Communications Convergence, Spectrum Use and Regulatory Constraints, Or Property Rights, Flexible Spectrum Use and Satellite v. Terrestrial Uses and Users

As far as many consumers and businessmen and women are concerned, increasingly wireline and wireless services, including those provided by terrestrial and satellite systems, are considered to be substitutes and sometimes complements, regardless of the laws and regulations applicable to them. At the same time, many writers and even government agencies (such as the FCC) have suggested that users of the spectrum should be given more property-like rights in the use of the spectrum and at a minimum should be given much more flexibility in how they may use the spectrum. Two recent developments have important implications with respect to “convergence,” spectrum property rights and flexible use of the spectrum. The first development involves several proposals to provide terrestrial wireless services within spectrum in use or planned to be used to provide satellite services. The second development is the passage of the 2000 ORBIT Act which specifically forbids the use of license auctions to select among mutually exclusive applicants to provide international or global satellite communications service. The purpose of this paper is to discuss some of the questions raised by these two events, but not necessarily to provide definitive answers or solutions.