Volume 68.3 Full issue

Editor’s Note

Essay

A Better Agency: Reforming the Federal Communications Commission
by Representative Greg P. Walden

This Essay offers the thoughts of Representative Greg Walden of Oregon on reforming processes at the Federal Communications Commission. As Chairman of the Subcommittee on Communications and Technology of the U.S. House Committee on Energy and Commerce, Walden has conducted oversight of the FCC and sponsored three versions of the Federal Communications Commission Reform Act over the past six years (H.R. 3309, H.R. 3675, and H.R. 2583). In his proposals, Walden has sought to increase transparency in the FCC’s rulemaking processes, require rigorous economic analysis for major policy decisions, and impose accountability on FCC operations by requiring performance metrics and dashboards. Walden lays out his consideration of the flaws in FCC process as well as his proposals for rehabilitating the organization.

Article

Achieving Bandwidth Abundance: The Three Policy Levers for Intensifying Broadband Competition
by Blair Levin

Over the past several years, there has been an ongoing debate about the government’s policy toward broadband policy. In this Article, Levin argues the goal of policy ought to be bandwidth abundance, such that bandwidth does not constrain economic growth or social progress. In that light, based on the history of both successful and unsuccessful government market interventions, the highest priority for government broadband competition policy ought to be to lower input costs for adjacent market competition and network upgrades. In today’s broadband market, the greatest opportunity to achieve this goal is to create a virtuous cycle of upgraded mobile stimulating low-end broadband to upgrade, which in turn stimulates an upgrade of high-end broadband, which then uses its assets to enter mobile and accelerates the need for mobile to further upgrade.

Communications Law: Annual Review
by the Staff of the Federal Communications Law Journal

Notes

The Move to Spectrum Sharing: How Reclassification Under Title II Will Cause Spectrum Sharing to Dominate Telecommunications Policy
by Nellie Foosaner

Technological uses of radio frequency bands of the electromagnetic spectrum are vital to innovation, economic growth, national security and public safety. Properly allocating spectrum among competing interests has meant balancing important governmental priorities with increasing consumer demands for wireless services. Congressional economic motivations previously drove the Federal Communications Commission’s use of auctions to allocate spectrum. As a market-based means of spectrum allocation, the FCC conducted auctions with economic incentives in mind, and auctions have dominated spectrum policy thus far. As the need for innovation and demand for more commercial spectrum continue to increase, spectrum policy must develop to accommodate the commercial sector’s need for spectrum with federal agencies’ need to maintain large spectrum holdings.

As a result of the FCC’s decision to reclassify broadband Internet access as a Title II telecommunications service, some believe the economic value of spectrum will decrease. Such a theory, whether or not it comes to fruition, will trigger a decrease in economic incentives to push federal agencies to relinquish some of their large amounts of spectrum. The decrease in economic incentives for the federal government’s allocation of spectrum means a new method for spectrum policy that maximizes welfare in both public and private sector uses of spectrum must arise. As a result, spectrum sharing will emerge as a dominant means to foster innovation in the commercial sector while allowing federal incumbent users to maintain access to spectrum to perform their vital public functions.

Great Expectations: Using the Language of Innovation to Command Efficiency and Shift the Burden of Spectrum Scarcity
by Andrew Morris

The availability of spectrum for wireless communications continues to shrink as demand grows for more wireless services. The Federal Communications Commission has addressed this problem of spectrum scarcity in the past by mandating technological change to encourage greater spectrum efficiency. Recently, the FCC adopted the position that unlicensed wireless devices should be able to operate in the guard bands of what will soon be repackaged spectrum. The FCC proposed this change without knowing whether existing technology could adequately facilitate such a technological transition. Yet the FCC has expressed confidence that both incumbents and new entrants will keep pace with an evolving state of the art.

The FCC’s proposal suggests a greater willingness to push for innovation in the absence of technological certainty and represents a bold development in the way it handles the problem of spectrum scarcity. Although the FCC has attempted to alter the pace of technological development in past rulemakings, it has not relied so heavily on the assumption that technology will evolve to fit the needs of particular proposal and alleviate interference concerns. This Note argues that the FCC should feel empowered to push this framework further by requiring compromise from both incumbents and new entrants, even when a consensus on technical feasibility fails to materialize.

From Ship-to-Shore Telegraphs to Wi-Fi Packets: Using Section 705(a) to Protect Wireless Communications
by Amy McCann Roller

Section 705(a) of the Communications Act of 1934 prohibits unauthorized individuals from intercepting and divulging the contents of “radio communications.” Despite this seemingly straightforward prohibition, confusion over the provision’s construction and application has mounted in recent year as litigants and courts wrestle with the scope of Section 705(a). In 2010, the FCC grappled with Section 705(a)’s applicability to one of today’s most common forms of radio communication—Wi-Fi—and was ultimately unable to determine whether intercepting the contents Wi-Fi network traffic— a practice known as Wi-Fi sniffing— from unencrypted networks falls within its prohibitions.

This Note examines the interpretive issues that have plagued Section 705(a) since its 1968 amendment. Taking a fresh look at the statute’s language, history, and construction, the Note concludes that, properly interpreted, Section 705(a) prohibits unauthorized interception of unencrypted Wi-Fi payload data.