Work in Progress

-- By GerryMoody - 27 Feb 2008

Public Trust Doctrine and Electromagnetic Spectrum

The public trust doctrine has the potential to undo the Federal Communication Commission’s (FCC) misallocation of electromagnetic spectrum to private communications companies. Both the Supreme Court and President Bush have called spectrum a scarce natural resource, and the FCC grants its licenses to communications companies whom commentators claim hold hold them as "public trustees," or as the Supreme Court put it, "proxies for the entire community . . . ." This paper will argue that advances in technology make the public trust doctrine applicable to the federal regulation of spectrum, especially as spectrum auctions further entrench the property-like interests of broadcast companies in their exclusive licenses to use particular frequencies. To put it simply, we no longer need the federal government to appoint trustees to use and access our most valuable natural resource, the one that enables the greatest variety of speech. And we must beware as these trustees become more and more like de facto owners of However, as discussed below, there are both legal and functional impediments to using the public trust doctrine in either federal or state court. While acknowledging its shortcomings, the public trust doctrine is so rhetorically powerful that it should be discussed in order to generate political opposition to a regulatory regime that gives to the few exclusive access to a natural resource that can now be used by the many.

Patrick S. Ryan Application of the Public-Trust Doctrine and Principles of Natural Resource Management to Electromagnetic Spectrum

Free Speech and Electromagnetic Spectrum

Yochai Benkler and Lawrence Lessig Net Gains: Will technology make CBS unconstitutional? New Reupblic, Dec 14, 1998

Public Trust Doctrine as Constitutional Law

James L. HuffmanFish Out of Water: The Public Trust Doctrine in a Constitutional Democracy

Joseph L. Sax The Public Trust Doctrine in Natural Resources Law

Michael C. Blumm PUBLIC PROPERTY AND THE DEMOCRATIZATION OF WESTERN WATER LAW: A MODERN VIEW OF THE PUBLIC TRUST DOCTRINE

Charles F. Wilkinson THE HEADWATERS OF THE PUBLIC TRUST: SOME OF THE TRADITIONAL DOCTRINE

Dale B. Thompson OF RAINBOWS AND RIVERS: LESSONS FOR TELECOMMUNICATIONS SPECTRUM POLICY FROM TRANSITIONS IN PROPERTY RIGHTS AND COMMONS IN WATER LAW

Carol Rose The Comedy of the Commons: Custom, Commerce, and Inherently Public Property

Subsection B

Yochai Benkler Free As The Air To Common Use: First Amendment Constraints on Enclosure of the Public Domain

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Section II

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Subsection B

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