Confronting the Problem of Adverse Possession In Spectrum RightsHarold Feld
Legal Director, Public Knowledge
Abstract: In property law, a trespasser can acquire a property right in direct contravention to the property right of the actual property owner by occupying the land for some period of years in an "open and notorious" manner. Although spectrum policy has never officially recognized this doctrine, the difficulties of enforcement and the reliance interest created by widespread violation have compelled the FCC and licensees to de facto recognize the doctrine by accommodating widespread infringement. Nor is the solution to the problem amenable to traditional enforcement without significant investment in resources by licensees and the public. This paper proposes two approaches to the problem. The first is to simply embrace adverse possession as a doctrine in spectrum rights management and recognize de jure what the FCC has long recognized in practice. The second is to require technological measures to be embedded in wireless technologies that make spectrum use rights an inherent part of the technology. Both proposals raise significant questions for the long-term viability of a pure property rights regime, and suggest that an emphasis on spectrum use rights may represent a more practical approach than pure property rights.