USTelecom: US Spectrum Position in Ligado Fight 'Cannot Be Right'
U.S. arguments that spectrum licenses don't confer property rights protected by the Fifth Amendment undermine wireless providers' reliance on those licenses and could chill investment, according to USTelecom. In an amicus brief filed this week with the U.S. Court of Appeals for the Federal Circuit (docket 25-1792), USTelecom said that if spectrum licenses don't confer any protected property right, a federal agency could unilaterally override a wireless provider's right to use spectrum without triggering a right to compensation. The same goes for other authorized use of public assets, including federal lands, it said. "That theory is breathtakingly broad -- and it cannot be right."
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USTelecom filed its brief in support of Ligado's arguments about property rights in litigation claiming that DOD is infringing on the company's L-band spectrum rights (see 2310130003). The U.S. has an interlocutory appeal before the federal appellate court regarding a lower court's partial rejection of the government's motion to dismiss the Ligado suit (see 2411180023).
In its opening brief in August, the U.S. said the Court of Federal Claims erred in its decision on the motion to dismiss by holding that Ligado's complaint alleged a clearly identifiable property interest in its spectrum license. Nowhere in the Communications Act is there anything establishing that Congress intended for the FCC spectrum licenses to give license holders a Fifth Amendment property interest, the government said. While the Fifth Amendment's takings clause limits the taking of private property, spectrum and spectrum licenses "are quintessential public assets controlled by Congress and beyond the purview of private ownership for Fifth Amendment purposes."
The U.S. appellant reply brief is due Nov. 10.
In its amicus brief, USTelecom said the U.S. should "adopt a more common-sense rule that is ... more respectful of the certainty that wireless providers need in order to keep investing huge sums in spectrum licenses and the wireless networks that rely on them." Even if a licensee lacks a property interest to the FCC, the court still can't allow a different federal agency without any statutory licensing authority to take a license holder's right to use spectrum without respecting the FCC’s exclusive authority over spectrum.
USTelecom said it had no position on other issues in the case.
In a separate amicus brief, spectrum consultant Dennis Roberson laid out the basics of how spectrum works and the role of FCC licenses in preventing interference that could shut down wireless communications. The lower court's denial of the U.S.'s motion to dismiss Ligado’s takings claim "correctly appreciated that harmful interference on frequencies within, or adjacent to, those covered by an FCC license jeopardizes the utility of the license," Roberson told the appellate court.