Spectrum Licenses Create Property Rights: USTelecom

WASHINGTON, Oct. 9, 2025 – The Justice Department is arguing to federal judges that spectrum licenses don’t create a property right protected by the U.S. Constitution. A major broadband industry group isn’t happy about that.

“If that were right, any federal agency or actor could unilaterally usurp a wireless provider’s right to use spectrum without triggering the constitutional right to compensation,” USTelecom wrote in a brief filed Monday in the U.S. Court of Appeals for the Federal Circuit. “That theory is breathtakingly broad – and it cannot be right.”

The trade group, which represents major ISPs, mobile carriers, and suppliers, said wireless providers would be less interested in buying spectrum at auction if that were the case. 

Companies have collectively spent more than $230 billion on Federal Communications Commission spectrum auctions, and more than $700 billion on physical networks to provide service using that spectrum, according to USTelecom tallies. If the licenses underpinning that investment and allowing carriers to provide service were easily revoked, it would be “devastating” for the industry, the group wrote.

The case stems from a dispute between Ligado and the Defense Department. The FCC granted the company the ability to operate terrestrial 5G services on its L-band spectrum in 2020, but Ligado says DOD has been preventing it from accessing the airwaves. The department had raised concerns about interference with adjacent GPS bands.

The company sued in 2023, arguing it should be compensated for the government’s continued use of airwaves it has a license for. The government tried to have the suit dismissed, an effort that was partially denied before the government appealed up to the Federal Circuit.

'A secret national security program'

“The real reason for DOD’s effort to thwart Ligado is that DOD itself is using Ligado’s licensed spectrum to support a secret national security program,” the company wrote in a brief last month. 

“Thus, rather than cooperate with Ligado to implement the modest changes needed to allow Ligado to use the spectrum for 5G services as the FCC ordered, DOD has instead physically occupied the spectrum for its own purposes, ousting Ligado in the process,” the company wrote. “And Defendants seek to cover their tracks by persisting with spurious GPS interference claims that the FCC has already rejected.”

In an August filing led by Assistant Attorney General Brett Shumate, the DOJ said that since the spectrum itself is a public resource that the FCC licenses access to, licensees don’t actually own anything and don’t need to be compensated if the government seizes the same airwaves.

“There is nothing in the text of the Communications Act establishing that Congress intended for the FCC to grant a license holder a Fifth Amendment property interest when it issues a spectrum license,” the DOJ wrote. “Instead, the Communications Act makes clear that spectrum is a public asset, that no person has an independent right to own or use spectrum, and that any temporary spectrum use by a private party allowed by the Federal Government must flow from authority arising from the provisions of the Act.”

In its brief, USTelecom acknowledged that licensees' property interests can be limited by ownership conditions imposed by the FCC. 

“Even if that means a license holder may lack a property interest as to the FCC – a question not presented in this appeal – that would not allow a different federal agency with no statutory licensing authority to take the license holder’s right to use spectrum without respecting the FCC’s exclusive authority over spectrum,” the group wrote.

The group said the court should decide that an agency other than the FCC taking away a licensee’s spectrum rights should require compensation. USTelecom didn’t take a position on the other issues in the case.