Document Type



Fordham Law Review




One of the most contested questions in spectrum policy is whether bands of spectrum left as unlicensed will fall victim to the tragedy of the commons. Advocates of increased unlicensed spectrum often downplay what enforcement measures are necessary to minimize interference and to prevent the tragedy of the commons problem. Even imposing spectrum etiquette requirements in addition to the FCC's equipment certification program will fail to address this concern effectively, as the development of such measures - e.g., the requirement that devices listen before they talk - does not ensure that they will be followed. Indeed, if there are incentives for parties to cheat on the rules that prevent tragedy of the commons-type results, some cheaters are likely to emerge and thereby undermine the promise of new and innovative technologies that use unlicensed spectrum.

Although the threat posed by cheaters does not undermine completely the commons model of spectrum management, it does underscore that the proponents of that model have focused almost entirely on one half of the issue. To date, these proponents have argued that unlicensed bands can facilitate technological innovation and more efficient uses of spectrum than would a purely private property-like approach. But they have not explained what the FCC should do to prevent deviation from the protocols (or certified equipment) that maximize the effectiveness of shared uses of spectrum. Moreover, tragedy of the commons-type concerns are not merely theoretical ones, as the experience with the citizen's band (CB) radio demonstrated how interference caused by unauthorized uses (such as amplifiers) can undermine a previously popular use of spectrum. In the current environment, technologies like a Wi-Fi Hog, which can take control of and fully exploit a public wi-fi network - or malicious jamming by hackers - pose the same danger.

This paper both underscores the need for and develops the analytical framework to guide a new model of spectrum policy for unlicensed bands. In particular, it argues that the FCC should develop a regulatory program that integrates the efforts of end user groups, interested companies, private standard setting bodies, and its own enforcement tools. In one incarnation of this approach, the FCC can ask a private body (such as the IEEE) to report back on its progress in addressing a particular issue - understanding that it may have to pick up where the body left off (either in setting or enforcing the interference mitigation measure). To be sure, we recognize that this spectrum management strategy will require considerable effort to implement, but we believe that a failure to address these issues would be the Achilles' heel of the commons model of spectrum management.