Jarvis and Powell: Both Wrong

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I completely understand Jeff Jarvis' disgust with Michael Powell's self-serving arguments, the very ones, I might add, that Reason's interview with Powell in the December issue largely punches through. But when Jarvis says that "they are my airwaves, too" he loses me.

Lack of private property rights in this sphere is precisely the problem and it is not something the courts can magically fix. When the government owns something, surprise, it more or less calls the shots on how said thing is used. In contrast, I can beam whatever kind of filth I choose across my wi-fi Net and the FCC does not enter into the matter. Now, if I wind up letting the neighbor kids jump on, we've got First Amendment-safe laws for dealing with that.

The only real fix involves letting "broadcasting" and the "public airwaves" go the way of steamships and gaslamps.

NEXT: Powell's "Delicate First Amendment Balance"

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  1. Interestingly, airwaves aside, I think Jarvis might agree with you, to judge from his take on BitTorrent and pod casting.

  2. So maybe the government should auction off the radio and TV bands instead of just licensing them? That sound you hear is everyone at NPR’s head exploding simultaneously.

  3. Agreed, this is a similar problem to “prayer in public schools” or “banning books about homosexuals in public libraries”. Too many people fail to question the premise of public property and we all end up endlessly bantering the relative merits of everyone’s idiosyncratic notions of greater good.

  4. The only real fix involves letting “broadcasting” and the “public airwaves” go the way of steamships and gaslamps

    AMEN

  5. I never understood why that wasn’t teh case from the get go. Then what you do in the privacy of your own home could extend to in the privacy of your own bandwidth. I’ve even heard arguments that wavelength shouldn’t have been auctioned but instead homesteaded. But we all know how big governement feels about privacy and private descision-making.

  6. Can you beam any kind of filth you’d like over your own wifi? What if you didn’t have it secured, and some wandering neighborhood wifi-er got into your personal stash of porn? What if you did have it (weakly) secured and somebody cracked in? Has there been any kind of test case about this yet?

  7. I think there’s an issue about radio and property rights that you’re not addressing. That is transmission power and range.

    A piece of land has a finite limit, after all. So does your car. It’s self contained. But the distance your radio or TV station can transmit is largely a function of its wattage, landscape, and atmosphereic conditions. Its range is thus *not* finite. It changes, even from day to day. It’s conceivably unlimited. We have almost a century of radio programs out in space now. The radio spectrum is not a physical thing.

    Considering this fundamental difference between a piece of land, or the car you drive, how do you apply a property right? How would you manage disputes when two radio stations using the same frequency overlap or interfere with one another?

  8. Jeff,

    Do you truly store a live-action DragonBall (grade) Z movie on a server available over your wi-fi subnet? You are king of all geeks. I’m not worthy.

    Maybe they should make a christmas special…

  9. “Can you beam any kind of filth you’d like over your own wifi? What if you didn’t have it secured, and some wandering neighborhood wifi-er got into your personal stash of porn? What if you did have it (weakly) secured and somebody cracked in? Has there been any kind of test case about this yet?”

    Let’s not give the government any ideas :). I’ve have little doubt that FCC, or some other agency, would feel the need to get involved in such a situation in order to “protect the children” from possible exposure to “indecency.”

  10. The radio spectrum is a physical thing; easily defined and controlled. Disputes over interference and/or overlap would be controlled by the free market and arbitrated, like land disputes, in court. The free market would make a frequency with less chance of overlap and/or more range before the possibility of interference worth more; just like if a tire dump is built next to your house, the value would decrease.

  11. Pint:

    That still doesn’t answer my question about finite limits regarding range. How far–as in distance or land area–would a radio spectrum property right extend? The range of AM radio, for instance, can vary widely. I’m in the San Diego area and I could sometimes get AM stations from San Francisco, about 500 miles away.

    In other words, could I buy a specific frequency for only for the entire United States? Or only for smaller geographic areas? Unlike a plot of land, I can’t buy an irregularly-shaped area of land and expect that my radio station will stay confined to that area.

    I have to admit that I’m still vague on the idea of “market forces” or “the free market”. I’m reading Friedman’s _Free to Choose_ right now, and even he discusses these terms like the reader already knows what they mean.

    My response to “the free market will solve the problem” is: “But… how? I don’t see the mechanism at work, here.”

  12. When purchasing frequency there would be a minimum range associated with it, I would assume. These limits would filed like a deed in the courthouse, and if you thought the guy next door was illegally using your frequency or someone down the road was projecting his frequency too far, you file a suit against which is arbitrated in a court.

    I’m not sure if you don’t see the market forces in our present reality or in my example. You wouldn’t see much of the free market in the real world, and if you did you’d have to look closely. In my example, if you bought a frequency and range that had little risk of being interferred with on its fringes, it would be worth more than a more common frequncy that was likely to catch interference closer to the source and on the fringes of the range. Thus market forces control the price of that frequency.

    While that’s an imperfect example; it’s the best I can do at the moment without getting fired.

  13. c,
    Why would it matter? What if I had a stash of porn at home that would make Bob Guccione blush and left my door unlocked. Let’s say later, some neighborhood kids went into my house and looked through it and told their parents about the arousing filth they found? I would like to see someone try to sue me under indecency laws. They trespassed onto my private property and took a peek at my legal property. Their fault not mine. Unless you named your WiFi channel “Free Porn Inside” and left it open, it would be hard for someone to get you for that. Of course, IANAL and what I said made too much sense to actually be law.

  14. I agree with you. I am throwing their argument back at them: They say that we can’t have THAT on their public airwaves and I say, well, then, by that argument, they’re mine, too, and you’d better ask me.
    A truer picture of my view is simply that the marketplace will rule and the government should not and I’ll just bet you’ll agree with me on that, eh?

  15. Question for the people proposing that the electromagnetic spectrum be “sold”: who’s supposed to sell it? And what’s their basis for claiming ownership?

    It seems to me that the answers are “the US Government” and “because it you can’t stop it”. That doesn’t sound very libertarian. Actually the entire thing sounds ridiculous to me; selling the right to a frequency is like selling the right to a mass or temperature.

  16. Dan’s right. The FCC has no power to privatize the airwaves. The only rule-making body possessing that authority would be the International Telecommunications Union (ITU) in Geneva, Switzerland.

    For the sake of argument, let’s say the Supreme Court were to rule that the FCC’s primary operative mandate (the “Scarcity Rationale”) was obsolete due to the advent of digital and satellite telecommunications which have greatly expanded the once-limited radio spectrum.

    Were we to start selling off frequencies to the highest bidder, it would set off a turf war with other ITU member nations.

    To cite but one example, during the Reagan era, officials began broadcasting non-VOA propaganda by using a Cuban frequency (it was called “Radio Marti”)…

    In response, Cuba opted out of its cooperative obligations set forth by various ITU treaties and began broadcasting on frequencies used by US broadcasters.

    The results were disastrous. One station in Des Moines, saw its broadcast range shrink from 700 to 25 miles due to the Cuban interference. After hundreds of complains, Congress urged Reagan officials to limit their propaganda efforts to VOA.

    Imagine what would happen if several countries adopted this strategy. While I certainly would like to see less regulation of the airwaves, it’s a very complicated issue that doesn’t offer simple solutions…

  17. I agree with you, but this made absolutely no sense,

    Lack of private property rights in this sphere is precisely the problem and it is not something the courts can magically fix. When the government owns something, surprise, it more or less calls the shots on how said thing is used. In contrast, I can beam whatever kind of filth I choose across my wi-fi Net and the FCC does not enter into the matter. Now, if I wind up letting the neighbor kids jump on, we’ve got First Amendment-safe laws for dealing with that.

    But if you’re using wi-fi, you’re using spectrum in which there are no property rights or even any way to pursue objections over interference from competitors (if I move in next door and set up some devices, such as cordless phones, baby monitor or my own wi-fi that interfere with your wi-fi, you’re SOL).

  18. Dan’s right. The FCC has no power to privatize the airwaves. The only rule-making body possessing that authority would be the International Telecommunications Union (ITU) in Geneva, Switzerland.

    Why does the ITU have the authority to privatize the airwaves? They don’t own them either.

    Imagine if some international body decided to “sell” the right to produce visible light. Would you consider that that act had any validity at all? I certainly wouldn’t. So why should they be able to “sell” the right to produce a slightly different frequency of electromagnetic radiation?

  19. Dan:

    You may be right again. However, according to my media law text, “By treaty the ITU has overall responsibility for international administration of radio and television matters.”

    Perhaps I read too much into that statement.

    Whether or not this would entail the authority to privatize a natural resource like a specific radio frequency is anybody’s guess.

    Maybe we all need to attend the next World Administrative Radio Conference (WARC) and ask some tough questions!…

    🙂

  20. When Mr. Taylor says “..across my wi-fi Net and the FCC does not enter into the matter.” he’s only half right. Since the Feds (throught the FCC) claim to “own” all Radio Frequency spectrum ‘on behalf of the people of the U.S.A.’ the frequency that wi-fi operates at, just like all other RF ‘bands’, were (and are) set by the same FCC. Also the FCC ‘helps’ regulate what is ‘public’ spectrum and what is reserved for {mostly military} Goverment spectrum. If the Feds decide that the Pentagon’s bully boys need that wi-fi spectrum for ‘… the greater good …” military/police computer’s in the CONUS don’t be surprised to find your ‘right’ to use that lap-top at Starbucks to surf the Internet disappears.

  21. Re: Powell’s Critics of the law should instead focus their efforts on changing the law, if that’s what they want.

    Mike, if it ain’t constitutional, it ain’t a law. I’d go even farther, and question the whole administrative agency model as questionable under the separation-of-powers doctrine.

    There is a substantial amount of literature on the early days of broadcasting, and how a property-rights model could have prevailed over the nationalized-commons-with-licensing regime we have to endure. Read Empire of The Air by Tom Lewis (0060981199), Jesse Walker’s Rebels on the Air (0814793827) or Google up some of Thomas Hazlitt’s articles on frequency sharing and “quiet nights.”

    I always thought that when the governments nationalized the airwaves they should have paid compensation to Maxwell and Marconi. Had the geniuses who discovered the spectrum and figured out how to use it not done so, it would have been as valuable to us as phlogiston.

    Kevin

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