Below is text from one section of Douglas Galbi’s paper, “Revolutionary Ideas for Radio Regulation.”  For other sections, see www.galbithink.org or www.ssrn.com

IV. Personal Freedom and Licensing

Whether persons need to be licensed to use radio has often been considered with misplaced emphasis.  Consider this recommendation from the European Radiocommunications Committee (ERC) on exemption from individual licensing:

Licensing is an appropriate tool for Administrations to regulate the use of radio equipment and the efficient use of the frequency spectrum.  However, the technical characteristics of radio equipment require less intervention from the Administrations as far as the installation and use of equipment is concerned.  Administrations and especially users, retailers and manufacturers will benefit from a more deregulated system of authorising the use of radio equipment.

There is general agreement that when the efficient use of the frequency spectrum is not at risk and as long as harmful interference is unlikely, the installation and use of radio equipment can be exempt from a licence. …

When radio equipment is subject to an exemption from individual licensing, anyone can buy, install, possess and use the radio equipment without prior permission from the Administration.  Furthermore, the Administration will not register the individual equipment.  The use of the equipment can be subject to general provisions.[1]

The recommendation first describes licensing as a tool for regulators (Administrations), one that might be used less while still meeting regulatory objectives.  Further on, the recommendation describes consequences for personal freedom in a paragraph whose main subject is radio equipment.  The recommendation, read narrowly, points in a sensible policy direction.  But this recommendation, and radio regulation more generally, needs to better appreciate physical truth and human freedom.

Electromagnetic radiation is a fundamental aspect of the physical world and human freedom.  All bodies with temperature above absolute zero radiate some energy across the whole electromagnetic spectrum.[2]  When human beings use fire to keep warm, to dispel darkness, or to communicate, they use electromagnetic spectrum.   Putting on a wool sweater or working across a thick rug can generate electromagnetic waves, as can a variety of other human activities.  The freedom to be warm, to shine light, or to create electric sparks in the world is not contingent on the efficient use of electromagnetic spectrum.

The definition of radio communications subject to regulation must be understood as subordinate to the understanding of human freedom.  While the first two international radiotelegraph conventions defined radio communications implicitly as wireless telegraphy, the U.S. proposal to the International Radiotelegraph Conference in Washington in 1927 took a different approach.  The proposal defined “radio communications”:

The term “radio communication” as used in this convention means the transmission of intelligence, photographs, reproductions, or any other subject matter, without connecting wires, by radiated electromagnetic energy.[3]

Light is a form of radiated electromagnetic energy.  Thus the plain language of the above definition covers all forms of light-mediated communication  – reading texts; observed motion, form, and gesture; and explicit signaling with light, such as hanging lanterns in a church to convey signals of public importance.  If this proposal had not been limited de facto by an understanding of freedom, it would have represented a more dramatic denial of human rights than the most oppressive governments in the world have ever proposed. 

Definitions of “radio communications” adopted in international radio regulations made the controlling position of human freedom less obvious but no less important.  The Washington Conference of 1927 adopted this definition of “radio communications”:

The term “radio communication,” applies to the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds by means of Hertzian waves.[4]

The convention did not define “radio” or “Hertzian waves.”[5]  In the Madrid Conference of 1932, the relevant definitions in international radio regulations became:

Radio communication: Any telecommunication by means of Hertzian waves.

Telecommunication:  Any telegraph or telephone communication of signs, signals, writings, images, and sounds of any nature, by wire, radio, or other systems or processes of electric or visual (semaphore) signaling.[6]

Again there was no definition of “radio” or “Hertzian waves,” but some types of light-mediated communication clearly fell within the definition of telecommunication.  The Atlantic City Conference of 1947 added a definition of Hertzian waves:

Hertzian Waves: Electromagnetic waves of frequencies between 10 kc/s and

3 000 000 Mc/s.[7]

This definition of Hertzian waves excludes the electromagnetic waves that the human eye normally processes (electromagnetic waves with frequencies between 810 terahertz and 1620 terahertz, i.e. light).  By 1959 international radio regulations had equated radio waves and Hertzian waves, and defined both together with reference to a specific medium of propagation.  The definition also included additional frequencies:

Radio Waves (or Hertzian Waves): Electromagnetic waves of frequencies lower than 3 000 Gc/s [3 000 000 Mc/s], propagated in space without artificial guide.[8]

The Geneva Conference of 1979 modified the definition to recognize its arbitrariness:

Radio Waves or Hertzian Waves.  Electromagnetic waves of frequencies arbitrarily [emphasis added] lower than 3 000 GHz, propagated in space without artificial guide.[9]

This definition is currently embedded in the national law of many countries, including U.S. administrative law.[10]  The incoherence, instability, and arbitrariness of the definition of radio communications have attracted little attention.  That indicates confidence that radio regulation will defer to established understandings of human freedom.

Such confidence has some factual support.  Consider some aspects of U.S. experience.  While it is common knowledge that high-power electric lines can cause interference to radio and television signals, the FCC only regulates limited aspects of electric utilities.[11]  A single automobile with its engine running creates at 10 meters’ distance a field strength greater than the limit that defines auctioned spectrum boundary rights in the frequency range 700 and 800 MHz.[12]  Nonetheless, the FCC does not regulate automobiles.  A U.S. government study showed that in worst cases windmills produce objectionable distortions of TV reception within a few miles’ distance.[13]  Yet the FCC never tilted its regulatory power toward windmills.  Free space optical communications systems are now being implemented for terrestrial services and for communications among satellites.[14]  The FCC has chosen not to regulate these systems, and generally does not regulate light or the generation of light.[15]  The FCC has provided a comprehensive regulatory scheme for radio use.  But in important, practical ways the meaning of those words has been subordinate to ideas of human freedom, understood with respect to true descriptions of persons and the world.[16]

Distracted by the many pressing tasks of the day, regulators and other human beings can fail to act in accordance with what is most important.  Promoting every person’s freedom to be who she or he truly is, in the world as it really exists, surely is one of the most important objectives of communications policy.   What freedom means should not be taken for granted.[17]  The freedom that comes from being alone, lost in a cave, facing certain death in a few days, differs from the freedom that comes from an ever-loving wife who has a secure, well-paying job.[18]  The physical freedom of a drunk differs from that of a well-trained actor, and the intellectual freedom of the learned is not the same as that of the innocent.  One must confront real, historical experience of freedom and reflect on what one finds, on what one knows to be true, and on how to address any contradiction between the two – you, now, here, in this field.

A. Different Kinds of Freedom: Hams, Hackers, and Yackers

Amateur radio, the Internet, and commercial wireless services are fields dominated by radically different understandings of personal freedom.  Hams, hackers, and yackers, the most distinctive characters in those respective fields, share common biological, social, and cultural features.  They are members of the same species, they may be neighbors, or even the same person engaged in different activities in different times and places.  In each of these fields, person-to-person communication for non-commercial purposes comprises an important part of activity in the field.  Each of these fields involves similar, general-purpose information and communications technologies.  This technology is amenable to personalization, diversity, and decentralized evolution fueled by user creativity.  It is also amenable to abusive use, interference, and breakdowns in operating standards and cooperation.  This section will show that, despite their similar characteristics and possibilities, the fields of amateur radio, the Internet, and commercial wireless services have incarnated much different ideas of freedom.

The facts about these fields should serve as a policy warning. The range of real possibilities in regulation is enormous.  Yet freedom that has merely a conventional meaning is not a worthy guide to policy.  Deliberation about freedom needs to evolve as a working consensus in tension with a search for truth about what persons do and the way the world is.  This section provides material for such deliberation.

1. Amateur Radio

Amateur radio is a field that grew with the development of radio technology early in the twentieth century.  Amateur radio users are called amateurs or “hams.”[19] Now You’re Talking, an amateur radio association’s guidebook for aspiring hams, describes amateur radio as follows:

Ham radio offers so much variety, it would be hard to describe all its activities in a book twice this size!  Most of all, ham radio gives you a chance to meet other people who like to communicate.  That’s the one thing all hams have in common.  You can communicate with other hams on a simple hand-held radio that fits in your pocket.[20]

Public service is also an important part of hams’ self-understanding.  Hams have long provided emergency communications for local community events and in response to natural disasters.  Hams have also contributed significantly to advancing radio technology, such as pioneering early high-frequency communications and popularizing packet radio.  Some hams currently communicate via Morse Code and single-sideband voice communications, methods of communications that have been in use for over half a century.  Other hams explore digital signal processing, software-defined radios, moon-bounce communications, and communications using specially designed earth-orbiting satellites.  The three-million hams worldwide form a community with a strong sense of tradition and identity.  Amateur radio has created for hams opportunities for social interaction, for serving the public, and for exercising engineering creativity.  Hams’ appreciation for the freedom they have found in amateur radio, and their dedication to preserving it, cannot be doubted.

To a remarkable degree, hams understand their activities to be dependent on government license.   This view goes all the way back to the beginning of radio.  The development of radio implicitly raised the question of whether persons have some natural rights to communicate by radio.   Most governments, and amateurs, seemed to assume that persons do not.  Nonetheless, absent effective means of suppression, amateur radio developed naturally, through personal curiosity and creativity.   About 1912, there were roughly 8000 amateur radio users and 230 amateur radio clubs in the U.S.[21]  The U.S. Radio Act of 1912 was hailed as a great victory for amateurs.  An amateur activist/magazine publisher declared, “The amateur had at last come into his own…. Uncle Sam has set his seal of approval upon the amateur’s wireless...”, and of course, “the entire credit for obtaining the amateur’s rights belongs to [the author]…”[22]   Here is what the Act said regarding amateurs’ rights:

No private or commercial station not engaged in the transaction of bona fide commercial business by radio communication or in experimentation in connection with the development and manufacture of radio apparatus for commercial purposes shall use a transmitting wave length exceeding two hundred meters, or transformer input exceeding one kilowatt, except by special authority of the Secretary of Commerce and Labor…[23]

Ten years later a historian asked, without even a whiff of self-consciousness, “What has the amateur done in the past ten years, to justify the privileges granted him by his government?”[24]

Over time amateurs’ rights have been further elaborated through national and international regulations.  In these regulations, amateurs’ rights to communicate internationally depend not just on the amateur’s government but on mutual international agreement.  International radio regulations require governments not to permit amateurs to communicate with amateurs in a country whose government objects to such communication.  Government suppression of amateur communications in one country thus creates a reciprocal obligation for like suppression by other countries.[25]

Amateur privileges do not include privacy.  Communications between two hams are potentially accessible to anyone with appropriate operating equipment and within the geographic range of the signal.  International amateur regulations enforce this lack of privacy by declaring that amateur stations should transmit their call signs (station identification) “at short intervals” and by stating that international amateur communications should be “in plain language.”[26] In the US, FCC regulations require that call signs be transmitted at the end of each communication and at least every ten minutes during communications.[27]   The FCC provides on the Internet a searchable licensing database that allows a call sign to be linked to the licensee’s name and address.[28]  FCC regulations prohibit international or domestic amateur communications “in codes or ciphers intended to obscure the meaning thereof.”[29]  Controversy over encryption technology, police access to personal communications, and unauthorized collection of personally identifying information has been bluntly pre-empted in amateur radio regulation. 

International treaties and national regulations also govern the content and purpose of amateur communications.  Under international radio regulations, communications between amateurs in different countries must be:

…limited to messages of a technical nature relating to tests and to remarks of a personal character for which, by reason of their unimportance, recourse to the public telecommunications service is not justified.  It is absolutely forbidden for amateur stations to be used for transmitting international communications on behalf of third parties.[30]

FCC regulations prohibit amateur communications containing “obscene or indecent words or language,” “false or deceptive message,” or music.[31]  The amateur radio service cannot be used for “communications for hire or for material compensation,” “any form of broadcasting,” “one-way communications” except of limited types, “activity related to program production or news gathering for broadcasting purposes,” retransmissions “from any type of radio station other than an amateur station,” or “[c]ommunications, on a regular basis, which could reasonably be furnished alternatively through other radio services.”[32]   Although regulation specifically forbids amateurs from engaging in “any form of broadcasting,” amateur radio is considered similar to broadcasting for content regulatory purposes.[33]  The regulations on the content and purpose of amateur radio underscore the absence of any presumption of free communications in amateur radio.

Under international and national regulations, persons must demonstrate technical qualifications to be licensed to engage in amateur communications.  An ITU recommendation passed in August, 2001 indicates:

…at minimum, any person seeking an amateur license should demonstrate theoretical knowledge of specific topics in the areas of radio regulations, methods of radiocommunications, radio system theory, radio emission safety, electromagnetic compatibility, and avoidance and resolution of radio frequency interference.[34]

Amateurs who want to make use of amateur frequencies below 30 MHz are required under international regulations to be able to transmit and receive in Morse Code.[35]  In the US, FCC regulations link a ladder of three licensing tests to the extent of amateur frequency privileges.[36]  The connection between passing a more difficult licensing test and getting more extensive frequency privileges seems to relate not to necessary technical knowledge, but to creating objective support for group boundaries and privilege hierarchies.

Well-established amateur radio associations strongly support amateur radio freedom defined by international and national authority.   The International Amateur Radio Union (IARU), created in 1925, actively participates in ITU conferences that define international radio regulations through international treaty.[37]  The American Radio Relay League (ARRL), founded in 1914 for U.S. amateurs, serves as the International Secretariat for the IARU.[38]  For the aspiring ham, the ARRL sells for $19 a three-hundred page guidebook, Now You’re Talking, subtitled, All You Need For Your First Amateur Radio License.  Chapter 1 (30 pages) is “Federal Communication [sic] Commission’s Rules.”  The underlying theme of this chapter is that hams have been given operational freedoms by government and that these freedoms are secured by hams submitting to government authority.   These excerpts indicate the orientation:

You should also post your original license, or a photocopy of it, in your station after it arrives in the mail.  You will be proud of earning the license, so display it in your station.  A copy of the license on the wall also makes your station look more “official.”

Amateur licenses are printed on a laser printer, and issued in two parts (Figure 1-2).  One part is small enough to carry with you; the other can be framed and displayed in your shack.  This means you can carry your license and display it!  Laser ink can smear, so it’s a good idea to have your wallet copy laminated.  If the small part is too large for your wallet, you can make a reduced-size copy on a photocopier.  If you carry a copy, you can leave your original safely at home.  Although you can legally carry a copy, your original license must be available for inspection by any U.S. government official or FCC representative.  Don’t lose the original license!

…

Keep in mind that the FCC has the authority to modify the terms of your amateur license any time they determine that such a modification will promote the public interest, convenience, and necessity.

…

Consider laminating your original license, as the ink sometimes lifts off the paper, even if you place the license behind glass in a frame. 

…

Suppose you receive an official notice from the FCC informing you that you have violated a regulation.  Now what should you do? Simple: Whatever the notice tells you to do.[39]

Thus the authority of national regulations, re-enforced by international treaties, defines what amateurs understand as their freedom.

Interference among hams is not a significant public policy issue.  Amateur radio has been assigned rights to use only limited radio frequencies.  In addition, one ham’s use of a particular frequency at a particular place and time could potentially interfere with another ham’s use of that frequency.  The number of hams is not limited, nor are particular frequencies assigned to particular hams.  Interference among hams undoubtedly occurs.  Nonetheless, formal, authoritative regulation of interference among hams is essentially non-existent.  Hams seem to cope with interference through personal courtesy, operational adaptability, and consensus-based coordination mechanisms.  

2. The Internet

The Internet consists of interconnected but somewhat autonomous electronic information and communications systems.  The Internet began as a system for sharing computational resources among geographically dispersed academic and government researchers.  By the late 1980s, e-mail had inadvertently become an important use.  In the mid-1990s, a simple interface for sharing text and images (the Web) spurred dramatic Internet growth.  Hackers, the community of experts in computer programming and electronic networking, are acutely conscious of their particular freedoms.  Hackers have played a major role in making the Internet what it is.[40]   Other Internet users more passively make choices among the capabilities that the Internet offers.  Habitually exercised and thus naturalized, such choices also inculcate the Internet field’s understanding of freedom.

Compared to freedom in amateur radio, freedom in the Internet field takes on a radically different meaning.  A Declaration of the Independence of Cyberspace, a document issued on the Internet in 1996 and subsequently widely discussed, opened with these words:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of the Mind.  On behalf of the future, I ask you of the past to leave us alone.  You are not welcome among us.  You have no sovereignty where we gather.[41]

An informally recognized hacker-leader performed another dramatic challenge to authority:

In 1977, while attending a science-fiction convention, [Richard M. Stallman] came across a woman selling custom-made buttons.  Excited, Stallman ordered a button with the words “Impeach God” emblazoned on it.

…Stallman wore the button proudly.  People curious enough to ask him about it received the same well-prepared spiel.  “My name is Jehovah,” Stallman would say.  “I have a special plan to save the universe, but because of heavenly security reasons I can’t tell you what the plan is.  You’re just going to have to put your faith in me, because I see the picture and you don’t.  You know I’m good because I told you so.  If you don’t believe me, I’ll throw you on my enemies list and throw you in a pit were Infernal Revenue Service will audit your taxes for eternity.”

Those who interpreted the spiel as a word-for-word parody of the Watergate hearings only got half the message.  For Stallman, the other half of the message was something only his fellow hackers seemed to be hearing.  One hundred years after Lord Acton warned about absolute power corrupting absolutely, Americans seemed to have forgotten the first part of Acton’s truism: power, itself, corrupts.  Rather than point out the numerous examples of petty corruption, Stallman felt content voicing his outrage toward an entire system that trusted power in the first place.[42]

Elsewhere, this hacker-leader presents himself as a general, writing:

…some of my cities have fallen.  Then I found another threatened city, and got ready for another battle.  Over time, I’ve learned to look for threats and put myself between them and my city, calling on other hackers to come and join me.

…We can’t take the future of freedom for granted.  Don’t take it for granted!  If you want to keep your freedom, you must be prepared to defend it.[43]

Another hacker-leader wrote and made freely available on the Internet a fourteen-page article, “How to Become a Hacker.”   The substance of the article begins this way:

Hackers solve problems and build things, and they believe in freedom and voluntary mutual help.  To be accepted as a hacker, you have to behave as though you have this kind of attitude yourself.  And to behave as though you have the attitude, you have to really believe the attitude.[44]

The article then offers a modern Zen poem for inspiration, and advises: “So, if you want to be a hacker, repeat the following things until you believe them….”  Although exactly what should be repeated is not entirely clear, this appears to be the litany:

The world is full of fascinating problems waiting to be solved.

No problem should ever have to be solved twice.

Boredom and drudgery are evil.

Freedom is good.

Attitude is no substitute for competence.

The article then goes on to advise on how to acquire hacking skills and on socially valued uses of these skills. 

Hackers and others actively engaged with the Internet would consider government licensing of Internet users to be an outrage.  This is so even though hackers seem to be historically linked to amateur radio users, and a leading hacker is also a leader in amateur radio.[45]  This is so even though the challenge of initiating new users and the problems of abusive use, interference, and breakdowns in operating standards and cooperation are similar in amateur radio and on the Internet.  Nonetheless, government licensing of Internet users would be abhorred as a violation of God-given inalienable rights.  Or abhorred as a violation of natural human rights.  Or abhorred as a violation of what most persons, deliberating under appropriately specified circumstances, would come to agree to regard as rights persons should have irrespective of decisions made by duly constituted governing authorities.  Freedom to use the Internet is not understood as a privilege granted by national governments and international treaties.  In the Internet field, freedom means capabilities that persons should personally recognize, cultivate, and defend.

Internet users have recognized, cultivated and defended capabilities that some governments would prefer to suppress.  Supporters of democracy in China and adherents of the Falun Gong movement have vigorously sought to communicate with persons in China.  When the founder of China’s first human-rights website was arrested, supporters copied his website to a server in the U.S. and the contents of the website remained accessible to persons in China.[46]  In contrast to amateur radio communications, international law does not require the U.S. or any other country to shut down Internet communications that the Chinese government does not want to occur.

Hackers and others actively engaged in shaping the Internet have sought to promote capabilities for privacy.  In 1993, a programmer in Finland implemented in his spare time an anonymous re-mailer (a means for e-mail anonymity) that by 1996 had more than half a million users worldwide.[47]  By early 1999 there were about 40 anonymous re-mailers accessible on the Internet.[48]  Services have been developed to allow users to browse the Web anonymously.  Encryption technologies are readily available on the Internet.  Internet activist have put strong pressure on the U.S. government to relax its restrictions on the export of advanced encryption software, and they have strongly resisted law enforcement initiatives to increase capabilities to monitor Internet communications.  In contrast to amateur radio users, Internet users probably would not warmly embrace government regulations requiring them to identify all their communications with a national identification number linked to their names and addresses in a national, publicly available database.[49]

The Internet recognizes relatively few restrictions on purpose of use or content.   The Internet was designed as a general-purpose medium.  It has been used for person-to-person mail, instructional services, transaction systems, monitoring and tracking services, telephony, text, audio and video broadcasting, and a variety of other purposes.  Content on the Internet spans the full range of human expression.  Poetry, personal diaries, independent newsgathering and reporting, political commentary from widely different perspectives, false and deceptive information, and racist, xenophobic, misogynistic and misandristic tracts all can be found readily on the Internet.  Photographs and videos of naked human sexual acts, which many would regard as obscene or, alternatively, prurient, are also widely available.   When the U.S. government in 1996 passed a law regulating indecent content on the Internet, many high-traffic websites temporarily suspended normal communication as an act of protest.  A broad coalition of Internet and civil liberties groups challenged the law in court, and the U.S. Supreme Court ruled that such regulation is unconstitutional.[50]  Other governments and judicial systems have different standards for regulating the content of communications.  Yet for most users around the world, the Internet offers access to a wider range of information and communications capabilities than is available through other media. 

Interference on the Internet is a major public policy issue.  The large volume of unsolicited email (“spam”) distributed on the Internet essentially creates noise in Internet users’ mailboxes and causes inefficient use of personal attention, a scarce resource.[51]  Completely eliminating such noise is widely recognized to be not only infeasible but also undesirable.[52]  Nonetheless, Internet users have looked to government for help, and governments around the world are actively seeking to regulate e-mail interference in ways that produce net benefits.[53]  Interference in domain name addresses has also emerged as a major public policy issue.  As is the case with interference in U.S. patent applications, special institutions and regulations have been created to govern domain name interference disputes.  Domain name interference regulation has emphasized “private sector leadership,” a slogan popular in the U.S. government in the late 1990s.   However, national governments and international treaty organizations, acting in ways that obscure political accountability, have strongly influenced domain name regulation.  Careful analysis also indicates that the scope and the significance of interference problems have been exaggerated.[54]

3. Commercial Wireless Services

Commercial wireless services are provided in ways commonly appreciated for many goods.  That means a person, in the role of customer or consumer, buys the goods that she wants.  Freedom in this context is about having money.   Freedom also depends on the scope of opportunities to buy and on the prices at which goods are available.  Competition among profit-seeking firms within a well-functioning capital market is widely considered to promote consumer freedom.

Consider, for example, the multi-national corporation Orange.  In 1994, Orange, established as the fourth mobile service provider in the UK, began selling.  By early 1996, Orange served about a half-million customers and was on the FTSE-100 list of the UK’s largest companies.  Among its many offerings, Orange pioneered pre-pay service, per second billing, and caller ID as a standard feature.  By late 1999, Orange, then serving about 3.5 million customers, was bought by Mannesmann, a Germany corporation.  Early in 2000, Vodaphone, a British company, bought Mannesman, and the European Commission required the divestiture of Orange.  While prices of mobile calls continued to drop, Orange developed additional services, including conference calling, vocal e-mail delivery, and voice recognition technology.  In mid-2000, France Telecom bought Orange from Vodaphone.  The new company, named Orange SA and headquartered in Paris, served in 2000 about eighteen million French customers, eight million British customers, and nine million customers in wholly owned subsidiaries in seven other countries.   Now included in the CAC40, a list of France’s forty largest corporations, Orange aims to provide service in 50 countries by 2005.[55]

Orange presents its commercial wireless services as promoting freedom.  Orange calls its services wirefree^TM communications, rather than wireless communications, and thus emphasizes freedom from being “encumbered by wires.”  Considerable thought went into choosing the name Orange:

The team brainstormed names and refined the core brand proposition from four options to a composite of three ideas (my world, manager, my friend).  The composite idea was “It’s my life.” …. 

….

“Orange” was the word that best represented their ideas, with its connotations of hope, fun, and freedom.[56]

In 1999, Orange launched a £12 million UK advertising campaign emphasizing, “Orange enables you to communicate wherever, whenever and however you want.”[57]  This freedom is important to users:

Text messaging may be the ultimate street language for today's teenagers, but many are using this new way of communicating as a way to combat nerves when embarking on new relationships according to a recent survey conducted by Orange. Over 30% of 16-18yr olds are sending an average of over 20 messages a week and many respondents are relying on texting to avoid those tricky face to face conversations.

…

Denise Lewis, [Orange] Group Director of Corporate Affairs, stated: "Text messaging provides yet another way to share our thoughts with others. Where shyness used to prevent some from communicating their feelings, text messaging has fully opened the gates; the buzz of receiving text messages goes on the anytime, anywhere scenario. Orange text messaging is the ideal way to keep in touch!"

Text messaging is now more popular than ever. A total of 373m text messages were sent over the Orange network (UK and France) in January this year, an 86% increase in the last six months.

To cater for the increasing text messaging phenomenon, Orange has launched Orange Out Here, a new mobile phone package that offers five free text messages a day. The package also includes up to 2 reserve calls which can be used when call credit has expired, as well as an additional £5 free airtime on top of the £5 already available on Just Talk.[58]

Orange offers a variety of other products to increase users’ freedom of action and expression.  Users can buy a mobile phone featuring always-on connectivity to the Internet, wireless local connectivity to laptop computers and personal digital assistants, and tri-band operation allowing roaming across five continents (£179.99, monthly payment available).  Orange has worked with a British bank to allow customers to do banking through their mobile phones.  Orange implemented a service that allows users to bet on horse-races through their mobile phones.  Users have a wide range of choices of phone styles and accessories.  For example, users can buy a Mexican influenced cactus phone cover, an oriental Dragon design, or pop art female and male faces (£19.99 each).[59]  Users satisfied with a standard black phone are also free to choose that. 

While commercial wireless services are associated with a widely practiced freedom, this type of freedom has significant limitations.  Orange offers on a profit-seeking basis the above choices to customers in the UK.  Orange seeks to provide similar choices to customers in France, where its headquarters and top management reside, and in the many other countries.  But every country, like every person, is special and unique.  National laws, typically considered to be related to national security or cultural integrity, limit the operation of companies like Orange.[60]  Laws and government practices that limit private, profit-seeking corporations’ willingness to invest capital also limit the scope of commercial wireless services.[61]  The extent of consumer spending power is an additional constraint on commercial wireless services.

Freedom associated with commercial wireless services does not encompass important aspects of persons and societies.  Policy issues such as international justice, privacy, and use rights are treated as just another product attribute that an individual chooses, like animal testing for perfume or the organically grown status of vegetables.  But in most societies, politics and policy decisions are about more than just marketing products.  The composite idea of Orange, “It’s my life,” presents an anonymous speaker articulating “it,” “my,” and “life.”  One feels impelled to ask: “Who are you?”; “Are you alienated from your life?”; “Is that it?”  An understanding of freedom merely concerned with choices for having or owning misses important aspects of human being.    

Concern about interference in commercial wireless services focuses on the interaction of different service providers’ radio signals.  Under current radio regulations, commercial wireless service users seldom experience such interference.  Service qualities that users experience typically depend much more significantly on network build-out and network technology.  However, before constructing a network, commercial wireless service providers typically seek a license to use specific frequencies, and the license is often associated with particular network technologies.  For example, Orange in the year 2000 bought for £4.1 billion a license to provide UMTS service in the UK.[62]  Acquiring a license greatly reduces the extent to which Orange has to manage radio signal interference as a business risk and an operating concern.  On the other hand, the value of Orange’s UK UMTS license is likely to depend strongly on whether other companies can acquire licenses to provide services similar to UMTS in the UK using alternative radio rights.  Orange’s primary business focus is not on governing radio frequency use but on providing wireless services to customers.  Under current radio regulations, radio signal interference in commercial wireless services is only a minor business concern outside of the licensing process.  Under different radio regulations, such as an unlicensed use regime, radio signal interference might significantly affect service qualities that customers perceive.  In such a situation, dealing with radio signal interference would be another aspect of serving customers.

Interference among commercial wireless service providers’ radio signals is a rather different issue in low-income countries than in high-income countries.  Low-income countries typically have little military use of radio; underdeveloped, public radio and television broadcasting; and much greater demand for low-quality radio services at correspondingly low prices.  International radio regulations and the global radio equipment industry may not produce regulations and equipment appropriately adapted to the relatively low opportunity cost of radio use in low-income countries.  Although low-income countries face different circumstances, their commercial wireless services may be effectively constrained by interference concerns in high-income countries.

4. Freedom around the World

To better understand freedom, consider what communications capabilities persons actually exercise.  Table 10 summarizes amateur radio, Internet, and mobile telephony users per thousand persons in 164 countries, grouped by World Bank income categories.  Looking across all countries, the median figures show about three times as many mobile users as Internet users, and about a thousand times as many mobile telephony users as amateur radio users.  These data indicate that the commercial wireless services field has been relatively successful in bringing its type of freedom to persons around the world.  These facts do not necessarily imply that commercial wireless services are much more important to personal welfare and the common good than are the Internet and amateur radio.  But they do describe important aspects of persons’ communications activities in relation to much different fields of freedom. 

Table 10 World Communications Capabilities By Income (median for countries in income class)
		Users Per Thousand Persons
Income Class	Number of Countries	Amateur Radio	Internet	Mobile Telephony
1. High	39	0.7660	310	711
2. Upper Middle	32	0.3320	82	212
3. Lower Middle	47	0.0801	26	67
4. Low	46	0.0022	3	10
All Classes	164	0.0951	35	105
Comparing Income Classes
		Ratio of Users Per Thousand
Ratio of Income Classes	Number Ratio	Amateur Radio	Internet	Mobile Telephony
1/2	39/32	2.3	3.8	3.3
2/3	32/47	4.1	3.2	3.2
3/4	47/46	36.9	9.8	7.0
Comparing Fields
		Ratio of Users Per Thousand
Income Class	Number of Countries	Amateur/ Internet	Amateur/ Mobile	Internet/ Mobile
1. High	39	0.25%	0.11%	43.54%
2. Upper Middle	32	0.41%	0.16%	38.42%
3. Lower Middle	47	0.31%	0.12%	38.42%
4. Low	46	0.08%	0.02%	27.38%
All Classes	164	0.27%	0.09%	33.07%
Sources and Details: See Appendices A and C.

The extent of communications capabilities has major significant for emergencies and disasters.  One approach to emergency response and disaster communications is to have a small number of communicators who have special disaster response skills.  The admirable services of amateur radio users are well-recognized in this regard.  But having more dispersed communications capabilities can also play a critical role in emergency response.  The presence of mobile phones among the passengers on a hijacked U.S. airline, along with the courageous and decisive action of a few strong men, probably prevented the U.S. Capitol from being destroyed and many additional persons killed.[63]  Increasing persons’ capabilities also increases the possibilities for evil acts.   Commercial wireless services, the Internet, and even amateur radio can be used for good or for evil.  When confronted with those two general possibilities, liberal democracies usually place their faith in the good and promote freedom, while making prudent preparations to confront evil acts that might occur.

Difference in income levels of countries are strongly associated with differences in realized communications capabilities.  The number of users per thousand persons drops sharply with country income class for amateur radio, the Internet, and mobile telephony.  The median share of amateur radio users and Internet users is much less than 1% of the population in low-income countries.  The share of mobile telephony users is only about 1%.  Given that about 40% of people live in countries in the low-income category and about another 35% live in countries in the lower-middle-income category, many persons around the world have not realized important communications capabilities. 

Some types of freedom are more easily realized than others in low-income countries. Commercial wireless services have done relatively well in low-income countries.  On the other hand, amateur radio fares particularly badly in low-income countries and in Africa, Asia, and the Middle East (see Table 11).[64]  Amateur radio understands freedom as closely tied to government authority.  Good government is not easy to establish and maintain.  It is particularly lacking in low-income countries and in many countries in Africa, Asia, and the Middle East.  Amateur radio needs to better adapt to conditions in low-income countries.  More generally, communications capabilities in low-income countries develop more quickly in fields less closely tied to government authority. 

Table 11 World Communications Capabilities By Region (medians for countries in region)
		Users Per Thousand Persons
Region	Number of Countries	Amateur Radio	Internet	Mobile Telephony
Western Europe	22	0.8400	300	748
Africa	45	0.0024	3	15
Middle East	10	0.0376	69	209
Caribbean	14	0.3181	51	117
North and Central America	10	0.1602	34	122
South America	12	0.2057	50	162
Asia	19	0.0164	26	81
Oceania	11	0.1923	22	18
Central and Eastern Europe	21	0.2602	57	188
World	164	0.0951	35	105
Comparing Fields
		Ratio of Users Per Thousand
Region	Number of Countries	Amateur/ Internet	Amateur/ Mobile	Internet/ Mobile
Western Europe	22	0.28%	0.11%	40.2%
Africa	45	0.08%	0.02%	19.1%
Middle East	10	0.05%	0.02%	32.9%
Caribbean	14	0.62%	0.27%	43.4%
North and Central America	10	0.48%	0.13%	27.4%
South America	12	0.41%	0.13%	31.0%
Asia	19	0.06%	0.02%	32.5%
Oceania	11	0.87%	1.09%	125.0%
Central and Eastern Europe	21	0.46%	0.14%	30.0%
World	164	0.27%	0.09%	33.1%
Sources and Details: See Appendices A and C.

B. Natural Freedoms and Equal Rights

Around the world many persons now firmly believe in ideas of natural freedom and equal rights.  The exact meaning of these beliefs and the extent to which they are fundamentally justified animates much scholarly discussion.  The current state of scholarly literature suggests that the epistemic status of such beliefs is essential mysterious.  Nonetheless, most persons do not ground their beliefs in detailed study of political and critical philosophy.[65]  Disciplined by broad discussion and open-minded observation and analysis, mere intuitions of truth about natural freedom and equal rights can make major contributions to practical public decisions.  Try it and see whether this is good for radio regulation.

Natural freedom seems to mean that persons should not be made to do something, or prevented from doing something, without true reasons.  Consider the FCC’s decision in 1996 to eliminate individual licensing for certain non-mandatory radios on ships and aircraft.  The FCC explained that licenses are not needed:

Individual licensing also is unnecessary for any of our regulatory purposes.  We perform our regulatory responsibilities for the Maritime and Aviation Services primarily through the rulemaking process to allocate spectrum, to implement requirements for license eligibility, and to define types of communication that may be transmitted.  In addition, all channels are shared by all licensees so spectrum management occurs through channel sharing, in real time, or through control exercised generally by the FAA or Coast Guard.[66]

The “overwhelming support” that the “vast majority” of commenters provided made eliminating individual licensing an easy decision for the FCC.[67]

Intuitions about natural freedom can provide motivation for seeking truth and acting on it, even despite a contrary consensus and satisfaction with the status quo.   The FCC’s proposal in 1982 to eliminate individual licenses for Citizens Band (CB) radio and radio control devices encountered “almost unanimous opposition” from commenters.  The FCC noted:

Many of the commenters argue that if our position that we do not accomplish spectrum management through the licensing function in these services is true, then it is equally as true for other services, and not a valid reason to eliminate individual licenses for R/C [radio control radio] and CB [radio].[68]

This argument warned the FCC that challenging the consensus in this area could have consequences elsewhere.  The FCC was not afraid:

 This argument is not valid.  A license in the R/C or CB services permits operation on every channel in each service.  A license in the GMRS (General Mobile Radio Service) or in the private land mobile radio services authorizes operation only upon the frequency (ies) or frequency pair assigned….[69]

Commenters argued that licensing was what made the FCC matter:

Many of the comments stated that licensing in these services serves the function of informing users that there is an FCC and that there are rules the user must obey.  Commenters stated that licensing reminds an operator that transmitting is a regulated privilege.[70]

The FCC had enough institutional self-confidence to dismiss this argument:

 There are few CB’ers who haven’t heard of “Uncle Charlie.” The existence of a license does not play an essential role in this process…[71]

Commenters argued:

… since the majority of users apply for licenses and comply with our rules, licensing must work.[72]

In response to this superficial appeal to the comfort of the status quo, the FCC provided facts and analysis:

This merely begs the question, and does not consider whether other Commission rules or policies besides the licensing function are responsible for rule compliance. [presentation of data showing increasing number of CB interference complaints despite licensing]…[73]

That almost all parties active in this proceeding opposed an extension of their freedom is worth contemplating.  That the FCC nonetheless gave them that additional freedom is worth savoring. 

One can also find instances of radio regulations that are shockingly contrary to intuitions about natural freedoms.  An FCC decision in August, 2000, reconsidered and confirmed in August, 2001, provides a good case study.[74]  In November, 1999, the FCC received a petition to eliminate its rules forbidding CB radio users from communicating with other CB radio users located more than 250 kilometers away or in countries other than Canada.  CB radio signals can propagate unpredictably and capriciously under effects of sun spots and other natural phenomena.  The question was whether CB users should be allowed to communicate – intersubjectively interact – using unusual, unintentional, objective interactions of their signals.  Intuitively, one might ask, “Why should human beings not be allowed to acknowledge each other’s presence?”

The FCC refused to allow this intuitive natural freedom.  The FCC declared “inconsistent with the purpose of the CB Radio Service” communication using CB radio signals that happen to travel more than 250 kilometers.  Such freedom would “fundamentally change the nature of [CB Radio Service],” which the FCC defined as a “short-distance voice communications service.”[75]  Thus restrictions on human freedom (intersubjective interactions) were preserved to preserve FCC service definitions against the occasional, objective, natural occurrence of long-distance CB signal propagation.   That seems intuitively wrong.  Similarly, the FCC did not give CB radio users the freedom to communicate with CB radio users in other countries.  CB radio users were allowed only to “exchange messages with [foreign] government stations relating to civil defense and [to] other stations in the Citizens Radio Service.”[76]  Many persons around the world would intuitively believe that this CB radio “wall” surrounding the U.S. should be torn down. 

The scope of natural freedoms is generally thought to expand in extraordinary circumstances.  Asked in August, 2001, “whether the Commission ever intended to actually place a limit on distance of communications in emergency situations,” the FCC reiterated:

…we believe that the Commission intended the CB Radio Service to be used for the express purpose for which it was authorized.  In this regard, we note that there is nothing in the rules that indicates the Commission intended to permit any communication between CB Radio Service stations over 150 miles apart….

With regard to the Petition’s request that we amend the rules to specifically permit emergency communications in excess of 155.3 miles, we do not believe this amendment is necessary.   As an initial matter, we note that individuals who find themselves in emergency situations are likely to have stations in other radio services, such as amateur, marine, land mobile stations, or cellular or other wireless telephones, available either to them or to another individual close to the emergency location.[77]

The FCC then went on to note comparative advantages of other radio services in emergency situations, including the benefits of Enhanced 911 systems in mobile telephony.   With its reason firmly fixed on its regulations, the FCC ended the key paragraph in its ruling by noting:

…there is nothing in the CB Radio Service rules that prevents an individual who receives a message that contains a request for emergency assistance, regardless of how far away the transmitting station is, from using other communications services to inform public safety providers of the need for assistance.[78]

A natural, first reaction to a person’s cry for help is to communicate to her, directly, through the same means she communicated to you, recognition of her situation and her need for help.  Only policy makers with no respect for intuitions about freedom would pretend that such a freedom does not exist.

Intuitions about natural freedoms and equal rights point to many additional, critical insights into radio regulation.  Natural freedoms and equal rights are generally understood with respect to human beings, male and female.  While human beings are animals in a simple-minded biological sense, even highly disabled humans are intuitively considered to be part of this highly privileged animal class: human beings understood as equal persons.[79]  Most persons intuitively sense that human intentionality gives an action a greater claim to freedom and to equality in rights.  Most persons also intuitively understand that sexual difference does not imply fundamental inequality but points to the creative potential of communication.  Most persons intuitively sense that human expressiveness, even within the historically shallow conventions of programming languages, has a natural claim to freedom.  These intuitions can help to improve radio regulation.

1. Implications of Intentionality

Radio regulation often includes class licensing for categories of radiators.  The rules in the US, known as Part 15, are well-articulated and hence provide rich material for analysis.[80]  Part 15 categorizes radiators as incidental, unintentional, or intentional:

Incidental radiator.  A device that generates radio frequency energy during the course of its operation although the device is not intentionally designed to generate or emit radio frequency energy.  Examples of incidental radiators are dc motors, mechanical light switches, etc.

Unintentional radiator.  A device that intentionally generates radio frequency energy for use within the device, or that sends radio frequency signals by conduction to associated equipment via connecting wires, but which is not intended to emit RF energy by radiation or induction.

Intentional radiator.  A device that intentionally generates and emits radio frequency energy by radiation or induction.[81]

At least formally, this categorization is based on intentionality, a central aspect of human consciousness. 

Contrary to intuitions about natural freedom, human intentionality gives a radiator less claim to freedom in radio regulation.  Incidental radiators are least intentionally associated with radiation.  Regulations for these devices consist of just one sentence:

Manufactures of these devices shall employ good engineering practices to minimize the risk of harmful interference.[82]

Unintentional radiators use radio frequency energy more intentionally than incidental radiators.  Regulations for unintentional radiators consist of about forty-five pages of detailed technical regulations.  Intentional radiators intentionally project radio waves out into the world beyond themselves.  Doing this makes a device subject to even more extensive and restrictive regulation.[83]

Why would energy associated with human intentionality be more subject to regulatory suppression than similar energy that is meaningless?  The conspiracy theory – radio regulation intentionally suppresses human freedom – seems implausible.  To seek further understanding, consider this scenario.  Suppose there were public concern about noise.  Suppose local boys like to play outdoor jam sessions on improvised instruments.  Suppose that overly sensitive car alarms unintentionally make as much noise as the boys.  Shouldn’t regulation attempt to restrain car alarms before it attempts to restrain boys?  Perhaps it comes down to cost-benefit analysis: intentionality is inversely correlated with marginal suppression costs.  It just turns out that it is cheaper, at the margin, to suppress boys rather than car alarms.  But it is not surprising that authoritative regulation can more cheaply suppress intentionally created energy.  Intentionality implies the possibility of change in response to authoritative communication.  Just tell the boys to stop.  This might be the general logic by which radio regulation suppresses classes of devices more closely associated with human freedom.

Contrary to intuitions about equal rights for human persons, increased human intentionality implies in radio regulation more unequal rights among similar radiators.  All incidental radiators are treated equally. They can be made and used in any way consistent with general norms not defined by government.  In this sense, public regulation respects the natural freedoms and equal rights of incidental radiators.  

Unintentional radiators, more associated with human intentionality than incidental radiators, have unequal rights under radio regulation.  Among unintentional radiators is a sub-category called “exempt devices.”  Exempt devices include “a digital device used exclusively…by a public utility,” “a digital device utilized exclusively in an appliance, e.g. microwave oven, dishwasher, clothes dryer, air conditioner (central or window),” and other specifically enumerated devices.[84]  Another distinction is between “Class A digital device” and “Class B digital device”:

Class A digital device.  A digital device that is marketed for use in a commercial, industrial or business environment, exclusive of a device which is marketed for use by the general public or is intended to be used in the home.

Class B digital device.  A digital device that is marketed for use in a residential environment notwithstanding use in commercial, business and industrial environments.  Examples of such devices include, but are not limited to, personal computers, calculators, and similar electronic devices that are marketed for use by the general public. …[85]

Class A digital devices are subject to less restrictive regulations than Class B digital devices.  These regulations show that class licensing does not necessarily imply equal rights under radio law. 

Intentional radiators also seem to have unequal rights.  Regulations for intentional radiators, grouped by that term’s definition, include three subparts, “Subpart C- Intentional Radiators,” “Subpart D – Unlicensed Personal Communications Services,” and “Subpart E – Unlicensed National Information Infrastructure Devices.”  The latter two subparts represent more recent regulations.  The presence of subparts D and E, which naturally fall under subpart C, suggest that service names, rather than intrinsic characteristics, matter in regulation.  In a 1989 order reforming Part 15, the FCC noted:

The provisions for new devices generally were adopted in response to petitions for rule making that requested authorization only for the specific device in question.  This incremental method of adopting device-specific regulations resulted in rules that are lengthy and difficult for the public to understand.  It has resulted in the adoption of standards that are overly complex and, in some cases, unnecessarily restrictive.  There are also a number of apparent inconsistencies in the technical standards between Part 15 devices that have similar interference potentials.  Early standards adopted to control interference are frequently significantly different from what is needed at the present time due to improvements in equipment, such as receiver sensitivity, the increased proliferation of both licensed and unlicensed operations, and changes to the frequency allocations of authorized radio services.[86]

The FCC addressed these problems in 1989, but the regulatory dynamic that created them remains the same.  That dynamic continually recreates unequal rights.

To better support natural freedoms and equal rights, radio regulation should limit radiator classes to a small number and should recognize a greater claim to freedom for radiation more closely associated with human intentionality.  Clear principles can help in resisting practical pressures to define continually new radiator classes.  Worth exploring is a scheme with just two classes: non-purposeful radiators and purposeful radiators.  Non-purposeful radiators could be analogized to pollution sources.  Insights and experience in environmental regulation could be applied to regulating these radiators.  Purposeful radiators could be analogized to persons.  Insights and experience in regulating personal activities such as walking and talking could be applied to regulating purposeful radiators.  Such an approach would make radio regulation more consistent with intuitions about the implications of human intentionality.

2. Sexual Awareness in Radio Regulation

Aspects of transmitters dominate radio regulation.  Radio regulation, both internationally and nationally, divides radio communication into transmission and reception.  Transmitters are the primary focus of regulatory concern, while receivers are treated as a mere adjunct to transmission.[87]  The subjectivity of receivers, important in practice, is generally ignored in discussion of radio regulation.[88]  Communication tends to be viewed as a mechanical transfer of substance from transmitter to receiver.  Thus radio regulation presents a fundamental inequality between transmitters and receivers, one that obscures important, practical aspects of communication.[89]

Intuitions about sex help to expose these weaknesses in radio regulation.  Males and females, although they function differently in sex, are fundamentally equal as human persons.  They should have equal roles in government.  Moreover, sex is not well understood merely in terms of a division between transmission and reception.  Sex is a creative, unitive act.  Sex is about communication.  Radio regulation should be about communication, too.

Communication and the subjectivity of receivers are central to one of the most successful areas of radio regulation.  Under FCC rules, all receivers associated with a licensed radio service must be labeled with the following words (the first label):

This device complies with Part 15 of the FCC Rules.  Operation is subject to the condition that this device does not cause harmful interference.[90]

All other devices subject to FCC certification or verification, with one small exception, must be labeled with these words (the second label):

This device complies with Part 15 of the FCC Rules.  Operation is subject to the following two conditions: (1) this device may not cause harmful interference, and (2) this device must accept any interference received, including interference that may cause undesired operation.[91]

In a world in which all radio devices had an FCC label and acted in accordance with what the label communicates, the first label would suffice.  There would be no need for the second label and its additional clause.  Yet freedom and evil are part of the world and must be recognized.   Clause (2) of the second label shows that radio regulation understands these facts and seeks to communicate them, too.  The second label counsels the user that she must just accept certain events.

Communication should not just describe the world, but also help to change it.  Under FCC rules, computers and peripherals marketed for use in a residential environment are required to have the above second label affixed to them.  In addition, users of these devices are required, under FCC radio regulations, to be given instructions similar to the following:

If this equipment does cause harmful interference to radio or television reception, which can be determined by turning the equipment off and on, the user is encouraged to try to correct the interference by one or more of the following measures:

– Reorient or relocate the receiving antenna.

– Increase the separation between the equipment and receiver.

– Connect the equipment into an outlet on a circuit different from that to which the receiver is connected.

– Consult the dealer or an experience radio/TV technician for help.[92]

These instructions suggest that the equipment manufacturer does not have any responsibility for interference.  In 1989, the FCC specifically declined to require that instructions include contact information for a manufacturer’s representative who would address interference problems.[93]  Yet such a requirement does not seem burdensome compared to the requirements imposed on transmitters in radio regulation.

Over the past two decades, these little noticed aspects of communication in radio regulation have significantly reduced interference concerns.  Regulators, equipment manufacturers, and other organized groups have developed voluntary standards addressing interference perceived in reception.[94]   In response to improved designs for receivers, the number of interference complaints to the FCC has dropped significantly since 1982.[95]  Available public information indicates that FCC does not now consider radio frequency interference, as real persons actually experience it, to be a major public problem.  On the FCC website in the late 1990s, descriptive material concerning consumer issues stated:

The FCC does not routinely investigate complaints of interference to telephones and home electronic or entertainment equipment.  The FCC will only investigate where there is convincing evidence that results from a violation of rules and, then, only on a law priority basis.[96]

The consumer section of the FCC website currently offers this advice to persons experiencing interference in radio or television reception:

…the source of the problem could be your home electronics equipment.  It may not be adequately designed with circuitry or filtering to reject the unwanted signals of nearby transmitters.  The FCC recommends that you contract the manufacturer and/or the store where the equipment was purchased to resolve the problem.[97]

Intuitions about equality among communicating parties suggests that these relatively successful approaches to receiver regulation could be extended more equally to transmitters.  Regulators could merely express an expectation that transmitters, like receivers, would function harmoniously and satisfactorily for most persons in the existing radio frequency environment.  Regulation might just urge persons to contact service providers about any interference problems that might arise.

More extensive regulation of performance responsibility might be warranted.  Suppose that radio regulation assigned manufacturers liability for secular declines in the performance of radio communications devices to the extent that radio frequency interference causes the decline in performance.  Moreover, suppose that radio regulation required that a statement of this liability be included with the instructions for every radio communications device.  The statement would include identification and convenient means to contact a manufacture’s representative designated to address interference liability concerns.  This statement would give customers some additional rights that, all else equal, might be reflected in higher prices to customers.  Given rapid turnover in many radio communications devices, the prevalence of guarantees and warranties observed without specific requirements, and companies often expressed desires to establish relationships with customers, such a regulatory requirement does not seem unnatural or unduly burdensome. 

Such a regulatory requirement could be highly beneficial to all parties.  Use of old radio communications equipment often interferes with possibilities for new uses and types of radio communications.   Much better than protecting users’ radio rights is to make those rights, as embedded in the specific equipment used, vanish over time.  Under a good regulatory regime, the price/performance ratio for radio equipment could easily shrink by half every two years.  In such an environment, the cost of paying interference liability for each radio device after three years of use would add only 12.5% to the cost of the devices.  Radio regulation that treated transmission and reception more equally and that attached more importance to communication could produce enormous benefits for persons, services providers, and equipment manufacturers.

3. Software Rights for Adults

Human freedom increasingly relates to software capabilities.   Most persons do not want software that arbitrarily rules over them.  Free software/Open Source licenses give users, and software developers, the freedom to study, modify, and share software.[98]  The growing significance of GNU/Linux points to the practical importance of these freedoms.   Microsoft, in contrast, has been very successful in providing a Windows platform, which is based on proprietary code.  The Windows platform gives software developers the capability to serve easily a large number of users.  Building upon the Windows platform, independent software developers have created for users many software choices and capabilities.[99]  These choices and capabilities are also an important aspect of freedom.  

With hardware, certain kinds of freedom are difficult to suppress.  FCC rules state:

The users manual or instructional manual for an intentional or unintentional radiator shall caution the user that changes or modifications not expressly approved by the party responsible for compliance could void the user’s authority to operate the equipment.[100]

A computer is categorized as an unintentional radiator.  It seems implausible that computer manufacturers expressly approve many of the sorts of hardware changes (upgrades) persons make to their computers.  Moreover, changes are likely to be detected only if they interfere with some other device.  In addition, the FCC is likely to respond to such interference only if it relates to radio communications for critical public functions.  Administrative action is a weak instrument for voiding users’ natural freedoms with hardware.

Software defined radios (SDRs) are now attracting considerable interest.  An SDR converts a wide bandwidth of radio frequency energy to a digital data stream.[101]  Based on an agreed communications protocol expressed in software, digital signal processing equipment in the SDR extracts the intentionally radiated signal from the data stream.  This architecture facilitates low-cost communication using many different communications protocols.  As a leader in the SDR field explains:

Some believe that future radio services will per force provide seamless access across cordless telephone, wireless local loop, PCS, mobile cellular and satellite mobile modes of communication, including integrated data and paging. Anyone who needs to access even half that many radio modes at once clearly will have to move to software radio based infrastructure.[102]

Moreover, since more effective communications protocols can be implemented simply by upgrading SDR software, SDRs encourage timely deployment of advanced communications capabilities.[103]

SDRs have different implications for freedom than do traditional radio hardware.  In a recent order, the FCC stated:

…a means will be necessary to avoid unauthorized modifications to software that could affect the compliance of a radio.  Because groups such as the SDR Forum and ETSI are sill in the process of developing standards for encryption and digital signatures that could be used in software defined radios, we decline to propose specific requirements for authentication.  Instead, we propose a more general requirement that manufacturers take steps to ensure that only software that is part of a hardware/software combination approved by the Commission or a TCB [Telecommunication Certification Body] can be loaded into a radio.[104]

The FCC established rules by which manufacturers get FCC authorization for the software used in their radios.  The FCC established rules for authorizing changes in software, and the FCC also established rules relating to third-party development of software.[105]  The FCC clarified that, in exercising its regulatory authority, it will distinguish between software applications and software that controls radio frequency operating parameters.[106]  Compared to its control over unauthorized hardware changes, the FCC’s control over freedom with radio software may be much greater.[107]

Having a single federal agency with broad discretion and powerful means to control an important field of software may not be sound policy.  Innovation in software, like innovation in ideas and fashions, potentially can occur and disseminate quickly at low cost.  Detailed administrative control stifles innovation.  The expressive aspect of software, a language of control, also makes establishing stable, constraining categories of regulatory control more difficult than for other less expressive areas, such as supplying standard electric currents.  Moreover, software users much more naturally create social and technical networks than hardware users.[108]  Some programmers unquestionably will figure out how to get around FCC control of radio software.  Creating a large space for extra-legal software could undermine more generally the rule of law in radio regulation. 

Giving adults freedom to program SDRs is a more important public interest than avoiding some risk of radio signal interference.  SDRs make speaking in electromagnetic spectrum equivalent to speaking a programming language.  This capacity for human expressiveness has an intuitive claim to freedom analogous to free speech.[109]  Freely programmable SDRs could more easily adapt to dynamic patterns of radio use in a given place.  This makes individual freedom in radio use less socially threatening.  Mature and civilized radio users could more easily and intentionally accommodate each others’ behavior.  Radio regulation might thus recognize human intentionality to be not a threat but a good.  In addition, SDRs allow large-scale, low-cost production of radio equipment that could be modified locally to adapt to needs in low-income countries with challenging climactic and geographic circumstances.  Promoting a propitious environment for SDRs’ development would foster expansion of communications capabilities to persons in disadvantageous circumstances.

C. Freedom in the House

Some kinds of personal freedom are more conventional than others.  Freedom within the home from certain types of searches and seizures has deep historical and sentimental roots:

The special, intimate function served by the home was first legally recognized in antiquity. Greek and Roman law accorded the home special protection as the living area of the family, and as a place of worship and refuge. Common law expressions such as "My house is my castle" reflect the enduring prominence of the home in the development of Western law. The right to privacy in the home was first recognized as a fundamental right in the Virginia Bill of Rights from 1770, and it is embodied in the Fourth Amendment of the United States Constitution. In Germany, the inviolability of the home was first recognized as a fundamental right in the Paulskirchen Constitution of 1849. The Weimar Constitution also guaranteed the privacy of the home, but, as explained above, it offered no means of enforcing that right.[110]

A U.S. judge explained:

A sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some inviolate place-which is a man's castle.[111]

What does this have to do with radio regulation?

In the mid-eighteen century, the invention of the Leyden jar spurred explorations and demonstrations of the wonders of electricity.  Leyden jars can discharge powerful electrical currents and sparks.  They provided a tool for exercising reason to better understand nature, and hence attracted considerable attention:

The Leyden jar revolutionized the study of electrostatics.  Soon “electricians” were earning their living all over Europe demonstrating electricity with Leyden jars.  Typically, they killed birds and animals with electric shock or sent charges through wires over rivers and lakes. In 1746 the abbé Jean-Anoine Nollet, a physicist who popularized science in France, discharged a Leyden jar in front of King Louis XV by sending current through a chain of 180 Royal Guards.  In another demonstration, Nollet used wire made from iron to connect a row of Carthusian monks more than a kilometer long; when a Leyden jar was discharged, the white-robed monks reportedly leapt simultaneously into the air.[112]

Undoubtedly, scientists, electricians and other active persons of the time regularly created large sparks and surging currents using Leyden jars and other equipment set up within their homes.  About 150 years later, Henrich Hertz recognized that these activities broadcast radio frequency energy.

Taking this long view points to an important question about freedom.  Whether persons exploring electricity in the mid-eighteenth century created radio frequency energy intentionally is a question best left to some academic philosophers.  Perhaps one might question whether, in the mid-eighteen century, experimenting with electricity should have required government license.  While some government officials might answer that question affirmatively, such a view seems extreme and inconsistent with the sort of freedoms that naturally exist.[113]  But suppose that in some common law country in the mid-eighteenth century persons were required use Leyden jars only in accordance with relevant government regulations.  Persons who violated these regulations could be subject to criminal proceedings.  Would a law enforcement official be required to have more specific authorization than a general warrant to inspect a house for a Leyden jar being used in violation of the law?[114]

Questions of this sort deserve some thought.  In the US, the FCC seems to assert that its agents may, without a specific warrant, inspect a house for any equipment that radiates radio frequency energy.  Inspections must be allowed “without unnecessary delay”; the FCC suggests that “[i]mmediate on-the-spot inspections are generally necessary.”[115]  Unauthorized radio station operation in the U.S. has on occasion been grounds for criminal charges.[116]  FCC field agents use equipment not in general public use to monitor, among other things, radio frequency energy emanating from houses.  To persons with little legal learning, such searches of the home seem to violate the Fourth Amendment of the U.S. Constitution.[117]

The relationship between radio regulation and freedom in the home may not have mattered for practical reasons in the past, but this relationship is likely to be stressed in the future.  Few persons, from their homes, without prior regulatory authorization, create of their own initiative the magnitude of radio frequency energy that Benjamin Franklin did in Philadelphia in the mid-eighteenth century.[118]  Most persons simply use devices that radiate radio frequency energy according to hardware that others design.  The number and diversity of radio devices used within the home are likely to grow rapidly in the future.  Moreover, radio devices, such as SDRs, will give at least some users effectively greater freedom to control devices’ radio emissions.   Courts will likely confront difficult questions concerning how law enforcement officials search for unlawful radio devices and enter houses to inspect radio equipment that legally relevant evidence indicates are present.

Rather than await long and contentious court battles to establish the parameters of freedom within the home from searches for radio devices, policy makers should on their own initiative change radio regulations to recognize more formally causes for inspections for radio devices.  Causes might be explicitly related to evidence that legally operating parties are experiencing harmful interference, and that this harm is probably related to illegal radio operation by another party.  No documented harm, no cause for law enforcement search of a home for radio devices.  Causes might also need to be identified, at least transitionally, with respect to clearly enumerated public safety issues on particular frequencies.[119]  Recognizing “fixture bands,” radio frequencies with use rights geographically circumcised by real estate boundaries, represents a narrower perspective on freedom applied to a more encompassing category of space.[120]  But freedom within the home with respect to radio means more than just use rights. 

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[1] ERC (1995) p. 1.

[2] Thermal radiation is proportional to temperature in Kelvin and the bandwidth measured.  At typical room temperatures, human beings are net electromagnetic radiators.  A rough estimate of human power is straight-forward.  Approximate a human being as a sphere of water with 1 meter diameter.  Since water is close to a black body, the human body is essentially a black body.  With these approximations, the Stefan-Boltzmann law then implies that a non-feverish human being sitting in a typical office is equivalent to a (point) radiator with net output about 260 Watts.  Most of this power is radiated in a way invisible to supervisory personnel, i.e. the power is radiated in the infrared part of the electromagnetic spectrum. My skills as an electrical engineer have faded badly; you should verify this calculation yourself.  All necessary information is readily available.  See, for example, http://www.eng.auburn.edu/~wfgale/usda_course/section1_4_page2.htm

[3] U.S. (1927) Article 2, Section 1.  The lowest frequency category in the proposed frequency allocation was “10 to 75” kilocycles (KHz); the highest “18,100 and above” KHz.  See Table 1, p. 589.

[4] RR (1927), Article Zero.  Article 5 defined frequency categories ranging from “10 - 100” KHz to “Above 60,000” KHz.

[5] These formal weaknesses are also strengths.  The adopted definition of “radio communication” provided more interpretative space in the legal field for incorporating common understandings of human freedom into the legal definition of radio communication.

[6] RR (1932) Annex to Convention (p. 85).  .

[7] RR (1947) Chapter 1, article 1, section I, paragraphs 2,4, and 5.  The lowest frequency category in the Table of Frequency Allocations was “10-14” KHz, and the highest “Above 10 500” MHz.  See Chapter III, art. 5.  The nomenclature of frequencies went from “VLF (Very Low Frequency) :  Below 30 kc/s” to “EHF (Extremely High Frequency) : 30 000 to 300 000 Mc/s”.   See Chapter 2, art. 2.

[8] RR (1959), Art. 1, Sect. 1, para. 7.  The nomenclature of frequencies was revised, and the new system included a new category “300 to 3 000 Gc/s (GHz) or 3 Tc/s (THz) : Decimillimetric waves”.  See Art. 2, Sect. III (112).

[9] Final Acts of the World Administrative Radio Conference, Geneva, 1979 at 32 (1980).

[10] For the US, see 47 CFR § 2.1(c).  For industrial, scientific, and medical equipment, 47 CFR §18.107(a) defines:

Radio frequency (RF) energy.  Electromagnetic energy at any frequency in the radio spectrum from 9 kHz to 3 THz (3,000 GHz).

The FCC’s constituting statute defines “radio communications” in a way that does not explicate the meaning of “radio”.  Specifically, 47 USC 153(33) defines “radio communication” as “transmission by radio of writing, signs, signals, pictures, and sounds of all kinds,” as well as associated services and facilities.

[11]  On common knowledge of power lines causing radio and television interference, see Southern Indiana Gas and Electric Company v. Gerhardt, 241 Ind. 389, 172 N.E.2d 204 (1961).  State courts have exercised jurisdiction over disputes concerning electromagnetic radiation resulting from power lines.  See Central Kansas Telephone Co. v. Kansas Corporation Commission, 113 P.2d 159 (1941); Floyd v. Ocmulgee Electric Membership Corp., 16 S.E.2d 208 (1941); and Hale v. Farmers Electric Membership Corp., 99 P.2d 454 (1940).  On FCC regulation of electromagnetic waves over power lines, see FCC (1999a).  The FCC regulates some aspects of some types of lights.  See FCC (1999b).  New Zealand’s Radio Spectrum Management Group recently found that an electric power crisis that led to serious power outages had a dramatically beneficial effect in reducing noise in frequency bands used for wireless services.   The study did not consider the value of activities that create electromagnetic waves.  See RSMG (1998).    

[12] Compare Skomal (1978) Fig. 2.3, p. 27 to 47 CFR § 27.55(b). 

[13] Senior, Sengupta, and Ferris (1977) p. 11.  Recently, The FCC’s Technical Advisory Council (TAC) was asked to assess the current state of knowledge on electromagnetic noise levels.  See http://www.fcc.gov/oet/tac/requests.pdf, p. 2.  The TAC issued its final report on this issue on June 12, 2002.  See http://www.fcc.gov/oet/tac/.

[14] See, for example, the offerings of Terabeam (http://www.terabeam.com).  Optical systems are being implemented for inter-satellite links.  See FCC (2001b). 

[15] In considering optical inter-satellite links, FCC (2001b) para. 16, states:

Optical beam communications are not considered a type of radio communication since they operate at frequencies above 300 GHz, and they are not within the jurisdiction of the Communications Act [footnote to 47 USC §§ 152, 153(33)].

The relationship between this finding and the definition of radio waves is unclear.  See 47 CFR § 2.1(c).  For an FCC concern with lights, see FCC (1999b).  Light interference (light pollution) is a major public concern.  See, for example, material available from the International Dark-Sky Association (http://www.darksky.org) and the New England Light Pollution Advisory Group (http://cfa-www.harvard.edu/cfa/ps/nelpag.html).  In 1999, Texas Governor George W. Bush signed a law to reduce light pollution.  See discussion and links at http://www.limber.org/ida/lp.html.

[16] An FCC staff member with over twenty years of service fondly remembers being shown, as part of his new employee orientation, the thriller, “Patrolling the Either” (MGM, 1944)  The heroes in this movie are agents in the FCC’s Radio Intelligence Division, which sought to uncover domestic spy transmitters in World War II.  This movie was the first made-for-television drama and was shown simultaneously on three television stations in April 10, 1944.   The FCC has long recognized the importance of defending freedom.  The challenge is to do that most effectively for everyone in current circumstances.

[17] Medieval Jewish and Christian thinkers struggled extensively with the issue of freedom, while, for complicated reasons, most Islamic thinkers did not.  See Fradkin (2002).  Modern thinkers, both within Islam and outside of it, should not presume that similar thinking about freedom is not relevant to their lives and not worthy of their attention.

[18] The latter insight seems to be largely lacking in academic literature on political philosophy and critical theory.  A jazz musician shared it with me in a bar in Boston.

[19] The name “amateur” radio for independent, non-commercial radio users probably evolved from an implicit comparison between these users and army and navy radio operators.   Independent, non-commercial radio users also tended to be called “boys.”   Anecdotal evidence suggests that most “amateurs” were young and male, but the average age or sex composition of early amateurs has not been well-established.  For a wonderful, personal account of a “girl amateur,” see Radio Amateur News (1920).  

[20] ARRL (2000) p. 1.

[21] Gernsback (1913).

[22] Ibid.

[23] Radio Act (1912) Sec. 4, fifteenth article.  Thus the rights of amateurs were recognized implicitly by absence of complete restriction.

[24] Taussig (1922) p. 191.

[25]  RR 25 I §1.

[26] RR 25 I §2 (1) and 25 I §5(2) .

[27] 47 CFR §97.119.

[28] See http://wireless2.fcc.gov/UlsApp/UlsSearch/searchLicense.jsp

[29] 47 CFR §97.113(a)(4).

[30] RR  25 I §2 (1).

[31] 47 CFR §97.113(a)(4).

[32] 47 CFR §97.113(a)(2), 97.113(a)(5), 97.113(b)(a) .

[33] See FCC (1987).  The number of amateurs and the allocation of frequencies among amateurs are not regulated.  Many of the arguments used to justify broadcast content regulation do not apply to amateur radio.

[34] IARU (2001) describing ITU-R M.1544.

[35] RR 32 I §3(1).

[36] The lowest class of license requires passing a 35-question written examination, the middle class adds a five words per minute Morse Code test, and the highest class license requires passing a 50-question test and a five words per minute Morse Code test.  The FCC recently restructured the set of amateur licenses and reduced the speed requirement for the amateur Morse Code tests.  Morse Code proficiency at the level of 16 code groups per minute and 20 words per minute was retained for commercial radio operators.  See FCC (2001c).   The Morse Code test has generated considerable world-wide opposition among amateurs, and it is likely to be eliminated within a few years in most countries other than the U.S.  For information, see the articles on the No-Code International website, http://www.nocode.org/articles.html.  On the ARRL’s position, see http://www.nocode.org/articles/NCI_ltr_to%20ARRL_re_Morse_res.html

[37] Membership of the IARU consists of member-societies, with only one member-society per country or separate territory, each having a single vote.   The rights of a member-society may be suspended if it “has failed to fulfill its duties” under the IARU Constitution, “has acted contrary to the interests of Amateur Radio or the IARU,” or “no longer adequately represents the interests of radio amateurs throughout its country and/or separate territory.” A two-thirds majority is required to terminate a member-societies membership in the IARU.   See IARU Constitution, online at http://www.iaru.org/iarucnst.html.

[38] The organization serving as International Secretariat has a powerful position in the IARU.  Under the IARU Constitution, a member society serving as International Secretariat (in this case, the ARRL) continues to serve until a successor is elected (the time period or procedure by which such an election might be held is not specified).  The policy and management of the IARU is carried out by the Administrative Council, which consists of a President, Vice President, Secretary and six additional members, two from each of three regions of the world.  Single candidates for President and Vice President are nominated by the International Secretariat, subject to agreement from the (existing) Administrative Council that the proposed candidates are “suitably qualified.” Candidates for these offices are ratified by a simple majority vote of Member-Societies.  The President and Vice President serve terms of five years and continue in office until the nomination of a successor has been ratified.   The International Secretariat designates the Secretary of the Administrative Council, who serves at the will of the International Secretariat.  See IARU Constitution, ibid.

[39] ARRL (2000) pp. 1-6, 1-16, 1-17, 1-25.

[40] A leading scholar has stated:

Hackers build the Internet.  Hackers made the Unix operating system what it is today.  Hackers run Usenet.  Hackers make the World Wide Web work.

Raymond (2001), from section “What is a Hacker?”

[41] Barlow (1996).

[42] Williams (2002) Chapter 4, beginning sixth paragraph from the end (pp. 55, 56).  Stallman’s spiel seems more like a loose and obtuse adaptation of Job 38-41.  The rest of the story may differ superficially from Job 42, but there are also similarities.  See Williams (2002) Chapter 14.  Note as well that the paragraph following the last one cited quotes Stallman as saying, “The way I see it, any being that has power and abuses it deserves to have that power taken away.”  This appears to be a different perspective on power than the one in the immediately preceding paragraph.  Stallman’s home page, www.stallman.org, presents many different concerns about justice and mercy.  Some of these concerns are of dubious moral and intellectual quality.  Stallman’s significance as an ethical thinker seems to come from his awesome programming achievements and his clear operating principles as a programmer.

[43] Stallman (1998), from the last two paragraphs.  Stallman presents himself as a big man.  U.S. government officials before WWI tended to referred to individual, non-commercial radio users as “amateurs” or “boys.”  The tone of friendly condescension is particularly apparent in a Congressional Report from April, 1910:

The committee means fair play for industrious, inventive American boys, and, without consulting with him, ventures the statement that there is no other man in the United States in more cordial accord with their ambitions than the President of the United States…

House Report (1910) p. 7.

[44] Raymond (2001), from section title “The Hacker Attitude.”

[45] See Raymond (2000), section 2.  The entry for “hacker” in Jargon File, version 4.3.1, 29 Jun 2001, states, “We have a report that it [the term “hacker”] was used in a sense close to this entry's by teenage radio hams and electronics tinkerers in the mid-1950s.”  See Raymond (2001b).  Bruce Perens, one of the founders of the Open Source movement and an important hacker, is also an active ham.  He founded No-Code International and also is a member of ARRL.  Perens has stated publicly that he contributed $1000 to ARRL’s frequency defense fund in the year 2001.  Perens website is http://perens.com.  For some of his views on amateur radio, see http://perens.com/Articles/NCI-reform.txt

[46] See Neumann (2001).

[47] The re-mailer, at http://www.penet.fi, was closed in 1996.  See http://www.penet.fi/pres-english.html.

[48] See Lohr (1999).

[49] Internet domain names (top level “web addresses”) are associated with a registrant and physical address through the WHOIS protocol.  For an example of a WHOIS service, see http://www.geektools.com/cgi-bin/proxy.cgi .  The number of Internet users who have their own domain name is a small subset of all Internet users.  Moreover, much Internet use of Internet users who have a domain name takes place without reference to the user’s domain name.  The policy implications of the WHOIS database are insightfully analyzed in Mueller (2002), Section 11.2.2.  

[50] Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329.

[51] Daum Communications, Korea’s largest e-mail service provider, recently implemented a “pay-for-service” system for the transmission of more than 1000 e-mails.  Daum has also sued three companies in Seoul District Court for sending more than 6 million messages a month to Daum subscribers.  See http://www.koreaherald.co.kr/SITE/data/html_dir/2002/05/23/200205230020.asp  On the economics of personal attention, see Galbi (2001a).

[52] Most persons would like to receive an unsolicited e-mail from a long lost friend.

[53] For example, European Parliament (2002).

[54] See, generally, Mueller (2002).  He notes:

Much attention has been devoted to the threat of cybersquatting.  Less attention has been paid to the danger that measures to control it are expanding property rights to names at the expense of free expression, privacy, and competition.

[55] See Orange.com, sections “investor relations>about orange>history” and “corporate affairs>about orange>orange firsts”.  Oftel figures show UK mobile prices to have fallen about 60% from 1996/97 to 2000/01.  Tracking price in highly competitive service markets is difficult, and thus such figures should be analyzed carefully.  See Oftel (2001) Fig 2.4. and Appendix A.

[56] See http://www.orange.com/English/corporate/Orangestory.asp?bhcp=1

[57] “Wirefree Communication, Naturally with Orange,” Orange News, Marketing, 1 Sept. 1999; online at http://www.orange.co.uk/cgi-bin/news/search.pl.

[58] “THE SURVEY SAID: TEXT MESSAGING THE ULTIMATE FLIRTING TOOL!” Orange News, Marketing, 26 March 2001; online at http://www.orange.co.uk/cgi-bin/news/search.pl.  To make the news release easier to read, I have added four commas, changed “have” to “has” in the first sentence of the last quoted paragraph, and capitalized the initial letters in the words “out here” in that sentence. 

[59] The above products are on offer at http://shop.orange.co.uk/NASApp/esales/esales.

[60] With respect to restrictions in the US, see, for example 47 U.S.C §310 and FCC (2001f) (FCC’s approval of radio license transfers in conjunction with Deutsche Telekom’s acquisition of VoiceStream).  

[61] Poor regulation and weak protection for investments are widely cited as problems inhibiting the development of commercial services.

[62] Orange also owns UMTS licenses in the France, the Netherlands, Belgium, Denmark, and Switzerland.  See Orange (2002) p. 119.

[63] For eulogies for these men and biographical details, see http://www.letsrollheroes.com/memorialsites.shtml

[64] For a complete list of countries, along with category indicators and users per thousand, see Appendix C.

[65] And even great learning does not prevent gross misjudgments.  See Berkowitz (2000).

[66] FCC (1996b) para 8.

[67] See ibid., para. 5.

[68] FCC (1983) para 17.

[69] Ibid.

[70] Ibid, para. 20.

[71] Ibid.

[72] Ibid para. 23.

[73] Ibid.

[74] FCC (2000), FCC (2001d).

[75] FCC (2000), from para. 6 and 7.

[76] Ibid, para. 8.

[77] FCC (2001d) from para. 8 and 9.

[78] Ibid, para. 9.

[79] While humans are intuitively privileged, animals might be considered to have rights, too.  Animal rights are not considered in this paper, although they are related to practical ethics for scholarly advancement in high-income countries today.

[80] 47 CFR 15.  These rules can be accessed online from http://www.fcc.gov/oet/info/rules/

[81] 47 CFR 15.3(n),(z),and (o).

[82] 47 CFR 15.13.

[83] See 47 CFR 15.5(d).  Additional comparisons between regulations for intentional radiators and regulations for unintentional radiators are difficult because the regulations for both categories are complex and differentiated.

[84] 47 CFR 15.103.

[85] 47 CFR 15.3(h) and (i).

[86] FCC (1989) para. 4.  In 1979, the FCC revised Part 15 for similar reasons.  See FCC (1979).

[87] As Caves (2002) p. 77 notes:

In recent years, the importance of receive performance, however, has been sometimes underestimated, particularly in some European regulations [footnote to RTTE Directive (1999/5/EC)] which have tended to relegate receiver aspects to a secondary and non-essential status.

[88] A much deeper understanding of reception has had great historical significance outside of radio regulation.  See Luke 1:26-38.

[89] This inequality contributed to a recent dispute between a microwave licensee and a PCS licensee.   The incumbent microwave user was required to be protected from interference.  The microwave service rules specified a 5 MHz transmission channel, but did not specify the bandwidth of reception.  The microwave receivers, equipment placed in service in 1980, accepted signals across 12 MHz, which led to interference being received from a new PCS licensee.  The meaning and implications of this effect was disputed.  See FCC (1998).

[90] 47 CFR 15.19(a)(1).

[91] 47 CFR 15.19(a)(3).  The exception concerns cable input selector switches.  See 47 CFR 15.19(a)(2).

[92] 47 CFR 15.105(b).

[93] FCC (1989b) para. 123.  From 1983 to 1985, the FCC required companies marketing RF lighting devices to provide customers with the name and address of a company official to contact about interference problems.  This requirement was subsequently eliminated.  See FCC (1988) para. 18.

[94] For information on the FCC’s relationship with these voluntary efforts, see FCC (1996d) and FCC (1986).

[95] FCC (1991), ARRL Regulatory Information, on the web at http://www.arrl.org/FandES/field/regulations/rfi-legal/#pl_97_259.  The Senate Report on the Communications Act Amendment of 1968 stated that the FCC “…received some 38,000 interference complaints during fiscal 1964.”  See 1968 U.S.C.C.A.N. 2486, 2488. A Senate Report in 1981 stated, “The Committee notes that several million interference complaints are received by the FCC each year.”  S. Rep. 97-191,8; 1982 U.S.C.C.A.N. 2237 2244.   FCC (1996e) stated, “Radio frequency interference to telephone conversations result in an estimated 500,000 complaints annually to telephone companies and broadcast stations and 25,000 annual complaints to the FCC.”  This may be a high estimate if it actually just relates to telephones.  Introducing a bill concerning CB radio interference (S. 608), the sponsor stated, “In all, FCC receives more than 30,000 radio frequency interference complaints annually – most of which are caused by CB radios.”  See  143 Cong. Rec S3349-02, Proceedings and Debates of the 105’th Congress, First Session, April 17, 1997.  Other evidence indicates that, about a year earlier, the number of complaints received  was “nearly 45,000 [interference] complaints annually.”   See 142 Cong. Rec. S9555-02, statement on S. 2025, Proceedings and Debates of the 104^th Congress, Second Session, Aug. 2, 1996.  FCC (1996f) stated, “Each year the FCC receives thousands of complaints of interference to televisions, radios, audio systems, telephones, and other home electronics equipment.”  A poster in an FCC lobby during Public Service Awareness Week, May 6-10, 2002, stated, “Last year the FCC resolved 2100 spectrum interference problems for the public.”  While the above evidence is not entirely consistent, radio frequency interference complaints to the FCC probably dropped from millions in the early 1980s to thousands in the year 2001.  Given the growth in population and much more dramatic growth in numbers and use of radio frequency devices and home electronics equipment, the trend in absolute numbers reflects an even greater change in the significance of interference to persons or devices.   FCC tracking of informal consumer complaints and inquiries currently does not include radio frequency interference complaints.  This suggests that such complaints are now relatively unimportant.  See  http://www.fcc.gov/Bureaus/CGB/News_Releases/2002/nrcg0203.html

[96] This statement was made in the course of discussing “CB Violations” in a list of top consumer issues available from the FCC website inclusive of the period June. 17, 1997 to May 1, 1999.  To see this, search for http://www.fcc.gov/cib/ncc/top50.htm in the Internet Archive Wayback Machine, available online at http://www.archive.org.  Introducing a bill concerning CB radio interference (S. 608), Mr. Feingold stated, “…the FCC indicated that due to a lack of resources, the Commission no longer investigates radio frequency interference complaints.  Instead of investigation and enforcement, the FCC is able to provide only self-help information which the consumer may use to limit the interference on their own.”  See  143 Cong. Rec S3349-02, Proceedings and Debates of the 105’th Congress, First Session, April 17, 1997.

[97] See the answers to the question “What can I do about interference…?” at http://www.fcc.gov/cgb/broadcast.htm and http://www.fcc.gov/cgb/radio.htm

[98] See Stallman (1998) and Raymond (1997) for important presentations of free software/open source.

[99] A platform provider less capable of credibly providing independent software developers with significant technological and business freedom will, all else equal, attract fewer such software developers.  An important public policy issue is the extent to which Microsoft has unfairly used the Windows platform to limit the freedom of independent software developers. 

[100] 47 CFR 15.21.

[101] Mitola (1996) provides a review of SDRs by a leading authority in the field.

[102] Ibid, “Who Needs Software Radios?”

[103] This advantage has statutory significance in the U.S.  See 47 U.S.C. §157, and the Telecommunications Act of 1996, PL 104-104, February 8, 1996, 110 Stat 56, §706.  The GNU Radio Project shows how SDRs can contribute to technological progress.  See http://www.gnu.org/software/gnuradio/gnuradio.html

[104] FCC (2001e) para. 30. 

[105] Ibid. para. 12-15, 18-20.

[106] Ibid., footnote 42.  The order did not indicate how the FCC would categorize or divide the operating system software. 

[107] See Lessig (1999) for an insightful exploration of software’s regulatory significance.

[108] See, for example, the GNU Radio page at http://www.gnu.org/software/gnuradio/gnuradio.html

[109] The issue here is the extent to which the government should control programming SDRs.   Whether it is better for SDR software to be proprietary software or free software/open source is another question.

[110] Killian (2000) p. 192, ft. 129.  The quotation above omits internal citations to Herdegen, Matthias, Artikel 13, in Kommentar zum Bonner Grundgesetz 8 (1993).

[111] United States v. On Lee, 193 F.2d 306, 315-6 (1951) (dissent).

[112] Katz (n.d.).

[113] The governing principle of a totalitarian society might be summarized as, “Anything not explicitly permitted is forbidden.”  Fortunately, that principle is rather difficult to put into practice.

[114] Davies (1999) provides numerous references to evidence that might be relevant to considering this question.  But it is apparent from page one that the author’s rhetorically transparent “authentic history” contains gross, tendentious misinterpretations.  I am not a lawyer.  I enjoy neither reading nor writing such articles.  While I am willing to make sacrifices to serve the public, I decided that there is no compelling reason for me to read that 203 page paper.   Readers with a different sense of public needs and intellectual enjoyment might reach a different decision.

[115] See FCC EB Inspection Fact Sheet (July 2000), online at http://www.fcc.gov/eb/otherinfo/inspect.html

[116] “FM Station Operator Convicted on Criminal Charges for Operating Without FCC Authorization,” FCC News Release, Sept. 6, 2001; online at http://www.fcc.gov/eb/News_Releases/kubweza1.html; “FCC Investigation Leads to Arrest of Unlicensed FM Radio Operator,” FCC News Release, May 25, 2001, online at http://www.fcc.gov/eb/News_Releases/nrusany0105.html.  While willfully and knowingly violating the U.S. Communications Act is a criminal offense (see 47 U.S.C. 501), the FCC itself does not have authority to conduct criminal prosecutions.

[117] The tone of the questions in the “frequently asked questions” section of the FCC EB Inspection Fact Sheet, available at http://www.fcc.gov/eb/otherinfo/inspect.html, reflect this perception.  A recent U.S. Supreme Court decision defining search in relation to electro-magnetic radiation seems relevant here.   Kyllo v. United States, 121 S.Ct. 2038 (2001).

[118] Franklin personally explored the nature and uses of electricity.  His work attracted world-wide attention.  In a letter, available online at http://www.dctech.com/physics/humor/ben_franklin.php, he described a tremendous electrical shock he received in the course of one of his demonstrations.  Franklin, often regarded as the quintessential American, concluded his account by passing on an anecdote about the stupidity of two Irishmen.

[119] Any vulnerability to interference of critical public safety functions, such as air traffic control, should be treated as a problem in itself.  Public safety functions should be capable of dealing with deliberate, hostile interference.  Thus they should in general be more robust to interference than other applications.

[120] Chartier (2001) puts forward an argument for “fixture bands.”