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Spectrum Pipeline Act a Promising Start that Needs Balance

Popular Media Given how important digital connections are to Americans’ daily lives, it’s urgent that Congress move to renew the Federal Communications Commission’s authority to auction parts . . .

Given how important digital connections are to Americans’ daily lives, it’s urgent that Congress move to renew the Federal Communications Commission’s authority to auction parts of the public airwaves.

That authority lapsed a little over a year ago and efforts to reinstate it have been repeatedly stuck in partisan gridlock.

Read the full piece here.

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Telecommunications & Regulated Utilities

Gus Hurwitz on the Spectrum Pipeline

Presentations & Interviews ICLE Director of Law & Economics Programs Gus Hurwitz joined an online panel hosted by the Technology Policy Institute on where telecom industry observers can . . .

ICLE Director of Law & Economics Programs Gus Hurwitz joined an online panel hosted by the Technology Policy Institute on where telecom industry observers can expect to see movement in spectrum reauthorization, mid-band clearing, and results from newly deployed shared bands. Video of the full event is embedded below.

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Telecommunications & Regulated Utilities

Patents and Competition: Commercializing Innovation in the Global Ecosystem for 5G and IoT

Scholarship Abstract Times are changing as our global ecosystem for commercializing innovation helps bring new technologies to market, networks grow, and interconnections and transactions become more . . .

Abstract

Times are changing as our global ecosystem for commercializing innovation helps bring new technologies to market, networks grow, and interconnections and transactions become more complex around standards, all to enable vast opportunities to improve the human condition, to further competition, and to improve broad access. The policies that governments use to structure their legal systems for intellectual property, especially patents, as well as for competition—or antitrust—continue to have myriad powerful impacts and raise intense debates over challenging questions. This chapter explores a representative set of debates about policy approaches to patents, to elucidate particular ideas to bear in mind about how adopting a private law, property rights-based approach to patents enables them to better operate as tools for facilitating the commercialization of new technologies in ways that best promote the goals of increasing access while fostering competition and security for a diverse and inclusive society.

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Intellectual Property & Licensing

Restoring and Revitalizing Technology Markets for Mobile Wireless: Geopolitical Dimensions of Patented Technology Embedded in Standards

Scholarship Summary One of the world’s greatest experiments in open innovation is mobile wireless. Technology enterprises have invested billions of R&D dollars to develop 2G, 3G, . . .

Summary

One of the world’s greatest experiments in open innovation is mobile wireless. Technology enterprises have invested billions of R&D dollars to develop 2G, 3G, 4G, now 5G, and hopefully 6G soon. Technology developers make investments and look to the patent system and associated regulators to reward them for risky investments, should their patented technologies become included in the standards. In recent years there has been an uptick in the number of technology implementers. But because patents are not self-enforcing, unlicensed use occurs, which is corrosive of the open innovation system that allows non-vertically integrated firms to compete at the device level. This chapter reviews antitrust theories that some implementers have used to avoid paying royalties to patent owners. This is examined in the context of the FRAND licensing regime established by ETSI, a standards development organization. “Hold up” and “hold out” theories are examined. Hold up theories lack empirical support and are misused by some implementers—particularly those in China—who would prefer to free ride on the R&D investments of others. Restoring and revitalizing technology markets for mobile wireless likely requires limits to be placed on the availability of FRAND licenses with respect to recalcitrant technology implementers. Otherwise, the innovation ecosystem will be harmed, and open innovation (that is, licensing) business models will collapse.

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Intellectual Property & Licensing

Gus Hurwitz on Meta’s Challenge of FTC Constitutionality

Presentations & Interviews ICLE Director of Law & Economics Programs Gus Hurwitz was a guest on The Cyberlaw Podcast, where he discussed Meta’s broadening attack on the constitutionality . . .

ICLE Director of Law & Economics Programs Gus Hurwitz was a guest on The Cyberlaw Podcast, where he discussed Meta’s broadening attack on the constitutionality of the Federal Trade Commission’s (FTC) current structure. Other subjects tackled include South Korea’s law imposing internet costs on content providers, the Biden Federal Communications Commission’s first two months with a majority, the race to 5G, and the FTC’s last-ditch appeal to stop the Microsoft-Activision merger. Audio of the full episode is embedded below.

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Telecommunications & Regulated Utilities

Has the Biden Administration Taken Over Broadband?

TOTM Betteridge’s Law of Headlines states: “Any headline that ends in a question mark can be answered by the word no.” But, apparently, folks in the nation’s capital . . .

Betteridge’s Law of Headlines states: “Any headline that ends in a question mark can be answered by the word no.” But, apparently, folks in the nation’s capital found a way around Betteridge’s Law.

This week, a U.S. House subcommittee hearing featured testimony from all five members of the Federal Communications Commission (FCC). The majority on the House Energy and Commerce Subcommittee on Communications and Technology did away with the question mark, titling the hearing “Oversight of President Biden’s Broadband Takeover.”

While it might be a stretch to call the administration’s broadband-policy agenda a “takeover,” one can be forgiven for concluding that the FCC is moving forward with so many massive and comprehensive interventions in nearly every aspect of the broadband market that it looks a lot like a takeover.

Read the full piece here.

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Telecommunications & Regulated Utilities

The Emerging Commercial Space Age: Legal and Policy Implications

Scholarship Abstract Once considered the final frontier, outer space has become the modern day Yukon territory. A burgeoning commercial economy is reshaping the balance of powers . . .

Abstract

Once considered the final frontier, outer space has become the modern day Yukon territory. A burgeoning commercial economy is reshaping the balance of powers and expanding the breadth of activities beyond our atmosphere. Outer space is no longer the exclusive province of a select number of nation states engaged in geopolitical competition. A robust private sector has begun to stake its claim, ushering in a fundamentally different incentive environment that answers to shareholders and venture financers. As a consequence, the principles that persisted from the Cold War, and ultimately motivated the Outer Space Treaty[1] and its subsequent counterparts,[2] are no longer sufficient. Truth be told, they were never expected to be so. The United Nations Committee on the Peaceful Uses of Outer Space (“COPUOS”) never contemplated commercial uses when it adopted—and many nations subsequently ratified—its longstanding space treaties. While private actors have interacted with this environment for decades, the commercial space industry has only recently reached a point of maturity where entities can productively utilize orbital environments, cultivate an entirely new source of natural resources in lunar and cislunar space and further explore the translunar realm. Commercial space is having its moment, and it represents a monumental paradigm shift for space law and policy.

Considering the radical evolution of actors and activities in space, do the instruments and institutions that oversee it need to evolve as well? Traditional forms of public international lawmaking—multilateral treatymaking and institution building followed by each participant’s cooperative consent—may not meet the needs of private actors who bear little affiliation to the country they select to license their operations. Similarly, domestic regulations and policies from a government-mission minded era appear ill suited for the novel complexities of the commercial launch and communications capabilities that are rapidly eclipsing those of national governments. The diverse set of actors and activities in outer space also introduce a novel set of contexts and conflicts that impact private law. In effect, commercial space activity is spurring change that no one track can resolve independently, necessitating pluralist reform that extends the bounds of both public and private law.

A second-order problem that emerges is how to manage an ecosystem in which collective commercial interests diverge from national interests. As many nations become dependent on commercial space services and infrastructure, the balance of power is shifting toward a new calculus. Decisions by private actors now impose externalities that national actors experience immediately and directly, and vice versa, making both sides of the public-private dichotomy increasingly intertwined. Thus, if the law is intended to evolve into more efficient, wealth-maximizing rules, we must also ask who reaps the benefits of these efficiencies, and do they lead to sound policy?

These questions are vexing but timely and provide ample room for further scholarly development exploring ways to better manage the use of outer space. On February 3, 2023, the Journal of Law & Innovation hosted its symposium, “The Emerging Commercial Space Age: Legal and Policy Implications” at the University of Pennsylvania Carey School of Law.[3] The Symposium brought together leading international law scholars, economists, and telecommunications and antitrust policymakers to assess the twenty-first century space domain and its implications for legal and policy frameworks. Panelists and moderators emphasized the progress of commercial enterprise in outer space, how these increasingly complex and multifaceted interests would influence international space law and the paradigm shifts that must emerge in economic regulation and public policy to foster innovation and sustainable competition. The Articles in this volume touch each of these considerations and are an outgrowth of the presentations and moderated discussions at the Symposium.

[1] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T 2410, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967) [hereinafter Outer Space Treaty].

[2] Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119; Convention on the International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187 [hereinafter Liability Convention]; Convention on Registration of Objects Launched into Outer Space, Nov. 12, 1974, 1023 U.N.T.S. 15; Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 5, 1979, 1363 U.N.T.S. 3 [hereinafter Moon Agreement].

[3] The symposium program and webcasts of the presentations and discussions are available at https://www.law.upenn.edu/institutes/ctic/jli/events.php.

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Innovation & the New Economy

From ‘Open Skies’ to Traffic Jams in 12 GHz: A Short History of Satellite Radio Spectrum

Scholarship Abstract As an industry, communications satellites have traced a wobbly trajectory. Envisioned to bring revolutionary advances to telecommunications services in the U.S. Communications Satellite Act . . .

Abstract

As an industry, communications satellites have traced a wobbly trajectory. Envisioned to bring revolutionary advances to telecommunications services in the U.S. Communications Satellite Act of 1962, the marketplace did open via Comsat, a public-private partnership. But the sluggish pace was revealed a decade later when progress increased substantially with the Open Skies policy. Free entry collapsed costs for wide area distribution of broadcasting services, launching the U.S. cable television industry (disrupting the TV broadcasting triopoly) in the 1980s and then direct-to-subscriber satellite TV (challenging the new incumbent cable operators) in the 1990s. In ensuing decades, however, fortunes reversed. Satellite phone and broadband service providers—Iridium, Teledesic, Motient, Intelsat and many others—financially crashed and burned. Yet another reversal may now be in evidence, however: satellites in service have increased more than three-fold in the past decade. Spasms of technological progress, including gains in small device electronics, are driving market change: “While some [satellites] are the size of a bus and weighing over 6,000 pounds, they can also be as small as a lunchbox,” noted a 2018 Aspen Institute report. “Constellations can now be composed of hundreds or even thousands of satellites.” The new mega-constellations are creating a crowded sky. With demand for orbital slots and complementary radio bands dramatically intensifying, new policy formulations are being floated. We outline possible innovations in spectrum property rights.

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Telecommunications & Regulated Utilities

Indiana Jones and the Allocation of Spectrum

TOTM Hootenannies are mostly peaceful affairs, so it’s a bit awkward to invoke a violent metaphor here. In “Raiders of the Lost Ark,” Indiana Jones runs . . .

Hootenannies are mostly peaceful affairs, so it’s a bit awkward to invoke a violent metaphor here.

In “Raiders of the Lost Ark,” Indiana Jones runs down a Cairo sidestreet only to be confronted by a swordsman. The swordsman makes a big show of tossing his weapon from hand-to-hand and swirling it around. But Indy has no time for such nonsense—he pulls out his gun and shoots the would-be assassin.

U.S. spectrum policy is much like the swordsman. While the telecom regulators swirl around studies of how to allocate spectrum, the rest of the world is pulling the trigger.

Read the full piece here.

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Telecommunications & Regulated Utilities