This paper is intended to begin the development of fair and expedient processes for resolving disputes involving “harmful interference,” an oft-alleged and scarcely understood regulatory concept that is integral for the establishment, modification and enforcement of spectrum usage rights. There has been a continuous clamor to clearly define these substantive rights, especially those related to interference among disparate, neighboring and competing spectrum users. However, enforcement – or adjudication – of those rights is an equally, if not more, important feature of wireless regulation. If, as many suggest, Coasian bargaining through private negotiations among disputing parties is generally preferred over time-consuming regulatory intervention, then equitable and efficient procedural mechanisms, along with alternative institutions and venues, should be readily available if and when negotiations fail or are otherwise futile. This is especially true in a post “command-and-control” wireless world that relies on market-based mechanisms and flexible usage rules in the context of exclusive licensing and non-exclusive spectrum access models.In studying current and potential procedural mechanisms, many questions need to be addressed such as: what are the elements of harmful interference claims? what are the defenses to such claims? and who has the burden of presenting, proving and rebutting the facts of each claim and defense? This paper offers a framework for evaluating the case law developed over the decades by spectrum regulatory bodies to help answer these and other pertinent questions and identify best (and worst) practices and alternative solutions. This proposed framework centers around three broad categories of regulatory conflicts involving spectrum rights and claims of potential or actual interference: (1) disputes over establishment of new rights (typically through ex ante rulemakings) that pit new entrants against incumbent users; (2) clashes over modification or clarification of existing rights involving, e.g, adjacent incumbent neighbors in ex ante rulemakings or informal ex post adjudications; and (3) cases enforcing existing rights, which often is the regulator vs. interferers in ex post adjudications. Category 3 cases are significantly under-evaluated and deserve more attention.The purpose of this taxonomy is to foster development of a more consistent and data-driven analytical approach to evaluating existing procedural options (or lack thereof) for resolving the wide range of spectrum access and interference disputes. Under each category, case studies representing a variety of procedural and substantive situations would be thoroughly and empirically evaluated. A detailed technical analysis of the substantive interference and coexistence issues at the heart of such disputes would be deferred except to the extent that such issues affected process and results. Content analysis, the systematic reading and empirical analysis that legal scholars have used to gather data from the texts of judicial opinions, is the recommended approach.The analysis of a broad set of interference cases would test common presumptions of unpredictability, unfairness and lengthy duration surrounding interference matters. While the outcomes of the content analysis will likely depend on the number and types of cases that are evaluated, this future research should present a strong quantifiable basis for developing key features of the overall spectrum regulatory framework. And therefore, the major implication for spectrum policy would be that most, if not all, of the substantive rights for wireless operations need not be better defined by spectrum regulators before negotiations among interested parties can take place. Rather, emphasis would be on fair and expedient processes for any aggrieved party. Over time, as in other areas of the law, these processes can more reliably establish, modify, interpret or adjudicate undefined, conflicting and ambiguous rights.Note: An earlier draft version of this paper was prepared as a contribution to the University of Colorado Silicon Flatirons Summit on “Efficient Interference Management: Regulation, Receivers, and Right Enforcement” held on October 18, 2011. I appreciate the constructive assistance and encouragement from Pierre de Vries, Ellen Goodman, Coleman Bazelon and Giulia McHenry. And, thanks especially to Matthew Montgomery for uncovering some interesting cases in his own research.
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Jan 1, 2013
David Aubin + 1
Open Access