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13 Duke L. & Tech. Rev. 1 (2014-2015)

handle is hein.journals/dltr13 and id is 1 raw text is: TRAGEDY OF THE REGULATORY COMMONS: LIGHTSQUARED AND THE MISSING SPECTRUM RIGHTS THOMAS W. HAZLETTT AND BRENT SKORUPTT ABSTRACT The endemic underuse of radio spectrum constitutes a tragedy of the regulatory commons. Like other common interest tragedies, the outcome resultsfrom a legal or market structure that prevents economic actors from executing socially efficient bargains. In wireless markets, innovative applications often provoke claims by incumbent radio users that the new traffic will interfere with existing services. Sometimes these concerns are mitigated via market transactions, a la Coasian bargaining. Other times, however, solutions cannot be found even when social gains dominate the cost of spillovers. In the recent LightSquared debacle, such spectrum allocation failure played out. GPS interests that access frequencies adjacent to the band hosting LightSquared's new nationwide mobile network complained that the wireless entrant would harm the operation of locational devices. Based on these complaints, regulators then killed LightSquared's planned 4G network. Conservative estimates placed the prospective 4G consumer gains at least an order of magnitude above GPS losses. Win win bargains were theoretically available, fixing GPS vulnerabilities while welcoming the highly valuable wireless innovation. Yet transaction costs largely caused by policy choices to issue limited and highly fragmented spectrum usage rights (here in the GPS band) proved prohibitive. This episode provides a template for understanding market and non-market failure in radio spectrum allocation. t H.H. Macaulay Endowed Professor of Economics, Clemson University; Professor of Law and Economics, George Mason University (on leave). PhD. (Economics), UCLA; former Chief Economist, Federal Communications Commission. Contact: hazlett @clemson.edu. t Research Fellow, Mercatus Center at George Mason University. J.D., George Mason University School of Law. Contact: bskorup@mercatus.gmu.edu.

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