WHITE SPACES: TAPPING INTO “ONE OF AMERICA’S MOST VALUABLE NATURAL RESOURCES” HAS THE POTENTIAL TO PROVIDE THE MOST EXPANSIVE LEVEL OF INTERCONNECTIVITY EVER KNOWN

Kathryn A. Watson[*]

(WORK IN PROGRESS – LAST UPDATED 04/29/09)

I. Introduction

            Once upon a time, there were television sets with controls located along the right of the screen which allowed a user to switch between channels to access local programming. In between the local news on channel 3 and M*A*S*H on channel 5 was an unoccupied channel 4 containing white static and loud noise. Those annoying, “snowy” channels have the potential to provide revolutionary new wireless services and extraordinary technological advances in the field of wireless internet technology.1

            Those unused channels are known as “white spaces”- frequencies not hosting a licensed television broadcaster and considered “unused” in the world of the broadcast television spectrum.[2] White spaces allow certain devices to utilize the unused radio waves to transmit broadband internet access to the majority of America, especially rural areas, which have previously been unable to obtain high frequency internet.[3]

            In November of 2008, the Federal Communication Commission (“FCC”) voted to allow white spaces to be unlicensed and accessible by anyone with an FCC-certified “white space device.”[4] This decision has created frenzy by both those in opposition and those in support. While some technology companies are already starting to develop white space devices that will work on these unlicensed airwaves, others are worrying that the decision by the FCC will create a host of problems, including interference by those devices with other licensed areas of the spectrum.

The use of unlicensed white spaces takes advantage of both old and new technologies and opens up a world of wireless innovation that can make the most of the spectrum for the public good. The impact that this unlicensed area can have on all areas of society is overwhelming and potentially revolutionary. However, certain areas of consideration need to be addressed to ensure that these white spaces, and the devices that will be taking advantage of these unlicensed broadcast airwaves, are used in ways that will expand our use of wireless technology for the benefit of society as a whole. Despite dissent from broadcasting companies and wireless audio equipment manufacturers, there are ways in which unlicensed white spaces can peacefully co-exist with those already accessing the broadcasting spectrum.

            This Note explores the use of unlicensed devices in white spaces, and the effect the FCC’s decision will have on incumbent licensees of the television spectrum, as well as consumers and manufacturers who will be utilizing the unlicensed spectrum for wireless broadband services. Part II of this Note discusses the evolution of the broadcast television spectrum, the FCC’s allocation of the spectrum and the concept of white spaces and white space devices. In addition, Part II discusses the FCC’s digital transition initiative, originally scheduled to take place in February of 2009, and the effect that this will have on the broadcast spectrum. Part III evaluates the arguments of both the opposition and the support for this decision and how the FCC has responded. Moreover, Part III details the legal, legislative and market implications of the FCC’s decision to provide unlicensed white spaces to the public. Part IV argues in support for the FCC’s decision and proposes legal and legislative safeguards that should be adopted which will allow this new area of wireless broadband technology to be utilized for the good of society as a whole. Finally, Part V offers concluding thoughts on the use of white spaces in the future as the FCC continues to test white space devices and America anticipates a level of interconnectivity never before anticipated.

II. Background

            The last decade has seen a massive transformation in the way television and internet affect our lives. From basic cable to interactive high-definition digital television, and from hard line dial-up to high-speed wireless internet, both aspects of these technologies have become more advanced and integral to our everyday lives. There are currently about 220,000,000 internet users in the United States, roughly 75% of the population.[5] That means that almost 25% of Americans still do not have internet access, either because of choice or because of lack of accessibility. It seems only natural that unused television channels can be combined with limited wireless technologies to provide all of America high-speed broadband internet service.

This section details the relevant background information on how the FCC currently allocates television channels along the broadcast spectrum and how this will change upon completion of the Digital Television Transition. This section also provides the history and current state of the use of unused television channels by wireless internet devices. Finally, this section discusses the Federal Communication Commission’s recent recognition of combining these two areas to create a new era of revolutionary technology.

A. The Spectrum and Television

On the electromagnetic spectrum, radio waves occur on the radio frequency portion of the spectrum and are located within the range of 3 Hz to 300 GHz.[6]  Radio communications are transmitted using either digital or analog technology.[7] Current “Analog” broadcast television stations use Very High Frequency (“VHF”) and Ultra High Frequency (“UHF”) bands and are located within the radio waves frequency from 54 MHz to 890 MHz, channels 2-69.[8]  In the early days of television, the government established empty areas between licensed television channels to guard against stray signals and other broadcast interference.[9] For example, if channel 3 was licensed, channels 2 and 4 would be vacant in that area, and channel 3 in any neighboring viewing area.[10] This led to a very inefficient use of the television spectrum and technological advances have eliminated the need for these buffers.[11]

On February 17, 2009, some full-power television stations in the United States broadcasting on analog airwaves began transitioning to an all-digital broadcasting scheme.[12] At midnight on June 12, 2009,[13] all full-power television stations that have not already done so will be required to switch from analog television broadcasting to 100% digital broadcasting under legislation passed by Congress.[14] This FCC-guided initiative, known as the “Digital Television (“DTV”) Transition,” will provide more programming options for consumers and free up airwaves for use by emergency responders.[15]   After this switch, specific portions of the broadcast television spectrum, ranging between 76 MHz and 698 MHz, channels 2-51, will be all-digital television broadcasting stations and will amount to approximately 300 MHz of frequencies.[16] However, very few of the television markets throughout the United States use all 49 channels.[17] Actually, half of those channels remain unexploited in some cities, especially in rural areas with fewer broadcasters.[18] These vacant and unassigned television channels between occupied, licensed broadcast channels are known as television “white spaces.”

B. Tapping into Unlicensed Frequencies

Recognizing the growth and dependency on wireless internet services in residential and business settings alike, the FCC sought to capitalize on these unused spectrum areas as a means for expanding the availability of wireless broadband services throughout the country.[19] Generally, the FCC governs the management of the spectrum by assigning certain blocks of the spectrum to a particular category of radio service.[20] The FCC then assigns licenses to individual users granting access for use, such as television broadcasters and FM radio companies[21] A FCC licensee takes its license subject to conditions imposed on its use, such as serving the public interest, and is allowed to use the spectrum without causing or receiving interference.[22]

However, the FCC also permits “unlicensed operations” in a number of frequency bands under Part 15 of its rules.[23] Unlicensed frequencies allow anyone with certified wireless equipment to use the unused white space spectrum without prior approval from the FCC.[24]  The current Part 15 rules provide substantial flexibility in the types of unlicensed devices that individuals can operate. However, the rules prohibit the operation of unlicensed devices on certain frequencies, including the bands used for broadcast television services.[25] Current unlicensed operations include garage door openers, wireless home security systems and cordless phones.^[26]  Given the availability of this unlicensed area of the spectrum and the technological advances in wireless internet technology, this unlicensed spectrum has the potential to allow wireless signals to have a more substantial impact on our everyday lives by enabling them to travel much farther than wireless signals can today.[27]

C. The Big Deal About White Spaces

These unused radio airwaves located between broadcast TV channels have been called “one of America’s most valuable natural resources.”[28] The FCC has recognized the potential for these unused, unlicensed portions of the airwaves and has stated that: “[w]hite spaces are the blank pages on which we will write our broadband future.”[29] Television sets that are not hooked up to satellite or cable services have the opportunity to provide “ubiquitous wireless broadband access to all Americans.”[30]

The characteristics of the radio frequency in the television spectrum allow Wireless Fidelity (“Wi-Fi”)[31] devices to operate through certain frequencies.[32]  Wi-Fi currently accesses the unlicensed “white space” areas of the spectrum to provide high-speed internet to compatible devices, such as computers.[33] Certain companies, like Starbucks, offer subscription plans backed by wireless companies such as T-Mobile, which allows users to utilize personal computers to connect to the internet in their stores using the availability of unlicensed spectrum.[34] These areas are known as “hotspots,” and provide high-speed wireless internet within a small range.[35]

Internet Service Providers have also tapped into the unlicensed spectrum to provide Wi-Fi broadband service access for residential use.[36] Companies like SkyPilot Network, Inc.[37] and Wired Towns[38] operate hotspots in certain residential and business areas where cable and other internet providers have been slow to arrive.[39] Wi-Fi has developed into the most prevalent unlicensed wireless broadband network technology,[40] and the use of Wi-Fi has developed into a multi-billion dollar industry.[41]

            The Wi-Fi currently available, however, provides many limitations to high-speed internet accessibility. The short-range wireless access to local area networks that Wi-Fi provides is limited to low-power devices and mainly urban areas.[42]  Wi-Fi can support several independent transmitters in a city; however, the signal delivered reaches less than 300 feet.[43] With all of the unused frequency available and the limitations on current Wi-Fi, it was only a matter of time before the two issues clashed and new, innovative technologies were developed.

D. The FCC’s Involvement

In May 2004, the FCC proposed a rulemaking initiative that would permit unlicensed radio transmitters to operate in unused television white spaces at a much larger level.[44] This proposal suggested that unlicensed wireless broadband operations, including Wi-Fi, should be allowed access to white spaces that exist in a given area.[45] There were limits proposed, however, to the white space availability for unlicensed devices. For example, the FCC’s plan excluded channel 37 to protect radio astronomy and medical telemetry, and channels 14-20 in certain markets where some channels are allocated for land mobile use, such as mobile radios.[46]

In September 2006, the FCC issued a public notice setting forth a detailed schedule for FCC action in resolving issues regarding the use of white spaces by unlicensed devices.[47] Pursuant to that schedule, the FCC issued a report in October 2006 and found that:

Allowing low power devices to operate in the TV bands on frequencies that are not being used by authorized services could have significant benefits for the public by enabling the development and operation of new wireless communications devices and systems that would promote access to broadband internet and other services.[48]

Additionally, the FCC released a Further Notice of Proposed Rule Making seeking comment on how white space devices should operate and whether such devices can operate on television channels without causing harmful interference to licensed operations.[49]

In July 2007, the FCC’s Office of Engineering and Technology (“OET”) released two technical reports providing the initial findings on whether two specific white space devices would cause interference with broadcasters and devices that already operate in the television band.[50] Although the OET found that properly regulated, fixed, low power devices could operate in white spaces without causing harmful interference, sufficient questions remained as to whether such devices would create interference with current licensed frequencies.[51] The OET remained confident, however, that significant unused white spaces would be available after the DTV transition and that existing technology could be properly adapted to enable these new devices to operate without disrupting incumbent operations.[52] Subsequently, in January 2008, the OET announced a second testing phase of white space devices.[53]

After over four years of study, six years of public scrutiny and 18 months of intensive testing, the FCC voted on November 4, 2008, to open the white spaces for unlicensed low-cost, high-speed internet use by the public.[54] By a 5-0 vote, the FCC agreed to set rules governing the use of the unlicensed white spaces and also addressed concerns that white space devices will cause interference by promising safeguards to be in place to prevent this problem.[55]

Although heavily opposed by major broadcasting companies for fear that this decision will interfere with currently licensed frequencies, supporters of this decision have already begun capitalizing on the new availability of the airwaves. This Note’s analysis explains why and how the recent FCC decision can and already is creating a vast new world of high-speed wireless technology. White spaces can provide cheaper internet to those who cannot afford broadband and to those in isolated rural areas who are currently unable to get internet services.  Although the opposition has raised valid points, the FCC has made a decision that will change the availability of internet throughout the United States and have positive effects on the public welfare.

III. Analysis

The FCC’s vote on November 4, 2008, to approve the unlicensed use of vacant gaps in television spectrum, known as “white spaces” for wireless broadband technologies unleashed an expansive new world for long-range, high-speed wireless internet access and a platform for innovation of new creative devices to host these services.  By allowing the white space spectrum to remain unlicensed, this area of the  spectrum is now available for anyone with licensed devices to use without first receiving FCC authorization.[56] By contrast, current wireless carriers must gain approval from the FCC for exclusive, licensed access to the frequencies that their services use.[57]

Since the initial proposal of the white space plan four years ago, the FCC received more than 25,000 comments from both supporters and critics of an unlicensed white space and white space devices.[58] Those opposed were mainly concerned about interference that these unlicensed devices will cause to current licensed television and radio devices operating on the spectrum.[59] Supporters, however, see the potential for an unlimited variety of applications, devices, networks and widespread internet availability and lobbied to open this valuable spectrum for unlicensed use.[60] The FCC sought to quash the opposition’s fears and adopted a number of safeguards that will eliminate potential interference.

The FCC’s determination to keep white spaces unlicensed is both lawful and beneficial and allows consumers, as well as manufacturers, to capitalize on this revolutionary digital movement. Users of the spectrum can peacefully co-exist with new unlicensed white space devices and the societal impact is overwhelming. Certain companies have already began creating unlicensed white spaces devices to access the white space spectrum and it is only a matter of time before America, as a whole, is connected through high-speed wireless internet.

A. The Opposition

One of the major concerns surrounding the use of unlicensed white space is interference.[61] While a minimal amount of interference between devices is acceptable in some services, interference that reaches a certain point is harmful and costly.[62]  Several broadcasting networks, entertainment groups, lawmakers and opinion leaders voiced their opposition to the use of white space devices and sought to delay or block the FCC’s vote by raising allegations that white space devices would disrupt digital television signals and wireless microphones in theater performances.[63]

1. The National Association of Broadcasters

The National Association of Broadcasters (“NAB”) is one of the largest opponents of unlicensed white spaces and white space devices.[64] The NAB is a trade association that advocates on behalf of more than 8,300 free, local radio and television stations.[65] Prior to the FCC’s vote on November 4, 2008, ABC, NBC, CBS and Fox Television Networks were among several of the NAB affiliates who filed a complaint with the FCC regarding this decision.[66]

The NAB released an official statement on November 4, 2008, commenting on the FCC’s approval of unlicensed devices to work in white spaces.[67] Dennis Wharton, the NAB’s Executive Vice President, expressed appreciation for the FCC’s “attempt to address significant issues raised by broadcasters and others,” however, he stated that the “[FCC] appears to have bypassed meaningful public or peer review in a proceeding of grave importance to the future of television.”[68] The NAB’s main concern is that the new white space devices will interfere with current “interference-free TV.”[69] As a major supporter of the DTV transition in 2009, the NAB claims that the billions of dollars being spent on new digital television sets to prepare for the digital conversion could be wasted if white space devices are allowed to interfere.[70] The NAB is also worried that the interference caused by unlicensed mobile devices in white spaces could seriously hurt their business.[71]

On the surface, the NAB claims that white space devices and unlicensed white space will cause interference with digital television. However, it has been suggested that the real reason NAB opposes white space devices is because these devices will make communications more widely distributed, thus making hardware for broadband wireless access much cheaper.[72] It also means that communities that could not previously do so before will now be able to broadcast video and audio free of charge, thus creating competition and diversity for the NAB affiliates on the airwaves.[73]

On February 27, 2009, the NAB filed a lawsuit in the United States Court of Appeals for the District of Columbia Circuit challenging the FCC’s decision to authorize unlicensed devices to access white spaces.[74] Calling them “illegal” and likening them to germs, the NAB and its affiliates are claiming that white space devices will adversely affect their broadcast signals.[75] It is difficult to ascertain the affects that this lawsuit will have on the white spaces movement, but the FCC continues to drive forward with its implementation of the white spaces movement.[76]

2. Shure Microphones, Inc. and Other Wireless Microphone Companies

Another opponent of the white space revolution is Shure Microphones, Inc.[77] Shure is a manufacturer of microphones and audio electronics used by performers, presenters and professional DJs.[78]  For Shure, the decision by the FCC to allow unlicensed access to white space means possible interference with their wireless microphone systems, which currently use the white space radio frequency spectrum.[79] Shure is concerned that the amount of clear spectrum available will cease to be available once the white space devices are in use.[80] Shure, and other professional audio equipment manufacturers, are also concerned that they will have to spend more money to create equipment that will work in different areas of the spectrum, and on testing their current devices to avoid interference.[81] What this really means, however, is that competition will increase for wireless microphones.[82] White space device wireless microphones will likely enter the market and lower the costs of this hardware, thus hurting Shure’s profits.

3. Incumbent Licensees

Incumbent licensees of the television spectrum, like Verizon, AT&T and Comcast have paid billions over the years to gain exclusive rights to the spectrum.[83] They are now concerned with the increased competition by new entrants on the spectrum who have no legacy costs to worry about.[84] The opening of these white spaces will allow new players to enter the market to create services with different business models and offer lower prices.[85] As a result, this could potentially put competitive pricing pressure on traditional wireless carriers and require incumbents to spend more to keep up with the new services that will now be offered.[86]

The opponents of white space devices tried to convince legislators to pressure the FCC to halt their testing of white space devices.[87] Those expressing opposition for unlicensed white space, and there are many, have raised valid concerns for their companies, their equipment and the public. However, the FCC, by voting on November 4, 2008, and continuing to adopt rules that will allow for interference-free devices, has taken major steps to ensure that society, as a whole, will benefit from unlicensed white space, including those who voice significant apprehension.

B. The FCC’s Response to the Opposition

The rules adopted by the FCC for the unlicensed use of television white spaces address concerns raised by dissenters of the white space coalition. The FCC formulated the rules in a manner that protects television station signals and wireless microphones from interference by the unlicensed fixed mobile devices accessing the unlicensed white spaces.[88] Although some concern by the opposition remains, the rules promulgated by the FCC allow for interference-free operation on the spectrum and for peaceful competition in the wireless products market.

1. Sale and Operation of White Space Devices

“Allowing for unlicensed use of white spaces means consumers will see a new generation of wireless broadband devices.”^[89] The FCC, in its October 2006 First Report and Order, specifically restricted the operation of the devices until after the original DTV transition date of February 17, 2009.[90] White space devices were allowed to go on sale on February 18, 2009, but there were no such sales as of that date and, in reality, it will probably be much later.[91] It will take time for manufacturers of new white space devices to build the new devices and it will take even longer for the FCC to test and certify the devices.[92] There was a concern that the white space devices would interfere with the DTV transition, however, the transition will be complete before white space devices and the use of this technology enter the consumer market.[93]

In the October 2006 First Report and Order, the FCC decided to permit fixed unlicensed power devices to operate in white spaces, subject to the further development that would prevent interference.[94] In the initial stages of discussions, the FCC was concerned that non-fixed portable devices posed an unacceptable amount of harmful interference risk.[95] However, the FCC concluded that rules could be developed to accommodate portable devices, such laptops, as well.[96] This will allow everyone to be connected wherever they go.

In the Second Report and Order and Memorandum Opinion and Order issued on November 4, 2008, the FCC established the rules to enable the white space devices to operate in the white spaces.[97] The rules include several provisions to prevent interference and ensure compliance, including limits on the level of power required by the devices to complete their communications and “proof of performance” standard testing that requires all devices to undergo extensive testing before allowed for use by the public on the white space spectrum.[98]

2. Registration of White Space Devices

The FCC has undergone considerable testing and analysis to determine the best way to provide internet access using white spaces without causing harmful interference to those already using the spectrum.[99] These tests, among other things, showed that low-power devices could adequately detect other signals within a certain range, which would inform the device not to use that particular signal.[100] Because of this, all devices are subject to equipment certification by FCC engineers, and prior to certification, all devices must be tested to ensure they meet the pertinent requirements.[101]

In the FCC’s Second Report and Order, rules were adopted governing “white space” access points.^[102] The rules represent a careful step in permitting the operation of new, sophisticated white space devices and include more safeguards to protect incumbent service against harmful interference.^[103] All devices will be required to obtain certification from the FCC OET that they meet the commission’s requirements before they are allowed to be marketed to the public.^[104] “The commission will closely oversee and monitor the introduction of TV white space devices," the FCC said. "The commission will act promptly to remove from the market any equipment found to be causing harmful interference and will require the responsible parties to take appropriate actions to remedy any interference that may occur."^[105]

3. The Database and Geo-Thermal Sensing

White space devices are required to avoid transmitting on TV channels being used by TV stations, wireless intercoms, wireless microphones and other users.[106] All of the white space devices must have geolocation and spectrum-sensing technology[107] to access a database of all services accessing the spectrum and receive information on what spectrum the white space device may use at that location.[108] This database will contain information on incumbent TV band licensed stations and other users of the spectrum within a certain range and will allow a white space device to identify vacant channels at the unlicensed devices location that are available for the device’s operation.[109] Full and low power television stations, cable system headends[110] and wireless microphones will all be included in the database, which will allow the white space devices to detect which area of the spectrum is available in a given location.[111] The FCC considers this one of the best approaches to avoid interference and this approach can be used along with another interference avoidance mechanism to verify that the channels are unused and available.[112]

As previously mentioned, a major concern of Shure, Inc., along with many sports leagues, including the National Football League, and musicians, including Dolly Parton, was the possible interference the devices would cause with their wireless microphones.[113] The FCC, however, expressly states “[w]ireless microphones will be protected in a variety of ways.”[114] The possibility for interference is diminished by requiring that venues and other devices be registered in the online database as an “off-limits” area.[115] By registering the location, time and TV channels used for a program or event, the wireless microphone or other device using the spectrum will be granted unfettered access to that location for a certain amount of time and no other device will be allowed to interfere. In addition, the white space devices must include the ability to listen to the airwaves and sense wireless microphones.[116] This provides added protection for the microphones and those concerned with the interference of such devices.

The FCC recognized the potential for harmful interference with incumbent licensees and has developed a solution that will allow white space devices to deliver high-speed internet without causing interference to those devices already accessing the spectrum.

C. Support for Unlicensed White Spaces and White Space Devices

After the FCC vote on November 4, 2008, to allow independent devices to operate on the unlicensed white space spectrum, FCC Chairman Kevin Martin stated that opening the white spaces would allow for the creation of “Wi-Fi on steroids.”^[117]  Supporters of unlicensed white spaces have recognized the many wireless opportunities that could become available by allowing the utilization of white spaces on an unlicensed basis.[118] Claiming that this move is simply a way to make the most efficient use of the TV spectrum, supporters have the public, the future of the wireless broadband internet and a competitive market in mind.[119]

1. Congressional Support

There have been two forms of legislation introduced in support of opening white spaces for unlicensed use. Senator John E. Sununu of New Hampshire introduced the White Spaces Act of 2007[120] on January 18, 2007.[121] A a member of the Senate Commerce Committee, Sununu stated: “Broadcast spectrum that is otherwise unused represents a new frontier for product development. By removing barriers that prohibit access to white spaces, there is enormous potential for entrepreneurs to bring products to market that are now beyond imagination.”[122] He sought to require the FCC to issue a final order on the availability of unlicensed white spaces by October 1, 2007.[123] This bill was introduced in the Senate on January 18, 2007 and it was referred to the Committee on Commerce, Science and Transportation where it was never pushed forward.

            Similarly, the House of Representatives, through The Wireless Innovation Act of 2007,[124] sought to direct the FCC to issue a final order regarding television white spaces. This bill was introduced by Senator John Kerry on January 9, 2007, and was referred to the Committee on Commerce, Science and Transportation, and, similar to the White Spaces Act of 2007, never made it out of Committee.

            In addition, Representative Bobby Rush of Illinois introduced House Bill 1320, entitled “Interference Protection for Existing Television Band Devices Act of 2007” on March 5, 2007.[125] This bill sought to “protect important existing television band devices in the unassigned, non-licensed television channels from harmful interference from new devices.”[126]This bill never became law but sought to require the FCC to permit the use of unlicensed devices on the white space spectrum while protecting incumbent devices from harmful interference.[127]

            President Obama even supported a massive broadband expansion program during his campaign for the Presidency. On his campaign website, he wrote, “America should lead the world in broadband penetration and Internet access” and he called for providing “true broadband to every community in America.”^[128] It is still undetermined how President Obama will support the use of unlicensed white space devices during his Presidency. With technology advisers such as Eric Schmidt of Google and former FCC heads Reed Hundt and Bill Kennard,[129] it will not be surprising if white space devices and support for new entrants in the wireless marketplace are at the forefront of the President’s technological docket.

The FCC passed the vote on November 4 to allow unlicensed devices to be used on the white space spectrum and established rules addressing the concerns raised by Congress and others so the bills became unnecessary. However, these bills represent the Congressional concern and support for interference-free white space wireless innovation. Legislators in Washington gave mindful consideration to the white spaces debate and sought a thorough evaluation of the complicated issues surrounding white spaces and white space devices.[130]

2. New America Foundation  

New America Foundation, a non-partisan public policy think-tank, hosts a wireless future program which analyzes the feasibility, safety and research of the white spaces spectrum.[131]  Sascha Meinrath, research director of the wireless future program, recently stated that “[o]pening up white spaces will lower the cost of communications by facilitating new technology, software and devices in an enormous win for public interest.”[132] New America Foundation has published several policy briefs and backgrounders describing the feasibility of white space devices and outlining the myths and facts about white spaces.[133] They believe that the testing done by the FCC was legitimate and that white space devices will bring faster wireless connectivity peacefully to the masses despite the fear, uncertainty and doubt.[134]

3. Public Interest Spectrum Coalition

The Public Interest Spectrum Coalition is another major supporter for opening up access to white spaces, which will allow FCC-certified wireless white space devices to operate in much the same way that tens of millions of Wi-Fi devices do today.^[135] Coalition members supporting unlicensed access to TV white space include Consumer Federation of America, Consumers Union, EDUCAUSE, Free Press, the Leadership Council on Civil Rights, the National Hispanic Media Coalition, Media Access Project, New America Foundation, Public Knowledge and others.[136] After the November 4th vote, the Coalition publicly stated that, “new wireless services will develop as a result of this decision that would not have been allowed to be realized otherwise. These new services will enrich the lives of Americans while not interfering with their traditional entertainment options.”[137]

4. Wireless Innovation Alliance

The Wireless Innovation Alliance is a coalition of creators, developers, and leaders in technology that urged the FCC to determine and adopt rules that will realize the potential of TV white spaces for America.[138] A spokesperson for the Wireless Innovation Alliance said, on behalf of the coalition that, ““It has always been our position that the Commission’s process for testing, evaluation, and rulemaking is a necessary and worthwhile, and we are pleased that we have moved one step closer to a white space enabled world.”[139]

These groups illustrate the vast societal and congressional support for white space devices and the recognition that these devices and the use of unlicensed white spaces can have an extraordinary impact on our lives. The FCC has addressed the opposition’s concerns and various coalitions of major companies are forming in order to insure that the previously underutilized channels on the radio spectrum are fully utilized in a way that can provide high-speed low-cost internet to all of America. The following is a brief analysis of how the decision to allow devices to access the unlicensed areas of the white space spectrum is good for society as a whole.

D. What White Spaces Can Do For Us

            The policy interests underlying the use of unlicensed white spaces are enormous. Not only will more Americans be able to use high-speed internet at a lower cost, this new wireless world will spawn a wave of opportunities for innovation and creativity in the realm of wireless technology.

1. Access to All Americans

Currently, every region in America has a great amount of low-frequency spectrum that is sitting empty and unused.[140] Tapping into these white space frequencies will allow rural areas, underserved urban areas, and other “blackout areas” to receive wireless broadband internet service.[141] The need for high-speed broadband internet service is greatest in rural areas where there is also the greatest amount of unused former television spectrum.[142] The cost of laying fiber in rural areas is high and allowing high-speed wireless access through white spaces in these areas can allow Internet access at a lower cost.[143] Free Press[144] takes the position that “[u]sing these white spaces, the wireless broadband industry could deliver Internet access to every American household at high speeds and low prices--for as little as $10 a month….”[145]

In addition, many rural cities and county governments will be able to take advantage of wide-range internet access for their municipal governance and emergency first responders.[146] Some examples of this are already emerging and the availability and access will only improve as more white space devices come into being. For example, a rural area in Oregon built a 700-square-mile wireless broadband network by utilizing unlicensed spectrum to monitor the region surrounding a chemical depot.[147] An area of southern Indiana provides another example where a small rural city used the unlicensed spectrum to build a municipal wireless network.[148]  In Scottsburg, Indiana, the citizens formed the Citizen’s Communication Corp. (C3bb) to build and manage the network which provides internet service to more than 350 households.[149]

In yet another example, there are 39 channels currently available in the rural town of Burlington, Vermont.[150] With the use of white space devices, these channels could provide mobile internet access to everybody in and around the city at speeds better than 10Mbps.[151]

TV white spaces can also be used to give high schools and middle schools mobile, high-speed internet access to every desk, similar to what major universities already have.[152] In addition, it can be used to increase the reliability and decrease the cost of video conferencing on both college and commercial campuses.[153]

Ed Felton, a computer science and public affairs professor at Princeton University has stated, “bandwidth makes people more productive.”[154] Thus, by allowing new devices to provide high-speed internet to a wider area, production and options in terms of work locations will increase dramatically.[155] As our society continuously gets more fast-paced and interconnected, this is an important characteristic to have.

2. Competition in the Wireless Market           

Another goal of using white spaces to promote broadband is to provide new competition all across the country.[156] Having unlicensed usage of white spaces allows more innovators to enter the wireless market and build the technologies of tomorrow.[157] This will potentially allow the cost of internet to be decreased while increasing the overall speed of the internet.

A key advantage of unlicensed spectrum is that experiments on new technology can be carried out without asking the permission of spectrum licensees.[158] Entrepreneurial engineers will have an open door to explore new and novel ways to use white spaces to provide longer-range, higher-speed internet connections.[159] By allowing the use of unlicensed white space devices, the FCC has prevented a stagnation of the wireless industry.

Competition also means more variety for consumers.  When Wi-Fi was first introduced, manufactures raced to provide certified equipment for hotspots and, as a result, created a multi-billion dollar industry.[160] More innovative products, more wireless choices, and higher wireless data speeds all became widely available. In addition, the use of white spaces could finally usher in the era of seamless roaming across technologies.[161] This means that computers and other wireless internet devices could travel from zone to zone without losing connectivity, much as cellular phones do today.

3. Companies who will benefit

Many companies can benefit from the FCC’s November 4th decision. Intel, for example, can develop chips that will work with the new white space devices. [162] Companies like Motorola, Philips and Dell can create the hardware and the devices to access the broadband services on white spaces.[163] In addition, wireless microphone companies can recreate their products to include high quality filters, which would filter out any interference that may result from the white space devices.[164]

            Voyant, a media and technology holding company located in California, began capitalizing on the availability of white spaces before the FCC even voted.[165] In mid-2008, they entered the “high-growth wireless communications market” and received a $2 million contract for the development and production of the first 3,000 White Space Radios.[166]

Google has also been a major player in the unlicensed white space device revolution.  Google co-founder Larry Page made a trip to Washington while the FCC was considering making white spaces unlicensed to lobby for public access to these white spaces.[167] Google saw the untapped, “natural” white spaces as a chance to provide “huge economic and social gains if used efficiently.”[168] Calling it “WiFi 2.0”, Google wants to provide the greatest availability of wireless networks via white spaces that America has ever seen.[169] Looking to expand its wide range of services and diversify its control over the revolutionary era of wireless technology, Google wants to become a major broadband service provider.[170]  Google sees the white space spectrum as a natural place to operate a new class of wireless devices based on Google’s new Android software.[171]

On February 4, 2009, Google, along with Comsearch, Dell, Hewlett Packard, Microsoft, Motorola, and Neustar launched the White Spaces Database Group.^[172] The group is designed for the purpose of offering the FCC their perspectives, and some specific recommendations, about the technical requirements they would like to see adopted for the white spaces database.^[173]  This is an initiative to make sure that the white spaces database is properly designed and to address some of the concerns raised by the opposition regarding interference and competition.

            Google, along with Philips and Microsoft, have already submitted their own white space devices for testing by the FCC OET.[174] These prototypes of white space wireless broadband devices are “intended to demonstrate the viability of leveraging the ‘white spaces’ in the spectrum currently devoted to broadcast TV for unlicensed wireless broadband use.”[175]

            In addition, Google has already applied for a patent that will allow them to create a device that can utilize unlicensed white spaces to provide seamless, long-range wireless broadband.^[176] Google’s patent describes “devices, systems and methods” that would automatically poll nearby wireless services to find the best price for a voice or data connection for a “portable communications device.”[177] It also states that “Google wants to bring together all the different modes of connectivity and offer consumers a device that will potentially make them agnostic to the carrier they use.”[178]

            White space technology has endless potential for future innovation in the wireless internet sector of society. The FCC has made a decision that will dramatically change the way Americans, in both rural and urban areas, access the internet, communicate and interact. Wireless companies, consumers and students will all benefit from the new white space applications that will emerge. However, the future of white spaces is still unclear and requires more guidance to ensure that the public benefit is maximized.

IV. RECOMMENDATION

A.  Enforcement and Penalties

            As interference is a concern among some opponents and the FCC has assured that this will not be a problem, it is important to consider what will happen if interference does occur. In her statement on the Second Report and Order,[179] Commissioner Deborah Taylor Tate summed up how regulation and enforcement of white space devices would work. She stated:

I wanted to ensure that our rules specify that, in the event of significant interference caused by an unlicensed device, the party responsible for this device will also be responsible for rectifying the problem and [assuming] the cost. Some companies have assured us that this will be the case; that their business reputation requires it and it is indeed 'good business' for them to correct the situation.[180]

She added that the impact of potentially millions of such devices in use called for a recall process, interference mitigation procedures, along with a clear exposition of fines and penalties for violations. [181]

            As of now, the FCC has left it up to themselves to promulgate the rules for enforceability and regulation of use of the white space devices.   As a result, it is important that supporters and opponents alike ensure that the benefits of white spaces come to fruition by carefully monitoring the FCC.  All of the actions taken by the FCC in testing the devices, establishing the geolocation database and discussing future advancements in the field of white space technology should be completely transparent to allow anyone to hold the FCC or violators of the white space spectrum duly accountable.

B. Standardization and Regulation

            Currently, very few standards exist for the white spaces market compared to Wi-Fi. Wi-Fi developed into such a prevalent technology because it was allowed to access the unlicensed spectrum.[182] Through testing, public comments, industry leadership and global standards, Wi-Fi was able to emerge into a widely accepted multi-billion dollar industry.[183]

While the decision to leave the white spaces unlicensed was an effort to reduce the amount of red tape and regulation that usually surrounds gaining access to the frequency spectrum, it could also mean a free-for-all on the spectrum if left completely unchecked. While the rules promulgated by the FCC seek to provide a solution for possible problems that can occur, they are not complete and there are areas that need to be addressed in order to maximize the potential social benefit white spaces can provide.

A third-party agency is needed to regulate white space devices and the geolocation databases. A disinterested technology firm or a coalition of the wireless innovation companies, such as those involved with the New America Foundation, the Wireless Innovation Alliance or the Public Interest Spectrum Coalition, would be in the best position to monitor the devices and database on the white space spectrum. This was done during the Wi-Fi revolution[184] and, based on the success of Wi-Fi, helped society recognize the benefits of wireless internet technology and minimized potential inteference. The FCC’s Second Report and Order has suggested this approach for the white space databases as a way to ensure that white space services are fair and reasonably priced; however, these administrators need to be carefully selected and monitored. With the FCC’s decision to expand the unlicensed white space market, the “Wi-Fi on steroids” era will need guidance. A third party “hub” will allow a non-governmental agency to intervene and help adapt and enforce the rules set forth by the FCC and ensure that devices are properly tested, authorized and registered on the database.  The rules adopted by the FCC are a good starting point, but to adequately address the potential problems, someone needs to recognize the need to leverage existing standardized communication protocols and become the driving force in the development and adoption of a safe and enduring white space standard.

V. Conclusion

            America is on the brink of revolutionizing the availability of high-speed wireless internet. The FCC’s decision on November 4, 2008, to allow unused channels on the electromagnetic spectrum to remain unlicensed has created a once unfathomable opportunity for not only technology companies and wireless technology entrepreneurs, but also for people who have yet to acquire access to the internet or are connected at very slow speeds.  While there are still a number of issues that need to be addressed before the gates are opened, a third-party regulation agency, authorized by the FCC, would be a proper way handle these concerns and allow the benefits that will result from this decision to be carried out for the benefit of society as a whole.  Once the white spaces devices are unleashed, all of America will be able to access the internet at higher speeds, lower costs and at a level of interconnectivity previously unknown.

---

[*] J.D. Candidate, University of Illinois College of Law, 2010; B.A. Political Science, University of Illinois at Urbana-Champaign, 2005.

1 FCC Approves Largest Ever Expansion of Internet Access, Charleston Gazette and Daily Mail, Nov. 5, 2008, at 2C, available at 2008 WLNR 21260730.

[2] Press Release, Federal Communications Commission, FCC Adopts Rules for Unlicensed Use of Television White Spaces (Nov. 4, 2008), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-286566A1.pdf  (last visited Mar. 12, 2009).

[3] Wireless Future Program, New Foundation America, http://www.newamerica.net/programs/wireless_future (last visited Feb. 9, 2009).

[4] Press Release, supra note 2. The FCC changed the name from “white space devices” to “television band devices” in its Second Report and Order. For the sake of consistency, this note retains the phrase “white space devices.”

[5] Internet Users: Top 20 Countries, http://www.internetworldstats.com/top20.htm  (last visited Mar. 9, 2009).

[6] All radiation is measured in cycles per second, or hertz. See Charles W. Logan, The Changing Law of Spectrum: How Should Spectrum Regulation Respond to the Convergence of Wireless Services?, May 1, 2002, PLI Order No. G0-00VN at 311, available at 698 PLI/Pat 309 (discussing the concepts of “spectrum,” “hertz,” and “radio waves”). One thousand cycles per second equals one kilocycle per second (1 kHz); 1,000 kilocycles per second equals one Megacycle per second (1 MHz); and 1,000 Megacycles per second equals one Gigacycle per second (1 GHz). Id. The frequencies of electromagnetic radiation that comprise the radio spectrum span a wide range, from 10 kHz to 3,000 GHz. Id.

[7] Analog transmission is a continuous signal that requires encoding the complete picture of each frame transmitted. See id. at 312 (discussing the distinction between analog and digital transmission). Digital system encodes the information in binary digitized form and requires only that the information differ from one frame to the next. Id.

[8] See Electromagnetic Spectrum, http://hyperphysics.phy-astr.gsu.edu/ hbase/ems2.html (last visited Mar. 13, 2009) (explaining the frequencies and wavelengths on the electromagnetic spectrum); see also United States Frequency Allocations: The Radio Spectrum, http://www.ntia.doc.gov/ osmhome/allochrt.pdf (last visited Mar. 11, 2009) (providing a graphic explanation of how frequency is allocated on the electromagnetic spectrum in the United States).

[9] See White Spaces: Bringing the Internet to Everyone, http://www.freepress.net/ whitespaces (last visited Mar. 11, 2009) (discussing how the government allocated television channels in the early history of television).

[10] Sascha D. Meinrath & Michael Calabrese, “White Space Devices” & The Myths of Harmful Interference, 11 N.Y.U. J. Legis. & Pub. Pol’y 495, 497 (2008).

[11] White Spaces, supra note 9.

[12] The Digital TV Transition, http://www.dtv.gov/whatisdtv.html (last visited Mar. 11, 2009).

[13] Id. The original DTV transition date was February 17, 2009. Id. However, Congress passed the DTV Delay Act, Senate Bill 328, in February 2009, to give U.S. households additional time to prepare for the digital transition switch. Id.  On February 17, 2009, some full-power broadcast television stations in the United States were allowed to stop broadcasting on analog airwaves and begin broadcasting only in digital. Id. The remaining stations may stop broadcasting analog sometime between April 16, 2009 and June 12, 2009. Id. June 12 is the final deadline for terminating analog broadcasts pursuant to the DTV Delay Act. Id.

[14] Id.

[15] Id.

[16] See Susan P. Crawford, The Radio and the Internet, 23 Berkeley Tech. L.J. 933, 999 (2008) (discussing the unlicensed white space spectrum and its impact on the public interest; see also Doug Mohney, Editor-in-Chief, VON Magazine, DEFCON 15 Presentation,TV White Spaces: The Next Wi-Fi? (Aug. 2007),  available at http://www.dc414.org/download/confs/defcon15/Speakers/ Mohney/Presentation/dc-15-mohney.pdf (last visited Mar. 10, 2009) (noting that channels 2-51 will operate at 6 MHz each); Cheryl A. Tritt, Telecommunications Future, PLI Order No. 10946, Dec. 2007, available at 920 PLI/Pat 133, 150;  Channels 52-69 are set to be cleared of broadcasting entirely and reallocated for public safety agencies and for auction to commercial wireless services. Naveen Lakshmipathy, Policy Backgrounder, Wireless Public Safety Data Networks Operating on Unlicensed Airways: Overview and Profiles, New Am. Found., April 2007, available at http://www.wirelessinnovationalliance.org/files/New%20America%20Foundation%20whitespaces%20policy%20backgrounder.pdf (last visited Mar. 12, 2008).

[17]Bengamin Lennett, Policy Backgrounder, Rural Broadband and the TV White Space, How Unlicensed Access to Vacant Television Channels Can Bring Affordable Wireless Broadband to Rural America, New Am. Found., Issue Brief #22, available at http://www.ruralstrategies.org/projects/vacanttv/ Rural_Broadband_and_TV_WhiteSpace.pdf  (last visited Feb. 9, 2009). Each community varies on the availability of white space depending on the amount of congestion in the television bandwidth. Id.  For example, the amount of white space in an urban area like Trenton, NJ ranges from 20-30% and in less congested areas, such as Columbia, SC, the portion of TV band that is white space is 70% or more. Id; see also Google Wants TV ‘White Space’ for Wi-Fi, Associated Press, Mar. 24, 2008 (Google’s lawyer discussing how “the vast majority of viable spectrum in this country simply goes unused, or else grossly underutilized.”).

[18] See Dibya Sarkar, Vacant Airwaves Spur TV-Tech Turf Battle, Associated Press, Apr. 7, 2008, available at 4/7/08 APWIRES 19:24:54 (discussing the February 2009 DTV switch to digital television and the resulting competition for unused airwaves); see also Blair Levin, Rebecca Arbogast & David Kaut, Tech Drive To Use Broadcast White Spaces Hits Bump, Wash. Telecom., Media & Tech. Insider (Stifel, Nicolaus & Company, Balt. Md), Aug. 3, 2007 (“Estimates vary, but most of the population (between 73% and 97%) lives in areas with access to 24 MHz or more of white space Rural areas in particular, have a great deal of white space as they generally have fewer television broadcasters.”); Calabrese, supra note 10, at 497 (2008) (“The share of the DTV band (channels 2-to-51) that will be vacant after the February 2009 end to analog transmission ranges from 30 percent in the most congested, coastal markets (e.g. Trenton, N.J.) to 80 percent or more in small town and rural markets (e.g. Fargo, N.D.).”).

[19] Jonathan S. Adelstein, Commissioner, Fed. Comm. Commission, A View on Today’s Most Pressing Wireless Issues, Remarks at the Fifth Annual Conference on Spectrum Management Law Seminars (Sept. 18, 2008), available at 2008 WL 4276347 (F.C.C.), at *3.

[20] Logan, supra note 6, at 320.

[21] Id.

[22] 86 C.J.S. Telecommunications § 146 (2008).

[23] See 47 C.F.R. pt. 15 (providing the rules laid out by the FCC regarding white spaces).

[24] Crawford, supra note 16, at 1000.

[25] See 47 C.F.R. §§ 15.205, .209 (discussing how remote control and medical telemetry devices are the only unlicensed transmitters that are currently permitted to operate in the TV Bands).

[26] Logan, supra note 6, at 322.

[27] Posting of Priya Ganapati to Wired Blog, http://blog.wired.com/gadgets/2008/ 11/fccs-decision-t.html (Nov. 5, 2008, 3:45:19 EST).

[28] Free the Airwaves, http://freetheairwaves.com/about.html (last visited Nov. 23, 2008).

[29] Joelle Tessler, FCC OKs Use Of White Spaces To Deliver Broadband, U.S.A. Today, Nov. 5, 2008, at A3, available at http://www.usatoday.com/news/ nation/2008-11-05-white-space_N.htm (last visited Mar. 9, 2009).

[30] Google Wants TV ‘White Space’ for Wi-Fi, Associated Press, Mar. 24, 2008, available at 3/24/08 APWIRES 20:54:01 (last visited Nov. 10, 2008).

[31] “Wi-Fi is a registered trademark term promoted by Wi-Fi Alliance, a group of wireless internet hardware and software providers that certify ‘802.11’ products for wireless network services. An 802.11 network refers to a family of specifications approved by the Institute of Electrical and Electronics Engineers (“IEEE”). Generally, computer users can access the Internet with a high-speed wireless connection if they are within 300 feet of a transmitting antenna and have the appropriate 802.11 receiving hardware installed on their computer.” Kenneth Carter, Ahmed Lahjouji & Neal McNeal, Unlicensed and Unshackled: A Joint OSP-OET White Paper on Unlicensed Devices and Their Regulatory Issues, F.C.C. O.S.P. Working Paper Series (May 2003), available at http://ssrn.com/abstract=1086626.

[32]Lennett, supra note 17.

[33] Carter, supra note 31, at 43; Adelstein, supra note 19, at *1.

[34] Carter, supra note 31, at 43.

[35] Carter, supra note 31, at 43; Adelstein, supra note 19, at *1.

[36] Carter, supra note 31, at 39.

[37] See SkyPilot Networks, http://www.skypilot.com (last visited Feb. 1, 2009) (providing information on SkyPilot Networks).

[38] Wired Towns is a company dedicated to delivering Wi-Fi to business districts and communities throughout the United States, including Union Square Park in New York City. Wired Towns, http://www.wiredtowns.com (last visited Mar. 9, 2009).

[39] Carter, supra note 31, at 45

[40] Tritt, supra note 16, at 148; see also Crawford, supra note 16, at 1002 (discussing the explosion of Wi-Fi in both the consumer and manufacturer realms).

[41] Crawford, supra note 16, at 1002; see also Carter, supra note 31, at 3.

[42] Crawford, supra note 16, at 1002.

[43] Kevin Werbach, Supercommons: Toward a Unified Theory of Wireless Communication, 82 Tex. L. Rev. 863, 912 (2004).

[44] Tritt, supra note 16, at 150; Unlicensed Operations in the TV Broadcast Bands, ET-Docket Nos. 04-186, 02-380 (proposed May 25, 2004), available at 19 FCC Rcd 10018.

[45] See Catherine Wang, A Review of Wireless Developments: October 2003 – September 2004, Dec. 2004, PLI Order No. 3202, available at 813 PLI/Pat 103, 136 (discussing the FCC’s May 2004 Notice of Proposed Rulemaking).

[46] Id.

[47] Fed. Comm. Commission, Office of Engineering and Tech., ET Docket No. 04-186 , Office of Engineering and Technology Announces Projected Schedule for Proceeding on Unlicensed Operation in the TV Broadcast Bands (Sep. 2006), available at 2006 WL 2613707 (F.C.C.).

[48] Fed. Comm. Commission, Unlicensed Operations in the TV Broadcast Bands, First Report and Order and Further Notice Proposed Rulemaking (2006), available at 2006 WL 2986547 (F.C.C.).

[49] Tritt, supra note16, at 150; Fed. Comm. Commission, Unlicensed Operations in the TV Broadcast Bands, First Report and Order and Further Notice Proposed Rulemaking (2006), available at 2006 WL 2986547 (F.C.C.).

[50] Tritt, supra note16, at 151; Fed. Comm. Commission, Office of Engineering and Tech. Initial Evaluation of the Performance of Prototype TV-Band White Space Devices, OET Report FCC/OET 07-TR-1006; Direct-Pickup Interference Tests of Three Consumer Digital Cable Television Receivers Available in 2005,OET Report FCC/OET 07-TR-1005.

[51] Lawrence J. Movshin, Major Issues in Wireless Telecommunications 2006-2007, in Telecommunications Policy & Regulation 112, 112 (2007).

[52] Id.

[53] Fed. Comm. Commission, Office of Engineering and Tech., OET Report FCC/OET 08-118, Office of Engineering and Technology Announces Plan for Conducting Measurements of Additional Prototype TV White Space Devices (Jan. 17, 2008), available at 2008 WL 170605 (F.C.C.).

[54] Olga Kharif, FCC Opens New Airwaves to the Public, Bus. Wk. Online, Nov. 6, 2008, (no page), available at 2008 WLNR 21182990; John Eggerton, FCC Voted Unanimously To Open 'White Spaces' To Unlicensed Mobile Devices, Broadcasting & Cable, 11/14/2008 10:17:00 AM MT, available at http://www.broadcastingcable.com/article/116368-FCC_Voted_Unanimously_To_Open_White_Spaces_To_Unlicensed_Mobile_Devices.php (last visited Mar. 11, 2009).

[55] Eggerton, Unanimously, supra note 54.

[56] Ganapati, supra note 27.

[57] Id.

[58] Leslie Cauley, FCC Approves ‘White Space’ For Broadband, USA Today, Nov. 4, 2008, available at http://www.usatoday.com/tech/news/2008-11-04-white-space_N.htm (last visited Feb. 9, 2009).

[59] Id.

[60] Id.

[61] See Matthew Lasar, Rockers Refuse To Throw The Horns For White Space Broadband, available at http://arstechnica.com/old/content/2008/10/rockers-refuse-to-throw-the-horns-for-white-space-broadband.ars (last visited Feb. 9, 2009) (discussing how entertainers such as Neal Diamond, Peter Frampton and Kenny G are concerned about the interference that white space devices will pose on their wireless microphones).

[62] Carter, supra note 31, at 45.

[63] A list of those opposing the use of white space devices can be found at http://www.interferencezones.com.

[64] National Association of Broadcasters, http://www.nab.org (last visited Nov. 10, 2008).

[65] Id.

[66] Ex Parte Comments of the ABC Television Affiliates Association, CBS Television Network Affiliates Association, and the NBC Television Affiliates, ET Docket No. 02-380, Re: Unlicensed Operation in the TV Broadcast Band.

[67] Press Release, National Association of Broadcasters, NAB Statement on Today’s FCC Ruling on “White Spaces,” (Nov. 4, 2008), available at   http://www.nab.org/AM/Template.cfm?Section=News_Room&CONTENTID=13446&TEMPLATE=/CM/ContentDisplay.cfm (last visited Nov. 12, 2008).

[68] Id.

[69] Id.

[70] See Interference Zones, http://www.interferencezones.com/ White_Spaces_Ad.pdf (displaying an ad by the “Interference Zones” coalition urging consumers to contact the FCC and Congress to stop the white space movement).

[71] Eggerton, Unanimously, supra note 54.

[72] See Sascha D. Meinrath, White Space Devices & The Battle Over Innovation: Public Access v. Industry Control of the Airwaves, New America Foundation, at 2, available at  http://www.newamerica.net/files/ WSD_Battle_Over_Innovation.pdf (last visited Feb. 1, 2009) (discussing the evolution of white spaces).

[73] Id.

[74] Matthew Lasar, Broadcasters Sue FCC Over White Space Broadband Decision, March 3, 2009, http://arstechnica.com/tech-policy/news/2009/03/broadcasters-sue-fcc-over-white-space-broadband-decision.ars.

[75] Id.

[76] Id.

[77] See Press Release, Shure, Inc., Shure Raises Concern Over FCC ‘White Spaces’ Decision (Nov. 4, 2004), available at  http://www.shure.com/ProAudio/ PressRoom/PressReleaseArchive/2008PressReleases/us_pro_pr_ws_2008_decision (last visited Feb. 2, 2009) (describing Shure’s opposition to the FCC’s November 4^th vote).

[78] Shure Microphones, Inc., http:// www.shure.com (last visited Jan. 31, 2009).

[79] Shure, supra note 77.

[80] Id.

[81] Meinrath, supra note 72, at 2.

[82] Id.

[83] In the recent 700 MHz spectrum auction for licensed use, Verizon paid over $4.7 billion dollars for exclusive rights to 22MHz nationwide, roughly four television channels. Rick Evslin, Fractals of Change, The White Space Opportunity – Priceless, http://blog.tomevslin.com/2008/11/the-white-space.html (last visited Feb. 9, 2009) (Nov. 06, 2008,11:34 EST).  

[84] Id.

[85] Marguerite Reardon, FCC Election Day Vote Could Revolutionize Wireless, CNET, Nov. 4, 2008, http://news.cnet.com/wireless/?keyword=white+spaces (last visited Feb. 9, 2009).

[86] Id.

[87] A list of those opposing the use of white space devices can be found at http://www.interferencezones.com.

[88] John Eggerton, FCC Tells Broadcasters To Share, Commission Approves Opening Spectrum To Unlicensed Devices, Broadcasting and Cable, Nov. 10, 2008, at 10, available at 2008 WLNR 21463938.

[89] Ganapati, supra note 27.

[90] Press Release, supra note 2.

[91] Radio Frequency: Electro-Voice Wireless Microphone Products and the FCC “White Space” Legislation, http://www.technicalcrew.com/modules /news/article.php?storyid=152 (Nov. 5, 2008, 18:00:00 EST). 

[92] Calabrese, supra note 10.

[93] Id. at 5.

[94] Janet Hernández, Summary of FCC’s Second Report & Order for Unlicensed Operations in the TV Broadcast Bands (White Spaces Order), Nov. 4, 2008, http://www.tmglegal.com/_pdfs/Client%20Alert%20-%20FCC%20Whites%20Spaces%20Order.pdf.

[95] Id.

[96] Id.

[97] Id.

[98] Id.

[99] Fed. Comm. Commission, FCC’s Second Report and Order and Memorandum Opinion and Order, ET Docket 04-186, ET Docket 02-380, FCC-08-260A1 (Nov. 2008).

[100] Id.; Hernandez, supra note 94, at  3.

[101] Press Release, supra note 2, at *1.

[102] Second Report, supra note 99.

[103] Cable Digital News, FCC Publishes ‘White Spaces’ Rules, Nov. 17, 2008,   http://www.lightreading.com/document.asp?doc_id=168155&site=cdn (last visited Nov. 10, 2008).

[104] Second Report, supra note 99.

[105] See Second Report, supra note 99 (Section 15.715(j) states, “The database must have functionality such that upon request from the Commission it can indicate that no channels are available when queried by specific [white space devices].”) This would allow for the FCC to shut down white space that are causing or expecting to cause interference; see also Doug Lung, White Space Rules Show FCC Interference Fears, Nov. 21, 2008, http://www.tvtechnology.com/article/69304  (discussing the concerns about the impact white space devices will have on TV viewers).

[106] Radio Frequency, supra note 91.

[107] The FCC stated that white space devices that rely only on spectrum-sensing technology would have to undergo further “proof of performance” interference testing. Lynn Stanton and Paul Kirby, FCC Authorizes Devices for Use in “White Spaces,” to Weigh Rural Backhaul Use in Inquiry, Telecommunications Reports,  Nov. 15, 2008,  available at 2008 WL 214819932; see also Calabrese, supra note 10, at 495.

[108] Press Release, supra note 2.

[109] Fed. Comm. Commission, FCC First Report and Order and Further Notice of Proposed Rulemaking, FCC 06-156, Oct. 2006, 21 F.C.C.R. 12266, 12284, 21 FCC Rcd. 12266, 39 Communications Reg. (P&F) 918.

[110] A cable television headend is a master facility for receiving television signals for processing and distribution over a cable television system. Cable System Headend, http://en.wikipedia.org/wiki/Cable_television_headend (last visited Mar. 11, 2009).

[111] Cable Digital News, supra note 103.

[112] First Report and Order, supra note109.

[113] Eggerton, Share, supra note 88.

[114] Press Release, supra note 2, at *1.

[115] Id.

[116] Id.

[117] Grant Gross, US FCC Approves Rules Allowing White-space Devices, PCWorld.com, Nov. 4, 2008, http://www.pcworld.com/businesscenter/ article/153320/us_fcc_approves_rules_allowing_whitespace_devices.html.

[118] Wireless Innovation Alliance: About the Alliance, http://www.wirelessinnovationalliance.org/index.cfm?objectid=A25E1FC0-F1F6-6035-B3635EA7D5386BE0 (last visited Mar. 10, 2009).

[119] Id.

[120] S. 337, 110th Cong. (2007).

[121] Press Release, Senator John Sununu, Sununu Introduces “White Spaces Act of 2007,” (Jan. 18, 2007), available at http://sununu.senate.gov/pressapp/ record.cfm?id=267688 (last visited Feb. 9, 2009).

[122] Id.

[123] Id.

[124] H.R. 1597, 110th Cong. (2007).

[125] HR 1320, 110th Cong. (2007), available at http://www.govtrack.us/congress/ bill.xpd?bill=h110-1320 (last visited Feb. 10, 2009).

[126] Id.

[127] Id.

[128] Jennie Phillips, U.S. Broadband Push Seen Gaining Steam, Investor’s Bus. Daily, Nov. 13, 2008, available at 2008 WNLR 21623884.

[129] Sascha Segan, Google Wins the Presidential Election (So Does Obama), PC Mag., Nov. 5, 2008, available at http://www.pcmag.com/article2/ 0,2817,2333935,00.asp (last visited Feb. 2, 2009).

[130] Congressional Support Grows for ‘White Spaces’ Wireless Mic Interests, Mix Daily News, Oct. 24, 2007, available at http://mixonline.com/news/headline/ shure-congress-whitespaces-102407/ (last visited Feb. 9, 2009).

[131] About New America, http://www.newamerica.net/about (last visited Feb. 9, 2009).

[132] Calabrese, supra note 10.

[133] See New America Foundation, http://www.newamerica.net/search/ node/white+spaces for a list of available policy backgrounders and briefs published by New America Foundation.

[134] Ganapati, supra note 27.

[135] Calabrese, supra note 10.

[136] Id.

[137] Press Release, Wireless Innovation Alliance, Public Interest Organizations Commend FCC for Boosting Wireless Internet (Nov. 4, 2008), available at http://www.publicknowledge.org/ node/1850 (last visited Feb. 8, 2009).

[138] Wireless Innovation, http://www.wirelessinnovationalliance.org (last visited Feb. 9, 2009).

[139] Press Release, Wireless Innovation Alliance, White Spaces Move Forward, Rules for Use of Vacant TV Spectrum Take Effect March 19 (Feb. 17, 2009), available at http://www.wirelessinnovationalliance.org/ index.cfm?objectid=8B291778-1D09-317F-BB5BF5B56C1C37F9 (last visited Mar. 12, 2009).

[140] Examples of Consumer Benefits From “TV White Spaces” Legislation, New America Foundation Publication, http://www.newamerica.net/files/

White%20Space%20Consumer%20Benefits.pdf (last visited Feb. 10, 2009).

[141] New America Foundation Wireless Future Program,   http://www.newamerica.net/programs/wireless_future (last visited Feb. 2, 2009).

[142] Evslin, supra note 83.

[143] Id.

[144] Free Press, http://www.freepress.net (last visited Mar. 12, 2009).

[145] Ben Scott & Michael Calabrese, Measuring the TV “White Space” Available for Unlicensed Wireless Broadband, Dec. 2, 2005, available at http://www.freepress.net/docs/whitespace_analysis.pdf (last visited Mar. 10, 2009). 

[146] Lennett, supra note 17.

[147] Id.

[148] Id.

[149] Id.

[150] Evslin, supra note 83.

[151] Id.

[152] Michael Calabrese, Examples of Consumer Benefits from TV ‘White Spaces’ Legislation, July 10, 2006, http://www.newamerica.net/publications/ policy/examples_of_consumer_benefits_from_tv_white_spaces_legislation (last visited Feb. 5, 2009).

[153] Id.

[154] Phillips, supra note 128.

[155] Id.

[156] Adelstein, supra note 19, at *4.

[157] Free the Airwaves, Frequently Asked Questions, http://freetheairwaves.com/ faq.html (last visited Nov. 10, 2008).

[158] Crawford, supra note 16, at 1000 (2008).

[159] Id.

[160] Id.

[161] Ganapati, supra note 27.

[162] Id.

[163] Id.

[164] Id.

[165] Press Release, Voyant, Voyant Receives $2 Million Order on White Space Radios (May 21, 2008), available at   http://www.voyant.net/company/ news/press/ articledetail.aspx?id=24688 (last visited Feb. 10, 2009).

[166] Id.

[167] Olga Kharif, Google’s White-Space Fixation, Bus. Wk., May 23,2008,   available at http://www.businessweek.com/technology/content/may2008/ tc20080522_623138.htm (last visited Nov. 10, 2008).

[168] Peter Kaplan, Eric Auchard, Google Unveils “White Space” Airwaves Plan, Reuters, Mar. 24, 2008, available at http://www.reuters.com/article/newsOne/ idUSWAT00918220080324 (last visited Nov. 10, 2008).

[169] Erick Schonfeld, Google’s Election-Day Victory: FCC Approves Unlicensed Use of “White Spaces” Spectrum, TechCrunch, Nov. 4, 2008, available at  http://www.techcrunch.com/2008/11/04/googles-election-day-victory-fcc-approves-unlicensed-use-of-white-spaces-spectrum/ (last visited Feb. 9, 2009).

[170] Ganapati, supra note 27.

[171] Kaplan, supra note168.

[172] Richard Whitt, Google Public Policy Blog, Introducing the White Spaces Database Group, http://googlepublicpolicy.blogspot.com/2009/02/introducing-white-spaces-database-group.html (Feb. 4, 2009 10:01 AM).

[173] Id.

[174] Susan Crawford, Tying Together DTV, 700 MHz, and White Spaces, Public Knowledge Policy Blog, http://www.publicknowledge.org/node/1315 (Dec. 17, 2007, 15:25 EST).

[175] Paul Mah, Prototype “White Space” Broadband Devices Submitted To FCC For Testing, IT News Digest, Jan. 19, 2008,   http://blogs.techrepublic.com.com/tech-news/?p=1942 (last visited Feb. 9, 2009).

[176] Google filed its patent in March 2007 and was published in September 2008. Posting of Priya Ganapati to Wired, http://blog.wired.com/gadgets/2008/09/ google-files-pa.html (Sept. 25, 2008, 3:03:04 PM).

[177] Id.

[178] Id.

[179] Fed. Comm. Commission, Statement of Commissioner Deborah Taylor Tate Approving in Part and Dissenting in Part, Re: Unlicensed Operation in the TV Broadcast Bands, ET Docket No. 04-186, available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-260A5.pdf (last visited Feb. 10, 2009).

[180]  Lung, supra note 105.

[181] Id.

[182] Ing. V. Hayes & Dr. Ir. W. Lemstra, Unlicensed: The Case of Wi-Fi, Conference Paper, at 3, Delft U. of Tech, Faculty Tech., Pol’y and Mgmt, (Netherlands), Mar. 21, 2008, available at http://www.iep.gmu.edu/ documents/GMU_Unlicensedv33.pdf (last visited Mar. 10, 2009).

[183] Id.

[184] Id.