Public easements in spectrum: a solution to protect the public interest.

• Author: Shields, Mary

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. Statutory and Regulatory Bases for Licensed and Unlicensed Spectrum B. A Shift to Property Law Concepts in Spectrum Management Policy C. The Elements of a Public Prescriptive Easement 1. Open and Notorious 2. Adverse and Under a Claim of Right 3. Continuous and Uninterrupted Use 4. Public 5. Other Considerations III. UNLICENSED VS. LICENSED DISPUTES IN THE PUBLIC PRESCRIPTIVE EASEMENT FRAMEWORK A. Open and Notorious B. Adverse and Under a Claim of Right C. Continuous and Uninterrupted D. Public E. Statute of Limitations F. Scope of the Easement IV. WHY THE PUBLIC PRESCRIPTIVE EASEMENT FRAMEWORK SHOULD BE ADOPTED A. Benefits 1. Public Interest 2. Equity 3. Uncertainty B. Potential Problems and Solutions V. CONCLUSION I. INTRODUCTION

A recent shift in Federal Communications Commission ("FCC") policy has favored stronger protection for unlicensed spectrum users, even when they encounter interference from licensed operators. In 2009, the predecessor to mobile satellite company LightSquared applied to the FCC for a modification to its license to operate in spectrum blocks adjacent to those used by unlicensed Global Positioning System ("GPS") devices. (1) In response, the GPS industry raised concerns about interference from the licensee's spectrum use that would be detrimental to the operation of GPS devices. (2) As a condition for transfer of the license to LightSquared, the FCC ordered LightSquared to meet certain build-out requirements, which included establishing a 4G mobile network. (3) Before LightSquared could begin building out its network, however, the FCC required LightSquared to show that its operations would not cause interference with GPS. (4) As of 2012, LightSquared had still failed to satisfy this requirement, and both the FCC and the National Telecommunications and Information Administration ("NTIA") found that LightSquared will not be able to meet its build-out requirements without interfering with GPS. (5) In March 2012, the FCC proposed suspending indefinitely LightSquared's authorization to use its license to build a 4G network. (6) Regardless of the outcome of this dispute, it is illustrative of the shift in FCC policy in recent decades to stronger protection for unlicensed spectrum operators.

The LightSquared matter highlights the tension between licensed and unlicensed spectrum uses. Part 15 of the FCC's Rules provides for the unlicensed use of certain bands of spectrum, subject to specific prescriptions. (7) Unlicensed use of spectrum is highly valuable to society, and has provided for the growth and widespread use of such wireless technologies as Wi-Fi, Bluetooth, and GPS. (8) However, use of unlicensed spectrum is not without costs. FCC regulations stipulate that unlicensed spectrum use must not cause interference to licensed users, and unlicensed users are not formally entitled to any protection against interference from other users, licensed or unlicensed. (9)

Conflicts between unlicensed and licensed users raise spectrum ownership issues (10) because of the process through which licenses are issued, and whatever rights those licenses may entail. 47 U.S.C. section 301 specifically states that spectrum licenses do not convey any rights of ownership, constituting an explicit proscription on the assertion of property rights in spectrum licenses. (11) After decades of advocacy by legal and economic scholars for a property approach to spectrum management, however, it seems the FCC is increasingly relying on common law property principles in its treatment of spectrum. (12) In the LightSquared--GPS case, the FCC appeared to recognize the long-standing operation of GPS devices in a certain frequency when it protected GPS services from interference, as it would for a licensed user. The FCC's recognition of a beneficial use and its protection of that use is similar to a court finding the existence of an easement in real property.

Of course, the FCC cannot adopt pure property law as a spectrum management regime, because doing so would violate a congressional prohibition on private spectrum ownership. (13) It would also entail some major shifts in settled rights and expectations. (14) Still, adoption of certain property law principles could help resolve some spectrum management issues. (15) Property law concepts could be particularly useful in resolving disputes between licensed and unlicensed users. This Note focuses on the application of the public prescriptive easement concept to certain unlicensed uses of spectrum. Part II provides background on current FCC regulation of unlicensed spectrum and the interaction between property law and FCC spectrum policy. Part III analyzes how the concept of easements could be applied to spectrum. Part IV argues that an easement framework should be adopted for unlicensed spectrum use and provides potential solutions to problems that could arise if the easement framework is utilized.

2. BACKGROUND

   1. Statutory and Regulatory Bases for Licensed and Unlicensed Spectrum

      Congress passed the Communications Act of 1934 ("the Act") in response to the problem of increasing radio interference. (16) The Act established the basis for spectrum management policy in the United States. (17) In the Act, Congress created the FCC and authorized it to allocate certain spectrum frequencies to operators via a licensing regime. (18) The license sets out the legal responsibilities and rights of the licensee. (19) Typically, the licensee agrees, among other things, that it will use its allotted spectrum for a specified service and that its spectrum use will not interfere with other licensed uses. (20) The law also protects licensees from harmful interference and provides means for adjudication of conflicts between users. (21) To enforce this protection, the FCC may require the interfering operator to correct its technology or cease operations; the Commission might also levy a fine for failure to comply with the license. (22)

      Spectrum use is not limited to licensed operators. In the Communications Act, Congress also granted the FCC authority to waive licensing; consequently, the FCC promulgated regulations to allow for certain devices to utilize spectrum without a license. (23) These devices are generally free to operate, subject to the rules laid out in Part 15 of the Commission's Rules, which are meant to prevent any harmful interference they might create. (24) For example, unlicensed devices are subject to technical rules governing device design, and operators may be required to alter the design or cease operating under order of the FCC. (25) Part 15 rules also make clear that unlicensed operators have limited regulatory rights, stating that they do not have any "vested or recognizable right to continued use of any given frequency by virtue of prior registration or certification of equipment," and must accept interference from other operators, whether licensed or unlicensed. (26) In other words, unlike licensees, unlicensed operators are not ensured any formal protections should interference impair the functionality of their services.

      Despite these limitations on unlicensed spectrum use, the public has widely adopted technology that utilizes unlicensed spectrum. (27) These technologies have become increasingly important to consumers and society at large. (28) Technologies that utilize unlicensed spectrum range from personal devices such as garage door openers and baby monitors to widely used communications and navigation services such as Wi-Fi and GPS. (29) Wireless local area networks, commonly called Wi-Fi networks, are a prime example of a ubiquitous unlicensed spectrum service that the public highly values. (30) Wi-Fi networks create wireless connections by operating on radio bands dedicated for unlicensed use. (31) Perhaps the most valuable function of Wi-Fi is wireless access to the Internet. (32) The public's increasing use of wireless devices to connect to the Internet has contributed to the growth of Wi-Fi use over the past decade. (33) As the proliferation of Wi-Fi-utilizing devices such as smartphones and tablets continues, Wi-Fi (and other unlicensed services) will continue to be a valuable resource to the public. (34)

      The FCC has enhanced access to unlicensed spectrum for approximately the past decade, recognizing its current and potential value. The FCC's actions accomplished this goal by permitting unlicensed operations in additional frequency bands, including so-called "white spaces," and lowering regulatory burdens for certain unlicensed operators. (35) The FCC has used at least two methods for decreasing regulatory burdens on unlicensed operators: relaxing enforcement of regulatory violations, and adopting rules that are favorable to unlicensed operators. (36) For example, the FCC removed some certification requirements of cognitive radio technologies in order to foster their development in 2005. (37) The following year, the FCC removed limitations on emissions of unlicensed ultrawideband devices ("UWB"). (38) In some conflicts between licensed and unlicensed operators, the FCC stated its intent to protect the unlicensed providers' interests over the licensed provider. (39) In the same Order authorizing higher UWB device emissions, the FCC rejected arguments from licensed providers that the new rules would infringe upon the rights established by their licenses. (40) In addition to the LightSquared--GPS dispute, the FCC recently waived certain operation requirements for Progeny, a licensed Location and Monitoring Service ("LMS") provider, on the condition that it show that its services would not interfere with Part 15 devices operating in the same frequency band. (41)

      Despite actions favoring unlicensed spectrum use, the FCC has neither proposed nor issued regulations eliminating or relaxing the Part 15 rules. Likewise, the FCC has not promulgated any rules that would protect unlicensed operators from...