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Abstract

Recent innovations in mobile wireless technology have instigated a debate between two camps of legal scholars about federal administration of the electromagnetic spectrum. The first camp argues that the Federal Communications Commission (“FCC”) should define spectrum use rights more clearly and give spectrum licensees broad property rights in frequencies. The second camp argues that, rather than award exclusive licenses to the highest bidder, the FCC ought to open much, if not most, of the spectrum to unlicensed use by smartphones and tablets equipped with the newest spectrum administration technology. First, this Article shows that both of these camps comprise a new orthodoxy that eschews conventions in public lawmaking in federal spectrum administration and instead prefers an approach that is sealed away from direct public scrutiny. This new orthodoxy assumes that supply and demand in the market for emergent smart spectrum sharing technologies is a more objective administrator of the public interest than the public lawmaking processes even can be. Second, this Article challenges the new orthodoxy by arguing that local public participation in federal spectrum administration can align the new technologies with the diverse priorities of each community in ways that neither the technologies alone, nor the markets for them, ever can. It is of no legal or normative consequence, this Article asserts, that substantive federal spectrum policy encourages commercial adoption of the newest technology. Rather, this Article argues, lawmakers in this field ought to create procedural mechanisms in federal spectrum administration that accommodate local communities’ diverging interests. Local participation in the formulation of spectrum policy gives a purpose to communication technologies that are otherwise morally ambiguous. In the end, the Article proposes a solution on the basis of relatively recent legal scholarship and developments in public law administration.