Geodog

Impressions of the Spectrum Policy debate

While I have extensive notes from the Spectrum Policy conference at Stanford, Cory Doctorow has done such a great job blogging through the day that it doesn't seem worthwhile to take the time to clean up and post my notes, especially since anyone passionately interested can watch the whole day on video. Instead, I will offer a few impressions (which may not make a ton of sense to anyone who wasn't at the conference).

Yokai Benkler's paper was superb, as was his argument at the moot court at the end of the day. However, since the argument was taking place within the context of the Law and Economics paradigm that Ronald Coase and the Chicago School did so much to establish, I wondered why he choose to frame the debate in terms of commons vs private property regime? The mention of the commons is a red flag to any neoclassically trained economist, echoing "The Tragedy of the Commons" as it does, and it seemed to confuse the moot court judges quite a bit. I'm wondering, is there was an ulterior purpose behind this rhetorical device?

The debate seemed a lot easier to understand when Benkler framed it as private property rights in spectrum vs. private property rights in devices, as he did in discussion in the morning. I loved his line in that discussion, "am I the only one who believes in markets?" and wished that he had repeated it at the moot court.

The Farber-Faulhaber paper was equally impressive,

but the presentation was less so. David Farber talked several times about needing to do experiments, and the problem that the old industrial R&D Labs no longer existed, but never specified what experiments he thought needed to be done. It certainly wasn't clear to me. Hazlett concluding with a hoary old quote from von Hayek about freedom equaling property was a low point. Nobody wins if the debate is reduced to a religious war. Also, there was the bizarre behavior of asking for questions from the audience, then not letting the panel answer them, just asking for more questions. It seemed like Hazlett was either confused, or was purposely running out the clock.

There were some great panelists, and none of them was bad. Kevin Wehrbach did a great job of building an argument, staying on point, and speaking in easy to understand terms.
Howard Shelanski was very impressive in his discussion of displacement and marginal vs. total investment under the two schemes. I was also impressed in his jumping up and offering to help Duncan Davidson of SkyPilot Networks file comments with the FCC. As someone who has done of business in the wireless space, I learned a lot from Patrick Leary of Alvarion, who has done a lot more. It was inspiring to hear Tamara Lemmey speak, even if she didn't contribute much more than a cautionary note to the spectrum debate.

There was one elephant who was not in the room, who all the participants other than the FCC staff tiptoed around. That was the current spectrum "owners". Ed Thomas of the FCC, in side discussions, was quite passionate about their (to him reasonable) expectations. As far as I could tell, there were no representatives of the spectrum owners in the room, yet they are the ones who wield the most political power, and who will have more influence than anyone else on the outcome of this debate. They were barely mentioned, other than as obstacles. In my limited political experience, it would seem that advocates of change will need to enlist at least some of them in order to hope to effect any change in the allocation of spectrum.

For a non-lawyer, seeing a moot court for the first time was an interesting experience, to say the least. It didn't seem like an optimal mechanism for finding solutions to problems, much less for arriving at "the truth," although it did make for good theatre. I hope that real appellate courts judging issues of law don't work that way. It seemed clear that at least two of the judges had not read the conference papers, nor had they been at the tech talk in the morning, which made it hard for the advocates for either side to get any traction in their arguments. I thought Benkler came off as the best of the four advocates, most knowledgeable and able to answer the judges' questions and also to keep going with his argument. However, it was clear that both sides need to work on finding (and playing out) good analogies to explain their positions on spectrum, since spectrum is really something that 90% of us will only be able to understand via analogy. The "balanced in equipoise" conclusion that Judge Kozinski reached did seem like a reasonable way station, since the issue clearly wasn't ripe for decision.

I must confess to being a fan of Judge Kozinski ever since his run-in with petty federal bureaucrat Leonidas Ralph Mecham. Even though his politics are frequently to the right of Attila the Hun, one has to admire someone who can write as well as he can. Plus, his comments from the bench showed that his ideology has softened as a result of experience of the real world. As he said, aren't owners property rights really grabby sometimes? If liberals who have been mugged become neoconservatives, what do neoclassical economists who have had exposure to the real world of business become? Neopragmatists?

My conclusion, as a technologist and entrepreneur, after listening to lawyers and economists debate all day, is that it is an empirical question as to which of the two regimes would be the most efficient, property in devices or property in spectrum. At least on a theoretical level, it seems like the most useful thing that the adversaries could do to do to further the debate would be to agree on a set of metrics to measure the optimal use of resources, then push for 5% more of current spectrum be sold fee simple, and 5% more be opened up to regulated but unlicensed use. At the moment, it seems like both agree, a la Coase, that the current regime is horribly inefficient, but they don't even agree on what the measure of a better system would be. For my own interests as a business guy, it did seem clear that there would be more cheaper spectrum available sooner rather than later, although I don't know what sooner means, or under what regime it would be available.

I was interested and puzzled that after the moot court, after "the decision" was rendered, Professors Lessing and Hazlett(?) had scheduled a number of critics of and "semi-outlaws" from the current regulatory regime to speak. If their input was considered valuable, why not include it before the decision? If it wasn't valuable, why include it at all? After spending the whole day inside the Law and Economics paradigm, why break out at the end of the day? Structural and theoretical quibbles aside, it was interesting to hear from "the people on the ground"

Thanks to Professors Lessing and Hazlett for putting on the conference, and thanks to David Sifry and Sputnik, for bringing along a Sputnik Wireless Access Point and enabling so many people, myself included, to get online during the conference. Stanford's strict enforcement of its property rights made it hard for some of us to communicate. :-)

Posted by Geodog at March 2, 2003 04:07 AM | TrackBack