The Federal Communications Commission issued final rules for channel sharing. The rules are the result of the recently passed Jobs Act that provides for voluntary incentive auctions of broadcast spectrum.

The FCC stressed that channel sharing is voluntary and that broadcasters and other licensees of spectrum will determine whether they want to enter into sharing arrangements. The FCC expects channel sharing to free up spectrum for wireless broadband providers.

Channel sharing doesn’t mean that an over-the-air broadcaster’s only option is to give up its entire spectrum and go out of business. Broadcasters should be able to retain just enough spectrum for one standard definition program stream, while sharing the rest of its 6MHz channel.

Overall, sounds like a non-intrusive policy for freeing up some spectrum for the mobile types while keeping the over-the-air broadcasters operational.

Michael Copps, former member of the Federal Communications Commission, believes there is a lot of spectrum laying fallow. Unused spectrum could put a dent in the shortage of airwave access facing wireless carriers.

Copps, according to an article in Broadcasting & Cable, said that he believes no one has any idea how much spectrum is actually out there not being put to use.

All the more reason for a complete spectrum inventory and why the FCC should focus more on what I believe a government agency’s primary task should be: managing access to our natural resources and making sure those resources are getting into the hands of those who are willing and able to put those resources to their most productive use.

I wonder how much spectrum is laying fallow in Atlanta?

Wayne Crews, vice-president for policy at the Competitive Enterprise Institute, recently wrote a piece for Forbes Magazine about HR 3309. He takes on opponents of the bill, artfully calling out the FCC for its intrusive role in our market economy.

Mr. Crews’ spot on analysis highlights an important point: part of government’s role is the regulation of commerce, in the case the commerce of information flow. Broadband technology has given everyone the ability to be their own “broadcast company.” Individuals can create their own content and via the free market enter into contracts with broadband access providers to help distribute their content whether by e-mail, blog, websites, or plain old telephone service.

Information is abundant and its flow virtually unimpeded. Why put up regulatory barriers to this flow? In my opinion, HR 3309 provides the legislative reminder to the FCC that in a free market society such as ours; its focus should be on maximizing the free flow of information, not throttling it with unnecessary restrictions not based on a proper analysis of market failure.

Writers at The Verge had me on the verge of throwing up as they argued in this piece that HR 3309 was an attack on the Federal Communications Commission by the Congress, an attack designed to favor large wireless carriers such as AT&T and Verizon at the expense of smaller carriers and competition.

Opponents of HR 3309 seem to forget that the FCC regulates commerce within a free market system. Rules that potentially impact the market need to be put through a market failure analysis and this analysis should be challenged in an open forum. The public comment system is not adequate enough to challenge and probe proposed rules.

State public utility commissions go subject rules to an open hearing. I don’t see why the FCC could not do so.

Arguing that such a review is onerous gives license to the FCC to run rough shod over the industry. Such an approach won’t promote market entry by smaller carriers.

Besides, how can these same opponents argue for more transparency from broadband access providers on the one hand while on the other they argue for less transparency from the FCC?

Law professor Susan Crawford wrote a post for Wired.com arguing that H.R. 3309 would take the FCC in the wrong direction by gutting the agency’s power. After giving a brief history of deregulatory efforts and market entry spawned after the signing of the Telecommunications Act of 1996, Professor Crawford concluded that,

“You’d think that Congress would want to have an empowered regulator able to do something to protect the country from the rational, profit- seeking depredations of our new generation of monopolists.”

According to Professor Crawford, that new generation of monopolists includes Comcast and Time Warner for high-speed internet access; and AT&T and Verizon for wireless services.

The last thing the FCC needs is any more encouragement to follow an increased interventionist scheme. Just yesterday, T-Mobile USA announced the closing of seven call centers and the layoffs of hundreds of workers. The FCC was asked to consider a projection of job losses and call center closings in its review of the request to transfer licenses from T-Mobile to AT&T.

Instead, the FCC decides to play merger expert and, along with the Department of Justice, forced AT&T and T-Mobile to abandon their merger plans. Just like its net neutrality rules, the FCC never considered market impacts of its decisions. They refuse to carryout and document a market failure analysis before implementing decisions. This is not type of agency that anyone wants to have greater regulatory control.

It should stick to its number one priority: ensuring access to public resources such as spectrum and rights-of-way.