Everything Is Not Terminator Ai Today Is the Wireless Industry in the 1990s

• Citation: Vol. 1 No. 1
• Publication year: 2018

John Frank Weaver^*

I frequently joke that I have two practices: really old law (dirt, real estate) and really new law (artificial intelligence and other forms of emerging technology). The primary area where these two practices overlap is the Internet of Things ("IoT") and wireless infrastructure, where clients acquire properties for wireless communications facilities, i.e., antennas, and obtain the necessary permitting for those facilities. Expanding existing wireless networks in anticipation of 5G and the billions of expected IoT devices is a tremendous challenge,¹ but similar in many ways to the one the wireless industry first encountered in the 1990s, when the consumer cell phone market began to register broadly in public consciousness. Working in both the artificial intelligence ("AI") and wireless telecommunications legal fields, it is hard not to draw parallels between the wireless sector in the 1990s and the AI sector today.

NICHE TECHNOLOGY READY TO BECOME MAINSTREAM

In 1993, when Congress first started negotiating and drafting the Telecommunications Act of 1996 ("TCA"), approximately 16 million Americans owned a cell phone,² meaning they were used regularly by approximately six percent of the country. In other words, wireless technology was a niche market, with much of the use concentrated in the commercial sector. However, the technology's popularity was already taking off, and by the time President Clinton signed the TCA into law, 44 million Americans, 17 percent of the country, owned a cell phone.³ Today, of course, almost everyone has a cell phone and the total number of wireless subscribers in the United States in larger than the actual population of the country.⁴

AI appears to be in the same position today. The commercial sector is an early adopter, with companies like Facebook and Google (among others) re-organizing their businesses around AI.⁵

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However, consumers have not widely embraced the technology, as only 10.5 percent of people use AI regularly.⁶ That seems likely to change as the functionality of AI-based applications available to consumers will continue to expand.

BUSINESSES LAYING THE GROUNDWORK FOR GROWTH

The growth of the wireless industry was predicted by the spectrum sales that began following the Omnibus Budget Reconciliation Act of 1993, which authorized the Federal Communications Commission ("FCC") to sell monopoly rights to radio spectrum via competitive bidding.⁷ Wireless providers like Verizon and AT&T need those rights for their antennas and their customers' phones to properly receive and transmit signals. Between December 1, 1994, when the FCC created the Wireless Telecommunications Bureau ("WTB"), and March 5, 2002, the WTB conducted 45 separate spectrum auctions with a total of 21,853 licenses awarded and sales of nearly $42 billion recorded.⁸ Anyone paying close attention to this activity would have realized that the companies making these investments expected widespread growth in the wireless field.

AI companies are engaging in similar activities and making similar investments in AI products. Google alone is introducing numerous AI-based products that suggest significant research and development and indicate the company expects serious interest from a large consumer market. Those products include:

- AI personal assistant products, like Google Assistant and Google Home;

- Google Maps' increased ability to analyze current traffic using location data from smartphones and offer faster routes; and

- Gmail's "smart reply," which analyzes the email chain you're reviewing to suggest brief responses, a function that potentially presages an inbox that responds to email for you.⁹

Additionally, Google, Facebook, Amazon, and other likeminded companies are spending big money to acquire AI talent and companies. For example, the top 20 AI recruiters are spending more than $650 million annually to hire skilled AI developers, while those same companies are making deals for AI startups like Amazon's nearly $20 million purchase of harvest.ai and Google's $500 million purchase of DeepMind.¹⁰

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Autonomous technology companies, which rely on AI in their products, are also actively testing their products. Numerous cities, including San Francisco, Pittsburgh, Boston, and Austin, have self-driving cars undergoing tests on their roads.¹¹ And although Federal Aviation Administration ("FAA") regulations make it difficult to test (and impossible to operate) autonomous drones,¹² some companies have experimented with autonomous delivery drones in either rural, sparsely populated areas of the United States or in other countries where drone regulations are more forgiving.¹³ In many ways, these investments are more significant and suggest greater market development than the wireless spectrum auctions in the 1990s.

REGULATORY DEVELOPMENT IN ANTICIPATION OF MARKET DEVELOPMENT

As noted above, the two primary federal laws that Congress put in place in the early and mid-1990s to govern the development and expansion of the wireless industry were the Omnibus Budget Reconciliation Act of 1993 and the Telecommunications Act of 1996. While the 1993 Act permitted the FCC to auction spectrum to enable the wireless industry's growth, the Telecommunications Act of 1996 gave increased authority to the FCC to regulate the industry. Among other things, it commanded the FCC to consider improving the efficiency of spectrum use and encouraging competition and providing services to the largest feasible number of users when managing the wireless spectrum.¹⁴ It also specifically preserved local zoning authority for the actual siting of antennas and wireless infrastructure, subject to some limitations,¹⁵ seeking to balance "the carrier's desire to efficiently provide quality service to customers and local governments' primary authority to regulate land use."¹⁶ Numerous municipalities were eager regulators, enacting wireless communications facilities both before the TCA and shortly thereafter.¹⁷ In some ways, this regulatory activity was disproportionate to the actual market impact of wireless communications, but it suggested that the market would get much larger.

Government activity and regulation affecting AI is on the same path today. The FAA is actively...