LightSquared challenges FCC ruling to deny operation, cites Fifth Amendment

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LightSquared, the Reston, Va. company that had planned to create a nationwide 4G LTE wholesale data network until its operations plans were denied by the Federal Communications Commission, has filed a public comment (.pdf) with the FCC challenging the agency's right to keep it from operating. The wide-ranging challenge claims that the public interest would be harmed by not allowing LightSquared to provide broadband service nationally, and that the FCC violated the Administrative Procedures Act (which governs how federal agencies operate). LightSquared also claims the decision has violated its contracts with the FCC. The company recently hired a high-profile legal team to help press its claims.

Finally, LightSquared is claiming that the FCC is being unfair in that the agency not only issued a permit to use the frequencies, but encouraged LightSquared, only to later change its mind. LightSquared's primary claim is that GPS receivers don't deserve protection from interference since they are an unlicensed services. LightSquared's response does not address the substantial public interest involving the tens of millions of GPS users who would lose service should LightSquared's network begin operating, nor the cost to rescue workers, the airlines and the military.

LightSquared initially won a spectrum auction for a frequency band adjacent to the frequencies used by GPS. That frequency band was originally designated for mobile satellite use, but LightSquared asked for, and received, permission to convert the use of the band to 40,000 terrestrial high-power transmitters. It's those high-power transmitters that would overwhelm the highly sensitive receivers used by GPS devices.

LightSquared's constitutional claim is based on the Fifth Amendment, which reads in part, "No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." However, LightSquared's response does not take notice of the fact that the airwaves are a public resource, and that the auctions don't convey ownership of the frequencies, but rather the exclusive right to use them.

LightSquared does however propose that if the FCC won't allow it to use the spectrum it won in the auction, then the FCC should provide it with alternate spectrum that would not interfere with GPS. Considering that the FCC is unlikely to change its mind, and that Congress has passed and the president has signed legislation that would prohibit LightSquared's use of the spectrum, the spectrum swap is ultimately the heart of LightSquared's filing. In this, the company has a point, contending that since it's not allowed to use the frequencies it bought the rights to in it auction, it should be allowed to use something else.

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