By Lindsey L. Tonsager. Full text here.
The United States is undergoing a communications revolution. Analog services are replacing digital, and broadband and mobile telephones are replacing dial-up and line lines. Businesses, educational institutions, consumers, and the public safety community increasingly rely on cheaper, faster, and always-on communications services that allow them to transmit voice, video, and data. However, many rural Americans are being left behind, in part because rural communications providers are unable to access the radio spectrum needed for these services. Recognizing this disparity, the Federal Communications Commission (FCC) is considering various ways to improve access to spectrum in rural areas. Such methods include geographic-area licensing, secondary markets, and keep-what-you-use regulations. This Note analyzes each of these methods and explains why they are insufficient.
In order to address this deficiency, this Note argues that the FCC should adopt a regulatory scheme modeled after the doctrine of adverse possession, in order to facilitate license transfer between existing licensees and rural communications service providers. Under this new regulatory regime, the rural provider would need to prove that its unauthorized use of the spectrum is actual, open and notorious, hostile to the true owner’s claim of right, exclusive, and continuous for a statutorily prescribed amount of time. By analyzing the different economic and social positions of national and rural providers, this Note explains why rural providers would be more able to provide communications services in rural areas under the proposed adverse possession model. The Note also discusses other benefits an adverse possession regime would offer, and concludes that enacting the proposed scheme would increase access to spectrum and enhance communications services in rural areas.