Should the FCC Regulate Receivers?
By Mitchell Lazarus, Fletcher, Heald & Hildreth, PLC, 703-812-0440, MLazarus@alum.MIT.edu
When Congress first set up the FCC in 1934, it charged the new body with preventing interference in the spectrum. In those days, of course, except for a few hardy amateurs, almost the only spectrum users were AM broadcast transmitters. So that's what the FCC regulated: it assigned frequencies, restricted power and antenna height, and set minimum distances between stations on the same or nearby frequencies.
Today the interference situation is a lot more complex, but the FCC's technique has not changed much. The FCC still regulates transmitters, keeps them on assigned frequencies, limits their height and power, and keeps them apart (although sometimes through frequency coordinators).
Now the FCC has announced it is ready to broaden its approach and consider receivers as well, as a factor in interference. The motivation is simple: bad receivers waste spectrum. Several recent FCC proceedings have seen spectrum incumbents trying to block newcomers by claiming interference would result. But in many cases, the feared interference would be due as much to the incumbents' badly designed receivers as to the new signals. In effect, some incumbents have used their own poor receivers as the basis for demanding high levels of interference protection. While permissible under present law, this stance is a major obstacle to the FCC's efforts to squeeze more use out of the spectrum.
In fairness, not all incumbents control their receivers. The broadcast industry, for example, transmits to tens of millions of radios and TVs it does not provide, and over whose design it has little say. On the other hand, a subscription service such as wireless phone or "satellite radio" generally exercises complete control over its receivers, because it pre-approves and individually activates each one it serves.
A new FCC inquiry is asking for public comment on whether receivers should be subject to standards rendering them more robust in the face of interference. There is little question that better receivers could increase the number of people sharing spectrum without getting in each others' way. But the proposal faces obstacles nonetheless.
The FCC hopes to make any receiver standards voluntary. But better receivers presumably will be more expensive; and while they serve the social good by making the spectrum more hospitable for all, they offer little advantage to the individuals paying for them.
Yet the FCC may lack the legal authority to impose mandatory receiver standards. Federal agencies like the FCC are creatures of Congress, with only the powers that Congress gives them. A 1968 statute authorizes the FCC to regulate the receivers in "home electronic equipment," which the FCC has never done and it is not clear the FCC can lawfully regulate any other kind.
In short, better receivers can improve use of the spectrum. Indeed, receiver standards may be long overdue. But the economics tilt against voluntary adoption, and the FCC may lack the legal clout to make standards mandatory. Receiver regulation may turn out to be a good idea whose time has not yet come.