Policy Lessons from PCS: A Hohfeldian Analysis of Licensed vs. Unlicensed

Kenneth R. CarterCounsel for Business and Economics

Office of Strategic Planning and Policy AnalysisFederal Communications Commission

International Telecommunications Society September 6, 2004

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Disclaimer

The analyses and conclusions expressed herein are mine alone and do not necessarily reflect the view of other members of the Office of Strategic Planning and Policy Analysis, other Commission Staff, or any Commissioner. Data was taken from publicly available sources, and we do not endorse any company or technology presented.

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Brief Taxonomy of Licenses

• Station or Geographic

• Operator

• Licensed by Rule

• Unlicensed

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Licensed PCS

• Created in 1993

• “Licensed” Has Interference Protection

• First Implementation of Flexible Rules: Licensee May Choose Service/Technology

• Equipment Must Meet Basic Technical Standards

• Equipment Authorization is Required

• Assigned by Auctions

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Unlicensed PCS

• Low Power Operation without a User License• No Vested Right to Continued Operation• May Not Cause Harmful Interference• Must Accept Any Interference • Must Cease Operation if Notified by FCC that

Device is Causing Harmful Interference • Must Receive Equipment Authorization before

Marketing/Importation• LBT Spectrum Etiquette

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140 MHz band at 1850 to 1990 MHz

• Fixed Microwave Services (Part 101)• Broadband PCS (Part 24)• Unlicensed PCS (Part 15D)

Broadband PCS

Fixed Microwave ServicePrimary

User

Secondary Users

1850 MHz 1910 1930 1990 MHz

U-PCS Broadband PCSBroadband PCS

Fixed Microwave ServicePrimary

User

Secondary Users

1850 MHz 1910 1930 1990 MHz

U-PCS Broadband PCS

Nextel

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Relocation

• Broadband PCS– Voluntary Negotiation Period

– Mandatory Negotiation Period

– Comparable Facilities

– Secondary Status

– Coordinators: PCIA & ITA

• Unlicensed PCS– Coordinator: UTAM

– Cleared area

– $20 per handset fee

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Introduction to Hohfeld

• No consistent use of language

• Leads to muddled legal reasoning:“This invites confusion, it makes bad logic almost inevitable, it makes clear statement of clear thought difficult, it makes clear thought itself improbable.”

- Karl Llewellyn, The Bramble Bush at 85 (1960).

• Clear and precise articulation of legal relationships

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Hohfeld’s Jural Concepts

• Right is one’s affirmative claim against another;• Duty is the obligation to perform or abstain from an action;• Privilege is the freedom from the right of another; • No-Right is the inability to assert a claim against another• Power is one’s affirmative control over a given legal relation as

against another;• Liability is the obligation to the affirmative control of another

over a given legal relation;• Immunity is the freedom from the affirmative control of another

over a given legal relation; • Disability is the lack of control over a given legal relation as

against another

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Jural Correlatives

Right Privilege Power Immunity

Duty No-Right Liability Disability

Reflect current state of relationships

Reflect current state of and potential future state of relationships

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Jural Opposites

Right Privilege Power Immunity

No-Right Duty Disability Liability

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“Spectral” Persons

• Spectrum Regulator (FCC)• Primary Licensee• License Assignee (Secondary Markets)• Receivers Not Under the Control of the Licensee (e.g.,

Broadcast Radio & Television)• Secondary Users• Adjacent Licensee (in Frequency, Time, or Geography)• License-by-Rule Users (Part 95)• Authorized-by-Rule Users (Part 15)• Errant Users (e.g., pirates)• The Unborn Spectrum User (Persons who in the future may

wish to use the spectrum)

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Band Participants

• Spectrum Regulator FCC

• Primary Licensee Fixed Microwave Service

• Secondary Users Broadband PCS

• Authorized-by-Rule Users U-PCS

• Errant Users Pirates

• The Unborn Spectrum User

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Band-Specific ApplicationFCC and Broadband PCS Users

Jural Correlatives

RightFCC has right to the performance of obligations contained within license

PrivilegeBPCS may emit RF energy consistent with its license

PowerFCC has power to change terms of BPCS license when consistent with the public interest

ImmunityFCC has an immunity from having its power terminated

DutyBPCS must comply with license

No-RightFCC has no right to stop BPCS

LiabilityUPCS has a liability that is emissions privilege can be curtailed

DisabilityBPCS cannot terminate the FCC’s’ power

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Band-Specific ApplicationFixed Microwave Service Users and Unlicensed PCS Users

Jural Correlatives

RightFMS has the right to be free from harmful interference

PrivilegeFMS may emit RF energy and U-PCS may emit RF energy when authorized by UTAM

PowerUPCS has power to terminate FMS right by completing relocation through UTAM

ImmunityUPCS has an immunity from having its relocation power terminated

DutyUPCS must not cause BPCS harmful interference

No-RightUPCS has no right to stop if FMS causes interference

LiabilityFMS looses primary status upon relocation

DisabilityFMS cannot terminate UPCS’ Relocation power

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Band-Specific ApplicationBroadband PCS Users and Unlicensed PCS Users

Jural Correlatives

RightBPCS has the right to be free from harmful interference

PrivilegeBPCS may emit RF energy and U-PCS may emit RF energy

PowerBPCS has power to terminate UPCS emissions privilege, if the emissions cause harmful interference by complaining to the FCC

ImmunityBPCS has an immunity from having its power terminated

DutyUPCS must not cause FMS harmful interference

No-RightUPCS has no right to stop if BPCS causes interference. BPCS has no right to stop unless UPCS causes interference

LiabilityUPCS has a liability that is emissions privilege can be curtailed

DisabilityUPCS cannot terminate BPCS’ power

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Band-Specific ApplicationBroadband PCS Users and Errant users

Jural Correlatives

RightBPCS has the right to be free from harmful interference

PrivilegeBPCS may emit RF energy

PowerBPCS has power to terminate Errant Users’ emissions by complaining to the FCC

ImmunityBPCS has an immunity from having its power terminated

DutyErrant users must not cause BPCS harmful interference

No-RightErrant Users have no right to stop BPCS

LiabilityHas a liability that its emissions are terminated

DisabilityUPCS cannot terminate BPCS’ power

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Policy Lessons

• Market: Service Provider or Equipment

• Flexibility is preferable to etiquette

• Licensed handled relocation better

• U-PCS operation requires authorization which is in fact a Station License!

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One View of the Cathedral One View of the Bazaar

http://www.ibiblio.org/wm/paint/auth/monet/rouen/monet.rouen-cathedral.jpghttp://www.persian-ventures.com/images/bazaar.jpg

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Summary

• Hohfeldian analysis promising tool for spectrum policy review

• Focuses analysis on remedying interference externality

• Increased policy tools – narrowly tailored• Conflict resolution• Transition focus from C&C to use & user• Spectrum use looks like other “every day”

activities

Thank you!

Kenneth R. CarterOffice of Strategic Planning and Policy Analysis

Federal Communications CommissionKenneth.Carter@fcc.gov

+1 202 418-1706

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Band-Specific ApplicationFCC and Unlicensed PCS Users

Jural Correlatives

RightFCC has right to the performance of obligations contained within the rules such as Certification.UPCS has no vested rights

PrivilegeUPCS may emit RF energy, up to the limits specified under the rules

PowerFCC has power to change rules and terminate UPCS emissions privilege

ImmunityFCC has an immunity from having its power terminated

DutyUPCS must obeyFCC has no duties other than to serve the public interest

No-RightFCC has no right to stop UPCS

LiabilityUPCS has a liability that is emissions privilege can be ended

DisabilityUPCS cannot terminate FCC’s power

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Band-Specific ApplicationFixed Microwave Service Users and Broadband PCS Users

Jural Correlatives

RightFMS has the right to be free from harmful interference

PrivilegeFMS and BPCS may emit RF energy

PowerBPCS has power to terminate FMS right by completing relocation

ImmunityBPCS has an immunity from having relocation power terminated

DutyBPCS must not cause FMS harmful interference

No-RightBPCS has no right to stop if FMS causes interference

LiabilityFMS looses primary status upon relocation

DisabilityFMS cannot terminate BPCS’ relocation power