Spectrum Property Law 101

Abstract

Regulatory doctrine holds that radio spectrum licensees do not have private property rights in their licenses. In fact, as Shelanski and Huber show, most of the basic attributes of private property are possessed, in some measure, by all licensees. This practical reality has been obscured by the official ideology of public interest obligation attached to spectrum use, however. Public interest regulation has always been marginal in practical effect. But public interest ideology, reinforced by interest group politics, has prevented full realization of the market efficiencies that could be achieved from explicit recognition of spectrum property rights. The true “public interest” lies in removing obstacles to efficient use of the radio spectrum and allowing it to seek its highest valued use to the public. Spectrum auctions may help to move us in the direction of a less burdened market system, but they are only a step, not the destination.