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Why Airwaves (Electromagnetic Spectra) Are (Arguably) Property

The issue of private property rights in the EM spectrum (airwaves) arises occasionally. To my knowledge there is not much systematic work on this topic; the David Kelley & Roger Donway’s 1985 monograph Laissez Parler: Freedom in the Electronic Media [Amazon; Google books] remains the best work on this, to my knowledge; and see also the Rothbard quotes appended below. (And, depressingly, almost every new libertarian discussion about this seems ignorant of this work; young libertarians seem ever-determined to re-invent the wheel and/or weigh in before they’ve done their homework.)

One Silas Barta keeps claiming that those who support property rights in airwaves cannot object to property rights in IP (see here, here, here, here, and here). My response to this argument, in brief, is: (a) so what? If this were so, then that just means we cannot support property rights in airwaves; (b) and I disagree with this since the airwaves are scarce resources; (c) the libertarian case for property in airwaves is not settled or very developed yet.

As to (c), again, I refer to Kelley and Donway’s monograph. As I have maintained for years, I lean in the direction indicated by Kelley and Donway–that individuals could on the free market homestead EM spectra.  Let me briefly outline how I think this could work in a free market. First, let me note the argument of those who object on the grounds that EM frequencies are mere numbers. But a given “airwave” is basically a bandwidth of radio frequencies over a given limited volume of the earth’s surface. Radio waves are electromagnetic waves that propagate at the speed of light (they are light; visible light is just one portion of the EM spectrum) through space. A signal can be transmitted by sending a modulated signal at a given wavelength (wavelength is inverse to frequency). For example AM means amplitude modulation: a given signal is modulated by varying its amplitude (magnitude). In FM, the frequency is modulated. It is impossible to have a perfectly precise (narrow) wavelength; when you emit a signal it is at a “center” wavelenght but extends to the “sides” to some degree, called the bandwidth. So a given broadcaster might send a radio signal over a certain bandwidth (set of wavelengths) surrounding a center wavelength or frequency such as 87.5MHz.

Now the case for property in airwaves is basically this, as I see it. It is based on the basic idea of homesteading (see my What Libertarianism Is). Under this approach, every scarce resource–things that can be contested; rivalrous things; resources that have exclusive use, so that use by me excludes use by you, and so on–is assigned an owner; that owner is the person who first appropriated or used the property in an embordering way–that is as an owner. It’s the first person to erect publicly visible boundaries that others can respect and see; he has a better claim to the resource than any latecomer.

Note that this approach implies that the type of use made of and the type of borders established for a given resource determine the scope and nature of property rights. Property rights in bodies are different than property rights in land and in cows and in an apple. One type of property right is an easement (servitude, in the civil law). Say people routinely walk over a path from point A (their village) to point B (watering hole). You can say they have homesteaded at least that use of the propety. If someone else builds a home there, they have to let the easement continue. A similar case can be made for airways (“tunnels” in the sky that airplanes pass thru) and shipping lanes.

Now, why does it have to be an easement over walking-space on land on the earth’s surface, established by the passage of human bodies? Why can’t it be an easement over the airwaves (viewed as a type of volume of space with respect to a given bandwidth), established by the passages of EM waves? After all, EM waves are physical, and the airwave/spectrum used is a scarce resource like a path on land is. It’s scarce because broadcaster 1 can’t use the spectrum if broadcaster 2 sends a transmission over the same carrier channel in the same physical region; there is interference. So: the idea is that the first broadcaster to use a given bandwidth in a given region would be regarded as having homesteaded this airwave or EM spectrum. Others who broadcast on it would be viewed as trespassers. [Incidentally, the reason transmission of an EM wave for information-signalling purposes is not normally trespass even though the waves pass through others’ bodies is that it does not interfere with their use of their bodies; for more on this approach to “invasion” see Rothbard’s classic air pollution article; by contrast, aiming high-intensity, coherent, power-carrying EM radiation–a laser beam–at someone could be aggression, since it could affect the physical integrity of their body or other property.]

I tentatively lean in favor of this argument. I suspect this is the type of argument, and practical use, that would tend to win out in a decentralized, property-respecting, dispute-settling society. But I am not 100% sure.

A final note. This type of situation is not analogous to IP because there is no “idea space” that is scarce and homesteadable. Instead the IP advocates want to install property rights in “the right to make a greater profit by virtue of artificial imposed scarcity,” something like this.

A few other discussions of this can be found here: B.K. Marcus, The Spectrum Should Be Private Property: The Economics, History, and Future of Wireless Technology; and comments here: http://blog.mises.org/archives/005577.asp#comment-101581; http://blog.mises.org/archives/006930.asp#comment-123893; and http://blog.mises.org/archives/007561.asp#comment-133579; http://blog.mises.org/archives/007561.asp. See also B.K. Marcus, “Radio Free Rothbard (discussing Rothbard’s concept of the “relevant technological unit”).1

Update: Rothbard was also, as usual, far ahead on this issue. Some of his comments on this are below:

From Man, Economy, and State:

Furthermore, if we understand by “air” the medium for the transmission of such things as radio waves and television images, there is only a limited quantity of wave lengths available for radio and for television purposes. This scarce factor is appropriable and ownable by man. In a free society, ownership of these channels would accrue to individuals just like that of land or animals: the first users obtain the property. The first user, Jones, of the wave length of 1,000 kilocycles, would be the absolute owner of this length for his wave area, and it will be his right to continue us­ing it, to abandon it, to sell it, etc. Anyone else who set up a transmitter on the owner’s wave length would be as guilty of in­vasion of another’s property right as a trespasser on someone else’s land or a thief of someone else’s livestock.[39][40]

[39]If a channel has to be a certain number of wave lengths in width in order to permit clear transmission, then the property would accrue to the first user, in terms of such width.

[40]Professor Coase has demonstrated that Federal ownership of airwaves was arrogated, in the 1920’s, not so much to alleviate a preceding “chaos,” as to forestall this very acquisition of private property rights in air waves, which the courts were in the process of establishing according to common law principles. Ronald H. Coase, “The Federal Communications Com­mission,” Journal of Law and Economics, October, 1959, pp. 5, 30-32.

[41]It is rapidly becoming evident that air lanes for planes are becoming scarce and, in a free society, would be owned by first users–thus obviating a great many plane crashes.

From Law, Property Rights, and Air Pollution:

The theory of homestead easements discussed earlier would require no restriction upon radio transmissions or on people’s low-level radiation. In the case of radio transmissions, Smith’s ownership of land and all of its appurtenances does not entitle him to own all radio waves passing over and across his land, for Smith has not homesteaded or transmitted on radio frequencies here. Hence, Jones, who transmits a wave on, say, 1200 kilohertz, homesteads the ownership of that wave as far as it travels, even if it travels across Smith’s property. If Smith tries to interfere with or otherwise disrupt Jones’s transmissions, he is guilty of interfering with Jones’s just property.[61]

Only if the radio transmissions are proven to be harmful to Smith’s person beyond a reasonable doubt should Jones’s activities be subject to injunction. The same type of argument, of course, applies to radiation transmissions.

[61] During the 1920s, the courts were working out precisely such a system of homesteaded private property rights in airwave frequencies. It is because such a private property structure was evolving that Secretary of Commerce Hoover pushed through the Radio Act of 1927, nationalizing ownership of the airwaves. See Ronald H. Coase, “The Federal Communications Commission,” Journal of Law and Economics 2 (October 1959): 1-40. For a modern study of how such frequencies could be allocated, see A. De Vany, et al., A Property System Approach to the Electromagnetic Spectrum (San Francisco: Cato Institute, 1980).

And here:

in the courts’ determination of radio frequency ownership in the 1920s, the extent of ownership depended on the technological unit of the radio wave — its width on the electromagnetic spectrum so that another wave would not interfere with the signal, and its length over space. The ownership of the frequency then was determined by width, length, and location. … American land settlement is a history of grappling, often unsuccessfully, with the size of the homestead unit.

See also Toward Property Rights in Spectrum: The Difficult Policy Choices Ahead, by Dale Hatfield and Phil Weiser (Cato 2006); and Milton Mueller, Property Rights In Radio Communication: The Key to the Reform of Telecommunications Regulation (Cato 1982).

Update: from Albert Esplugas: “Guatemala did actually implement something along these lines some years ago, which apparently has been an amazing success. The reform was designed and pushed by libertarian economists from Francisco Marroquin University. Here is a paper about Guatemalan experiment in privatization: Property Rights to Radio Spectrum in Guatemala and El Salvador: An Experiment in Liberalization.

[Mises and AgainstMonopoly cross-posts]

  1. See n. 5 of Kinsella, “On the Obligation to Negotiate, Compromise, and Arbitrate.” []
{ 8 comments… add one }
  • Fred McTaker August 22, 2009, 5:14 am

    Cross-posting this comment from Against Monopoly here:

    Unfortunately this line of analogy or argument breaks down completely in the face of modern radio technology, and has always been false in the face of (scientific) physical reality. The “scarcity” of radio frequency has always been a falsehood, but at least (compared to IP) it was a falsehood created by limits in current technology rather than current understanding.

    For about as long as we have understood light we have understood radio frequencies (RF) are a form of light, just well outside *human* visible spectrum. Unlike light in the human visible spectrum, the wavelengths are long enough to easily pass through and around large objects, which are more opaque to light at smaller wavelengths. Aside from that property of the longer wavelength spectrum, assigning scarcity or ownership to a radio frequency makes just as much sense as assigning scarcity or ownership to a color of visible light. That’s my long pretentious way of saying it makes no sense at all.

    The only reason anyone has gotten away with it thus far is the limit of our long-wavelength sensing and generation technologies. If you were to compare a radio antenna to a video camera sensor, the main difference is that the antenna has no surrounding occluding body, so that signals received can’t be “directed” or “oriented” through a focal point, unlike the focal point pin in a pinhole camera obscura. The antenna is completely exposed, and senses any light passing it, in all directions. There is also usually only a single antenna, as opposed to the millions of light sensors in a modern digital camera — so only one color can really be dealt with at a time by the one antenna. The same parallels exist between broadcast antennas and video projectors. The TV or Radio broadcast antenna is like a single bright light bulb of a single color — bright enough to overwhelm all lights of any similar color within projection range. Some broadcast antennas are even “bright” enough to reflect off of the Earth’s ionosphere and orbiting Moon. The 1-pixel light sensor with a matching color filter, which we call a home antenna, can only “see” it when it is this ridiculously bright. Handing out human visible colors to the highest bidder, and claiming that as the end of the property debate, would have the same effect on visible light as it has on the invisible light we call RF. We would all be blinded by the lights of the color monopoly holders.

    Radio communications standards like WiFi and WiMax, broad-spectrum sensing technology like Cognitive Radio, and multi-antenna sensing and sending technology like MIMO, all get us closer to the RF equivalent of pairing cameras and projectors together, for high bandwidth directed distance communications. These technologies have all been hampered by current RF color monopolies, and their blindingly bright RF lights.

    If you want to take the analogy over to the realm of sound waves (which is technically a much worse analogy, because sounds from different sources physically interfere with each other, where light from different sources do not interfere, which is the property that allows the camera obscura to work with light but not sound)… The current treatment of radio frequency would be like giving auction-winners megaphone monopolies, designated for use from a specific crossroad, 1 megaphone per crossroad in the country. Everyone else is left with their normal voices to speak. In essence, everyone else is silenced by the amplitude of noise at their local street corner. Only the megaphone monopolists are ever heard.

    We would never accept megaphone monopolies, because we are all born with ears to hear and voices to speak. We would never accept visible color monopolies (with the rare exception of a few overzealous IP lawyers — Google “T-Mobile AND Magenta”), because we are born with eyes to see them. Should we accept RF monopolies, just because we weren’t born with the right sensing equipment?

  • Gilles Lamoureux September 19, 2017, 1:18 pm

    What about trespassing ‘without permission’ regardless of whether it ‘interferes with the use of my body’. I don’t allow a smoker to smoke in close vicinity to me, and definitely not in my house. Can I not defend my right to disallow radio frequencies to pass through my house without my permission, which is clearly not a public venue? Please comment.

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