The future of the Internet – and with it our ability to succeed in the 21st Century’s global economy – lies largely in its ability to maximize its mobility. Demand for mobile broadband is relatively new, but the explosion of smartphones and tablets and their dizzying array of applications has led to a near-vertical demand curve. That growth has led many to predict a looming “spectrum crunch,” including the Federal Communications Commission, which manages the nation’s spectrum assets. FCC Chairman Julius Genachowski likens spectrum to mobile broadband’s “invisible infrastructure.” He’s visibly concerned about getting more of that invisible infrastructure into the hands of the nation’s wireless carriers.

To prevent gridlock – and economic stagnation – on that mobile superhighway, the FCC has proposed a novel system of “voluntary incentive auctions” under which broadcasters who currently have FCC licenses to broad swaths of spectrum will be able to place their spectrum into the FCC’s auction and share in some of the proceeds from the resale of that spectrum to wireless carriers. The rub is that the FCC needs authority from Congress to do this. While we wait, here is what we do – and don’t – need to focus on in this debate.

Distractions include skepticism over the existence of the looming spectrum crunch. The real question is not if, but when. Regardless of whether the gridlock is fully realized in 2013 or 2015, we should turn the wheel instead of finding out exactly when we hit the wall. The auctions and subsequent build-out will take years, and our international competition no longer plays wait-and-see while we figure it out. Others claim that this will just be grabbing underutilized spectrum from rural areas so that urbanites can enjoy their latte-finder app. But that’s not how spectrum works; it has real spatial constraints. The broadcasters’ underutilized spectrum is the “beachfront property,” as the FCC Chairman has said.

That brings us to the three things everyone should keep their eyes on. Undue delay is one. Congress needs to act now, and the broadcaster lobby should not hold up FCC authorization for a voluntary auction process to extract additional concessions. Second is the FCC’s continued preservation of so-called “white spaces” – the unlicensed spectrum between TV channels that the Commission reserves for the public’s experimentation. It’s a public space that innovators have used to bring us profound to pedestrian technologies ranging from Wi-Fi to baby monitors and wireless garage door openers. The Commission needs to preserve those commons because that is often where new, disruptive technologies emerge. Finally, and most importantly, the Commission can never forget that it is auctioning off a public good. The wireless carriers will pay billions for these spectrum leases, but will in turn make trillions carrying the voice and data we exchange with others over these public airwaves. Our government cannot forget that it is leasing a public asset used for public carriage on an equal, nondiscriminatory basis.

For further information, please contact any of our attorneys in the Arent Fox Telecommunications Group, including: