It’s popular for ideologues to observe that radio, invented during the height of popularity of soc**l*sm, is owned by “the public” (i.e. in the U.S., our federal government). Nevertheless, as a matter of streamlining how the feds license radio frequencies (“license” itself being an important property law concept), it is defined, bought, and sold much like private property, and if that were not the case industries that use radio would resemble the industry in general of places like North Korea. (It would be much better if these “licenses” were recognized for what they are increasingly are and should become, namely long-term leases or even outright titles. But that is a discussion for another day).

So let’s apply to the LightSquared case an important principle of private property: adverse possession. My understanding (please correct if wrong) is that GPS technology had for many decades relied on the spectrum near its officially allocated spectrum being clean. Indeed, billions of dollars have been invested and large numbers of existing ground stations still rely on it. This was and is common knowledge in the industry — something LightSquared could and should have learned before investing in that spectrum. So even though it doesn’t have an official allocation of this spectrum, GPS has effectively homesteaded it, under the principle of adverse possession: it has come to rely on it, owners of the adjacent spectrum were on notice of this reliance, and they didn’t for a long period of time oppose it.

The third point might be argued. Have people desiring to use this spectrum have also been fighting for decades for the right to use it? This is where the analogy to adverse possession might break down, because under normal property law authorities would enforce property law in a timely manner (in this case prevent GPS technology from relying on the cleanliness of neighboring frequencies). Continued opposition would put the GPS people on notice that such opposition to their homesteading claims made such enforcement likely and stopped the statute of limitations clock so that adverse possession cannot apply.

Alas, instead of private property principles this board seems to be just a matter of the lobbying force of GPS vs. the lobbying force of LightSquared. It’s terrible, BTW, that this board operates under NASA “auspices”. GPS was developed by the U.S. Air Force for to solve very important and life-threatening problems of national security. It turned out, as it often does, that a solution to those important and practical military problems also solved important and practical civilian problems. So we now have a very large private sector industry of GPS ground stations (while the U.S. military continues to give the service away free to the world — a very interesting topic itself but also for another day). NASA had very little positive role in this process — it has been too busy pursing the economic fantasies of politicians. And now LightSquared gets to complain to NASA? Pathological. This issue should be decided according to property rights principles in the civilian courts, not by a bureaucracy where one can appeal to, of all people, NASA.