Spectrum miscreants, vigilantes, and kangaroo courts: the return of the wireless wars.

• Author: Sandvig, Christian
• Position: Rough Consensus and Running Code: Integrating Engineering Principles into the Internet Policy Debates

1. TELECOMMUNICATIONS POLICY FROM BELOW: THE THEORY OF LAW AS PROCESS II. RETURNING WIRELESS TO ITS "STATE OF NATURE" A. To the Trenches of License-Exempt Spectrum III. CASE 1: MONROEMESH'S FAILURE TO SHARE A. The Engineer's Perception of Congestion and Beauty IV. CASE 2: THE PLANETREE FOREST SPECTRUM WAR A. SATNet and the Informal Spectrum Negotiation B. From Negotiation to Jamming C. From Jamming to Extortion D. Primacy of Local Versus National Sources of Adjudication V. CONCLUSION A. The New Role of the License-Exempt Regulator B. Embedding Spectrum Negotiation in Software Will Not Change This Situation C. The Future of the Approach "From Below" The requirement that radio users obtain the government's permission in advance before transmitting has been a foundational feature of communications regulation for about eighty years. However, the recent regulatory expansion of "open" regimes for managing the electromagnetic spectrum, such as the increase in license-exempt and "light" licensed frequencies in several countries, may change all of that, and this prospect has created excitement among observers of wireless telecommunications and communication law. Garage door openers, cordless phones, and baby monitors, it is hoped, were just the first kinds of "radio stations" one could have without a license. Under open regimes, more people will have more wireless devices in their hands than ever before, and they will be able to use them in new ways. Proponents hope that more use, more efficient use, and more application innovation will result. However, the fate of services in these bands--and of the open spectrum model itself--now rests with user behavior. As of this writing, no one is sure of the answers to basic questions such as when (or if) these open bands of the electromagnetic spectrum will become congested with too many users, if they will fail due to congestion, or, more generally, what it is exactly that people will do with these new wireless freedoms. While allusions to "tragedies of the commons" (1) and their inevitability or avoidability have been widespread in writing about license-exempt spectrum, little is empirically known.

   In effect, license-exempt bands are a partial return to communication policy's "state of nature"--what will people do without government? (Or, more properly, what will people do when the role of government is changed and the requirement for prior permission to transmit is removed?) Using two case studies drawn from a larger project across six countries, this Article considers the case of Wireless Internet Service Providers trying to use "open" spectrum, and chronicles their successes and failures. It shows, perhaps unsurprisingly, that when legal constraints are removed, users make their own order and are bound by their own local and differing standards of fairness and propriety. The topic of this Article could be identified by the keyword "shared spectrum," used in the literature--but in what follows it is clear that sharing sits alongside selfishness, coexistence with extortion, and formal law with kinship and neighborhood customs.

   First, this Article will outline the theoretical approach embodied by these observations, an approach grounded in the anthropology of law and derived from Moore's process theory of law: (2) here, glibly labeled "telecommunications policy from below." Second, it will introduce Wireless Internet Service Providers (WISPs) and this project's methods in studying them. Next, it will present two detailed case studies from 2003 to 2005. The first case study describes an entrepreneurial project in a small city that never quite got off the ground because the spectrum never looked empty enough, while the second focuses on a "war" between two competing WISPs that evokes the world before the enforcement of radio regulations--the "Wild West" of radio, as some have called it. Finally, this Article will end by drawing conclusions about the future of open spectrum regimes and the utility of studying the administrative law processes of telecommunications with a process theory of law, or "telecommunications policy from below."

1. TELECOMMUNICATIONS POLICY FROM BELOW: THE THEORY OF LAW AS PROCESS

   If one is interested in the study of telecommunications policy, one almost always assumes that the action can be found in bodies one would identify as "policymaking" (legislatures and regulators), and that the appropriate object of study is a law or ruling---or, more expansively, an elite debate about one. Certainly the world outside these fora is crucial to research on telecommunications policy, but the outside world makes its entry via logical arguments in legal analysis, in descriptions of technological changes, in ideal hypothetical cases, in secondary reporting of market research, and in economic simulations of reason. Research on telecommunications policy is in this way dominated by a philosophically conservative approach to law--an approach encouraged structurally by the political economy of the policymaking process. (3)

   If inherent in all of these diverse approaches is an overarching philosophy of law, the closest may be legal formalism. A policy researcher never need mention that "the law" of interest is the law as it exists written on a page or that the appropriate focus of a research project should be a patriciate debate over a present or future policy. The analyst's goal is usually to determine how a current or proposed law (on a page) is right or wrong. Research in this tradition has produced useful and even brilliant work. However, although the experts toiling with such research are more savvy than any layman about the intrigues and interpretations that surround every line of formal law, these intrigues rarely appear in mainstream analyses of telecommunications policy, and they are almost never the focus of it.

   In contrast, this Article takes a methodological approach derived from the anthropology of law, specifically Moore's theory of law as process.4 This approach can be contrasted with other research on telecommunications policy by two central differences: First, it considers the law as it appears in the lives of people who are not policymakers. These lives occasionally appear in formalist telecommunication "user studies," (5) but it is significant that what is analyzed in other studies is the communication technology (as in "telephone users" or "Internet users") and not the law. Telephone users are studied so that the right law can be written. The right law will then define the system that these telephone users use. "Yet although everyone acknowledges that the enforceable rules stated and restated in legal institutions, in legislatures, courts and administrative agencies, also have a place in ordinary social life, that normal locus is where they are least studied." (6) That is, telephone and other kinds of users are also users of the law. To care about this is not just to go looking for the same law in a different place, but instead it is looking for a different law. That is, not the telecommunications policy that is written, but the policy that you can get away with. It is well known that only a rare few will ever encounter formal legal proceedings, and even these laws oftentimes become operative only when a certain kind of person claims to know about it and presses for its enforcement. (7) And so, telecommunications policy then is not just responsible for systems and markets, it is also something that users (or rather, people) directly think about, interpret, manipulate, and even create in the course of their experiences with communication systems. This framework's second departure from other approaches to telecommunications policy then is that it takes as its object the intrigues and interpretations that surround law. Indeed, without formalist law as an object, this approach asserts that the surrounding impermanent perceptions are in fact the substance of the law. The rules are whatever we believe the rules are, no matter what the law books say. Statutes are one way of talking about rules and order, among many other ways.

   Many precedents for this approach exist. Although Moore's theory of law as process has not been employed in telecommunications, excellent previous scholarship in communications policy has focused critically on the political culture surrounding law. Perhaps most memorably, some scholars have considered administrative agencies like the FCC as an interpretive community, and have analyzed communications policy symbolically rather than institutionally. (8) There have also been approaches to law that are methodologically similar to this one via oral history. (9) Previous scholars have rejected legal formalism by turning to the critical legal studies movement, (10) but here we will instead turn to socio-legal studies (11)--a pluralistic scheme for studying the law that is inclusive of legal anthropology. (12)

   Indeed, it may be clearest to say at the outset that telecommunications policy has always been ruled "from below" as much as from above. Midwestern farmers in the first decades of the twentieth century were running illegal telephone systems over barbed-wire fences and using their farm kitchen as the exchange. (13) In the 1960s, ordinary people with no technical experience were using then-illegal network attachments in their homes. (14) Commercial broadcasting was brought to the United Kingdom in part by Radio Caroline and other commercial broadcasters intentionally testing and even flaunting broadcast rules. (15) Yet aside from some discussion of radio pirates, (16) empirical analyses of these minor telecommunications criminals do not typically appear in law journals.

   It is obvious that changing the penal code's sanction for (or definition of) assault will not eliminate assault. Similarly, radio laws will always have radio pirates. Indeed, manipulating the formal criminal law may define illegality and change rules, penalties...