Tag: Administrative Law

Municipal Wireless Broadband: Hype or Harbinger? – Article by Sharon E. Gillett

From Volume 79, Number 3 (March 2006)
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Municipal wireless is an important trend, but not for the reasons implied by much of the popular reporting that surrounds this topic. Cities are unlikely to dominate the roster of wireless broadband operators that directly serve the residential and business public. Municipalities, however, have been significant early adopters of innovative unlicensed wireless broadband technologies, providing both a market toehold to innovative products and services using those technologies, and an experimental testing ground for novel organizational models. Most cases of municipal wireless involve the use of unlicensed wireless broadband to meet the local government’s own needs for ubiquitous broadband services, or to construct public-private partnerships aimed at facilitating broadband wireless services to the business and residential public. These uses express local government interests long recognized as legitimate: provision of efficient city services, local economic development, and equity within the community. Thus, the concern for policymakers should not be whether cities should be involved in wireless broadband; there are legitimate reasons why they should, and why increasing numbers of them will be. Rather, the important public policy concern is how to ensure that, in the process of facilitating the first uses of wireless, city authority does not get subverted to create artificial limits on future broadband wireless competition. Doing so will require thoughtful melding of separate legal frameworks governing access to city property and public rights of way into a coherent policy that guides when exclusivity legitimately can or cannot feature in public-private partnership arrangements for communications services.

 

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Advanced Wireless Technologies and Public Policy – Article by Thomas W. Hazlett & Matthew L. Spitzer

From Volume 79, Number 3 (March 2006)
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The traditional U.S. spectrum allocation system has long been criticized – even by regulators – as overly rigid. To unleash innovative wireless technologies, the Federal Communications Commission (“FCC”) has gradually loosened government restrictions on airwave use. But the path to liberalization leads in alternative directions. One policy reform paradigm, championed by leading economists such as Ronald Coase, allows markets to allocate exclusively assigned spectrum use rights. A rival approach, advanced by advocates of an “open spectrum” such as Lawrence Lessig, favors allocating greater bandwidth for unlicensed use. In such bands, there is free entry by wireless users, provided they use regulator-approved devices that comply with protocols (including power limits) established by the government.

The FCC’s November 2002 Spectrum Policy Task Force Report called for greater reliance on both the exclusive and unlicensed models. Yet, considered in historical context, the FCC’s analysis veered decidedly toward more intense use of “spectrum commons,” abandoning previous agency goals to expand licensed allocations. Citing the “tremendous success” of unlicensed use of cordless phones and Wi-Fi access points, regulators have since argued that advanced wireless technologies create a new policy imperative. Because modern radios use sophisticated techniques for sorting out competing signals, “block allocations” are outdated.

The FCC sees the “spectrum commons” regulatory paradigm as suited to the new opportunities in wireless. In the wake of the spectrum report, it allocated additional 5 GHz bands for unlicensed use, and pursued several regulatory initiatives to dramatically expand bandwidth available for unlicensed devices. In contrast, new allocations for exclusively assigned, flexible-use spectrum rights (analogized as “property rights”) have stalled.

The FCC states that advanced wireless technologies yield valuable new opportunities to share radio spectrum on an unlicensed basis. Yet, the same advances increase opportunities for using exclusively assigned bands, where market data reveal that the most intense and complex frequency sharing actually occurs. Exclusive rights allow coordination of frequency use by competitive network operators; consumers generally find this a superior form of organization than that provided through regulated protocols, and overwhelmingly value marginal allocations of exclusively assigned rights more highly.

This Article examines tradeoffs in allocating spectrum for exclusive rights versus unlicensed use, focusing on an ongoing FCC rulemaking to create an “interference temperature.” This policy would permit unlicensed users to share bandwidth, including frequencies “exclusively” allocated to licensees, according to FCC rules. Our aim is to demonstrate that standard economic principles illuminate the path to proconsumer rules.

 

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Judicial Deference to Agency Interpretation of Jurisdiction After Mead – Note by Torrey A. Cope

From Volume 78, Number 5 (July 2005)
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The pervasive influence of administrative governance is a defining feature of modern American life. Indeed, it is hard to find an aspect of daily life that is not regulated by one federal agency or another: the Department of Labor enforces labor laws; the Environmental Protection Agency (“EPA”) manages air and water quality; the Federal Energy Regulatory Commission (“FERC”) regulates electricity; the Food and Drug Administration (“FDA”) monitors the nation’s food supply and ensures the safety of its medicine; the Board of Governors of the Federal Reserve System (“the Fed”) supervises banking institutions; the Consumer Product Safety Commission (“CPSC”) regulates consumer products; and the Federal Communications Commission (“FCC”) oversees radio, television, satellite, and cable communications. With so many agencies minding America, one might ask: who is minding America’s agencies?

For one, courts have a significant supervisory role. They ensure that agency actions meet the Constitution’s due process requirements and individual liberty protections. Yet at the same time, courts give agencies leeway in interpreting the federal statutes they administer. This is because agencies have technical expertise, democratic credentials, and flexibility that courts do not. There is an inherent tension between these two opposing forces – a need for control and a need for deference. Courts must balance these forces whenever they review challenges to administrative action.

 

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For the Birds: The Statutory Limits of the Army Corps of Engineers’ Authority over Intrastate Waters After SWANCC – Note by Jennifer DeButts Cantrell

From Volume 77, Number 6 (September 2004)
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Every year the Army Corps of Engineers receives over 74,500 applications for permits under section 404(a) of the Clean Water Act (“CWA”), the provision regulating the discharge of fill or dredged material into the nation’s waters. Consequently, when the Supreme Court granted certiorari for Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”) – a case potentially affecting the status of millions of acres of American wetlands – property owners, developers, and environmentalists alike were wise to stand up and take notice.

The SWANCC case involved a Chicago-area consortium of municipalities that sued the U.S. Army Corps of Engineers (“Corps”) for denying them a permit to develop a landfill on an abandoned mining site because the Corps had determined the land in question was inhabited by migratory birds. The central issue presented in SWANCC was whether this “Migratory Bird Rule” – a regulation promulgated in 1986 giving the Corps authority over wetlands populated by migrating birds – was a proper exercise of jurisdiction under the CWA. The municipalities argued that the rule exceeded the Corps’ authority because the CWA was meant to only regulate waters that are navigable or that adjoin navigable waterways. On the other hand, the Corps argued that its jurisdiction is not limited by traditional notions of navigability; rather it has authority over the nation’s waters to the fullest extent of the Commerce Clause.

 

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Risk Regulation, Endogenous Public Concerns, and the Hormones Dispute: Nothing to Fear but Fear Itself? – Article by Howard F. Chang

From Volume 77, Number 4 (May 2004)
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The dispute between the United States and the European Union (“EU”) regarding the EU ban on meat imports treated with hormones raises the question: How should regulators respond to public fears that are disproportionate to the risks as evaluated by experts in risk assessment? If regulators cannot eliminate public fears through education, then there is some social benefit from regulations that reduce the feared risks and thereby reduce public anxiety and distortions in behavior flowing from that anxiety. These considerations imply that we cannot simply ignore public fears that technocrats would deem “irrational.” On the other hand, there is the danger that special interests may seek to generate consumer anxiety and lobby for regulations that serve their interests. I explore an approach that takes public fears seriously as social costs but also treats them as endogenous variables. I use this framework to evaluate risk regulations in terms of economic efficiency and suggest that the danger of inefficient regulation is most acute when domestic industries promote or sustain fears regarding imported products. From this perspective, the World Trade Organization ruling against the EU in the hormones dispute, based on the risk assessment requirements in the Agreement on the Application of Sanitary and Phytosanitary Measures, may represent a reasonable approach to guarding against the danger of regulatory protectionism, understood broadly to describe inefficient regulations that the importing country would not have adopted but for the foreign nationality of the producers disadvantaged and the domestic nationality of the producers favored by those regulations.

 

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A Market-Based Approach to Telecom Interconnection – Article by David Gilo

From Volume 77, Number 1 (November 2003)
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This Article offers a new solution to the problem of interconnection among telecom networks. According to the Federal Communications Commission’s (“FCC”) proposal, interconnection between local exchange carriers (“LECs”) and long-distance carriers would be mandatory, and all charges demanded by LECs for outgoing and incoming long-distance calls would be regulated down to zero. In contrast, this Article proposes simple regulatory changes that would foster the deregulation of interconnection between long-distance carriers and LECs. Such regulatory changes would enable several market forces, revealed by the Article and neglected by the FCC and the previous literature, to keep LECs’ charges for interconnection from rising above competitive levels and encourage carriers to interconnect. First, long-distance carriers should be allowed to transit long-distance calls made to one LEC’s subscribers by interconnecting with the competing LEC. The Article illustrates that if LECs are forbidden from charging each other for completing each other’s calls, the credible threat to use such transit will induce each LEC to interconnect directly with long-distance carriers and to charge them voluntarily for incoming calls no more than the competing LEC’s marginal costs of transit. Moreover, future growth of cellular telephony and broadband Internet-protocol telephony is expected to strengthen this market force, especially if the FCC’s current requirement that long distance carriers average their rates is eliminated. As to the rates LECs charge long-distance carriers for long-distance calls made by the LECs’ subscribers, if the Telecommunications Act of 1996’s (“1996 Act”) requirement that long-distance carriers equalize their rates is amended, direct competition among LECs is shown to restrain them. Even short of amending the 1996 Act, the Article shows how long-distance carriers’ ability to ask one LEC to transit long-distance calls made by the competing LEC’s subscribers is expected to drive these rates down to the marginal costs of transit. The Article shows how interconnection among the LECs themselves should be regulated in order to enable the proposed deregulation of interconnection between the LECs and long-distance carriers. First, interconnection among LECs themselves should be mandated. Second, LECs should not be allowed to charge each other for completing each other’s calls. The Article also exposes an additional justification for not allowing LECs to charge each other for completing each other’s calls: LECs might negotiate an excessive reciprocal rate for such calls to enforce an implicit commitment on the part of a new LEC entering the market to focus only on “net receivers of calls” (such as Internet service providers), leaving the rest of the market to the incumbent.

 

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