"Good fences make good neighbors." No matter how well you get along with the neighbor next door, it's good to know where his property ends, and yours begins.
And good fences are essential for more than just real estate; other areas of the law depend on laying down clear, enforceable boundaries between one company's intangible "property line" and another's. Perhaps the best example of this is the communications spectrum. For more than 80 years, the Federal Communications Commission (and its predecessor, the Federal Radio Commission) has fixed the boundaries between users' respective shares of the spectrum, and policed the spectrum to ensure that the users have obeyed those "fences."
Spectrum allocation is by and large a low-key issue. But in recent months, one dispute among users of adjacent spectrum space has become particularly heated.
LightSquared Inc. proposes to build a telecommunications network combining both satellites and traditional land-based communications towers. LightSquared would help to bring broadband Internet access to millions of rural Americans, a critically important service for heartland residents who find themselves on the wrong side of a persistent "digital divide" between broadband "haves" and "have-nots." And it would help close the gap between the United States, which ranks 15th in broadband adoption, and more technologically developed nations.
The FCC approved LightSquared's network in 2005, and until recently the proposed network was not controversial. But in late 2010, the U.S. GPS Industry Council (an advocacy group promoting the satellite location technology that now serves countless cars, phones and other devices) abruptly began to assert that LightSquared's network would "interfere" with GPS communications, which occupy the adjacent spectrum space.
As a matter of regulatory procedure, USGIC's belated complaints were dubious: The GPS has known about LightSquared's proposal since 2001, and the FCC approved it in 2005. Nevertheless, it attracted virtually no criticism regarding GPS; only one company briefly raised the issue in 2001, but it ceased to press its point long before the FCC's 2005 approval order.
But perhaps, even more important, the GPS industry's public campaign against LightSquared relies upon a fundamental misperception: To the extent that LightSquared's and GPS's activities would be incompatible, it is not because of malfeasance on LightSquared's part. Quite the contrary: GPS communications spill over into LightSquared's share of the spectrum.
Until now this has not been a problem, because LightSquared has not actively used its spectrum. Only once it became evident that LightSquared would actually make its proposal a reality - and after the company invested $1 billion - did LightSquared face a public campaign before both the FCC and the court of public opinion.
In this controversy, some have alleged that LightSquared improperly lobbied the White House to promote its cause. But my point here is not to discuss that dispute. Instead, my sole focus is on the regulatory issues. And in that respect, there is no serious dispute: Critics raised no concerns regarding LightSquared's effects on GPS for nearly a decade. Only after LightSquared received FCC approval, and invested vast sums of capital in the project, did GPS begin to complain - and about problems of GPS's own making.
LightSquared has offered voluntarily to shoulder much of the burden for identifying the full scope of GPS's technological problem. But the FCC itself warned that accountability rests "not only on new entrants but on incumbent users" - namely, GPS - "who must use receivers that reasonably discriminate against reception of signals outside their allocated spectrum."
In other words, GPS bears more than a little responsibility to contribute to a solution for a problem it helped create. It is unfair to ignore the clear public record here going back to 2001, along with the reasonable investment expectation based on that record. To do so would discourage similar future investment in new telecommunications technology, just when we need more innovation, not less.
c C. Boyden Gray served as White House counsel in administration of George H.W. Bush.
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