WASHINGTON-Federal Communications Commission Chairman Reed Hundt’s flexible spectrum policy violates the law, according to a Catholic University communications law review article.
Though published a year ago, the article by Tara Susan Becht, a Catholic University law graduate now in private practice in Washington, D.C., has become particularly timely given the intensified debate on spectrum policy taking place at the FCC and in Congress.
Examining the General Wireless Communications Service-established in 1995 by the FCC as a testbed for market-driven spectrum policy-Becht concluded “that the commission has impermissibly delegated its authority to control the radio spectrum to private entities” and “that the commission is establishing a dangerous precedent by awarding licenses by auction without first assigning a specific service to the spectrum.”
Contacted at her law office, Becht said she doesn’t expect the FCC to be taken to court because the nation’s largest wireless telecom firms are beneficiaries of auctions.
The FCC will allow buyers of GWCS spectrum (4660 MHz to 4685 MHz) to use it for any fixed or mobile wireless service except broadcast, radiolocation and satellite services. The spectrum will be auctioned after GWCS auction rules are written.
Becht points out the House Commerce Committee report on 1993 budget legislation, which authorized spectrum auctions, stated “the FCC cannot base an allocation decision … solely or predominantly on the expectation of more revenues.”
Becht argues the FCC tailored GWCS to auctions, despite entreaties from the American Petroleum Institute, the Association of Public Safety Communications Officers-International and others that the spectrum be used for emergency, private dispatch and private microwave services.
Under the 1993 law, auctions are generally limited to subscriber-based commercial wireless services, like paging, mobile telephone and specialized mobile radio. The sale of wireless licenses has generated $22 billion for the U.S. Treasury during the past two-and-a-half years.
The Clinton administration hopes to raise another $36 billion in spectrum auction revenues during the next five years, an arguably shaky figure based on the FCC getting expanded auction authority this year and on rosy wireless license value projections.
Next month, the FCC will put 2.3 GHz Wireless Communications Services licenses on the auction block. The congressionally mandated auction, which attracted criticism from industry and Capitol Hill, is scored to bring in $3 billion this fiscal year.
House telecommunications subcommittee Chairman Billy Tauzin (R-La.) responded to industry lobbying by voicing concern about spectrum being dumped into the market without planning.
Senate Communications Committee Chairman John McMain (R-Ariz.) is examining whether the FCC should release spectrum in periodic intervals.
Hundt was overruled recently by three fellow commissioners who refused to endorse his highly deregulatory, market-driven spectrum policy. Hundt and Wireless Telecommunications Bureau Chief Michele Farquhar wanted to turn that approach into an FCC spectrum policy statement, a heavyweight declaration that would serve as the agency’s guiding light in future wireless rulings.
Instead, opposition by Commissioners James Quello, Susan Ness and Rachelle Chong resulted in the Hundt doctrine being relegated to a staff paper by Greg Rosston, deputy chief economist, and Jeffrey Steinberg, special counsel to the commercial wireless division of the Wireless Telecommunications Bureau.
Hundt’s spectrum policy philosophy is a variation of that championed by futurist George Gilder. Gilder believes that spread spectrum wireless technology makes possible a world without service allocations, where users exploit the airwaves for whatever purpose they desire. Gilder, parting with Hundt, argues auctions are unnecessary under that scenario.
In Congress, spectrum policy has turned into a turf battle between budget writers and telecom policymakers. House and Senate Commerce Committees, which oversee telecom policy, are growing increasingly angry about budgeteers using spectrum auctions to help erase the federal deficit by 2000 without considering telecom policy implications.
