Repurposing the FCC

Pardon my French, but it’s de rigueur these days to talk about “repurposing” spectrum to address what Federal Communications Commission Chairman Julius Genachowski calls the coming “spectrum crunch” for wireless operators.

The need for more spectrum capacity for mobile broadband services is real. Hence, the need for repurposing spectrum is real too.

So here’s an idea: The FCC should repurpose itself in order to more effectively accomplish repurposing of spectrum.

“Repurposing” spectrum refers to the FCC taking action to allow spectrum currently used for one purpose, say, broadcasting, to be used for another purpose, say, wireless mobile. The spectrum incentive auctions Congress just authorized, and which the FCC must now implement, are intended to repurpose some spectrum currently used for broadcast TV for use by mobile services.

The FCC’s recently released Strategic Plan emphasized that “rulemaking proceedings will be conducted to enable more flexible operations, and allow for repurposing of spectrum.”

Repurposing the FCC would mean the agency, as an institution, would refocus itself in a meaningful way to accomplish, more effectively and more promptly than presently, the repurposing of spectrum that all agree is needed.

What would this agency repurposing entail? In the main, simply this: The Commission should substantially reduce the substantial resources it has been devoting for the past several years to considering the competitiveness of the wireless market, and redirect those resources to taking actions that will increase the amount of spectrum available for use by wireless operators.

I want to make it clear I am not suggesting the competitiveness of the wireless marketplace is not a legitimate government concern, even if I and many other observers assert the market is presently competitive. I am suggesting, however, that any such competitive concerns ought to be left primarily in the hands of the antitrust authorities for resolution under economically rounded antitrust jurisprudential principles, rather than under the FCC’s indeterminate — and therefore easily manipulated — public interest standard.

There is a fairly broad consensus that a substantial overlap exists in the competition examinations of the FCC and the Department of Justice. In light of this acknowledged overlap, many argue the FCC should rely more heavily on DOJ to carry out this competitive analysis work, especially with respect to the evaluation of proposed transactions. If the FCC, in an exercise of regulatory modesty that I have urged for years, would follow this self-restraining approach, the agency could devote the freed-up staff time and other resources to focusing much more single-mindedly on repurposing spectrum.