Re: Re: Abstract forms of property
Thu, 14 Jan 1999 14:29:30 EST

Robin and I continue our exploration the spectrum issue. I wrote:

>>[T]he question becomes, if we want to pursue [Robin's] 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

Robin replied:

>No, I think an analogy is someone with only a 3 meter home complaining that
>their property rights had been violated by FAA-approved planes flying over
>at 1000m. This seems closest to me to your claim that the use of infrared
>radiation in fireplaces centuries ago gave people the rights to all radio
>frequencies on their property today, making FCC allocation of such spectrum

I said merely that our long and peaceable use of the spectrum puts the burden on the FCC to explain why it now has a valid claim to particular parts of it. Separately, I argued that the FCC has no valid claim to one's peaceable use of spectrum that does not interfere with anyone else's prior use nor to uses prior to the FCC's claims. Your counter-interpretation of the hypothetical speaks only to the first point, not the second.

Regarding the second, I propose two hypotheticals based on height that would fit. First, I build a 10m tower on my property (read "use spectrum") that does not interfere with anyone else's use and enjoyment of their property--including planes, etc. No "Federal Height Commission" could rightfully tear down my tower on mere grounds that it claims title to all airspace above 9m--at least not without admitting that it was taking my property for public use. This hypo covers the FCC's bar on private, noninterfering, low power uses of the spectrum.

Second, I build in the year 1900 a 100m tower on my property, one that does not interfere with any prior-existing easement in the airwaves (there being no air travel to speak of in that era). The Federal Height Commission comes along in 1927 and demands that I tear down the tower to accomodate the advent of airplanes. Such a demand, regardless of its utility to the public, would violate my property rights in the tower and require (at least) compensation under the 5th Amendment. This hypo covers the FCC's claim on all the spectrum--even parts that were in private use at the time of the Radio Act of 1927.

Robin and I also discussed the merits of particular sorts of arguments one might use to resolve these sorts of questions, most notably those that rely on counter-factual negotiations between property owners. I wrote:

>>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. . . .

>I can sort of understand your "but they stole it" objection to spectrum
>property. And I could understand conseqentialist arguments that other
>ways of dividing property would have better consequences. But if your
>objection here isn't one of these types, I don't understand what it is.

If I understand the form of argument under consideration, it aims at justifying a particular mode of spectrum allocation on the basis of hypothetical consent. I object that it relies counterfactual assumptions about all property owners agreeing to a particular allocation of spectrum rights. Property owners do not and almost certainly will not reach any such agreement. It will not suffice to justify the FCC's treatment of spectrum, or for that matter a property-rights (as opposed to trademark-rights) based approach to spectrum allocation, to argue that "property owners *might* have agreed to it."


T.0. Morrow