Academic journal article Federal Communications Law Journal

Spectrum Miscreants, Vigilantes, and Kangaroo Courts: The Return of the Wireless Wars

Academic journal article Federal Communications Law Journal

Spectrum Miscreants, Vigilantes, and Kangaroo Courts: The Return of the Wireless Wars

Article excerpt

I.   TELECOMMUNICATIONS POLICY FROM BELOW: THE THEORY
     OF LAW AS PROCESS
II.  RETURNING WIRELESS TO ITS "STATE OF NATURE"
     A. To the Trenches of License-Exempt Spectrum
III. CASE 1: MONROEMESH'S FAILURE TO SHARE
     A. The Engineer's Perception of Congestion and Beauty
IV.  CASE 2: THE PLANETREE FOREST SPECTRUM WAR
     A. SATNet and the Informal Spectrum Negotiation
     B. From Negotiation to Jamming
     C. From Jamming to Extortion
     D. Primacy of Local Versus National Sources of
        Adjudication
V.   CONCLUSION
     A. The New Role of the License-Exempt Regulator
     B. Embedding Spectrum Negotiation in Software Will Not
        Change This Situation
     C. The Future of the Approach "From Below"

The requirement that radio users obtain the government's permission in advance before transmitting has been a foundational feature of communications regulation for about eighty years. However, the recent regulatory expansion of "open" regimes for managing the electromagnetic spectrum, such as the increase in license-exempt and "light" licensed frequencies in several countries, may change all of that, and this prospect has created excitement among observers of wireless telecommunications and communication law. Garage door openers, cordless phones, and baby monitors, it is hoped, were just the first kinds of "radio stations" one could have without a license. Under open regimes, more people will have more wireless devices in their hands than ever before, and they will be able to use them in new ways. Proponents hope that more use, more efficient use, and more application innovation will result. However, the fate of services in these bands--and of the open spectrum model itself--now rests with user behavior. As of this writing, no one is sure of the answers to basic questions such as when (or if) these open bands of the electromagnetic spectrum will become congested with too many users, if they will fail due to congestion, or, more generally, what it is exactly that people will do with these new wireless freedoms. While allusions to "tragedies of the commons" (1) and their inevitability or avoidability have been widespread in writing about license-exempt spectrum, little is empirically known.

In effect, license-exempt bands are a partial return to communication policy's "state of nature"--what will people do without government? (Or, more properly, what will people do when the role of government is changed and the requirement for prior permission to transmit is removed?) Using two case studies drawn from a larger project across six countries, this Article considers the case of Wireless Internet Service Providers trying to use "open" spectrum, and chronicles their successes and failures. It shows, perhaps unsurprisingly, that when legal constraints are removed, users make their own order and are bound by their own local and differing standards of fairness and propriety. The topic of this Article could be identified by the keyword "shared spectrum," used in the literature--but in what follows it is clear that sharing sits alongside selfishness, coexistence with extortion, and formal law with kinship and neighborhood customs.

First, this Article will outline the theoretical approach embodied by these observations, an approach grounded in the anthropology of law and derived from Moore's process theory of law: (2) here, glibly labeled "telecommunications policy from below." Second, it will introduce Wireless Internet Service Providers (WISPs) and this project's methods in studying them. Next, it will present two detailed case studies from 2003 to 2005. The first case study describes an entrepreneurial project in a small city that never quite got off the ground because the spectrum never looked empty enough, while the second focuses on a "war" between two competing WISPs that evokes the world before the enforcement of radio regulations--the "Wild West" of radio, as some have called it. …

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