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Application of the Public-Trust Doctrine and Principles of Natural Resource Management to Electromagnetic Spectrum Patrick S

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Application of the Public-Trust Doctrine and Principles of Natural Resource Management to Electromagnetic Spectrum Patrick S Michigan Telecommunications and Technology Law Review Volume 10 | Issue 2 2004 Application of the Public-Trust Doctrine and Principles of Natural Resource Management to Electromagnetic Spectrum Patrick S. Ryan Katholieke Universiteit Leuven Follow this and additional works at: http://repository.law.umich.edu/mttlr Part of the Communications Law Commons, Internet Law Commons, Law and Economics Commons, and the Natural Resources Law Commons Recommended Citation Patrick S. Ryan, Application of the Public-Trust Doctrine and Principles of Natural Resource Management to Electromagnetic Spectrum, 10 Mich. Telecomm. & Tech. L. Rev. 285 (2004). Available at: http://repository.law.umich.edu/mttlr/vol10/iss2/1 This Article is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Telecommunications and Technology Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. APPLICATION OF THE PUBLIC-TRUST DOCTRINE AND PRINCIPLES OF NATURAL RESOURCE MANAGEMENT TO ELECTROMAGNETIC SPECTRUM PatrickS. Ryan* Cite as: Patrick S. Ryan, Application of the Public-TrustDoctrine and Principlesof Natural Resource Management to Electromagnetic Spectrum, 10 MICH. TELECOMM. TECH. L. REv. 285 (2004), available at http://www.mttlr.org/volten/Ryan.pdf IN TRODU CTION ...................................................................................... 287 I. THE WAY THE SPECTRUM IS PRESENTLY REGULATED AND W HAT IS WRONG WITH IT ................................................ 288 A. Command and Control...................................................... 288 1. Low-Power FM Radio ................................................ 289 2. One-Way Paging and Cordless Phones ....................... 291 B. Is Command And ControlAlways Bad, Or Is It A Matter of Application? ...................................................... 293 C. A Cacophony of Competing Regulations........................... 295 D. Recent Redirection in FCC Policy..................................... 297 E. A Short History of FCC Regulation of the Spectrum......... 299 1. Logic of the 1927 System ........................................... 299 2. The Spectrum Giveaways ........................................... 302 3. The Mistaken Focus on Lost Revenue from Giveaways: Instead Focus Should Be on L ost A ccess ................................................................. 305 4. Auctions Are Not a Panacea: Money Exchanges Hands while Spectrum Remains Idle .......................... 308 5. NextWave: Evaluating the Public Purpose of Auctions .................................................................. 310 II. THE RELATIONSHIP OF OTHER ASPECTS OF NATURAL RESOURCES LAW TO ELECTROMAGNETIC SPECTRUM ............... 312 A. Coase and Hardin:A Common Point of Departure for Environmentalistsand Spectrum Advocates Alike ....... 313 B. Sustainable Consumption .................................................. 315 C. Can ElectromagneticSpectrum Pollute?........................... 318 * Assistant Lecturer, Research Associate and Ph.D. Candidate, Katholieke Univer- siteit Leuven (Belgium); MBL, Universitat St. Gallen (Switzerland); JD, University of Texas at Austin; BA, MBA, Monterey Institute of International Studies. The author is grateful to many people for advice, encouragement, and comments, including: Carl Baudenbacher, Steve Bickerstaff, Michael Calabrese, Jos Dumortier, Kirk Fanning, Steve Katz, Lawrence Lessig, Wendy McCallum, Jim Snider, David Stevens, Peggy Valcke and Phil Weiser. Any errors and omissions are, of course, mine alone. 286 Michigan Telecommunications and Technology Law Review [Vol. 10:285 D. EcologicalImbalances and Harm Caused by Under Exploitation and Overexploitation of ElectromagneticSpectrum ................................................ 324 III. THE NEW TECHNOLOGIES UWB AND SDR: THE HIGH-TECH NAVIGATORS OF ELECTROMAGNETIC SPECTRUM ................................................ 327 A . U ltra Wideband ................................................................. 329 B. Software-Defined Radio .................................................... 333 IV . THE PUBLIC TRUST .................................................................. 334 A. Why the Public-Trust Doctrine Is Needed to Remedy the Present System of Regulating the Spectrum ................ 334 1. The "Prohibition on Conveyance" and Illinois Central..................................................... 338 2. The Conveyance-with-Impression Cases and the Jus Privatum Versus Jus Publicum Dichotomy ........... 342 B . The Sax Principles............................................................. 346 C . Eldred v. R eno ................................................................... 347 V. SOME EXAMPLES OF PUBLIC-TRUST JURISPRUDENCE .............. 349 A. Examples of Low-Tide Jurisprudence:Massachusetts and M aine.......................................................................... 350 1. The "M assachusetts Rule" ......................................... 351 2. The 1974 and 1991 Massachusetts Legislation .......... 352 3. Maine-Breaking with Tradition? ................ .. .. .. 354 B. High-Tide Examples: New Jersey and California............. 356 1. N ew Jersey .................................................................. 356 2. C alifornia .................................................................... 35 8 VI. SOME PRACTICAL THOUGHTS ON APPLYING THE PUBLIC-TRUST DOCTRINE TO THE ELECTROMAGNETIC SPECTRUM ................................................ 360 A. The Federal Courts Have Held That Ownership of the ElectromagneticSpectrum Is Vested in the Citizens .................................................................... 36 1 B. The Public Trust Has Evolved Into Federal Law .............. 361 1. U.S. v. 1.58 Acres of Land and In re Steuart Transportation Company ............................................ 362 2. Reaching Through the Property Clause ...................... 363 C. Is the Timing Right for a Public-Trust Lawsuit, and If So, Who Would Be the Plaintiffand What Relief Would She Seek? ................................................................ 364 C ON CLU SIO N ......................................................................................... 367 Spring 20041 Application of the Public-Trust Document [S]o neither can the king intrude upon the common property, thus un- derstood, and appropriate it to himself or the fiscal purposes of the nation, the enjoyment of it is a natural right which cannot be infringed or taken away, unless by arbitrarypower, and that, in theory at least, could not exist in a free government .... -Arnold v. Mundy' INTRODUCTION The Electromagnetic spectrum is among our most valuable natural resources. Yet while the past few decades have seen a rich body of envi- ronmental law develop for other natural resources, this movement has largely passed over the electromagnetic spectrum. This Article argues that to remedy that situation, the public-trust doctrine, which is now a cornerstone of modern environmental law,2 should be extended to the electromagnetic spectrum. This extension would not be a leap: the pub- lic-trust doctrine has already been used to guarantee the public access to various bodies of water (not just navigable water),3 and to protect recrea- tional lakes and beaches, wildlife preserves,5 and even the air.6 Electromagnetic spectrum is at least as valuable as these other resources, so access to it should be similarly guaranteed in order for the public to enjoy its full potential. This Article will first show that there is a problem with the way that the electromagnetic spectrum is regulated, that its regulation stifles inno- vation and has favored incumbents by wrongly giving them exclusive 1. 6 N.J.L. 1, 50 (N.J. 1821). 2. See Joseph L. Sax, The Public-Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MIcH. L. REV. 471 (1970) (being one of the most influential and most-cited law review articles ever written); see also Heidi Gorovitz Robertson, Methods on Teaching Environmental Law: Some Thoughts on ProvidingAccess to the Environmental Law System, 23 COLUM. J. ENVTL. L. 237, 254-56 (1998) (describing Sax's influence on environ- mental-law scholarship and discussing many of his proposals for teaching environmental law). 3. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988) (expanding the public- trust doctrine's application from navigable water to any body of water regardless of its prox- imity to navigable water). 4. Nat'l Audobon Soc'y v. Superior Court (Mono Lake), 658 P.2d 709 (Cal. 1983) (applying the public-trust doctrine to a lake's recreational and ecological public-trust values); see also Matthews v. Bay Head Improvement Association, 471 A.2d. 355 (N.J. 1984) (expand- ing the public-trust doctrine to mandate access over dry land on private property to a public intertidal zone). 5. Owsichek v. Alaska Licensing & Control Bd., 763 P.2d. 488, 493 (Alaska 1988) (enlarging the public-trust doctrine's application to "wildlife" on the basis of an interpretation of the public trust in the Alaska Constitution). 6. Save Ourselves, Inc. v. Louisiana Envtl. Control Comm'n, 452 So. 2d 1152, 1154 (La. 1984) (acknowledging that all natural resources, including air, are potentially covered by the public-trust doctrine). 288 Michigan Telecommunications and Technology Law Review [Vol. 10:285
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