Monday, October 27, 2008

White Spaces and Red Herrings

Even dry policy wonks occasionally find themselves engaged in timely cultural commentary. Thus, we are thrust into debate with country music legends, heavy metal stars, and mega-church leaders. This is the domain of electromagnetic spectrum -- that ephemeral public good that is as essential to modern life as the air we breathe.

The FCC is set to decide what to do with the vast, unused swaths of spectrum between television channels in its open meeting on Election Day. When the rest of the country is paying attention to an historic contest for the ultimate game of King of the Hill, the Commission will be deciding how we are to share (or hoard) one of our most unappreciated public resources.

Back in ancient times, you would turn your television dial through channels received over "bunny ears" and wonder why so many of them showed static. Since then, most of us have transitioned to cable or satellite television, and few of us have noticed that these occasional flurries have turned into a blizzard. In fact, most stations are currently broadcasting in both analog and digital, but in February of 2009 they will have to turn off their analog transmissions (thus doubling the unused space).

What if we could instead use those channels to watch YouTube videos of cats being vacuumed? The future is now. On November 4th, the FCC will be deciding whether or not wifi-like devices can make use of the spaces between television broadcasts. They have spent more than four years investigating this question, and from all accounts they appear to be poised to say "yes." This is where Dolly Parton, Ozzy Osbourne, and Rick Warren come in.

See, all of those folks rely on wireless microphones that already use broadcast television channels when nobody is using them for TV. There are actually a few people who are licensed to do this, but the reality is that none of those I've listed are acting legally. Perhaps we would expect this from bat-biting Ozzy, or perhaps even Dolly... but Rick? How scandalous.

All three of these constituencies have filed comments at the FCC opposing innovative new uses of valuable spectrum. They do so from their understandably biased perspectives. Each wants to preserve their ability to use wireless microphones as they have become accustomed -- in Dolly Parton's case, it is essential that she maintain the integrity of audio fidelity in her live performances of the musical adaptation of "9 to 5."

Don't get me wrong. That was one of my favorite movies as a child, and I have a fondness for her music (it is the saving grace of the entire "country" genre which no longer resembles its roots in the least). However, I disagree with Dolly on this matter. Perhaps I can proceed by familiar analogy.

In "9 to 5" Dolly Parton and her clever co-conspirators exhibited innovation and flexibility, standing up to the incumbents of old. Is it too much of a stretch to claim that legacy broadcasters are similarly generating system-wide inefficiencies through their opposition to flexible use of the spectrum? Probably. But nevertheless, I think that Dolly is on the wrong side of this one. It's time to open the airwaves (if only in the limited fashion proposed). Even the houses of worship are going to have to deal with the fact that they have been misled by representatives from the microphone companies who never bothered to tell them that they were advising them to break the law.

Representative Dingell, Chairman of the House Committee on Energy and Commerce (and ultimate overseer of the FCC, along with the parallel Senate committee), recently wrote a letter to the Commission raising a couple of valid but uninformed questions about white spaces proposals. He asked first why the Commission hadn't considered a licensed approach to the frequencies. Of course, this debate was well-trod long ago. The licensed approach is the instantiation of a classic "Coasian" perspective, which has been debated since the beginning of time (or, at least, the 1950's). The FCC itself convened a task force in 2002 which concluded that:

No single regulatory model should be applied to all spectrum: the Commission should pursue a balanced spectrum policy that includes both the granting of exclusive spectrum usage rights through market-based mechanisms and creating open access to spectrum "commons"...

That whole "commons" thing sounds a bit communist (or, gasp, socialist!) but in fact reasonable sharing of a shared resource makes quite a bit of sense. Despite the full force of the FCC's engineering conclusions to the contrary, the mega-churches assert that "Today, there is no reliable technology that can protect existing services from what would be crippling interference from new portable devices," Ozzy's sound engineer urges that, "The FCC must take steps to insure that catastrophic interference does not occur," and Dolly explains that:

I don't know all the legalese concerning the issue so I've had some very smart people inform me about the legalities here. [...] I have deep concern over the Commission's announcement that it intends to vote on an order allowing devices using spectrum sensing technoogy to occupy the "white space" radio frequencies on November 4, 2008 (Election Day). [...] As you may know, I am an inductee to both the Country Music and Songwriters Hall of Fame and am currently on a world tour supporting my latest album. New regulations could have direct impact on many ventures in which I am directly involved, including: 9 TO 5: THE MUSICAL [...] Dollywood [...] Grande Ole Opry

Dingell's second argument is that the FCC's technical findings may not have been peer reviewed. This point appears to hinge on a much-debated statute that tasks the OMB with "ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies." The OMB's rules are even more debated, and have been viewed by many as an excuse for the powers that be to kill off reports that it disapproves of. Indeed, there was an earlier peer-review of studies related to the white spaces [update: and a similar peer-review of this round of testing has now been posted], and the recent AWS-3 technical study did not undergo a similar process.

Could it be that these objections are merely a red herring?

In other news, the ranking member of Dingell's parallel committee in the Senate, a vocal opponent of open internet access, was today found guilty of multiple felony charges related to his unethical ties to an industry he oversaw.

Wednesday, October 15, 2008

White Spaces Moving Forward

An issue I care very much about, use of so-called spectrum White Spaces, will be voted on by the FCC on Nov 4.

Open Access to Government Documents ...or, "Federal Court Documents: Even Google Can't Find Them"

In honor of Open Access Day yesterday, I gave a talk at Berkman about the federal court's policy regarding public access to electronic records. You can watch it here or download the slides here. The description for the talk was:

In the past twenty years, a remarkable number of government documents have been put online. In some cases, these documents are made easily and freely accessible. In others, technology has failed to overcome barriers or even created new barriers to access. One particular subset of documents -- opinions, dockets, and the full public record in federal court cases -- remain behind a pay wall. Although the U.S. Government cannot hold copyright in documents it creates, it has for a long time long charged for the cost of creating and maintaining these documents. While the courts understandably seek to pay for the services they provide, this talk will argue that there is an alternative path in which the public benefits far outweigh the costs. Stephen Schultze makes a dynamic case for free access to government documents, in honor of Open Access Day 2008.

Also, check out this great essay by James Grimmelmann, discussing the Oregon statutes battle, as well as his recent lecture on the issues more generally.

Also, the European Transparency Initiative was mentioned during my talk, as well as this Dutch report.