[12-9] See, e.g., Andy Kessler, velcap.com, "Steal This Bandwidth!," e-mail on file with
author, June 19, 2001 ("The FCC should set aside some not-for-profit spectrum specifi-
cally for wireless access, probably at the same time they auction 3G licenses, and keep
encouraging the grassroots to run with new technology.").

[12-10] Telephone interview with Alex Lightman, January 31, 2001.

[12-11] Ibid.

[12-12] Telephone interview with Dave Hughes, November 13, 2000.

[12-13] Federal Communications Commission, "Creation of Low Power Radio Service,"
January 27, 2000, at http://www.fcc.gov/Bureaus/Mass_Media/Orders/2000/fcc00019.doc.

[12-14] Harry First, "Property, Commons, and the First Amendment: Towards a Core Com-
mon Infrastructure" (White Paper of the First Amendment Program at the Brennan
Center for Justice at New York University School of Law, 2001), 42-44.

[12-15] Departments of Commerce, Justice, and State, the Judiciary and Related Agencies
Appropriations Act, 2001, H.R. 4942, enacting into law H.R. 5548, 106th Congress,
Title VI #632 (2000) (enacted).

[12-16] See Bob Brewin, "Airports Ground Use of Wireless: Safety, Loss of Income from
Pay Phones Cited," _Computerworld_ (February 19, 2001): 1, http://computerworld.com/
cwi/story/0,1199,NAV47_STO57817_NLTpm,00.html.

[12-17] The real aim of the airports, organized under "wirelessairport.org," appears to be to
develop a proprietary, exclusive architecture for wireless technologies within airports, to
permit them to extract rents from the technology's use.

[12-18] See, e.g., Hazlett, "The Wireless Craze," 42 ("The burden of proof is on the poten-
tial entrant. No incumbent must show that less competition serves the public in order to
preserve the status quo, it must only rebut proponents of competition. The default posi-
tion is that entry does not occur."); Net@EDU, Position Paper on WLAN Radio Fre-
quency Interference Issues ("FCC Part 15 devices like wireless access points must accept
all interference that may be caused by the operation of an authorized radio station,
by another intentional or unintentional sources [_sic_]."), 1, available at http://www.
educause.edu/asp/doclib/abstract.asp?ID=NE#T0014 (visited June 11, 2001); ibid. (dis-
cussing ham radio). For a site collecting the FCC's Technical Advisory Committee's
work on spectrum, see http://www.jacksons.net/tac/.

[12-19] Hazlett, "The Wireless Craze," 45.

[12-20] Thus, in setting aside 300 MHz within the U-NII band, the FCC stated:

____ We note that it may also be appropriate to reassess the technical parameters governing
____ U-NII devices in light of second generation MSS systems. For example, second genera-
____ tion MSS systems may be more sensitive and therefore more susceptible to interference
____ from U-NII devices.

Amendment of the Commission's Rules to Provide for Operation of Unlicensed NII
Devices in the 5 GHz Frequency Range, 12 F.C.C.R. 1576, #96 (1997). But why should
U-NII devices respond to second-generation MSS devices, rather than the other way
around? See Yochai Benkler, "Overcoming Agoraphobia," 338, n. 225.

[12-21] FCC Regulations, part 97, subpart A, section 97.1, available at http://www.arrl.org/
FandES/field/regulations/news/part97/.

[12-22] As Hazlett argues, the current regime does not actually sell the right to spectrum.
Instead, it sells the right to a certain kind of business, since the license received is a li-
cense to use certain equipment at a certain time for certain business purposes. Hazlett,
"The Wireless Craze," 102. Thus the criticism of spectrum auctions that I offer here is

[[326]]

p325 _ -chap- _ toc-1 _ p326w _ toc-2 _ +chap+ _ p327

v?