Chapter 12

[12-1] Thomas W. Hazlett, "Spectrum Flash Dance: Eli Noam's Proposal for 'Open Ac-
cess' to Radio Waves," _Journal_of_Law_&_Economics_ 41 (1998): 805.

[12-2] See Hazlett, "The Wireless Craze," 17 ("Allocation and 'technical' rules protected
broadcasters from competition as well as from fees or competitive bidding"). The exam-
ples include AM radio's protection from FM, ibid., 50-53; the artificial scarcity in
VHF-TV licenses, which produced just three national networks, ibid., 53-55; VHF-TV
blocking CATV, ibid., 55-62; AM and FM radio's blocking of digital radio, ibid., 62-65;
NAB and NPR's blocking of low-power FM radio, ibid., 68-82.

[12-3] Eli Noam, "Beyond Spectrum Auctions: Taking the Next Step to Open Spectrum
Access," _Telecommunications_Policy_ 21 (1997): 461, 462, n. 5.

[12-4] Ibid. How this market system might work is not yet clear. Presumably, users would
bid in real time to get access to available spectrum. Bidding in turn would require that
users have some form of identification. The ID need not be a real identity. But every
transaction has a name. You generate less overhead validating every request if laying un-
known bids elsewhere is allowed. How those requests are handled would determine how
efficiently the system could work.

[12-5] See, e.g., Yochai Benkler, "From Consumers to Users: Shifting the Deeper Struc-
tures of Regulation Toward Sustainable Commons and User Access," _Federal_Communi-_
_cations_Law_Journal_ 52 (2000): 561; Eli Noam, "Spectrum Auctions: Yesterday's Heresy,
Today's Orthodoxy, Tomorrow's Anachronism," _Journal_of_Law_&_Economics_ 41 (1998):
765; Yochai Benkler, "Overcoming Agoraphobia: Building the Commons of the Digi-
tally Networked Environment," _Harvard_Journal_of_Law_&_Technology_ 11 (1997): 287.

[12-6] See Hazlett, "Spectrum Flash Dance"; Gregory L. Rosston and Jeffrey S. Steinberg,
"Using Market-Based Spectrum Policy to Promote the Public Interest," _Federal_Com-_
_munications_Law_Journal_ 50 (1996): 87.

[12-7] _Turner_Broadcasting_System,_Inc._ v. _F.C.C.,_ 520 U.S. 180, 189 (1997). I am assuming
(and I would argue) that ordinary First Amendment analysis should apply to the rules al-
locating spectrum. That assumption, however, is not obvious. You might take the view
that spectrum is just like paper (both are used to communicate), and there's not a First
Amendment problem with the government's nationalizing paper production. Cf. _Ars-_
_berry_ v. _Illinois,_ 244 F. 3d 558 (7th Cir., 2001) (examining tax as applied to the telephone
company).

But in my view, the appropriate analysis begins with the speaker, who would speak
using spectrum but for regulations by Congress of that spectrum. That is the same pos-
ture the Court has adopted when explaining why regulation of cable television is subject
to First Amendment analysis. In both cases, the issue is properly framed: What justifies
the state-imposed interference with the speaker's ability to communicate? That question,
I expect, will be resolved through the same level of analysis as applied to cable. This is
because, as Benkler writes, "enclosure of information... affects different organizations
engaged in information production differently. This is so because information is not only
an output of information production, but also one of its most important inputs." Yochai
Benkler, "The Commons as a Neglected Factor of Information Policy," (paper presented
at the Telecommunications Policy Research Conference (October 5, 1998): 70. Thus,
"the availability of a commons creates incentives that make possible decentralization of
content-production." Benkler, "The Commons," 68.

[12-8] "These units are so small as to make the transaction costs involved in negotiating
allocation of exclusive property rights to them prohibitive." Benkler, "Overcoming Ago-
raphobia," 174.

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