Phil Kerpen

“America’s global leadership in mobile, and the strategic bandwidth advantage so many have worked hard to create, is being threatened by the looming spectrum crunch,” recently departed Federal Communications (FCC) Chairman Julius Genachowski said.

But while Genachowski asked Congress to authorize incentive auctions to free up spectrum, he also opposed language to require free and fair auctions to the highest bidder. Instead, he wanted the authority to micromanage auction rules to pick winner and losers, effectively handing spectrum to smaller players at below-market prices by excluding the largest carriers, AT&T and Verizon.

“The legislation makes clear that any party that is able to meet specific, traditional qualifications to hold a spectrum license is entitled to participate in the auction, and cannot be excluded,” Reps. Fred Upton and Greg Walden said when the spectrum auctions were included in the payroll tax extender bill they negotiated in early 2012. “Recent history has shown the Commission meddling in auctions and trying to ‘shape’ the market not only reduces federal revenue, it harms competition and spectrum policy. The new law puts a stop to this subjective and arbitrary practice. Congress sets the policy, not independent agencies. We will be watching closely, ensuring the FCC follows the law.”

Unfortunately, there are ominous signs that the FCC is contemplating doing precisely what the legislation sought to prevent: arbitrarily shaping auction outcomes. And Congress left the door open by including language clarifying the FCC retains the authority “to adopt and enforce rules of general applicability, including rules concerning spectrum aggregation that promote competition.”

And now the Department of Justice has weighed in with comments urging a rigged auction design.

The stakes are high for consumers and taxpayers.

Consumers have benefited tremendously over the past couple of decades as more spectrum has become available – while the industry has become more, not less concentrated. The capital required to deploy a modern mobile broadband network is staggering and there are large efficiencies of scale. So intense competition between a small number of competitors is to be expected, and serves consumers well.

Moreover, as the Phoenix Center for Advanced Legal and Economic Public Policy Studies showed in their landmark paper Wireless Competition Under Spectrum Exhaust, given the impending spectrum crunch, increasing the number of competitors will actually cause consumer harm: higher prices and more network congestion, as the largest carriers strain to meet demand.

Phil Kerpen

Phil Kerpen is president of American Commitment, a columnist on Fox News Opinion, chairman of the Internet Freedom Coalition, and author of the 2011 book Democracy Denied.

American Commitment is dedicated to restoring and protecting America’s core commitment to free markets, economic growth, Constitutionally-limited government, property rights, and individual freedom.

Washingtonian magazine named Mr. Kerpen to their "Guest List" in 2008 and The Hill newspaper named Mr. Kerpen a "Top Grassroots Lobbyist" in 2011.

Mr. Kerpen's op-eds have run in newspapers across the country and he is a frequent radio and television commentator on economic growth issues.

Prior to joining American Commitment, Mr. Kerpen served as vice president for policy at Americans for Prosperity. Mr. Kerpen has also previously worked as an analyst and researcher for the Free Enterprise Fund, the Club for Growth, and the Cato Institute.

A native of Brooklyn, N.Y., Mr. Kerpen currently resides in Washington, D.C. with his wife Joanna and their daughter Lilly.