Intellectual Property Law

White spaces - timing

By Susan Crawford

Last week’s emergency petition by the broadcasters to delay the FCC’s Nov. 4 vote is just part of the white spaces atmosphere right now.  Ars Technica reports that the mud is really flying - the broadcasters are accusing proponents of white space use of wanting to kill off television.

It’s a familiar argument - “If you do Y, broadcast television as we know it will be destroyed.”  (See Joel Brinkley, Defining Vision.)

Now the broadcasters have made a supplemental filing arguing in favor of drastically reduced power levels for white space devices.  They’re saying that using these devices in channels adjacent to existing broadcast channels will “create[ ] the potential for interference to viewers? DTV sets throughout 77% of a station?s service area.”  Their proposal is for far lower power limits, no sole reliance on spectrum sensing (databases of uses would have to be checked - “geolocation”), and for setting aside special channels for wireless mics.

Is the “potential” for interference enough, should it be enough, to stop the FCC from opening up the white spaces to portable unlicensed uses at the power levels it has suggested so far?   Harold Feld says no, and asserts that the entire effort is a shameless attempt to run out the clock at the FCC, forcing the entire issue into the lap of the new administration.

It has been six years since the FCC started studying this issue.  It does seem as if the matter could be resolved now.  We know the FCC’s own engineers have concluded that “spectrum sensing in combination with geo-location and database access techniques can be used to authorize equipment today under appropriate technical standards and that issues regarding future development and approval of any additional devices, including devices relying on sensing alone, can be addressed.”  In other words, the prototypes worked well enough for the Commission to go ahead in creating certification standards for actual devices.

The question now is whether the Commission will delay its scheduled Nov. 4 vote.  I think it would be a mistake to do so, but I also think that the “broadcast television as we know it” argument has weight with Congress.  On the other hand, Sen. Kerry wants the Commission to go ahead, and he’s been a principled and helpful voice on this subject for a long time.

It’s a torrent, a tsunami of lobbying - a river of contestable interference data - a blizzard of references to earlier tens of thousands of filings, a hurricane of imprecations flung from side to side.  Lots of disruptive pre-election weather.  Rough sledding for all concerned.

Full post as published by Susan Crawford Blog on October 24, 2008 (boomark / email).