Conference Agenda

Modern courts and commentators have struggled to determine whether regulatory entitlements are legally recognized property. Among the various forms to confront our legal system, rights to the radio spectrum are among the most consequential—and increasingly the most contested. Where spectrum licenses lie along the property–privilege divide is being actively debated in the largest takings claim in American history, in policy fights following Congress’s efforts to repurpose spectrum, and in response to government threats directed at broadcast media. In the government’s view, interests in the airwaves are mere regulatory privileges they may revoke or alter at will. For licensees, their rights are full-fledged property interests protected by the Takings Clause and Due Process Clause.

This Article addresses the property question by tracing more than two centuries of jurisprudence. Drawing on the English legal tradition, early American courts distinguished between ownership of a physical resource and vested rights to operate a public service upon it. The latter arose through government grants of “public franchises”—government-conferred privileges to perform services of public importance. Although subject to regulation, these franchises vested their holders with private rights courts treated as constitutionally protected property. This logic developed most prominently in the public utility and transportation infrastructure contexts, both of which strongly shaped telecommunications regulation. Legislative history and subsequent policy treatment of spectrum licensing reflect that wireless operators were widely perceived as modern-day public franchises.

Building on this historical framework, the Article argues that spectrum licenses give rise to constitutionally protected private property interests in American law. In the process, it makes three contributions to the literature. First, it identifies overlooked historical guideposts for distinguishing public privileges from vested private rights in an increasingly blurred property system. Second, it clarifies the constitutional status of regulatory property in the Internet era, along with providing some definiteness to the public interest. And third, it illuminates the respective roles of Congress, agencies, and courts in shaping these entitlements amid reordering of administrative law.