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

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

• Kenneth R. Carter
• Counsel for Business and Economics
• Office of Strategic Planning and Policy Analysis
• Federal 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)

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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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Hohfelds Jural Concepts

• Right is ones 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 ones 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 relationships Reflect current state of and potential future 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 Application
FCC and Broadband PCS UsersJural Correlatives FCC and Broadband PCS UsersJural Correlatives FCC and Broadband PCS UsersJural Correlatives FCC and Broadband PCS UsersJural Correlatives
Right FCC has right to the performance of obligations contained within license Privilege BPCS may emit RF energy consistent with its license Power FCC has power to change terms of BPCS license when consistent with the public interest Immunity FCC has an immunity from having its power terminated
Duty BPCS must comply with license No-Right FCC has no right to stop BPCS Liability UPCS has a liability that is emissions privilege can be curtailed Disability BPCS cannot terminate the FCCs power
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Band-Specific Application
Fixed Microwave Service Users and Unlicensed PCS Users Jural Correlatives Fixed Microwave Service Users and Unlicensed PCS Users Jural Correlatives Fixed Microwave Service Users and Unlicensed PCS Users Jural Correlatives Fixed Microwave Service Users and Unlicensed PCS Users Jural Correlatives
Right FMS has the right to be free from harmful interference Privilege FMS may emit RF energy and U-PCS may emit RF energy when authorized by UTAM Power UPCS has power to terminate FMS right by completing relocation through UTAM Immunity UPCS has an immunity from having its relocation power terminated
Duty UPCS must not cause BPCS harmful interference No-Right UPCS has no right to stop if FMS causes interference Liability FMS looses primary status upon relocation Disability FMS cannot terminate UPCS Relocation power
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Band-Specific Application
Broadband PCS Users and Unlicensed PCS Users Jural Correlatives Broadband PCS Users and Unlicensed PCS Users Jural Correlatives Broadband PCS Users and Unlicensed PCS Users Jural Correlatives Broadband PCS Users and Unlicensed PCS Users Jural Correlatives
Right BPCS has the right to be free from harmful interference Privilege BPCS may emit RF energy and U-PCS may emit RF energy Power BPCS has power to terminate UPCS emissions privilege, if the emissions cause harmful interference by complaining to the FCC Immunity BPCS has an immunity from having its power terminated
Duty UPCS must not cause FMS harmful interference No-Right UPCS has no right to stop if BPCS causes interference. BPCS has no right to stop unless UPCS causes interference Liability UPCS has a liability that is emissions privilege can be curtailed Disability UPCS cannot terminate BPCS power
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Band-Specific Application
Broadband PCS Users and Errant users Jural Correlatives Broadband PCS Users and Errant users Jural Correlatives Broadband PCS Users and Errant users Jural Correlatives Broadband PCS Users and Errant users Jural Correlatives
Right BPCS has the right to be free from harmful interference Privilege BPCS may emit RF energy Power BPCS has power to terminate Errant Users emissions by complaining to the FCC Immunity BPCS has an immunity from having its power terminated
Duty Errant users must not cause BPCS harmful interference No-Right Errant Users have no right to stop BPCS Liability Has a liability that its emissions are terminated Disability UPCS 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/m
onet.rouen-cathedral.jpg
http//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 CC to use user
• Spectrum use looks like other every day
  activities

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Thank you!

• Kenneth R. Carter
• Office of Strategic Planning and Policy Analysis
• Federal Communications Commission
• Kenneth.Carter_at_fcc.gov
• 1 202 418-1706

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Licensed Shackled Ken Carter
OLD HAT!!
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Band-Specific Application
FCC and Unlicensed PCS Users Jural Correlatives FCC and Unlicensed PCS Users Jural Correlatives FCC and Unlicensed PCS Users Jural Correlatives FCC and Unlicensed PCS Users Jural Correlatives
Right FCC has right to the performance of obligations contained within the rules such as Certification. UPCS has no vested rights Privilege UPCS may emit RF energy, up to the limits specified under the rules Power FCC has power to change rules and terminate UPCS emissions privilege Immunity FCC has an immunity from having its power terminated
Duty UPCS must obey FCC has no duties other than to serve the public interest No-Right FCC has no right to stop UPCS Liability UPCS has a liability that is emissions privilege can be ended Disability UPCS cannot terminate FCCs power
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Band-Specific Application
Fixed Microwave Service Users and Broadband PCS Users Jural Correlatives Fixed Microwave Service Users and Broadband PCS Users Jural Correlatives Fixed Microwave Service Users and Broadband PCS Users Jural Correlatives Fixed Microwave Service Users and Broadband PCS Users Jural Correlatives
Right FMS has the right to be free from harmful interference Privilege FMS and BPCS may emit RF energy Power BPCS has power to terminate FMS right by completing relocation Immunity BPCS has an immunity from having relocation power terminated
Duty BPCS must not cause FMS harmful interference No-Right BPCS has no right to stop if FMS causes interference Liability FMS looses primary status upon relocation Disability FMS cannot terminate BPCS relocation power