In addition to prompting the development of the Coase Theorem, Ronald Coase’s landmark 1959 article on the Federal Communications Commission touched off a revolution in spectrum policy. Although one of Coase’s proposed reforms (that spectrum should be allocated through markets) has now become the conventional wisdom, his other principal recommendation (that governments stop dedicating portions of the spectrum to particular uses) has yet to be fully embraced. Drawing on spectrum as well as Internet traffic and electric power as examples, this Article argues that emerging technologies often reflect qualities that make defining property rights particularly difficult. These include the cumulative nature of interference, the presence of significant interdependencies, and the presence of significant geographic discontinuities in interference patterns, exacerbated by the localized nature of information. These technological considerations define the natural boundaries of property by creating transaction-free zones that must be encompassed within a single parcel. They also complicate defining property rights by making it difficult to identify and attribute harm to particular sources of interference. These challenges can make governance a more attractive solution than exclusion.
Other commentators have suggested that the failure of creating well-defined property rights in spectrum support wider use of open access regimes, citing the work of Elinor Ostrom and Michael Heller, or arguing that spectrum is not scarce. Ostrom’s work points out that governance of common property requires features that are quite inconsistent with open access, including a finely tailored and unequal allocation mechanism, strict internal monitoring, strong property protection to prevent outside interference, stability, and homogeneity. Heller’s theory of the anticommons is sometimes misinterpreted as being hostile towards property. Instead, it is better understood as condemning giving exclusionary rights in the same piece of property to multiple owners, all of whom must agree on any major decision. The primary solution to the anticommons is not open access, but rather unitization of the interests in a single owner. Moreover, bargaining over an anticommons is also properly modeled through the chicken (or snowdrift) game, which has more of a zero-sum, all-or-nothing quality, rather than opportunities for cooperation frustrated by a lack of trust that characterize the prisoner’s dilemma and traditional holdout behavior. The final argument, that spectrum is not scarce, simply cannot be squared with Shannon’s Law.
Instead the solution may lie in reconfiguring rights to increase owners’ ability to bargain towards workable solutions. A market maker controlling sufficient property and able to integrate local information could design a mechanism that can solve some of these problems. Property could also be reconfigured to provide more of the primitives needed to write effective contracts. Finally, these challenges, as well as the need to reduce information costs on third parties, provide an explanation for the persistence of use restrictions. In addition, continuing the fiction of government ownership of the spectrum may make it easier to reconfigure rights when necessary.
Yoo, Christopher S., "Beyond Coase: Emerging Technologies and Property Theory" (2012). Faculty Scholarship at Penn Law. 468.
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