The Law of Property and the Law of Spectrum: A Critical Comparison
15 Pages Posted: 28 Oct 2009
Date Written: 2004
This article critically considers the analogy between property law and rules pertaining to the use of spectrum. We start with Ronald Coase’s observation that both spectrum and land are scarce resources, and that the price system coupled with property rights provides an efficient means to allocate such resources. We note, however, that the analogy between property law and spectrum law is both overstated and underdeveloped. The analogy is overstated because spectrum is not, under the law, property per se. The analogy is underdeveloped because there are important parallels between the two resources, both in terms of their defining characteristics and the development of rights to these resources, yet many policy debates on spectrum fail to appreciate these parallels. The article argues that improving spectrum law will require, first, a better understanding of how it is similar to property, and second, properly defining rights to this resource. To contribute to this understanding, we briefly compare the law of property and the law of spectrum, highlighting the key characteristics that help promote efficient use. We also describe principles that are used to resolve disputes about the use of property and spectrum resources. We conclude that applying the principles of property law to spectrum may not be simple, but that efficiency gains may accrue from such an effort.
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