The case for social rights for radio spectrum

In the simplest sense, radio spectrum is a way to classify certain electromagnetic frequencies, between about 30Hz and 300Ghz, that are useful for the transmission and reception of information with currently available technology. Radio spectrum is a socially constructed idea insofar as we have created the concept in order to address our ability, through technology, to harness electromagnetic waves and transmit information over distances. We then assign this concept, Spectrum, a certain meaning that in turn dictates how society views and deals with it. In other words, radio spectrum is a social construction.

Beyond the socially constructed concept of spectrum, radio spectrum is also a socially produced good. We generally miss this as it is so often and wholly transformed into an economic good. Radio spectrum is materialized and commodified so we can think about the underlying idea more easily, so we can regulate it, and so we can rent it out for use. The general treatment and understanding of radio spectrum not withstanding, its true value derives from its social use and is ultimately worth the communicational potential it has for the users of a particular frequency or portion of the spectrum. This is important. To wit, the winning bid at a recent auction of AWS-3 spectrum in the USA was $45 billion dollars. Why did the winning company pay so much? The answer is simple: they know that they can put up infrastructure (another large investment) that relies on this spectrum to operate and that will carry the communications of millions of users, whom they will charge for doing so.

As price is governed by the laws of supply and demand, the price of spectrum, on the demand side, is ultimately determined by what users are willing to pay for telecommunications services which are dependent on particular parts of the spectrum to function. On the supply side, a major issue affecting the price of spectrum is its scarcity, whether real or artificial. In one sense, spectrum is scarce in that two parties can’t occupy the same part of the spectrum in the same place at the same time. Spectrum is currently regulated to ensure interference cannot happen as only one party has exclusive use of each frequency. This is an inefficient, out-dated approach and ultimately creates more scarcity. Yet in another sense, there is no real scarcity issue as the spectrum and the frequencies which comprise it cannot be used up or even permanently degraded as a natural resource like land or water might be. Better technology and more sensible regulation mean there is potentially plenty of spectrum to go around.

As radio technology has advanced, spectrum has increasingly undeniable and nearly limitless use value. However, through conceptualization, commodification and regulation, spectrum is then transformed into something which can, and almost always must, be paid for in order to use. Case in point: only 2% of radio spectrum in Mexico can be used without a license. Same goes in most places. Spectrum, for lack of being a material thing or a unique creation of human ingenuity (think intellectual property), can’t actually be owned in the proper sense. The social and political construction we call the radio spectrum is only something we can use. So why do we assign property rights to something that is immaterial and not the creation of an individual intellect? The answer is obvious: in order to charge rent (see above regarding the AWS-3 auction). Rent here is defined as the benefit received from assets formed by creating official privilege over natural opportunities. In almost every case, the official privilege is that of the State. But how did this come about?

Let’s use Mexico, where we do much of our work, as an example. Mexico is a sovereign nation and this sovereignty extends and applies to the national territory, including airspace, waters, coasts, etc. Through some circular logic and pretty weak legal reasoning, Mexico claims that the radio spectrum is part of the airspace of the nation, and therefore is under the dominion of the people, represented by their government (a.k.a. the State). As we’ve briefly discussed above, the radio spectrum in no way, shape or form has anything to do with the air or the airspace. The spectrum exists insofar as we have a means of transmitting and receiving information over certain frequencies. So in this case, as is so in most countries, the task of regulating the use of spectrum falls upon the State as a matter of jurisdiction. This arrangement is propped up by organizations like the International Telecommunications Union, which is the branch of the United Nations that deals with (you guessed it) telecommunications and radio spectrum.

We make radio spectrum a thing, then we allow the State, as a territorial right, to regulate it, and subsequently rent it out to the highest bidder. Under this logic, the companies that pay (generally lots of money) to use spectrum have the most self-interest in ensuring that end users can access spectrum via the services they offer and charge for. This is true to a point. One only need to look at the boom in cellular coverage around the world in the last decades. But what of those many billions of people that are not covered by commercial services? How are they meant to meaningfully communicate in a digital world if they can’t access spectrum?

There is frankly not much we can do about this whole arrangement in the near future short of unraveling decades of international treaties, national laws and billions of dollars in investment. What we can do, however, is to bring to the forefront and stay ruthlessly on message about is the fact that spectrum is socially useful and should be regulated in such a way as to maximize its social usefulness for all. Not just for those in cities where commercial services exist, but everywhere people wish to communicate over distance. I would also argue that we should attempt to have spectrum considered as a human right, and specifically an economic and social right. The right to freedom of expression and the right to information are codified as human rights at pretty much every level. Economic and social rights, a subset of human rights, exist to guarantee that every person be afforded conditions under which they are able to meet their needs. If communication is a human right, how do we then ensure that the ways in which we communicate are also protected as such and that access is possible for all? In other words, there should be a right to spectrum just like there is a social and economic right to housing or education.

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