The Hindu Business Line : Sharing spectrum

IN the world there is nothing more submissive and weak than water, said Lao Tzu, but before you can differ on that, in the light of recent damage caused by floods, he'd add: "Yet for attacking that which is hard and strong nothing can surpass it."

While it may be topical, therefore, to write why it would be a mistake if the IT side of your business continuity plan fails to factor in deluges such as what hit Mumbai and other places recently, I have on hand a paper that draws different lessons from water: "Of Rainbows and Rivers: Lessons for Telecommunications Spectrum Policy from Transitions in Property Rights and Commons in Water Law," by Dale B. Thompson of William Mitchell College of Law, posted on www.ssrn.com.

Broadly, there are two approaches to allocating spectrum, `property rights' and `commons', and Thompson's paper takes `a novel approach to this problem' with the author seeking to borrow insights from the history of water law.

"Based on a new classification of property, `marketable commons property,' this article presents a solution to the allocation of spectrum: spectrum commons accounts (SCA)," informs the abstract.

I'm sure there may be a few who ask, "What is the telecommunications spectrum?" The spectrum refers to a collection of frequencies for conducting telecommunications, explains the paper.

"Telecommunications occur when a radio wave is sent from a transmitter to a receiver.

Radio waves themselves are forms of electromagnetic radiation." These waves oscillate at certain frequencies, and for telecommunications, the spectrum that's relevant for discussion is the range "three kilohertz (3 kHz, or 3000 cycles per second) to 300 gigahertz (300 GHz, or 300 billion cycles per second)".

If Marconi can be called the hero who discovered that a signal generated by a transmitter at a specific frequency could be captured by a receiver tuned to the same frequency as the transmitter, the villain of the piece is interference, which occurs "when a receiver cannot identify the source transmission due to its receiving other transmissions generated at the same or close frequencies". You can combat the menace with spread spectrum, smart antennas, and repeaters.

For starters, the author explains that spectrum is important to us because some of our most essential new technologies involve the use of the telecommunications spectrum.

"Cellular telephones, wireless Internet service, cordless telephones, baby monitors: these use some portion of the telecommunications spectrum to provide billions of dollars of services."

For a long time, the only people interested in the spectrum were TV and radio broadcasters, ham operators, military and public service such as police, fire, and ambulance, narrates Thompson.

Seeing new uses for the spectrum, the US regulator, the Federal Communications Commission (FCC), auctioned off a portion of unallocated spectrum in the 1990s and raised $20 billion, which is an indication of its value.

While the auction method was seen as appropriate by sectors such as financial markets vulnerable to significant losses if interfered with, there were opponents who said that auctions were "insufficient to meet the rising demand for frequencies", and therefore suggested the `commons' approach. In this, "a specific portion of spectrum is shared by a number of users in such a manner as to permit most, if not all, of these users to achieve their purposes for use of spectrum".

Thompson points out that the commons approach works well "for spectrum technologies that depend on a multitude of different inventors designing different applications that are less susceptible to interference problems, but also have little financing necessary to purchase the exclusive right to utilise a frequency". A popular example is wireless computer network applications.

The two schools of thought aren't working at cross-purposes, but are both aiming at technological advancement, explains the author, and throws a googly: that the debate has thus far ignored "the ability of a property system to adapt to changes".

And, to fill the lacuna, he delves into the past and looks at the history of allocation experiments in the case of other property resources to make predictions about the adaptability of property systems for the spectrum.

"One such resource, water, shares many characteristics with telecommunications spectrum," declares Thompson, because of "approximately two hundred years of experience" in dealing with water rights in the US and other similarities between spectrum and water. You'd learn that in water law, there are two approaches, viz. riparian (akin to commons) and prior appropriations, based on property rights.

You can gather from the paper a lot of inputs on how law has flowed through water (or is it vice versa?), though each country has its own ways of managing water resources, and there can be highly contentious situations as in the case of sharing river waters in India.

The paper cites Carol Rose, who had suggested a third classification for property, `inherently public property' to mean "property that is held by private individuals with an option to convert the private property into a commons held by the government" as in the case of real estate.

That way, Thompson's `marketable commons property' is the fourth, and it is the opposite of Rose's: "property that is held as a commons, but with an option to convert it into property held privately".

Of value in the paper is the highly readable sequence of evolution of different theories, in a section titled `A Brief history of the Property Rights versus Commons Debate'.

This is a quick tour through the ideas of Leo Herzel, Ronald Coase, Thomas Hazlett, Eli Noam, Yochai Benkler, Lawrence Lessig, Kevin Werbach, and many others.

To Kevin Werbach, it was repulsive to compare the spectrum to a limited natural resource, as this `colourful analogy' would show: "Spectrum policy falls victim to several fallacies. Each is demonstrably false, yet remarkably durable.

The most damaging is the notion that there is such a thing as spectrum and that it behaves as a fixed physical resource like land. Establishing a legal regime under such a misconception is like sailing west from Europe to find a shorter trade route to India. You might find something interesting along the way, but you will never achieve your objective."

Thompson informs how at a 2003 conference held in Stanford Law School, one recommendation had spoken of the use of public `parks' of spectrum frequencies within a system of otherwise private property-controlled frequencies. "Another recommendation was the creation of a property rights regime combined with what they called a `non-interference easement'," recounts Thompson, about the ongoing debate.

His suggestion of marketable common property has the SCA holding all frequencies as belonging to commons, enabling "significant innovation by a multitude of inventors".

However, "if one of these technologies becomes very valuable but is susceptible to problems with interference that can affect a commons frequency, there remains an option to convert the commons frequency into private property," to get the best of both worlds, as the author would put it.

Thompson argues that his approach would enable the achievement of the innovation and distribution advantages offered by the commons approach, and at the same time, "the possibility of having an extremely costly conflict is eliminated by making the entire system responsive to market signals".

He is optimistic that many applications beyond water law and telecommunications spectrum may find the `marketable commons property' approach useful.

When spectrum skirmishes get resolved, I'm sure we may find enough lessons to draw from there to solve our water sharing woes too!

ITworks@TheHindu.co.in

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