The Wasteland: Anticommons, White Spaces, and the Fallacy of Spectrum

Networks, the Internet, and Cloud Computing, Networks and Infrastructure and Wireless

Article Snapshot


Kevin Werbach


Arizona Law Review, Vol. 53, No. 1, pp. 213-254, 2011


This article analyzes the advantages of allowing public access to broadcast frequencies between commercial stations.

Policy Relevance

As technology improvements allow for use of the “white space” that exists between commercially broadcast stations, the manner in which newly available broadcast frequencies will be allocated must be determined.

Main Points

  • Broadcast white spaces are unused frequencies within the spectrum that sends television signals into our homes. Originally, these “white spaces” were necessary to ensure clarity of broadcast television stations.
  • However, with advancing technology, these buffer zones are no longer needed. This creates a pressing question for policy makers: should these white spaces be made available for public use or privately licensed?
  • This question is representative of a larger issue: the tension that exists between the policy of public access and private property rights. Just as beaches are divided into public and private property, with different rights of access, so have the airwaves been divided up.
  • Two major schemes have been proposed for regulating the distribution of rights on these newly accessible white spaces.

    • Public Access – The Federal Communication Commission (FCC) has proposed allowing regulated public access to white spaces. This would allow anyone with a broadcast device conforming to FCC standards to utilize the white space airwaves as they see fit.
    • Private Licensing – Groups in favor of private property rights have proposed cutting the white spaces into distinct broadcast segments and licensing these segments to private companies and individuals.
  • Both of these proposed models have inherent flaws.

    • Allowing public access to the airwaves could create major regulation issues as more and more people attempt to use the public space.
    • Yet, private licensing fails to make the most efficient use of the broadcast spectrum, cutting it into pieces and leaving more white spaces between each of these cuts.
  • Another issue is that currently the private rights to broadcast also include a right to be shown on cable television. This is a purely economic relationship, but has created resistance to transitioning to a new system of spectrum allocation.
  • The solution to this problem involves a mix of both of the above proposals, and a unique take on cable transmission rights.

    • First, the license to a broadcast frequency should be split from cable transmission rights.
    • Second, the transmission rights should be transformed into exclusive licenses.
    • Thirdly, the FCC can then auction off the licensed frequencies.


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