Submitted by-ABHSIHT HELA

CREATING WAVES: RadioSpectrum As Commons

“COMMON” – CONOTES TO JOINT OWNERSHIP OF CERTAIN RESOURCES.Resources like :-Gitfs of nature like water, air and land.In the legal realm, this translates into a movement for decentralization of law. In other words, it talks of decentralization of law from the realms of State domain to that of Public domain so as to bring in more public participation in the formulation and implementation of law. This is what is posited to be the central theme of the Contemporary Commons Theory. Global Communications have greatly eroded the State Power. It is this failure of the State power that lays great promise for the Commons Perspective to Law which calls for a laissez faire vision to law, thus bringing about a “bottom –up” regulation by non- state actors. In other words, the Commons perspective calls for the freedom of private entities to generate their own law – i.e. the law of Google, or the Terms of Service, imposed by MSN Online. The Commons Theory debate of today has been brought about by debates in the areas of Privatization of the Internet, Network Neutrality rules in telecommunication law, Propertization of the radio frequency spectrum and as well on media concentration.

The Commons Theory is therefore a new way to express a very old idea — that some forms of wealth belong to the public, and that these community resources must be actively protected and managed by all for the good of all.

THE SAGA COMMON

The Creative Commons Theory debate today centers around the areas of Internet Regulation, Network Neutrality rules in telecommunication law, Propertization of the Radio frequency spectrum and as well on Media Concentration. The Contemporary Commons maintain that these commons, over which the debate has arisen, are to be managed in a way so that they essentially remain free. The most advocated way being the usage of a mix of Market and State intervention.. A pure market management, on the other hand, is also undesirable for it will allow only those willing and able to pay to speak An analogy in this regard can be drawn from the prevailing Environmental laws in the United States where environmental law has evolved from a centralized command and control regulation to incorporate a market based system resulting into a mixed based system having a mix of both Market and State intervention.

It is with this understanding of a mixed form of regulation as advocated by the Commons, the above mentioned areas of debate are analyzed in a more detailed manner so as to appreciate the movement of the Contemporary Commons in an exhaustive and fruitful manner

FACETS OF THE CONTEMPORARY COMMONS DEBATE

The Radio Spectrum is a key resource employed in many essential services in our society: TV and radio broadcasting, transport, radio location, and other applications. Radio technology also supports public services such as defense, public safety and scientific activities.

At its earliest inception, radio was seen as useful primarily for marine communications.The failure to heed disaster calls from the Titanic in 1912 and the failure to fully realize the naval benefits of wireless in World War I ,created a public sentiment to improve the maritime uses of wireless communications, leading to the US Navy’s efforts to cartelize the industry in 1919-1921.

Radio communication starts with the emission of electromagnetic waves into the atmosphere over radio frequencies, otherwise known as radio spectrum. Information can be encoded into these radio waves by varying the amplitude or the frequency of the wave. Because of the historic advantage of lower frequencies over higher frequencies, ninety percent of spectrum use is concentrated in the one percent of frequencies below 3.1 GHz - those frequencies best suited for contemporary mobile phone, broadcasting, and satellite systems.

Radio communication ends with the receiver. Once emitted into the atmosphere, a radio signal will interact with any receiving antenna in its path that is tuned to the relevant frequency range.

BACKGROUND OF SPECTRUM

Basis for governmental regulation on spectrums According to them, the spectrum is scarce below 5 GHz because of its propagation

characteristics and “high level of incumbent use.” If they are not excluded as private property, they claim, “The Tragedy of the Commons” would take place. Regulators generally determine how particular blocks of spectrum can be used; employing allocation rules to define what rights are made available to licensees or unlicensed users.

In standard economics, a resource is efficiently allocated as private property if its consumption is rival, i.e., the marginal cost of joint consumption is large, and its supply is excludable, i.e., the transaction (excluding) cost is small. If a resource is rival but non-excludable, it is efficient to supply it as a common pool resource (CPR).

Congestion leads to waiting, but this is not a very serious problem in data communications and can be overcome by widening the bandwidth. We can reach up to 108 Mbps by using two channels of 802.11a together. UWB has realized 500 Mbps and its capacity will easily extend to more than 1 Gbps.

FCC have themselves on numerous occasion admitted that radio spectrum is not a scarce resource as believed earlier therefore shaking off the very foundation of the governmental licensing and later auctioning.

“In many bands, spectrum access is a more significant problem than physical scarcity of spectrum, in large part due to legacy command-and-control regulation that limits the ability of potential spectrum users to obtain such access.”

THE SPECTRUM LICENCE RAJ

It “is characterized by restrictions on who uses the resource, and when and how.” For example, a group of ranchers may together purchase some grazing land and administer it for their mutual benefit. In that case, the ranchers have clear legal title to the real property and we say that they together are the owners and controllers of their commons.

A commons for spectrum, on the other hand, is feasible in that the controller of a particular block of spectrum—whether a private owner or the government—may choose to manage it as a commons. A commons may therefore exist in either (1) spectrum that is controlled by private actors, or (2) in spectrum that is controlled by the state.Unlicensed or common, use of the spectrum has been a feature of the administrative regime since 1938, when the FCC first allowed very low-power devices to operate within the interference tolerances of licensed services.

The absence of licensing requirements turned out to be a great boon to innovation, as demonstrated in recent years by the growth of unlicensed devices operating according to industry standards like IEEE 802.11b, Bluetooth, and Home RF.

Benkler felt confident enough to assert that “the present state of our technological knowledge, and the relevant empirical experience

we have with the precursors of open wireless networks and with pricing in wired networks, lean toward a prediction that open wireless networks will be more efficient in the foreseeable future”

In the provocative words of George Gilder:At a time when the world is about to take to information superhighways in the sky – plied low-powered, pollution-free computer phones – the FCC is in danger of building a legal infrastructure and protectionist program for information smokestacks and gas guzzlers.

THE RAINBOW COMMONS: RADIO SPECTRUM AS COMMON

Benkler proposes, therefore, that “rules concerning power limits in combination with transmission protocols can operate to prevent interference and avoid congestion.” Thus, the FCC should develop rules for the use of unlicensed equipment under which “the access a device may gain to the unlicensed spectrum” is tied to the “efficiency of that device’s use of the spectrum.”

Benkler’s conclusion: “Assuming the development of appropriate spectrum-sharing rules and protocols, and in the presence of an equipment market to reward investment in more efficient devices, the absence of a property system in spectrum should not result in a tragedy of the commons.” McKean and Ostrom offer several factors that can make a CPR the preferable system :1) INVISIBILITY-.if a resource is difficult to divide, such as the ocean or the atmosphere,

then managing it as a CPR may be the best possibility. Cutting-edge technology, however, promises to make it possible for multiple users to share the same spread of frequencies without interference.This would make the notion of divisibility obsolete.

2) .“PRODUCTIVE efficiency through the internalization of externalities.”: In many situations, the use of one tract of land may affect the use of other landOne might

amplify this point by analogizing to Coase’s famous paper on the nature of firms, in which he showed that transaction costs can be avoided by using collective institutions such as firms to structure ongoing business relationships.:-

Economies of scale: An additional benefit of CPRs might be economies of scale.3) .MOBILITY AND RANGE OF SERVICES: With the rise of wireless devices as communications tools, it is becoming necessary that users have the ability to travel and move about without losing service.

BENEFITS OF LIBERATING RADIO SPECTRUM AS COMMON POOL RESOURCE The potential benefits of the spectrum commons approach described above should be readily

apparent given the success of the Internet and the success of unlicensed devices. Unlike the situation in the current centralized, command-and-control approach to spectrum management, innovation in the development of more sophisticated radio equipment, and innovation in the protocols they use to communicate, would be facilitated.

Advocates also see value in the “bottom up” -- rather than traditional “top down” -approach to network development that is facilitated in the spectrum commons approach.This model supports community involvement and empowers people to help themselves, just as small wireless ISPs are doing by using Wi-Fi technology to extend Internet access in isolated areas. Advocates of greater reliance on the spectrum commons approach envision the use of increasingly intelligent end-user devices – decentralized intelligence – to dramatically increase spectrum-sharing as well as to provide a platform that offers greater public control over service development as well as content creation, distribution and consumption decisions.

“This paper has explored the spectrum commons approach and concludes that, even in the face of significant challenges, the potential benefits are significant enough to warrant serious consideration by telecommunications policy-makers in their role as spectrum managers. This conclusion applies not only to developed countries but also to developing countries, where the more decentralized, less bureaucratic approach could empower individuals and communities to expand networks, applications and services on their own initiative.”

THE GREAT NECESSITY

Using a number of different technologies—more communications capacity can be eked from the same amount of spectrum. Spread spectrum is one of these technologies.Instead of transmitting a signal at high power over one frequency, it transmits at low power across a wide band of frequencies. Other technologies that allow multiple use of the same spectrum include time-division multiple access (TDMA) and spectrum use etiquettes such as “listen before talk” (LBT). TDMA allows several users to share the same frequency by dividing the frequency’s use into different time slots.

As technologist George Gilder has put it, “You can use the spectrum as much as you want as long as you don’t collide with anyone else or pollute it with high-powered noise or other nuisances.”

A. WIDEBAND TRANSMISSIONS:-A conventional radio transmitter emits a signal in a constant electrical impulse within a relatively narrow band of frequencies. Wideband transmitters, the most common of which use spread spectrum technology, work very differently. They transmit signals in periodic impulses rather than in a constant pulse, and they spread those impulses over hundreds of megahertz to receivers that are capable of reassembling the impulses into the original signal.

B. SMART RADIOS :- They are specially designed hardware operating on a narrow range of frequencies and have limited capabilities to discriminate between desired signals and undesired noise. Digital processing permits radios to become much smarter. A class of software defined radios, known as "agile" radios, promises to avoid spectrum congestion by detecting the usage of select frequencies before transmitting.

USE IT OR LOSE IT: TECHNOLOGY THAT SUPPORT LIBERATION OF SPECTRUM AS CPR

C. MESH NETWORKS :-The idea of the end-to-end network is that the network itself should not be optimized for any particular application, but should be open to innovation from the edges. These insights led to experimentation with new wireless architectures that rely on a dense network of cells composed of personal communications devices. One type of end-to-end cooperative telecommunications network is the mesh network. In most existing networks, communications are either circulated through closed loops between transmitter and receiver or collected at key transmission points before being distributed to receivers. Your wireline phone call goes to a central switch, from which it is dispatched to its destination.

David Reed, engineer and architect of the end-to-end principle, uses the commons image of a sheep's meadow to describe the capabilities of mesh networks.

The sheep's meadow becomes a tragedy of resource use as more sheep are added to the meadow and over-graze. In a successfully operating mesh network, each user is like a sheep that brings grass to the meadow, sustaining an endless green that supports an infinite number of sheep.

A scarce resource subject to open access is susceptible to free riding and thus, in Garrett Hardin’s famous phrase, “the tragedy of the commons.” The tragedy of the commons is a metaphor for the over-exploitation and degradation of a finite resource the users of which have no incentive to preserve. The depletion or destruction of a resource used in common is known as the “tragedy of the commons.”

The analogous situation in the spectrum commons approach is readily apparent. An individual user can increase the performance of a communications link by increasing his or her transmitter power, thereby causing more interference to – and reducing the performance of – links operated by other users.

Benkler’s answer to the alleged tragedy of the commons is first to note that the spectrum is a perfectly renewable and non-exhaustible resource. The spectrum does not require maintenance any more than gravity does. Thus, the only characteristic of the spectrum that could conceivably lead to a tragedy of the commons is the “potential for interference, or conflicting uses.”

As Hardin later understood, tragedy does not befall commons generally but rather “unmanaged commons.”

Þ a number of contentions that have repeatedly found to be mistaken:1) he was actually discussing open access rather than managed commons; 2) he assumed little or no communication; 3) he postulated that people act only in their immediate self-interest4) he offered only two solutions to correct the tragedy—privatization or government intervention.

NO TRAGEDY: LIBERATION OF RADIO SPECTRUM AS CPR NOT A TRAGEDY OF COMMONS

GOVERNANCE OF RADIO SPECTRUM AS COMMONS :-Elinor Ostrom differentiates what she calls “rules in use” (social norms) from what she calls “rules in form” (legal rules). Rules in form frequently are the preferred method of addressing common pool problems.

Elinor Ostrom identifies seven "design principles" of stable local common pool resource management :-

1) .Rules should clearly define who has what entitlement.2) .Adequate conflict resolution mechanisms should be in place.3) .An individual’s duty to maintain the resource should stand in reasonable proportion to the

benefits. 4) .Monitoring and sanctioning should be carried out either by the users themselves or by someone

who is account-able to the users. 5) .Sanctions should be graduated, mild for a first violation and stricter as violations are repeated. 6) .Governance is more successful when decision processes are democratic, in the sense that a

majority of users are allowed to participate in the modification of the rules .7) .The right of users to self-organize is clearly recognized by outside authorities.

Access to the commons is limited by the community, which exercises the right to exclude outsiders from the spectrum or to reduce the utility of the spectrum to users once they transmit in violation of the community's norms. The type of spectrum property regime the commons theorists propose is thus a system of limited access in which a finite number of people manage the resource together and exclude outsiders.

THOUGHTS IN THE PIPE LINE

In India, we follow the Propertisation model of Spectrum management. The Wireless Planning and Coordination Wing of the Department of Communications is responsible for the assignment and allocation decisions concerning the Spectrum. This power flows from the government’s exclusive privilege under the Telegraph Act to establish, maintain and work telegraphs. In addition to making spectrum allocation and assignment decisions, the WPC Wing is responsible for issuing operating licenses under the Wireless Telegraphy Act for various types of telecom and broadcasting services. The WPC Wing is assisted in technical and monitoring matters by the Wireless Monitoring Organization. The TRAI, however, in this regard has no powers to make allocation and assignment decisions. But it can significantly influence spectrum management policies through recommendations to the government. As part of its Spectrum- Management functions, the WPC Wing is responsible for formulating and maintaining the National Frequency Allocation Plan.

This power flows from the government’s exclusive privilege under the Telegraph Act to establish, maintain and work telegraphs. In addition to making spectrum allocation and assignment decisions, the WPC Wing is responsible for issuing operating licenses under the Wireless Telegraphy Act for various types of telecom and broadcasting services. The WPC Wing is assisted in technical and monitoring matters by the Wireless Monitoring Organization. The TRAI, however, in this regard has no powers to make allocation and assignment decisions. But it can significantly influence spectrum management policies through recommendations to the government. As part of its Spectrum- Management functions, the WPC Wing is responsible for formulating and maintaining the National Frequency Allocation Plan.

THE INDIAN STANCE ON SPECTRUM ALLOCATION

KAUTILYA’S ADVOCATION OF THE COMMONS FORM OF OWNERSHIP the Commons theory goes in India, one has to look back at least two thousand years, to

the time when Kautilya (advisor to King Chandragupta Maurya of the Magadh dynasty) made several observations on property rights and the management of common land, minerals, water and forests. He advocated that arable land should be of three types – Crown land (which belonged to the State), Private land (which is privately held by the people of the State) and Pastures (which are held in common). Kautilya further proposed that certain lands like the pasture lands should be held in common by the people because they are so essential that if they are owned privately, utility would not be best served, as the maximum number of people would not be able to draw benefits out from them. Thus the system advocated by Kautilya then remains essentially the same as what is propounded by modern day common theorists in telecommunications law today viz. certain resources which are ‘essential’ to the people should be bestowed with the freedom of ownership from both the State as well as from Private hands. They should not be held by the State as their access would be curtailed and privatization, would make the retrieval of lands difficult as well as make those in control of them too powerful. Hence to draw an analogy, what thus lay preached by Kautilya for ‘Common’ Agricultural lands can be drawn as applicable to the essential channels of media and telecommunications as well.

THE INDIAN STANCE ON THE COMMONS THEORY

SUPREME COURT ON THE COMMONS THEORY :- The Supreme Court of India, has in a number of cases, advocated the commons model of ownership through what is called the Public Trust Doctrine. The important cases discussing this doctrine are M.C. Mehta v. Kamala Nath and others and M.I. Builders v. Radhey Shyam Sahu. M.C. Mehta v. Kamala Nath and others:

In the instant case, the Supreme Court, very tacitly, accentuated the Public Trust Doctrine, which the court declared to be the law of the land. About the Public Trust Doctrine the court observed and declared the following:

The Public Trust Doctrine rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people and that it would be unjustified to make them a subject of private ownership.

The doctrine enjoins upon the Government a duty to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes.

Three types of restrictions on governmental authority are imposed by the doctrine: (i) the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; (ii) the property may not be sold, even for a fair cash equivalent; (iii) the property must be maintained for particular types of uses

Our legal system-based on English Common Law - includes the public trust doctrine as part of its jurisprudence.

The State is the trustee of all natural resources which are by nature meant for public use and enjoyment and therefore is under a legal duty to protect the natural resources. Public at large is beneficiary of these resources.

THE INDIAN STANCE ON THE COMMONS THEORY

US LAWS RELATING TO LICENSED AND UNLICENSED USE OF SPECTRUM- the Federal Communications Commission (FCC) uses an administrative process for identifying the most desirable set of licensing rules for a given band of spectrum. An important recent example involved the use of that process in establishing licensing rules for 22 MHz in the 700 MHz band.

THE CLASH OF LICENSED AND UNLICENSED USE OF SPECTRUM- As part of its spectrum management responsibilities the FCC determines the set of rights that are assigned to a given block of spectrum used by commercial and non-commercial entities. At one end of the spectrum rights regime are unlicensed operations. Under unlicensed operations, spectrum is treated as an open access resource that is available to all without charge. Each user is free to demand as much spectrum as he/she wishes employing the appropriate FCC-certified equipment, which operates at the authorized power levels.

ALLOCATION OF LICENSED AND UNLICENSED SPECTRUM-1) .Type of participant for licensed and unlicensed spectrum :- In an auction to allocate spectrum

between licensed and unlicensed use, participating firms fall into two distinct categories as a result of differences in their business models.

2) . Bidder preferences and valuations for licensed and unlicensed spectrum :- Under the current FCC administrative process to determine the amount of spectrum assigned to market participants, it is possible that the spectrum assigned to any given user is less than what that user desires.

3) .Different mechanism for auction and allocation of spectrum- o Clock Auctiono Allocation Mechanism- Aggregate Bid Rule.o Pricing rule.

UNCLE SAM’S POLICY: SPECTRUM POLICY IN USA

COMMUNITY WIRELESS NETWORKING IN CANADACanada was an early pioneer in the development of community networks, and is a leader in the implementation of government policies and programs to promote connectivity nationwide. Incumbent telecommunications firms that hold much of the spectrum that could be used to develop wireless broadband have been slow to deploy their networks and offer services. In addition to community wireless organizations like ISF and WT, which deploy free WiFi hotspots in public places, a number of other models of community and public/municipal wireless initiatives have recently emerged in Canada. SPECTRUM MANAGEMENT – FROM ADMINISTRATIVE TO AUCTION-BASED LICENSINGIndustry Canada’s 2001 Framework for Spectrum Auctions in Canada lays out the general policy and conceptual framework for conducting spectrum auctions in Canada.

MAPLE LEAVE’S POLICY: SPECTRUM POLICY IN CANADA

Telecom spectrum and licensing reform are key to India’s economic future. A recent research carried out by Indian Council for Research on International Economic Relations (Icrier) shows a 10 per cent increase in mobile penetration raises GDP growth by 1.2 percentage points. The spectrum and licensing policy will determine whether the industry can deliver a long-term growth or will die a “death by a thousand cuts” — uncertainty and fragmentation may cause higher costs which, in the end, must be passed on to consumers.

RESEARCHERS RECOMMEND FOLLOWING ACTIONS TO BE TAKEN IN ORDER TO LIBERATE RADIO SPECTRUM AS COMMON POOL RESOURCE:-

1) .Use of smart technology – technological innovations .2) .The economy of a state will not be affected by making spectrum as CPR because the

liberation of spectrum as commons will give a huge boom to IT sector3) .The conflict resolution needs to be incorporated.

RECOMMENDATIONS AND SUGGESTIONS

OBJECTIVE OF THE BILL:-1) Acknowledging that technological advancements have nullified the scarcity of

spectrum2) Recognizing the philosophy of commons is most apt for radio spectrum.3) Believing that management of spectrum of commons is easier.4) Acknowledging the rights of rural and poor user to participate in modern media.5) Recognizing the need for rules in form i.e. legal rules for governing the radio spectrum

commons.6) Be in enacted by the parliament of republic of India that.

Section 1- for the purpose of operation of this act. Section 2:- Any person, corporation or company, can use or operate the required

technology for radio communication as a means of commercial intercourse. Section 3:-The sale of technology, monitoring and sanctioning required for liberation

of radio spectrum as CPR would be regulated by a representatives from government and registered users associations.

Section 4 :-The body would be named as Radio Spectrum (governance and Control) Body and will comprise of 12 directors.

LIBERATING THE SPECTRUM BILL

Section 5:- The directors would elect an executive director whose powers would be to:1) Conduct an annual general meeting of the directors of the Radio Spectrum (governance

and Control) Body.2) Conduct the working of body in democratic and disciplinary matters.3) Will be of the rank of Minister of State and will enjoy all the perks and allowances

enjoyed by Minister of State.4) Will have casting vote in case of tie in a matter concerning policy. Section 6 :- The body shall lay down rules concerning allocation of spectrum based on the

principle of “first come, first served” and set power limits and other criteria for operation of unlicensed devices to mitigate potential interference and the body should develop rules for the use of unlicensed equipment under which “the access a device may gain to the unlicensed spectrum” is tied to the “efficiency of that device’s use of the spectrum.

Section 7:-In case of violation of the rules to be enacted by the body the operator would be fined with 100% profit in period of violation of the rule in addition to rupees ten thousand fine. If the operator violates the rule again then his allocation would be cancelled.

Section 8:- In case of non complaince of section 7 ,body after giving an opportunity of being heard ,by order in writing direct for the penalties liable under this bill.

Section 9 :- Disputes must be resolved by ADR. Section 10:-The Court Doin ADR must be competent. Section 11:- This section shall usurp any other existing legislation at time of its entry

into force on matter concerning allocation of radio spectrum.