WHITE OPEN SPACES: UNLICENSED ACCESS TO UNUSED TELEVISION SPECTRUM WILL PROVIDE AN UNPRECEDENTED LEVEL OF INTERCONNECTIVITY Kathryn A. Watson* I. INTRODUCTION Before high-definition and hundreds of channels, there once existed a world in which the knob on the front of the television switched between local broadcast channels. In between episodes of M*A*S*H and the local news were ―snowy‖ channels that disrupted the steady flow of channel surfing. Those loud, fuzzy channels have the potential to provide revolutionary new wireless services and extraordinary technological advances in the field of wireless technology.1 Recent developments surrounding the broadcast television spectrum have opened up a world of innovation, competition, and debate. On November 4, 2008, the Federal Communications Commission (―FCC‖) adopted a Second Report and Order that establishes new rules for allowing the operation of new, sophisticated wireless devices in the broadcast television spectrum at locations where that spectrum is not being used by licensed services.2 These unused portions of the television spectrum are known as television ―white spaces‖.3 The new regulatory rules adopted by the FCC in November 2008 permit the operation of unlicensed devices in the television white spaces and allow for * J.D., University of Illinois College of Law, 2010; B.A. Political Science, University of Illinois at Urbana-Champaign, 2005. I would like to extend the utmost gratitude to William Breedlove and the other editors of the Journal of Law, Technology & Policy for their efforts and understanding in seeing this Note through to publication. I would also like to thank my husband, Brian, for his unconditional support and continuous encouragement. 1. FCC Approves Largest Ever Expansion of Internet Access, CHARLESTON GAZETTE AND DAILY MAIL, Nov. 5, 2008, at 2C, available at 2008 WLNR 21260730. 2. FED. COMM. COMMISSION, ET DOCKET NO. 08-260, SECOND REPORT AND ORDER AND MEMORANDUM OPINION AND ORDER, (2008) [hereinafter SECOND REPORT AND ORDER]; Press Release, Federal Communications Commission, FCC Adopts Rules for Unlicensed Use of Television White Spaces (Nov. 4, 2008), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-286566A1.pdf [hereinafter Press Release 1]. 3. Press Release 1, supra note 2 at 1. 181 182 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2010 ―new and innovative types of unlicensed devices in the unused spectrum to provide broadband data and other services for consumer and businesses.‖4 One of the primary benefits of allowing devices to use unlicensed white spaces is to improve Internet access throughout the country, particularly rural areas where high-speed internet access is currently expensive or unavailable.5 However, the possibility of interference with incumbent users of the spectrum has sparked a debate of whether the FCC‘s decision was a proper one. 6 Television broadcasters, entertainers, professional sports leagues, and some congressional leaders protested the FCC‘s decision, claiming that allowing unlicensed devises to operate in white spaces will potentially disrupt their use of the spectrum.7 Opposition websites, public comments and even lawsuits have been advanced by these opponents in an attempt to influence the FCC and prohibit the use of the spectrum in this manner.8 The FCC and commentators have addressed some of the issues raised and claim that FCC-approved devices can operate on an unlicensed basis within the white spaces without unduly interfering with other signals on the spectrum.9 This has sparked a wave of innovation and invention by companies such as Google and Microsoft, who are developing devices that aim to operate within the realm of the FCC‘s new rules. These devices are being designed to utilize the white space spectrum to provide high-speed broadband internet, as well as radio access, throughout the United States.10 The issue remains, however, of what will be done about interference. Questions regarding allowable thresholds of interference, monitoring responsibilities and remedial measures that will be taken often surround the debate over the FCC‘s decision. These concerns need to be adequately 4. Id. 5. Wireless Future Program, New Foundation America, http://www.newamerica.net/programs/ wireless_future (last visited Feb. 9, 2009). 6. Susan P. Crawford, The Radio and the Internet, 23 BERKELEY TECH. L.J. 933, 1003 (2008). See Press Release 1, supra note 3 at 2 (―The rules represent a careful first step to permit the operation of unlicensed devices in the TV white spaces and include numerous safeguards to protect incumbent services against harmful interference.‖). 7. Marguerite Reardon, Debate to Delay „White Space‟ Vote Heats Up, CNET NEWS, Oct. 24, 2008, http://news.cnet.com/8301-1035_3-10075172-94.html. 8. See, e.g. InterferenceZones.com, Prohibit the Use of Unlicensed Wireless Devices in White Spaces, http://www.interferencezones.com (last visited Dec. 21, 2009) (an opposition website designed to convince the public that that FCC‘s decision to allow unlicensed white spaces is harmful); see also Sasha D. Meinrath & Michael Calabrese, ―White Space Devices” & The Myths of Harmful Interference, 11 N.Y.U.J. LEGIS. & PUB. POL‘Y 495, 505 (2008) (discussing the ―misinformation campaign‖ launched by opponents in an effort to halt the FCC‘s decision and dispelling the ―myths‖ propagated about white space technologies.). 9. Press Release 1 supra note 2; see generally SECOND REPORT AND ORDER, supra note 2 (analyzing the comments received surrounding the white space debate and discussing how the concerns of the opposition regarding interference have been addressed in the new regulatory scheme). 10. See Erica Naone, Wi-Fi via White Spaces, TECHNOLOGY REVIEW Aug. 19, 2009, http://www.technologyreview.com/communications/23271/?a=f (discussing how companies are beginning to take advantage of the FCC‘s white space decision by creating new devices that will transmit internet over white spaces); see also TV White Space Position Paper, Motorola, http://www.motorola.com/staticfiles/ Business/Product%20Lines/Motowi4/wi4%20Fixed/Point-to-Point%20Mulitpoint/Canopy/_ChannelDetails/ _Documents/_Static%20files/WB_TV%20White%20Space%20Position%20Paper_V2_11.08.pdf (last visited Jan. 20, 2010) (noting that ―[t]he FCC has decided to support the use of TV White Space as a means to provide broadband connectivity to the rural areas in the United States by providing unlicensed access to the unused bands within TV White Space spectrum.‖). No. 1] WHITE OPEN SPACES 183 addressed in order for the goals of the FCC‘s decision, namely ubiquitous wireless accessibility and unlicensed access to this portion of the spectrum, to be fully maximized. The revolutionary new model adopted by the FCC, which allows for dynamic sharing of the licensed spectrum with unlicensed devices, can potentially result in substantial social gains in terms of technological advancement, global competitiveness, and business productivity. It is imperative that the FCC‘s regulatory framework is designed and implemented in a manner that will ensure negative consequences are minimized and the economic and societal impacts are fully recognized. This Note explores the FCC‘s regulations regarding unlicensed white space devices, as well as the effect the FCC‘s decision will have on incumbent licensees of the television spectrum. Part II of this Note discusses the broadcast television spectrum and how the FCC allocates use within the spectrum. Part II also discusses the FCC‘s digital transition initiative, originally scheduled to take place in February of 2009, and the effect this plan has had and will have on the broadcast spectrum. In addition, Part II outlines the conceptual use of white spaces and how the opposition has responded. Part III discusses the new FCC rules regarding white spaces, and evaluates the basic framework under which white space devices must operate. Moreover, Part III analyzes how the rules respond to interference concerns raised by the opposition. Part IV outlines the benefits the FCC‘s decision will have and proposes legal and regulatory safeguards that should be adopted which will allow this new area of wireless broadband technology to be utilized for the good of society as a whole. Finally, Part V offers concluding thoughts on the future of unlicensed white space devices operating on the dynamically changing spectrum and on how America should anticipate a level of interconnectivity never before imagined. II. BACKGROUND ―White spaces are the blank pages on which we‘ll write our broadband future.‖ 11 This quote from FCC Commissioner Jonathan Adelstein summarizes the effect that the FCC‘s decision will have on the advancement of wireless technology. The last decade has seen a massive transformation in the way television and Internet technologies affect our lives. The use of unlicensed white spaces will tap into these technologies and advance towards ―solving the broadband deficit‖ in many areas of the country by wirelessly connecting the entire nation.12 This section provides brief background information on how the FCC currently allocates television channels along the broadcast spectrum and how this has changed upon completion of the Digital Television Transition, allowing for white spaces to be more prevalent and utilized. This section also provides a look at the road leading up to the FCC‘s white space decision and 11. Chloe Albanesius, FCC Approves White Spaces on Conditional Basis, PCMAG, Nov. 4, 2008, http://www.pcmag.com/article2/ 0,2817,2333937,00.asp.