed out the need for FCC discretion in certain cases—for example, where there is a public interest element to the dispute or where the two parties in a dispute are unevenly matched in terms of clout and resources. Another participant noted that, in some cases, a strict interpretation of the regulatory rules, which is presumably what an administrative judge would render, is at odds with good public policy. In such cases, even if the FCC were to begin with an adjudicatory proceeding, it might still want to carry out a rulemaking.

A rulemaking is not the only route to good public policy, however. In common law, the process of case-by-case adjudication and resulting precedent yields public policy. Many participants expressed a preference for that approach over rulemaking and negotiations, using existing adjudicatory fora and/or a Court of Spectrum Claims as proposed by de Vries and Weiser.

ENDNOTES
i Dorothy Robyn, “Buildings and Bandwidth: Lessons for Spectrum Policy from Federal Property Management,” Washington, DC: Brookings Institution, 2014. Available online: http://www.brookings.edu/research/papers/2014/09/23-buildings-bandwidth-spectrum-property.
ii Ibid, 14.
iii “GSA Seeks Ideas for First-Of-Its-Kind Redevelopment of Volpe Center,” August 26, 2014. Available online: http://www.gsa.gov/portal/content/196375. See also Katharine Q. Seelye, “Space Age Relic Enters Astronomical Real Estate Market,” New York Times, February 6, 2015. Available online: http://www.nytimes.com/2015/02/07/us/space-age-relic-enters-astronomical-real-estate-market.html?_r=0. For background on GSA’s exchange authority, see “Federal Real Property: GSA Should Better Target Its Use of Swap-Construct Exchanges,” GAO-14-586, July 2014. Available online: http://www.gao.gov/products/GAO-14-586.
iv J. Pierre de Vries and Philip J. Weiser, “Unlocking Spectrum Value through Improved Allocation, Assignment, and Adjudication of Spectrum Rights.” Discussion Paper 2014-01, Brookings Institution, the Hamilton Project, Washington, DC, March 2014. Available online: http://www.brookings.edu/research/papers/2014/03/24-unlocking-spectrum-value-through-improved-allocation-de-vries-weiser.
v FCC Technological Advisory Council, Receivers and Spectrum Working Group, “Interference Limits Policy: The Use of Harm Claim Thresholds to Improve the Interference Tolerance of Wireless Systems,” White Paper Version 1.0, February 6, 2013: 3.
vi Thomas W. Hazlett and Sarah Oh, “Exactitude in Defining Rights: Radio Spectrum and the ‘Harmful Interference’ Conundrum,” Berkeley Technology Law Journal, 28 (2013). Available online: http://scholarship.law.berkeley.edu/btlj/vol28/iss1/6/.
vii See, for example, the discussion of the Sirius-XM case in de Vries and Weiser, “Unlocking Spectrum Value,” 14.
 
 
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