The radio spectrum is a scarce resource that has been historically allocated through command-and-control regulation. Today, it is widely accepted that this type of allocation is as inefficient for spectrum as it would be for paper or land. Many commentators and scholars, most famously Ronald Coase, have advocated that a more efficient allocation would be achieved if government sold the rights to the spectrum and allowed a free market in radio property to develop.
A new school of scholars, however, has begun to challenge the spectrum property model. While they agree with Coase that command-and-control spectrum management is highly inefficient, they instead propose to make spectrum a commons. They claim that new spectrum sharing technologies allow a virtually unlimited number of persons to use the same spectrum without causing each other interference and that this eliminates the need for either property rights in, or government control of, spectrum.
This Article aims to show that, despite the rhetoric, the commons model that has been proposed in the legal literature is not an alternative to command-and-control regulation, but in fact shares many of the same inefficiencies of that system. In order for a commons to be viable, someone must control the resource and set orderly sharing rules to govern its use. If the government is the controller of a commons—as proponents of a spectrum commons suggest it should be—then in allocating and managing the commons the government will very likely employ its existing inefficient processes.
Recently the FCC designated a 50 MHz block of spectrum in the 3650 MHz band as a commons. This Article looks at that proceeding and finds that in creating a commons, the government has not escaped the inefficiencies of command-and-control regulation.