///\\\

But while theorists favoring the market fight theorists pushing the com-
mons, our government is pursuing neither policy well. Instead, our govern-
ment pursues policies that are precisely contrary to freeing the spectrum,
either through the competition of a well-functioning market or through a
commons. It gets pushed by politicians, so it pushes to sell off rights to spec-
trum without fully embracing the property model. The reason is not ideal
spectrum policy. The reason is that it auctions off this form to best protect
existing businesses. As Gilder puts it, this push to sell off spectrum is simply
a "legal infrastructure and protectionist program for information smoke-
stacks and gas guzzlers."[12-41] The effect won't be to inspire new ways of using
spectrum; instead, the effect will be to entrench the old ways against new
uses.

While auctions "seem preferable to the agency's previous policy of simply
giving [spectrum] away to 'worthy' applicants," they will not inspire new
uses, and they may tend, Gilder argues, "to produce a winner's curse."[12-42]
The expected revenue from these sales will exceed $50 billion; that revenue
will put pressure on the incumbents to earn supracompetitive returns. The
best way to earn supracompetitive returns is to continue the noncompetitive
architecture in broadcasting that has earned them profits in the past. Selling
spectrum will give the incumbents the means and the motive to make
certain that the spectrum does not become (as we as a society should want)
a commodity product -- constrained by strong and broad competition.

///\\\

Gilder's argument assumes a kind of irrationality within firms that
economists are quick to attack. The money spent on spectrum is a "sunk
cost." The rational business would ignore the sunk costs already spent and
focus instead on the optimal way to get a return from the assets it has.

But Gilder's fear is not just a result of irrationality; the fear is that power-
ful actors can work to slow innovation that harms them. The long-run ad-
vantages of FM radio didn't stop AM broadcasters from working to kill
FM.[12-43] The technical arguments in FM's favor, powerful and unrefuted,
were impotent in the face of existing broadcasting interests. And the same
danger continues to exist about spectrum management policies. There are
too many places for the devil to find details that will effectively kill impor-
tant new technologies.[12-44]

There is an opportunity here for a crucial layer of the communicative
architecture to be opened and made free. Opening it would reduce the
pressure on other channels of Internet access. Keeping it free would en-

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