Silicon Flatirons

A Center for Law, Technology, and Entrepreneurship at the University of Colorado

Wireless Revolutions

September 7, 2006

How Telecommunications Regulation Should Adapt to New Technologies and Learn From Water Law

The wireless spectrum is a vital natural resource. Like sunlight, it cannot be depleted and is available all around us. The challenge for government policy is to define and enforce rules to govern its use. Historically, those rules have tightly prescribed who, how, and for what purpose the wireless spectrum could be used. As such, traditional command-and-control rules limited opportunities for technological change, played favorites among technologies, and impeded marketplace activity.

As the command and control model approaches its 80th anniversary (dating back to its codification in the Radio Act of 1927), there is a widespread consensus that it needs to be replaced. The two candidates that will, likely in conjunction with one another, provide for greater dynamism and more efficient use of this resource are known colloquially as the "commons model" and the "property rights model." In fits and starts, the Federal Communications Commission continues to implement each model.

Over the next several years, telecommunications policy will almost certainty move away from the existing command-and-control framework. In charting a new course, regulators must appreciate the changing technologies that can operate effectively using commons access spectrum and propertized spectrum. Moreover, regulators must consider carefully what rules will govern spectrum effectively.

In a variety of contexts--specified protocols for how commons spectrum is used; database requirements for those using spectrum; or property-like rights and remedies (i.e., injunctions for trespass)--it is clear that spectrum is not just like real property and requires a new model. In developing that framework, policymakers need to look not only around the world, but also to other legal regimes, such as water law. In this conference, we will set out the cutting edge perspectives on spectrum policy reform as well as examine what lessons water law can offer about restricting how spectrum is used and how it should (and should not) be propertized.