Genachowski’s Spectrum Plan: Who Owns the Airwaves?

Federal Communications Commission Chairman Julius Genachowski wants to auction part of the spectrum reserved for over-the-air TV broadcasts to create new bandwidth for mobile data. This raises the interesting question of just who owns those airwaves.

As a legal matter, the answer is clear. The Radio Act of 1927 made it clear that the government allowed the private owners of radio stations to operate on public airwaves to serve “the public convenience and necessity.” This notion of public trusteeship was written into the Communications Act of 1934 and was extended to TV stations when they were given–not sold–their operating licenses.

As a practical and political manner things are much more complicated. The recent history starts in 1996, when the Telecommunications Act mandated a transition from analog to digital TV broadcasting. Existing stations were assigned new spectrum for digital channels and the existing channels were to be surrendered back to the government for reuse. After many delays, this transition was finally completed last year. Broadcast stations returned their analog spectrum in the 700 MHz band to the government (most of which was auctioned off last year for wireless service) and kept their new spectrum.

A total of 300 MHz is allocated to TV, but according to Genachowski, in small markets only about 36 MHz of this is actually used, while even in the largest markets usage taps out at 150 MHz. Some of this is so-called “white space,” the spectrum between assigned channels. Some of it is spectrum assigned to licensees but either left unused or used for low-value purposes such as continuous radar displays, a very  popular use for local broadcasters’ second and third digital channels.

One weird consequence of Genachowski’s proposed Mobile Future Auction is that the broadcasters who agree to give up some bandwidth will end up being paid for spectrum they do not, and never have, owned. But doing so is probably a political necessity for anything to happen. The National Assn. of Broadcasters has argued for years that very few owners of broadcast properties are the original licensees and that  subsequent owners of the stations paid for the spectrum in their purchases.

Whatever you think of that argument, and I must say I find it deeply unconvincing,  the fact is that local broadcasters carry a tremendous amount of clout on Capitol Hill. The long fight over the digital transition, which ended only because Congress finally decided it needed the money from spectrum auctions worse than it needed the goodwill of broadcasters, showed that major concessions are needed if this spectrum is to be freed any time in the next couple of decades.

Personally, I view the spectrum allocated to broadcast TV as mostly a waste of perfectly good bandwidth. Americans overwhelmingly get their broadcast TV from cable or satellite, not over the air. But the reality is that broadcasters are going to have to be bribed even to part with spectrum they are not using for much of anything, if at all. That means Genachowski’s proposal, imperfect as it is, may be the best we can reasonably hope for.