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Comments, possibly informed.

Tim Wilson
Daytona Beach, Florida, USA
timatollah@mackandtim.net
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Is Spectral Regulation an Infringement of Free Speech?

In this log entry, Stuart Buck (blog link here) quotes parts of an e-mail from the Social Science Research Network which included an abstract regarding whether the US government's refusal to license use of parts of the electromagnetic spectrum amounts to a government interference in freedom of the press. (The excerpts are included in Stuart's entry.) The bottom line of the abstract is

...[E]ven if one accepts the current state of the doctrine, the
government cannot exclude non-interfering uses from the
spectrum.

If that was held to be the case, that would open the door to all kinds of low-power spread-spectrum communication technologies.

I'd imagine that the technological evoution from now-seemingly-simple narrowband radio-frequency (RF) technologies like AM and FM to broadband technologies like spread-spectrum will have to be part of the arguments. At the time, the first justifications of government allocation of RF spectrum were based on the idea that any RF communication channel took a certain amount of spectrum: 20 kHz for broadcast AM (with stations at odd multiples of 10 kHz), 200 kHz for broadcast FM (with stations at odd multiples of 0.1 MHz), and similar for the existing point-to-point technologies.

Spread-spectrum and CDMA and UWB are all technologies that have come into being since the initial Depression/WWII-era founding and empowering of the FCC. The development and/or widespread commercial and consumer application of those technologies is a fairly recent event. The idea that you may not want to take away the FCC's power to allocate specific chunks of the spectrum to specific users of technologies that require specific chunks of spectrum but deny them regulatory authority over technologies that don't negatively impact those older narrowband approaches seems like an idea that ought to develop clout over the near to moderate term.

Addendum: Stuart's entry also includes a link to this paper regarding the same issues that he contributed while he was in law school. That article includes more definite background on the history of spectrum regulation than I included from sketchy memory above.
posted by Tim Wilson at 10:08 AM