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

Abstract:     
Electromagnetic spectrum is among our largest natural resources. However, while the past few decades have seen a rich body of environmental 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, should be extended to electromagnetic spectrum. This extension would not be a leap: the public-trust doctrine has already been used to guarantee the public access to various bodies of water (not just navigable water), and to protect recreational lakes and beaches, wildlife preserves, and even the air. 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 innovation and has favored incumbents by wrongly giving them exclusive access to a natural resource at no charge, and that the situation has been exacerbated by mistakenly assuming that auctions are a panacea for past spectrum-allocation problems. The article will then argue that the public-trust doctrine, as well as other more general concepts borrowed from environmental-law scholarship - such as sustainable consumption, electromagnetic pollution, and ecological imbalance - should be imported into a new spectrum-management paradigm. Two technologies, Ultra-Wideband and Software Defined Radio may be well-suited for a new regulatory paradigm that is freer than the one that the spectrum has always had, and that provides for access to the spectrum's being guaranteed by the public-trust doctrine.

Number of Pages in PDF File: 88

Keywords: Public trust doctrine, electromagnetic spectrum, ultra wideband, software defined radio, nextwave, sustainable consumption, joseph sax, illinois central

JEL Classification: K11, K23, K33, L83, L97, L99

Accepted Paper Series