I submitted comments to the FCC today on EFF's behalf, asking it to allocate unused TV frequencies to unlicensed use under the same terms as the 2.4GHz spectrum that WiFi runs in. The cool part was, I got to advocate the position that since the FCC is in the business of regulating who gets to speak, and since WiFi shows that with less regulation, more people get to speak, that the FCC has a First Amendment duty to open up more spectrum for WiFi-like uses.
The First Amendment calls on government to eschew regulation of who may speak and how they may speak. Historically, the FCC and FRC's regulatory efforts have balanced the restriction of access to spectrum–which is a proxy for speech, since it is an effective medium of expressive communication–with the need to preserve orderliness in the airwaves so that harmful interference is minimized. The paradigm for this governance held that if anyone were allowed to speak in any way, the resulting chaos of harmful interference would result in a world where no one was heard.
The 2.4GHz experiment, which applied an entirely different paradigm–lightly regulating device characteristics, requiring devices to accept all interference, and allowing anyone to operate a compliant device–challenged technologists to create devices that could function in this very different spectrum environment, coping with contention and interference with technology rather than regulation.
The results have been stellar. The 2.4GHz band has spawned unprecedented innovation in devices and protocols, packing 802.11b, 802.11g, Bluetooth, baby-monitors, X10 cameras, and a host of other communications technologies into a narrow slice of spectrum that was once dismissed as a "junk band."
While this spectrum paradigm is unquestionably disorderly and untidy, it is clear at this point that technologists are more than up to the challenge of overcoming this disorderliness and building devices that thrive in chaos.
What's more, these devices are permitting more communication–more speech–from a greater variety of speakers, than the traditional command-and-control exclusive-use allocations have ever fostered.
The Commission has regulated speech because spectrum is considered to be a scarce resource, but the hothouse flowering of the 2.4GHz band had demonstrated that some of that scarcity was an artifact of regulation, not physics.
