Re: Abstract forms of property

Michael S. Lorrey (
Tue, 12 Jan 1999 17:09:52 -0500 wrote:

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

Well, the original point of debate regresses back to the original land grants. Some here in the US are pre-Revolutionary, while others are post revolutionary, and are thus structured diffferently. Most post revolutionary land grants were specifically surface grants, unless mineral and water rights were included specifically. Since electromagnetic spectra were not seen as a form of property (or even to exist) until after many of these grants were made, it follows that all grants but those which were blanket grants of sovereignty (of which I don't think we've ever made any, except maybe for some Native American tribes) retained such rights to the sovereign power, i.e. the federal or state government. Similarly, since air travel post dates the assignation of most all land grants or land grant legislation, the atmosphere was not seen as a property that was grantable, however the ocean was not grantable either, even though the federal government retained sovereignty out to 3 miles up until recently, merely because that was the farthest distance that a cannon could shoot a cannonball in the year that the 3 mile convention was adopted. The airways have been seen merely as a legal extension of the waterways, which the government retains sovereign control over. They are a common property which must be maintained but is very difficult to divvy up privately yet retain maintainability as an ecosystem unless there is a single owner or owners association which retains some sort of sovereignty over the members.

> 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
> kilometers
> >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."

Yes. Tesla had built his 400 foot tall power transmission tower on Long Island long before any federal body deemed it necessary to regulate tower height or electromagnetic transmissions across property. If it were not for Telsa's socialistic attitudes ticking old JP off, JP Morgan might have succeeded in making radio transmission of power the standard method for a time, especially considering how much of a hold he had on the federal government. We would all have kilowatts flowing through our bodies at a level much higher than the puny fields generated by high power lines today.

> 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.

Well, even the Canadian broadcasting stations on the border have to have an FCC permit to broadcast into US airspace, though its usually a give and take situation, where the Canadians give us bandwidth to broadcast into their airspace as well...

> >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?

I would separate electromagnetic homesteading from surface property homesteading, treating them as entirely separate properties, even though in 3d space they overlap, just as is done now. Your broadcast power describes your territory.

Mike Lorrey