In comments on the FCC's Policies Regarding Mobile Spectrum Holdings Notice of Proposed Rulemaking, TechFreedom urged the FCC to facilitate transfers of spectrum by eliminating the spectrum screen and replacing it with an analysis that better suits the realities of today’s wireless market and consumers’ growing demand for wireless data. The comments were co-authored by Matthew Starr, TechFreedom Legal Fellow; Geoffrey Manne, TechFreedom Senior Fellow, Lecturer in Law at Lewis & Clark Law School, and Executive Director of the International Center for Law & Economics; and TechFreedom President, Berin Szoka.
The following comment may be attributed to Matthew Starr:
The FCC’s current policies and rules regarding mobile spectrum holdings are in desperate need of an upgrade. The wireless market has changed dramatically over the last several years, and consumer demand for mobile broadband services is skyrocketing without any new supply of spectrum coming available in the near future. If consumers' demands are to be met, spectrum must be allowed to rise to its highest-valued use. This means there must be a functional market by which spectrum can be transferred from those who currently hold it to those who value it more. In short, the spectrum must flow! To do this, the FCC should heed the lessons of the FTC and DOJ, which have abandoned reliance on the outdated economic theory that concentration in a market inevitably leads to anticompetitive behavior, and replace its spectrum screen with a rule of reason analysis.
The following comment may be attributed to Geoffrey Manne:
There is no reliable evidence that a carrier’s control of more than a third of the usable spectrum in a market has the power to harm consumers — and still less evidence that prohibiting spectrum transfers that exceed this threshold serves the forces of dynamic efficiency. This arbitrary threshold doesn’t further what should be the FCC’s overriding objective: ensuring that sufficient spectrum and the investment necessary to deploy it are available for consumer use. Instead of merely citing market concentration as the basis for rejecting a transaction, we need an analysis of why a proposed transaction would actually make consumers worse off — the lodestar of antitrust law.
Starr and Manne are available for comment at email@example.com.