2. 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

3. 2 Kenneth R. Carter 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.

4. 3 Kenneth R. Carter Brief Taxonomy of Licenses Station or Geographic Operator Licensed by Rule Unlicensed

5. 4 Kenneth R. Carter 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

6. 5 Kenneth R. Carter 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

7. 6 Kenneth R. Carter 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 Service Primary User Secondary Users 1850 MHz1910 1930 1990 MHz U-PCS Broadband PCS Fixed Microwave Service Primary User Secondary Users 1850 MHz1910 1930 1990 MHz U-PCS Broadband PCS Nextel

8. 7 Kenneth R. Carter 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

9. 8 Kenneth R. Carter 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

10. 9 Kenneth R. Carter 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

11. 10 Kenneth R. Carter Jural Correlatives RightPrivilegePowerImmunity DutyNo-RightLiabilityDisability Reflect current state of relationships Reflect current state of and potential future state of relationships

12. 11 Kenneth R. Carter Jural Opposites RightPrivilegePowerImmunity No-RightDutyDisabilityLiability

13. 12 Kenneth R. Carter “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)

14. 13 Kenneth R. Carter Band Participants Spectrum Regulator FCC Primary LicenseeFixed Microwave Service Secondary UsersBroadband PCS Authorized-by-Rule Users U-PCS Errant UsersPirates The Unborn Spectrum User

15. 14 Kenneth R. Carter Band-Specific Application FCC and Broadband PCS Users Jural 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 FCC’s’ power

16. 15 Kenneth R. Carter Band-Specific Application 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

17. 16 Kenneth R. Carter Band-Specific Application 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

18. 17 Kenneth R. Carter Band-Specific Application 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

19. 18 Kenneth R. Carter 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!

20. 19 Kenneth R. Carter One View of the Cathedral One View of the Bazaar http://www.ibiblio.org/wm/paint/auth/monet/rouen/monet.rouen-cathedral.jpg http://www.persian-ventures.com/images/bazaar.jpg

21. 20 Kenneth R. Carter 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

22. Thank you! Kenneth R. Carter Office of Strategic Planning and Policy Analysis Federal Communications Commission Kenneth.Carter@fcc.gov +1 202 418-1706

23. 22 Kenneth R. Carter Licensed & Shackled: Ken Carter Wi-Fi Wi-Fe Mrs. Elizabeth Carter OLD HAT!! UPGRADE NETWORK Wi-Not!!

24. 23 Kenneth R. Carter Band-Specific Application 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 FCC’s power

25. 24 Kenneth R. Carter Band-Specific Application 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