Hastings Communications and Entertainment Law Journal


J. Armand Musey


This paper examines the role zoning rights and eminent domain may play in the Federal Communication Commission's ("FCC") challenge of reallocating underutilized television broadcast spectrum for use in significantly higher value mobile broadband applications. The government must find a way to reallocate the spectrum in an economically and legally efficient manner, balancing the interests of the politically powerful broadcasters and those of society as a whole. From a strictly legal perspective, the broadcasters have a relatively weak claim to property rights. However, the government has indicated it seeks an incentivized voluntary return of spectrum by the broadcasters, suggesting the government intends to effectively treat the broadcasters as though they have certain property rights to their spectrum licenses-specifically the right to control possession. Given the government's de facto recognition of elements of property rights of the broadcasters, the twin theories of zoning and eminent domain can inform a mutually acceptable solution between the government and the broadcasters. Based on traditional property rights theories, a threefold solution would allow the government to reallocate the spectrum in a manner that is fair to all parties. Specifically, this solution would consist of: (1) giving a payment to the broadcasters, (2) granting cable or satellite subscription subsidies to affected viewers, and (3) allowing the broadcasters some continued retransmission guarantees. Even if the government does explicitly use eminent domain and zoning as part of its strategy to reacquire broadcast spectrum, the awareness of this option creates a backdrop that may significantly shape the negotiation process.