Re: Abstract forms of property
Tue, 12 Jan 1999 12:59:34 EST

To my claim that,

>>...It makes little sense to say
>>that the FCC has no claim over *one* frequency of radiation that I use
>>on my property . . . while it does over another frequency . . . .

Robin replied,

>Consider the analogy of altitude. Just because people have long had control
>over the space a few meters above and below the ground, does that imply
>that they have absolute rights to the space hundreds or thousands of
>above and below the ground? By the same argument you make against spectrum
>rights granted by the FCC it would seem you should complain that the FAA
>granted airplanes the right to fly high above ground properties

"[A]bsolute rights" is a red herring, as I have never claimed that anyone has an absolute right to use the spectrum. Your right to swing your fist stops where my nose starts, and all that. So the question becomes, if we want to pursue your analogy, whether the early Federal Aviation Administration would have violated property rights in saying to someone who had been peaceably enjoying a 1000m tower before the advent of air travel, "We claim all airspace above 100m. Tear down your tower."

You might support the FAA's claim as a matter of public necessity and happily invoke the takings clause, but tearing down the tower would at any rate violate property rights. The question of building a 1000m tower *now* is distinctly different, given that prior uses of the airspace support a claim to an easement. But I never claimed with regard to spectrum that anyone had an absolute right to broadcast even on their own property; the question is whether you have a right to do so absent interference with prior uses of that spectrum. I say you do. The FCC (incredibly) says you do not.

>>I have
>>throughout argued *against* establishing property rights in the spectrum. .
. .

>I'm not sure what you mean by "establish." Would you object if people
>who owned property of the form you approve of wanted to contract to redivide
>their property, creating "property" in spectrum in the process?

I have yet to hear a description of such a process that would, absent agreement between all owners of all property in a broadcast area, recreate something analogous to trademark rights in the spectrum. At any rate, it seems like an awfully painful and utterly impractical way to reach the same result and carries little weight in terms of justification. Otherwise one could argue for, say, regulating the peaceable enjoyment of blue bottles on grounds that *if* all property owners in North America agreed to limit the use of blue bottles on their property then they *might* thereafter contract to make that right alone transferable. What is the point of such an argument?


T.0. Morrow