: Code 2.0

The Regulators of Speech: Distribution

The Regulators of Speech: Distribution

So far my arguments about architecture have been about architectures in cyberspace. In this final story, I blur the borders a bit. I want to use the architecture of cyberspace to show something important about the regulation of broadcasting.

The Federal Communications Commission regulates speech. If I wanted to broadcast a political speech on FM radio at a frequency of 98.6 MHz in San Francisco, the FCC would have me prosecuted[71]. To speak on 98.6 in San Francisco, I need a license, because to speak using these radio frequencies without a license is a crime. It is a crime despite the fact that the Constitution says, Congress shall make no law . . . abridging the freedom of speech, or of the press. What gives?

The answer rests on a deeply held assumption at the core of our jurisprudence governing broadcasting technologies: Only a fixed amount of spectrum is available for broadcasting, and the only way to facilitate broadcasting using that spectrum is to allocate slices of it to users, who are then the ones entitled to use their allocated spectrum within a particular geographical region. Without allocation, there would be chaos, the assumption goes. And chaos would kill broadcasting.

This view first came on the constitutional scene after Congress passed the Radio Act of 1927[72]. In 1926 Secretary of Commerce Herbert Hoover gave up the practice of controlling broadcasting after a number of circuit courts held that he did not have the power to do so. If he did not have the power, he said, then the invisible hand would have to govern. But Hoover was no real friend of the invisible hand. He predicted what would happen when he withdrew federal jurisdiction chaos and some suggest his aim was to help bring about just what he predicted. Stations would override other stations, he said; broadcasting would be a mess. When some confusion did arise, Hoover used this to justify new federal regulation[73].

Congress then rode to the rescue by authorizing the FCC to regulate spectrum in a massively invasive way. Only the licensed could speak; what they said would be controlled by their license; they had to speak in the public interest; they had to share their resource with their opponents. In short, Congress said, broadcasting had to be regulated in the same way the Soviet Union regulated wheat[74]. We had no choice. As Justice Felix Frankfurter said in upholding the regime, such sovietism was compelled by the nature of radio[75].

From the beginning, however, there have been skeptics of this view. Not skeptics about the idea that spectrum must be regulated, but about the manner by which it is regulated. Is it really necessary to have a central agency allocate what in effect are property rights? As these skeptics argued, the common law had done just fine before the federal government entered. It could also do fine if the government simply made spectrum a kind of tradable property right. Ronald Coase was most famous for pushing for a regime in which spectrum was auctioned rather than licensed[76]. And Coases idea caught on fifty years later. In the United States, the FCC now auctions huge chunks of the broadcasting spectrum. Just this year, it is positioning itself to sell prime real estate spectrum the part that used to broadcast UHF television.

Now under either scenario either when the FCC allocates spectrum or when it allocates property rights to spectrum there is a role for the government. That role is most extensive when the FCC allocates spectrum: Then the FCC must decide who should get what. When spectrum is property, the FCC need only enforce the boundaries that the property right establishes. It is, in a way, a less troubling form of government action than the government deciding who it likes best.

Both forms of government regulation, however, produce a press (at least the press that uses spectrum) that is very different from the press at the founding. In 1791, the press was not the New York Times or the Wall Street Journal. It was not comprised of large organizations of private interests, with millions of readers associated with each organization. Rather, the press was much like the Internet today. The cost of a printing press was low, the readership was slight, the government subsidized its distribution, and anyone (within reason) could become a publisher. An extraordinary number did[77].

Spectrum licenses and spectrum property, however, produce a very different market. The cost of securing either becomes a barrier to entry. It would be like a rule requiring a newspaper license in order to publish a newspaper. If that license was expensive, then fewer could publish[78].

Of course, under our First Amendment it would be impossible to imagine the government licensing newspapers (at least if that license was expensive and targeted at the press). Thats because we all have a strong intuition that we want competition to determine which newspapers can operate, not artificial governmental barriers. And we all intuitively know that theres no need for the government to rationalize the newspaper market. People are capable of choosing among competing newspapers without any help from the government.

So what if the same were true about spectrum? Most of us havent any clue about how what we call spectrum works. The weird sounds and unstable reception of our FM and AM radios make us think some kind of special magic happens between the station and receiver. Without that magic, radio waves would interfere with each other. Some special coordination is thought necessary to avoid such collision and the inevitable chaos that would result. Radio waves, in this view, are delicate invisible airplanes, which need careful air traffic controllers to make sure disaster doesnt strike.

But what most of us think we know about radio is wrong. Radio waves arent butterflies. They dont need the protection of the federal bureaucrats to do their work. And as technology that is totally familiar to everyone using the Internet demonstrates, there is in fact very little reason for either spectrum-licenses or spectrum-property. The invisible hand, here, can do all the work.

To get a clue about how, consider two contexts, at least one of which everyone is familiar with. No doubt, radio waves are different from sound waves. But for our purposes here, the following analogy works.

Imagine youre at a party. There are 50 people in the room, and each of them is talking. Each is therefore producing sound waves. But though these many speakers produce different sound waves, we dont have any trouble listening to the person speaking next to us. So long as no one starts shouting, we can manage to hear quite well. More generally, a party (at least early in the evening) is comprised of smart speakers and listeners who coordinate their speaking so that most everyone in the room can communicate without any real trouble.

Radios could function similarly if the receiver and transmitter were analogously intelligent. Rather than the dumb receivers that ordinary FM or AM radio relies upon, smart radios could figure out what to listen to and communicate with just as people at a party learn to focus on the conversation theyre having.

The best evidence of this is the second example I offer to dislodge the common understanding of how spectrum works. This example is called WiFi. WiFi is the popular name of a particular set of protocols that together enable computers to share bands of unlicensed spectrum. The most popular of these bands are in the 2.5 GHz and 5 GHz range. WiFi enables a large number of computers to use that spectrum to communicate.

Most of the readers of this book have no doubt come across WiFi technology. I see it every day I teach: a room full of students, each with a laptop, the vast majority on the Internet doing who knows what. The protocols within each machine enable them all to share a narrow band of spectrum. There is no government or regulator that tells which machine when it can speak, any more than we need the government to make sure that people can communicate at cocktail parties.

These examples are of course small and limited. But there is literally a whole industry now devoted to spreading the lesson of this technology as broadly as possible. Some theorists believe the most efficient use of all spectrum would build upon these models using ultra-wide-band technologies to maximize the capacity of radio spectrum. But even those who are skeptical of spectrum utopia are coming to see that our assumptions about how spectrum must be allocated are driven by ignorance about how spectrum actually works.

The clearest example of this false assumption is the set of intuitions were likely to have about the necessary limitations in spectrum utilization. These assumptions are reinforced by the idea of spectrum-property. The image were likely to have is of a resource that can be overgrazed. Too many users can clog the channels, just as too many cattle can overgraze a field.

Congestion is certainly a possible consequence of spectrum usage. But the critical point to recognize and again, a point that echoes throughout this book is that the possibility congestion depends upon the design. WiFi networks can certainly become congested. But a different architecture for sharing spectrum need not. Indeed, under this design, more users dont deplete capacity they increase it[79].

The key to making this system possible is for every receiver to become a node in the spectrum architecture. Users then wouldnt be just consumers of someone elses broadcast. Instead, receivers are now also broadcasters. Just as peer-to-peer technologies such as BitTorrent harness the bandwidth of users to share the cost of distributing content, users within a certain mesh-network architecture for spectrum could actually increase the spectrum capacity of the network. Under this design, then, the more who use the spectrum, the more spectrum there is for others to use producing not a tragedy of the commons, but a comedy of the commons.

The basic architecture of this mesh system imagines every computer in the system is both a receiver and a transmitter. Of course, in one sense, thats what these machines already are a computer attached to a WiFi network both receives transmissions from and sends transmissions to the broadcasting node. But that architecture is a 1-to-many broadcasting architecture. The mesh architecture is something different. In a mesh architecture, each radio can send packets of data to any other radio within the mesh. Or, put differently, each is a node in the network. And with every new node, the capacity of the network could increase. In a sense, this is precisely the architecture of much of the Internet. Machines have addresses; they collect packets addressed to that machine from the Net[80]. Your machine shares the Net with every other machine, but the Net has a protocol about sharing this commons. Once this protocol is agreed on, no further regulation is required.

We dont have go too deep into the technology to recognize the question that I mean this section to pose: If technology makes it possible for radios to share the spectrum without either spectrum-licenses or spectrum-property then what justification does the government have for imposing either burden on the use of spectrum? Or, to link it back to the beginning of this section, if spectrum users could share spectrum without any coordination by the government, why is it any more justified to impose a property system on spectrum than it is for the government to charge newspapers for the right to publish?

No doubt, the architecture that enables sharing is not totally free of government regulation. The government may well require that only certified devi ces be used in this network (as the FCC already does with any device that can radiate within a range of spectrum). It may push the technology to the capacity, increasing mesh architecture. It may even reasonably impose nuisance-like limits on the power of any transmitter. But beyond these simple regulations, the government would not try to limit who could use the spectrum. It would not ban the use of spectrum for people who hadnt either paid or been licensed.

So here we have two architectures for spectrum one where spectrum is allocated, and one where spectrum (like the market for newspapers) is shared. Which is more consistent with the First Amendments design?

Here, finally, we have an example of a translation that works. We have a choice between an architecture that is the functional equivalent of the architecture of the American framing and an architecture equivalent to the Soviet framing. One architecture distributes power and facilitates speech; the other concentrates power and raises the price of speech. Between these two, the American framers made a choice. The state was not to be in the business of licensing speakers either directly or indirectly. Yet that is just the business that the current rule for spectrum allocation allows.

A faithful reading of the framers Constitution, my colleague Yochai Benkler and I have argued[81], would strike down the regime of spectrum allocation[82]. A faithful reading would reject an architecture that so strongly concentrates power. The model for speech that the framers embraced was the model of the Internet distributed, noncentralized, fully free and diverse. Of course, we should choose whether we want a faithful reading translation does not provide its own normative support. But if fidelity is our aim, this is its answer.

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