As we reported earlier this week, three cases being argued at the Federal Circuit in February attracted amicus briefs. One of these cases is Ligado Networks LLC v. United States, a takings case. In it, the United States appeals a decision of the Court of Federal Claims, arguing it erred by exercising jurisdiction over the case and treating a license from the Federal Communications Commission as property under the takings clause. This is our argument preview.
In its opening brief, the United States argues “Congress established a comprehensive remedial scheme” that governs “takings claims” arising out of FCC licensing decisions. Because “Ligado’s complaint directly implicates an FCC licensing decision,” the government contends, the “FCC’s statutory authority to impose terms and conditions” on Ligado’s license controls. On that basis, the United States maintains the lower court “erred in finding that Ligado’s FCC license is a cognizable property interest for takings purposes.” According to the United States, the lower court also erred because it “did not engage in the sort of analysis” required by precedent to determine “whether a Federal license can constitute property for takings purposes.”
In its response brief, Ligado argues the lower court properly allowed its taking claims to proceed because “the government . . . has appropriated to itself Ligado’s exclusive FCC-granted property right to use its licensed spectrum.” According to Ligado, the appropriation “inflicted devastating consequences” on the company, ultimately “forc[ing] [the company] into bankruptcy.” Ligado further contends that it is “not challenging any decision or action of the FCC,” and instead seeks compensation based on an agency’s post-licensing conduct, making the jurisdiction of the Court of Federal Claims proper. Finally, Ligado emphasizes, the “FCC has no statutory authority to award compensation against the government for a takings clause claim,” leaving the Court of Federal Claims as the only forum capable of providing relief.
In its reply brief, the United States argues Ligado’s complaint “directly implicates an FCC licensing decision” and therefore concerns “exactly the kind of action that Congress has channeled through the statute’s comprehensive scheme.” The United States further contends the lower court erred in concluding the FCC’s license constitutes a cognizable property interest, emphasizing “no court” before the lower court’s holding “has held that an FCC license is property for takings purposes.” Additionally, the United States maintains, the lower court improperly premised its ruling “on the erroneous notion that a plaintiff can state a viable takings claim because the Government acted unlawfully.” That determination, the United States argues, “conflicts with a long line of decisions” of the Federal Circuit.
Two amicus briefs were filed in this case, both in support of Ligado Networks. Dennis A. Roberson, President and CEO of Roberson and Associates, a Technology Management Consultancy, filed an amicus brief. In his brief, Roberson explains why radio communications are susceptible to interference, and he argues FCC licenses are “[o]ne of the ways the FCC protects against interference.” In Roberson’s view, the lower court’s ruling “correctly appreciated” the potential impact of interference on frequencies, and a reversal “jeopardizes the utility of the license.”
A second brief was filed by The Broadband Association. In it, the Association argues wireless providers have “engage[d] in extraordinary levels of investment.” The Association contends providers must be able to “rely on the rights granted to them in spectrum licenses,” otherwise the “U.S. economy could face significant ramifications.” Furthermore, because spectrum licenses confer an “exclusive right to use particular bands of spectrum for a particular time,” the Association argues those licenses should be considered property interests subject to protection by the takings clause.
Oral argument in this case is scheduled to be heard on Wednesday, February 4 at 10:00 a.m. in Courtroom 201. We will keep track of the case and report on any developments.