Sending out an S.O.S.: public safety communications interoperability as a collective action problem.

Verizon's plan, which would employ spectrum already allocated for public safety use, would not decrease the amount of spectrum available on the market. However, because its planned network would be limited to public safety users, it would decrease the amount of spectrum potentially available to consumers. That is, by forgoing shared use, the Verizon plan precludes new competition in the commercial market, which the Cyren Call proposal would provide.

Both the Verizon and Cyren Call plans feature commercial provision of public safety communications, which is key to addressing the collective action problem. However, how would competition--and thus lower prices, higher quality, and sustained innovation--be ensured? One source of competition to the incumbent created by either plan might be the continued availability of custom-built systems. However, this would negate any interoperability gains. Additionally, to the extent we move toward a policy promoting private provision of public safety communications, local agency licenses should be redeployed directly or indirectly to private providers. (183) To have a true comparable competing network, a new entrant would have to acquire a spectrum assignment from government on similar terms as the incumbent. Alternatively, it could employ valuable flexible use spectrum purchased at market prices. However, as noted earlier, an incumbent who did not have to pay for its spectrum could pose a barrier to entry.

Theoretically, if agencies were not subsidized with spectrum licenses, and if flexible use spectrum was freely available on the market, we would expect to see commercial providers supply public safety's demand for communications capacity. However, given the existing regulatory environment, other competing uses of spectrum are likely to be more profitable than a public safety network. For this reason, we must ensure through policy that some spectrum be used for public safety. However, as we will see, we need not allocate spectrum exclusively for public safety use.

B. Competitive Public Safety Licenses

Putting technical constraints aside, the structure of an ideal commercial shared-use public safety communications system would be much like today's wireless telephone network, with multiple competing national carriers that all interconnect. One way to achieve this would be to auction two or more spectrum licenses subject to certain public safety obligations, including interconnection and prioritization. (184) Creating two or more licenses would avoid the establishment of a strong incumbent monopolist. Auctioning the licenses would avoid rent-seeking and could also potentially raise funds for public safety to use during a transition.

An ideal public safety communications network would also be national in scope. This would help establish interoperability between federal, state, and local agencies. It would also help first responders who travel to other jurisdictions. As Gregg Miller has pointed out, while a firefighter from California can jump behind the wheel of a fire truck in Louisiana and drive it with no new instruction, the same cannot be said about public safety radio systems. (185) To this end, as much as possible, licenses should be national in scope. This would not only address a policy goal, but, as Hazlett has noted about wireless communication, national markets are efficient. (186)

From a radically fragmented initial system of thousands of individually held local licenses, the consumer mobile market consolidated into six national networks by 2000. (187) "The emergence of nationally integrated networks and calling plans demonstrated that consumers were demanding services most economically provided on a broader scale. As larger networks formed, prices plummeted and demand skyrocketed." (188) The comparison is apt because commercial users of shared networks will likely demand similar economies of scope.

If achieving interoperability is the ultimate goal, then requiring interconnection among competing carriers is crucial. It is conceivable that shared use networks would voluntarily interconnect, if only because commercial users of the network might demand the benefits of increased network effects. (189) However, because interoperability will be the prime objective of a new policy, interconnection should be required between all licensees.

Another key requirement to which competitive public safety licenses should be subject is prioritization--giving public safety users priority over commercial users in shared networks. Bykowsky and Marcus point out that a network in which private subscribers were subject to preemption by public safety might look much like interruptible gas or electricity, which are priced lower than noninterruptible service. (190) Users not sensitive to random interruptions in power, such as industrial processing facilities, can subscribe to the cheaper service and reduce their payments enough to compensate for the risk. (191) Additionally, they can insure against outages by having generators on standby or by making only a portion of their energy consumption interruptible and, in case of outage, switching to a slower processing method that uses noninterruptible energy. (192)

In a shared network, a public safety user will not preempt a private call unless every other channel on the network is being used--a rare situation. For example, our existing public switched telephone network has prioritization and preemption built in. (193) The Department of Homeland Security runs the Government Emergency Telecommunications Service, which, in case of emergency, gives priority to certain federal, state, local, tribal government, industry, and nongovernmental organization telephone calls. (194) The wireless companion of this program, the Wireless Priority Service, applies to cellular networks. (195) These programs are only used when the network becomes unforeseeably congested, such as during the aftermath of Hurricane Katrina, the 9/11 attacks, and the Northeast blackout of 2003. (196) Other times of heavy public service use--such as the 2000 Winter Olympics in Salt Lake City--are predictable and can thus be planned for. (197)

V. CONCLUSION

As we saw on 9/11, the lack of public safety communications interoperability has serious consequences. Current public safety spectrum policy creates about 50,000 independent licensees, which causes a collective action problem. Because public safety communications users are balkanized into such a large group, they individually have little incentive to act in a group-oriented way to achieve interoperability. Additionally, because public safety agencies are subsidized with spectrum (rather than budgets that they could use to acquire their communications needs), and because they are not allowed to sell or lease their spectrum to willing commercial buyers, it is unlikely a private firm will be able to provide a competing wireless communications network.

If our goal is a national interoperable public safety communications network with the economies of scale and standardization that such a network entails, we should reconsider the policies of spectrum balkanization and apartheid. Public safety agencies should be made to face the true cost of the spectrum they use, either by allowing them to sell or lease their spectrum, or through a gradual process of reclamation by the federal government. At the same time, spectrum should be allocated for commercial provision of public safety communications. Licensees would be required to interconnect, and first responders must have priority on shared networks. At least two competing licensees would help prevent the establishment of a strong incumbent monopolist.

Walky-Talky and O2 show us that the private provision of interoperable public safety communications is possible and can act as a selective incentive that helps evade the collective action problem. In addition to this, RACOM shows us that first responders and commercial parties can share such a network, increasing economies of scale, spectral efficiency, and providing another financial incentive for entrepreneurs to offer a network. Entrepreneurial firms like RACOM have showed us the way to interoperability, we only need to change policy to achieve it.

(1.) Jim Dwyer et al., 9/11 Exposed Deadly Flaws in Rescue Plan, N.Y. TIMES, July 7, 2002, at A1. See also THE 9/11 COMMISSION REPORT 309 (2004), http://www.gpoaccess.gov/911/pdf/sec9.pdf [hereinafter 9/11 REPORT].

(2.) Dwyer et al., supra note 1, at A1.

(3.) Id.

(4.) Id.

(5.) Id. See also Editorial, Continuing Lessons of 9/11, N.Y. TIMES, May 20, 2004, at A26.

(6.) Douglas Page, Internet Protocol May Solve Communications Interoperability, FIRE CHIEF, Mar. 1, 2003, at 14.

(7.) THE UNITED STATES CONFERENCE OF MAYORS, INTEROPERAIBILITY SURVEY 6 (2004), http://www.usmayors.org/72ndAnnualMeeting/ interoperabilityreport_062804.pdf.

(8.) Id. at 7.

(9.) Id. at 8.

(10.) PUB. SAFETY WIRELESS ADVISORY COMM., FINAL REPORT OF THE PUBLIC SAFETY WIRELESS ADVISORY COMMITTEE TO THE FCC AND THE NTIA 5 (Sept. 11, 1996) [hereinafter PSWAC REPORT].

(11.) Viktor Mayer-Schonberger, Emergency Communications: The Quest for Interoperability in the United States and Europe, 7 INT'L J. COMM. L. & POL'Y 1, 2 (2002/2003), available at http://www.ijclp.org/7_2003/pdf/ mayer-sch-ijclp-artikel.pdf.

(12.) PSWAC REPORT, supra note 10, at 5.

(13.) Jennifer C. Kerr, Lack of Interoperability Hampers Agencies, EWOSS NEWS, Oct. 16, 2005, http://news.ewoss.com/articles/D8D985LO1.aspx.

(14.) Id.