II. Spectrum Management Institutions in the United States1

The Communications Act of 1934 established the legal basis for spectrum management in the United States. The act created the Federal Communications Commission (FCC) as the agency responsible for licensing all private sector and non-federal-government use of the radio spectrum. The FCC is an independent regulatory agency (that is, it is not part of the executive branch) and its five members are appointed for five-year terms by the president with the advice and consent of the Senate. Although the FCC shares certain regulatory functions with agencies of the individual states, it has exclusive jurisdiction over non-federal-government spectrum management issues. The FCC carries out its responsibilities through procedures set forth in the act and in more general statutes governing the administrative procedures used by federal agencies. These procedures, referred to generically as rulemaking proceedings, require the agency to notify the public of proposed actions; to allow opportunities for public comment; to provide reasoned, written decisions based upon the public record; and to permit appeals of those decisions to the federal court system.

The act authorizes the FCC to regulate non-federal-government use of the radio spectrum in the public interest, but it reserves for the president the authority to assign radio frequencies for use by the federal government itself. The president, in turn, has delegated this responsibility to the secretary of commerce and, thence, to the administrator of the National Telecommunications and Information Administration (NTIA), an agency within the U.S. Department of Commerce, which is an executive branch agency.2 The NTIA coordinates the federal government's use of its portion of the radio spectrum with the advice of the Interdepartmental Radio Advisory Committee (IRAC). The procedures used by the NTIA and IRAC, which are heavily engineering oriented, involve formal coordination among affected agencies. Although secrecy is clearly warranted when national security issues are involved, the processes utilized in managing the federal government's use of the spectrum have been criticized for their lack of public visibility, input, and accountability. Recent legislation has sought to correct these perceived deficiencies, among other things. It is beyond the scope of this paper to discuss the spectrum management procedures used by the NTIA and IRAC; instead this paper focuses primarily on the procedures used by the FCC in managing non-federal-government use of the spectrum.