Ligado Networks LLC v. United States

• Court: Court of Appeals for the Federal Circuit
• Decided: March 9, 2026
• Docket: 25-1792
• Status: Unpublished

Opinion

Case: 25-1792 Document: 55 Page: 1 Filed: 03/09/2026

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

LIGADO NETWORKS LLC, Plaintiff-Appellee

v.

UNITED STATES, Defendant-Appellant ______________________

2025-1792 ______________________

Appeal from the United States Court of Federal Claims in No. 1:23-cv-01797-EJD, Senior Judge Edward J. Damich. ______________________

Decided: March 9, 2026 ______________________

DONALD B. VERRILLI, JR., Munger, Tolles & Olson LLP, Washington, DC, argued for plaintiff-appellee. Also repre- sented by GINGER ANDERS; EVAN JENNINGS MANN, San Francisco, CA; DAVID COON, YELENA KONANOVA, PHILIPPE SELENDY, Selendy Gay PLLC, New York, NY; HARRIS FISCHMAN, MARTIN FLUMENBAUM, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY; KEVIN F. KING, Covington & Burling LLP, Washington, DC.

NATHANAEL YALE, Commercial Litigation Branch, Civil Division, United States Department of Justice, Case: 25-1792 Document: 55 Page: 2 Filed: 03/09/2026

Washington, DC, argued for defendant-appellant. Also represented by BORISLAV KUSHNIR, PATRICIA M. MCCARTHY, BRETT SHUMATE. ______________________

Before MOORE, Chief Judge, TARANTO and STOLL, Circuit Judges. TARANTO, Circuit Judge. We have before us a decision of the United States Court of Federal Claims (Claims Court) in this Takings Clause case against the United States based on a radio license is- sued to Ligado Networks LLC under the Communications Act of 1934, as amended, 47 U.S.C. §§ 151–646. The Claims Court declined to dismiss the case in the respects now before us, and we accepted the government’s request for interlocutory review upon the certification of the Claims Court under 28 U.S.C. § 1292(d)(2). We now decide only a subset of the issues presented to us. We conclude, in agree- ment with the Claims Court, that it had jurisdiction and that the takings claim met the authority requirement for such a claim. But we do not decide the key issue of whether the requirement of a property right protected by the Tak- ings Clause has been met here, or the follow-on categoriza- tion issue whether a physical taking has been alleged. As to those issues, we conclude that the parties have pre- sented arguments at too high a level of generality and with insufficient focus on the specifics of the statute at issue and of actions taken under it. We vacate the Claims Court’s rulings regarding those issues and remand for the parties to litigate the key issues through an analysis having the focus required for a fully informed decision about whether the government or Ligado is correct. Case: 25-1792 Document: 55 Page: 3 Filed: 03/09/2026

LIGADO NETWORKS LLC v. US 3

I In April 2020, the Federal Communications Commis- sion (Commission or FCC), acting pursuant to the Commu- nications Act of 1934, 47 U.S.C. §§ 307, 309, granted to Ligado Networks LLC (hereafter “Ligado,” also referring to its predecessors-in-interest) authority to provide certain wireless services using specified radio frequencies (spec- trum): 1526–1536 MHz, 1627.5–1637.5 MHz, and 1646.5– 1656.5 MHz. Order and Authorization, ¶¶ 1, 159, FCC 20- 48, 35 FCC Rcd. 3772, 3773, 3842 (2020) (2020 Order). That Order followed a multi-step process, commencing in 2004, to add authorization for an ancillary terrestrial com- ponent (ATC) to Ligado’s previous authorization for mobile satellite services (MSS) operation. Id. ¶¶ 4–17, 35 FCC Rcd. at 3774–83. The Commission granted the authoriza- tion (which we, like the parties, interchangeably call a li- cense) despite opposition over many years from the National Telecommunications and Information Admin- istration (NTIA)—the agency within the Department of Commerce charged with, among other things, representing the telecommunications interests of non-FCC federal agen- cies such as the Department of Defense (DoD)—that fo- cused on potential interference with Global Positioning Satellite (GPS) services. Id. ¶¶ 5–17, 35 FCC Rcd. at 3775– 83. But the Commission expressly made the grant of au- thority conditional on Ligado’s meeting various conditions, which included certain specified coordination with non- FCC federal agencies (including, as especially relevant here, DoD). Id. ¶¶ 131–55, 159, 35 FCC Rcd. at 3835–42. The conditions were supplemented by Congress on January 1, 2021, which made Ligado’s ability to offer service even more dependent on decisions by DoD. See William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, §§ 1661–64, 134 Stat. 3388, 4073–76 (2021) (codified at 10 U.S.C. § 2281 note) (2021 NDAA). Case: 25-1792 Document: 55 Page: 4 Filed: 03/09/2026

In October 2023, Ligado filed an action against the United States in the Claims Court under the Tucker Act, 28 U.S.C. § 1491. Complaint, Ligado Networks LLC v. United States, No. 23-1797 (Fed. Cl. Oct. 12, 2025), ECF No. 1 (Complaint). Ligado stated that it had not been able to launch its services as a result of actions of non-FCC fed- eral agencies after the 2020 Order, and, invoking the Tak- ings Clause of the Fifth Amendment, Ligado sought damages for what it alleged to be an uncompensated taking for what it asserted was a property right it had relating to the spectrum at issue based on the 2020 Order. Ligado does not press claims based on government actions or rights held preceding the 2020 Order. The complaint fo- cused on what we summarize, for present purposes, as two forms of government action assertedly effecting a taking: (a) use of the spectrum at issue by DoD itself; and (b) non- cooperation by DoD, NTIA, and Commerce with Ligado’s efforts to meet the conditions for commencing service. Lig- ado also asserted a taking based on Congress’s enactment of the 2021 NDAA, but that claim is not now before us. Ligado asserted four takings claims. It asserted (1) a “physical taking” based on DoD’s use of spectrum within and/or adjacent to Ligado’s licensed portion, Complaint at ¶¶ 134–42, citing, e.g., Cedar Point Nursery v. Hassid, 594 U.S. 139, 148 (2021); (2) a “categorical taking” based on the deprivation of all “economically beneficial use” of the as- serted property, Complaint at ¶¶ 143–47, citing, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 (1992); (3) a general “regulatory taking,” Complaint at ¶¶ 148–53, citing, e.g., Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124 (1978); and (4) a “leg- islative taking” based on the 2021 NDAA, Complaint at ¶¶ 154–60, citing, e.g., Penn Central, 438 U.S. at 124. The government moved to dismiss on jurisdictional and merits grounds, invoking Rule 12(b)(1) and (6) of the Rules of the Court of Federal Claims, but on November 18, 2024, the Claims Court mostly disagreed with the government’s Case: 25-1792 Document: 55 Page: 5 Filed: 03/09/2026

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contentions. J.A. 1–13. The Claims Court rejected the gov- ernment’s contention that the Communications Act’s reme- dial scheme displaces the jurisdiction conferred by the Tucker Act, explaining that Ligado’s complaint did not challenge the Commission’s 2020 Order or any other Com- mission decision, also noting that it was not aware of any law permitting the Commission to award monetary dam- ages for the alleged DoD occupation of Ligado’s licensed spectrum. J.A. 7–10. The Claims Court also ruled that Ligado’s license could give it a property right against non- FCC federal agencies even if Ligado has no property right against the Commission and that DoD’s occupation of the spectrum at issue might constitute a “physical taking.” J.A. 8–9, 12. The Claims Court further agreed with Ligado that the actions of the government agencies were “author- ized” for Takings Clause purposes under our precedent. J.A. 10–11. Finally, in its one ruling for the government, the Claims Court held that Ligado had no viable legisla- tive-taking claim, reasoning that “[j]ust as the FCC can ter- minate a license without effecting a taking” (because Ligado lacks a property right in a license against the Com- mission itself), “Congress’s limitations on the license, even if they effectively terminate it, cannot be challenged as a taking” because the license cannot confer “property vis-à- vis Congress.” J.A. 11–12. Based on that analysis, the Claims Court denied the Rule 12(b)(1) motion and, as to the Rule 12(b)(6) motion, denied the motion except as to the claim of a legislative taking, which the court dismissed. In January 2025, the government asked the Claims Court to certify that four issues met the standard for inter- locutory appeal under 28 U.S.C. § 1292(d)(2): (1) whether the Claims Court has subject-matter jurisdiction under the Tucker Act; (2) whether the actions of the non-FCC federal agencies alleged to effect a taking were authorized; (3) whether Ligado has a property right for Takings Clause purposes against the non-FCC federal agencies and their challenged actions; and (4) whether DoD use of the Case: 25-1792 Document: 55 Page: 6 Filed: 03/09/2026

spectrum could constitute a physical taking if Ligado had a property right and DoD use was authorized. Motion to Certify Interlocutory Appeal, Ligado Networks LLC v. United States, No. 23-1797 (Fed. Cl. Jan. 16, 2025), ECF No. 37 at 6–18. Ligado did not seek certification of the dis- missal of the legislative-taking claim. See Opposition to Motion to Certify Interlocutory Appeal, Ligado Networks LLC v. United States, No. 23-1797 (Fed. Cl. Jan. 30, 2025), ECF No. 38. In February 2025, the Claims Court granted the gov- ernment’s motion to certify the interlocutory appeal. J.A. 4. The government then petitioned this court for permis- sion to appeal the interlocutory order. Petition for Permis- sion to Appeal an Interlocutory Order, Ligado Networks LLC v. United States, No. 25-120 (Fed. Cir. Mar. 10, 2025), ECF No. 2. Ligado opposed the petition, while, in the al- ternative, cross-petitioning for interlocutory review of the Claims Court’s dismissal of the legislative-taking claim. Opposition to Petition for Leave to Appeal and Conditional Cross-Petition for Leave to Appeal, Ligado Networks LLC v. United States, No. 25-120 (Fed. Cir. Mar. 20, 2025), ECF No. 6 at 4. In May 2025, we granted the government’s pe- tition for interlocutory appeal and denied Ligado’s cross- petition. Ligado Networks LLC v. United States, No. 25- 120, 2025 WL 1443750 (Fed. Cir. May 20, 2025); J.A. 15– 16. We have jurisdiction under 28 U.S.C. § 1292(d)(2). We review de novo the Claims Court’s denial of the motion to dismiss for lack of jurisdiction where (as here) the motion does not dispute the alleged facts and the denial of a motion to dismiss for failure to state a claim. Roman v. United States, 61 F.4th 1366, 1370 (Fed. Cir. 2023); Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009). II We first address whether the Communications Act dis- places the Claims Court’s jurisdiction under the Tucker Case: 25-1792 Document: 55 Page: 7 Filed: 03/09/2026

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Act. We next evaluate whether Ligado alleged authorized government conduct. We then address the issue of whether Ligado has a property interest against the challenged ac- tions of the non-FCC entities, concluding that the issue has not been developed with sufficient specificity to justify a resolution of the issue by this court at present. Finally, we conclude that the physical-taking issue should return to the Claims Court along with the property-right issue with- out a decision of the issue by us in this interlocutory appeal. A The Tucker Act, 28 U.S.C. § 1491, provides the Claims Court jurisdiction to adjudicate a takings claim against the United States. See Knick v. Township of Scott, Pennsylva- nia, 588 U.S. 180, 189–90, 194, 200 (2019); Horne v. De- partment of Agriculture, 569 U.S. 513, 527 (2013); Acceptance Insurance Companies Inc. v. United States, 503 F.3d 1328, 1336 (Fed. Cir. 2007). But that jurisdiction is displaced if Congress has otherwise provided, specifically by creating a separate remedial regime that is properly un- derstood as withdrawing the Tucker Act grant. See Maine Community Health Options v. United States, 590 U.S. 296, 323–24 (2020); Horne, 569 U.S. at 527; United States v. Bormes, 568 U.S. 6, 11–13 (2012). The government ar- gues that this is such a case, relying on our decisions in Alpine PCS, Inc. v. United States, 878 F.3d 1086 (Fed. Cir. 2018), and Sandwich Isles Communications, Inc. v. United States, 992 F.3d 1355 (Fed. Cir. 2021). Like the Claims Court, we conclude that the present case does not come within the purview of Alpine PCS or Sandwich Isles or, therefore, the displacement principle. In both of those decisions, we held that Tucker Act jurisdic- tion over taking claims was displaced by the Communica- tions Act because the plaintiff was actually challenging decisions of the Commission, for which Congress had spec- ified review mechanisms in the Communications Act, 47 U.S.C. § 402(a), (b)—through which, we observed, the Case: 25-1792 Document: 55 Page: 8 Filed: 03/09/2026

challenger could have raised a takings claim. Alpine PCS, 878 F.3d at 1095, 1097–98; Sandwich Isles, 992 F.3d at 1360–65. 1 Here, in contrast, consistent with Ligado’s in- sistence that it is not challenging any Commission action, Ligado Response Br. at 21–23, we do not see anything in its takings claim that depends on a challenge to a Commis- sion action. Ligado’s claim accepts without challenge the terms of the Commission’s license grant, including the con- ditions placed on commencing service and the absence of any pertinent binding command to the non-FCC federal agencies. The essential requirement for finding displace- ment of Tucker Act jurisdiction in Alpine PCS and Sand- wich Isles is therefore missing here, and we affirm the Claims Court’s ruling that it had jurisdiction in this case. B In seeking reversal of the Claims Court’s denial of its motion to dismiss, the government invokes a necessary condition for takings liability: “For takings liability to at- tach, the Government action at issue must be authorized.” Government Opening Br. at 44 (citing, e.g., Del-Rio Drill- ing Programs, Inc. v. United States, 146 F.3d 1358, 1362 (Fed. Cir. 1998)). It adds that a government action cannot be deemed a taking “because the Government acted unlaw- fully.” Id. (emphasis in original). We see no basis for dis- turbing the Claims Court’s rejection of the government’s argument in this respect. See J.A. 10–11.

1 This court drew a similar conclusion about a breach-of-contract claim under the Tucker Act in Folden v. United States, 379 F.3d 1344 (Fed. Cir. 2004), stressing the Communications Act’s “comprehensive statutory and regulatory regime governing orders of the Commission.” Id. at 1357 (emphasis added). No takings claim was pre- sented to this court in Folden. Id. at 1352 n.6. Case: 25-1792 Document: 55 Page: 9 Filed: 03/09/2026

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The government points to language in Ligado’s com- plaint that could be read as asserting the illegality of some of the challenged actions by the non-FCC federal agen- cies—even, perhaps, asserting such illegality as a reason for finding a taking. Government Opening Br. at 45. But we do not read the complaint as depending on any assertion of illegality by DoD or other non-FCC agencies in the chal- lenged actions. We read the complaint at least implicitly to plead authorization as required by its takings claim, and in any event, an amended complaint could and would read- ily do so, in light of the decision of this court in Darby De- velopment Co. v. United States, 112 F.4th 1017 (Fed. Cir. 2024). We therefore do not agree with the government’s contention that the case had to be dismissed on the ground that Ligado’s takings claim rests on an assertion that there is a taking “because the Government acted unlawfully.” Id. at 44 (emphasis in original); Government Reply Br. at 25 (emphasis added and capital letters removed). The government also has not shown that the Claims Court was required to dismiss the case on the ground that the complaint fails to make a plausible allegation sufficient to meet the authorized-conduct requirement for takings li- ability. In Darby, we held that a government action ordi- narily is “authorized” for takings-liability purposes if the government actors acted “‘within the general scope of their duties.’” 112 F.4th at 1024 (quoting Del-Rio, 146 F.3d at 1362). Here, the government makes no persuasive argu- ment that the DoD and NTIA were—what would be im- plausible—acting outside the general scope of their duties regarding national-security interests or telecommunica- tions policy, see, e.g., 10 U.S.C. § 2281; 47 U.S.C. §§ 901– 02, in the actions that are accused of effecting a taking for which the United States must pay. C We now turn to the central issue before us—whether Ligado has a property interest in the license to provide Case: 25-1792 Document: 55 Page: 10 Filed: 03/09/2026

certain radio services using the spectrum at issue. It con- tends that it obtained a sole-use property right in the spec- trum at issue, protected by the Takings Clause unless and until the grant has been modified in a relevant way by the Commission, which it has not been. Further, Ligado con- tends, the property right runs even against non-FCC fed- eral agencies and, still more specifically, against the two forms of agency action at issue: DoD use of the spectrum at issue (at least use of the very portion licensed to Ligado, perhaps also adjacent spectrum); and agency (DoD, NTIA, and Commerce) non-cooperation in Ligado’s efforts to fulfill the license preconditions to its commencing service. We do not decide this issue. The contention depends on too many insufficiently addressed considerations raised by its sev- eral components for us to decide, at present, whether the contention is correct (as Ligado urges) or incorrect (as the government urges). We remand for further development of the analysis required for a sound conclusion. 1 A necessary requirement for finding a taking under the Takings Clause is that what is alleged to have been taken is “property” under the Clause. Hearts Bluff Game Ranch, Inc. v. United States, 669 F.3d 1326, 1329–30 (Fed. Cir. 2012). The property right—sometimes called a “property interest” here and in other cases (e.g., Complaint at ¶ 137)—must have its source outside the Takings Clause, e.g., in state law, federal law, or traditional property prin- ciples. Tyler v. Hennepin County, Minnesota, 598 U.S. 631, 638 (2023); Phillips v. Washington Legal Foundation, 524 U.S. 156, 164 (1998); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001 (1984); Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160–61 (1980); King v. United States, 151 F.4th 1348, 1358 (Fed. Cir. 2025); Members of Peanut Quota Holders Association v. United States, 421 F.3d 1323, 1330 (Fed. Cir. 2005). Ligado agrees that, if it has a property right in this case, the right must have its source in federal law, namely, the Communications Act Case: 25-1792 Document: 55 Page: 11 Filed: 03/09/2026

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and Commission actions under it. Specifically, the only po- tential basis for the property right asserted is the federal government grant—the Commission’s 2020 Order—issued under 47 U.S.C. §§ 307, 309. See Ligado Response Br. at 28 (stating that Ligado claims a property right based on the authority it obtained “from an FCC license granted pur- suant to the Communications Act, rather than any pre-ex- isting state-law or common-law right”); see also id. at 34 (“[T]he grant of the license gives rise to a property interest within the defined conditions of the license.”). In this respect, the case is different from two of the precedents on which Ligado principally relies—a difference we note without drawing a conclusion about its ultimate legal significance. Specifically, in neither International Pa- per Co. v. United States, 282 U.S. 399 (1931), nor United Nuclear Corp. v. United States, 912 F.2d 1432 (Fed. Cir. 1990), did the asserted property right come simply from a grant by the federal government. In International Paper, the property right was a set of water rights International Paper had received “by conveyance and lease” from a local power company, pursuant to state law. 282 U.S. at 404– 05; see also International Paper Co. v. United States, 68 Ct. Cl. 414, 418, 422–23 (1929). It was that set of rights the federal government took when, using language indicating a clear intent to pay, it issued orders that commanded the power company to stop the provision of water to Interna- tional Paper so the power company could use it for produc- ing power for federally directed war-related purposes. International Paper, 282 U.S. at 405–08; International Pa- per, 68 Ct. Cl. at 426–29. In United Nuclear, the property right consisted specifically of “leases”—creating a “lease- hold interest” in mining—entered into by United Nuclear with the Navajo Tribal Council, not with the federal gov- ernment (though the Secretary of Interior had to approve Case: 25-1792 Document: 55 Page: 12 Filed: 03/09/2026

them, as he did). 912 F.2d at 1433, 1437. 2 Ligado does not dispute that, in both cases, the interest taken—the water rights and the leasehold interest—are traditional property rights recognized in property law and protected by the Tak- ings Clause. See Ligado Response Br. at 44, 53. Long ago, but soon after enactment of the Communica- tions Act of 1934, the Supreme Court wrote: “The policy of the Act is clear that no person is to have anything in the nature of a property right as a result of the granting of a license.” FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 475 (1940); see also Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 14–15 (1942) (stating that “[t]he Com- munications Act of 1934 did not create new private rights” and that the appeal right granted by 47 U.S.C. § 402(b) ex- ists to protect “the public interest,” not “the interests of pri- vate property”). Several courts of appeals have relied on the Sanders Brothers statement. See, e.g., Mobile Relay As- sociates v. FCC, 457 F.3d 1, 11–12 (D.C. Cir. 2006) (reject- ing takings claim because the spectrum-use right given by a license under 47 U.S.C. § 301 “does not constitute a prop- erty interest protected by the Fifth Amendment”); Prome- theus Radio Project v. FCC, 373 F.3d 372, 428 (3d Cir. 2004) (rejecting takings claim because “broadcast licenses, which are the subject of the Commission’s restriction on transferability, are not protected property interests under the Fifth Amendment”); In re NextWave Personal Commu- nications, Inc., 200 F.3d 43, 51 (2d Cir. 1999) (“A license does not convey a property right[.]”).

2 The court addressed investment-backed expecta- tions, but not in its property-right analysis; rather, it did so as part of its regulatory-takings analysis as prescribed by Penn Central, 438 U.S. at 127–33, as recited in Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 224–25 (1986). See United Nuclear, 912 F.2d at 1435. Case: 25-1792 Document: 55 Page: 13 Filed: 03/09/2026

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To overcome the facial breadth of the words used in Sanders Brothers and other cases, Ligado argues that such statements mean merely that a licensee has no property right against the Commission. Based on that reading, Lig- ado argues that the statements do not preclude a claim of property right against others—including non-FCC federal agencies. Ligado Response Br. at 39–40. The logical prem- ise of this contention is, in the words of Amicus USTelecom—The Broadband Association, that “some prop- erty rights exist only as to certain parties,” so “[t]here is nothing unusual about license holders enjoying property rights vis-à-vis other federal agencies even assuming that they may not always enjoy them vis-à-vis the FCC.” USTelecom Amicus Br. at 16; id. at 15–16; see also Fair- holme Funds, Inc. v. United States, 26 F.4th 1274, 1303 (Fed. Cir. 2022) (“regulated financial entities lack the fun- damental right to exclude the government from their prop- erty when the government could place the entities into conservatorship or receivership” (emphasis added) (citing California Housing Securities, Inc. v. United States, 959 F.2d 955, 958 (Fed. Cir. 1992), and Golden Pacific Bancorp v. United States, 15 F.3d 1066, 1074 (Fed. Cir. 1994))). Determining whether Ligado has the claimed property right, for takings purposes, calls for a full understanding of the Communications Act and pertinent actions under it (whether of the Commission or of non-FCC federal agen- cies, such as NTIA, acting under the Act). Cf. Fishermen’s Finest, Inc. v. United States, 59 F.4th 1269, 1275–79 (Fed. Cir. 2023); Conti v. United States, 291 F.3d 1334, 1340–42 (Fed. Cir. 2002). 3 That is so partly, but not only, due to the

3 Whether a license is “property” for other statutory purposes, such as the tax and bankruptcy purposes at issue in In re Atlantic Business & Community Development Corp., 994 F.2d 1069, 1075 (3d Cir. 1993), does not control Case: 25-1792 Document: 55 Page: 14 Filed: 03/09/2026

need to evaluate whether this is a case in which a property right for takings purposes does not exist because the al- leged interest is in an area subject to “pervasive Govern- ment control.” Hearts Bluff, 669 F.3d at 1330; see also Washington Federal v. United States, 26 F.4th 1253, 1266 (Fed. Cir. 2022). More broadly, such an understanding is at the heart of evaluating whether the asserted right has, under the source of law from which it derives, the “‘crucial indicia of a property right,’ such as the ability to sell, as- sign, transfer, or exclude,” Hearts Bluff, 669 F.3d at 1330 (quoting Conti, 291 F.3d at 1342), or, stated more briefly, “the right to transfer and the right to exclude,” Peanut Quota Holders, 421 F.3d at 1331 (relied on by Ligado, see Ligado Response Br. at 18, 28–29). What the statute and actions under it say about those matters needs additional scrutiny. As part of the scrutiny, some doctrinal issues them- selves warrant further inquiry. One such issue concerns Ligado’s pervasive characterization of its license as “exclu- sive.” Ligado Response Br. at 1, 2, 12, 16, 18, 19, 26, 27, 28, 29–30, 31, 32, 33, 35 n.2, 39, 45, 46, 48, 49, 50, 54. That characterization could mean simply that Ligado is the only licensee for the specified frequency use at present, or that it has some kind of guarantee against other users, whether by FCC license or otherwise. The assertion also might well mean that Ligado has something the Supreme Court has stressed in takings cases—namely, “[t]he right to exclude,” “universally held to be a fundamental element of the prop- erty right,” perhaps even “the sine qua non of property.” Cedar Point Nursery, 594 U.S. at 149–50 (cleaned up) (cit- ing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982); Kaiser Aetna v. United States, 444 U.S. 164, 176, 179–80 (1979); Dolan v. City of Tigard, 512

whether it is property for takings purposes. See Fisher- men’s Finest, 59 F.4th at 1278. Case: 25-1792 Document: 55 Page: 15 Filed: 03/09/2026

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U.S. 374, 384, 393 (1994); Nollan v. California Coastal Commission, 483 U.S. 825, 831 (1987); Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730, 730, 752 (1998) (making sine qua non point)); see also Fairholme Funds, 26 F.4th at 1303 (“[T]he right to exclude is an es- sential element of property ownership[.]”). If a right to ex- clude is required, a further issue arises—whether the holder of the right to exclude must have a right of action in court, or any other tribunal, to effectuate that right (through some remedy), as a patentee does under 35 U.S.C. § 281 for the expressly defined “right to exclude,” 35 U.S.C. § 154. 4 A further important doctrinal issue concerns whether, and to what extent, a property right is confined to guaran- tees stated in a license grant or the underlying statute. In particular, may a legally cognizable property right for Tak- ings Clause purposes be based on an expectancy generated from regular practice involving grants under a statute— such as the “renewal expectancy” recognized as one factor the Commission must consider in making renewal deci- sions, see Victor Broadcasting, Inc. v. FCC, 722 F.2d 756, 760–61 (D.C. Cir. 1983)? See also P. Huber, M. Kellogg & J. Thorne, Federal Telecommunications Law § 10.3.1 (3d ed. 2022) (offering characterization that “[s]pectrum has been privatized—de facto property rights have been cre- ated—without anyone ever using such politically delicate

4 Patent law, under which an injunction is not al- ways available, confirms that a right to exclude need not always be enforceable through a remedy that compels ces- sation of the action violating the right (as opposed to providing compensation). See eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006). The Takings Clause requires compensation for various lawful actions (as well as “au- thorized” actions), see Darby, 112 F.4th at 1023–27—for which a remedy to stop the actions might not be available. Case: 25-1792 Document: 55 Page: 16 Filed: 03/09/2026

terms” (emphasis added)). Such expectations may well be investment-backed, even massively investment-backed, as Ligado asserts to be the case here. Moreover, congressional and agency policy may well require encouraging (and thus offering some protections for) investments in order for spec- trum to be robustly put to public use. How these consider- ations bear on the property-right question under takings- law doctrine here warrants more focused analysis than has been presented to us. Importantly, as already indicated, the required analy- sis—under Ligado’s own theory for confining the reach of the above-quoted statements from and following Sanders Brothers—must consider not just whether Ligado has a property right in general. It must consider whether Ligado has a property right against the particular actors and chal- lenged actions it identifies—namely, the challenged DoD spectrum use and the challenged non-cooperation of DoD and others in ways identified in the 2020 Order’s conditions on Ligado commencing service. Although some of the analysis has been done in the briefing before us, not all that is needed has been done. With respect to the statutory context and also with respect to the particulars of the FCC actions, the parties have spo- ken at too high a level of generality to produce a clear un- derstanding of the legal details that could make an important difference to the answer to the property-right question. We conclude that it is inadvisable to rule on the property-right issue without a more detail-focused analy- sis, which might clarify what the answer and rationale should be. A remand would permit development of the fuller and more concrete analysis required. Here, we flag certain matters that warrant more attention—without at- tempting to be comprehensive. We begin with statutory matters, then turn to more case-specific matters. Case: 25-1792 Document: 55 Page: 17 Filed: 03/09/2026

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2 Many provisions of the Communications Act seem rel- evant to a full analysis of whether Ligado has a property right against non-FCC federal agencies, as asserted here. In identifying some of them, and sometimes flagging grounds of possible relevance, we do not suggest the insig- nificance of provisions either not accompanied by explana- tion or not mentioned at all. We are tentative because briefing on these and other matters has not been adequate to give us confidence that all the material relevant to the legal questions has been identified and carefully explained. a. Basic Provision on Spectrum Licenses. Section 301 declares Congress’s purpose “to maintain the control of the United States over all the channels of radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority”—immedi- ately adding, “and no such license shall be construed to cre- ate any right, beyond the terms, conditions, and periods of the license.” 47 U.S.C. § 301. It then declares: “No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio . . . [under a broad range of circumstances] except under and in accord- ance with this chapter [ id. §§ 151–646] and with a license in that behalf granted under the provisions of this chapter.” Id. We note (without intending to be exhaustive) some fea- tures of the provisions of seeming relevance to this matter. First: The referred-to “licenses” are “for the use of [ra- dio] channels,” and “no such license shall be construed to create any right, beyond the terms, conditions, and periods of the license.” Id. (emphasis added). That language raises questions: Should the property right asserted by Ligado, which it acknowledges is based on the license, be consid- ered a license-created right beyond the terms, conditions, and periods of Ligado’s license? Relatedly, does the lan- guage preclude arguments for a property right based on Case: 25-1792 Document: 55 Page: 18 Filed: 03/09/2026

(investment-backed) expectations that go beyond the li- cense’s express provisions? What should be inferred from the Supreme Court’s decision in United States v. Fuller, 409 U.S. 488 (1973), about similar language? There, the Court considered the Taylor Grazing Act, 43 U.S.C. § 315b, which authorized the federal government to issue permits for livestock grazing on federal lands while stating that the issuance of a permit “shall not create any right, title, inter- est, or estate in or to the lands,” 43 U.S.C. § 315b (quoted at 409 U.S. at 489). The Court held that the language “make[s] clear the congressional intent that no compensa- ble property might be created in the permit lands them- selves as a result of the issuance of the permit,” 409 U.S. at 494. Second: Both parties agree that section 301’s refer- ences to “person(s)” does not apply to the federal govern- ment. See Ligado Response Br. at 23–24; Oral Arg. at 13:15–46 (government counsel). It is established law that the term “person” in a statute is inapplicable to a sovereign, such as the United States, unless Congress has clearly stated otherwise. Return Mail, Inc. v. United States Postal Service, 587 U.S. 618, 626–27 (2019); Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 787 (2000); Will v. Michigan Department of State Po- lice, 491 U.S. 58, 65–66 (1989); Perrong v. Bradford, 157 F.4th 251, 260–61 (3d Cir. 2025). 5 Here, the statutory def- inition of “person” does not provide coverage of sovereigns such as the United States. 47 U.S.C. § 153(39) (“The term ‘person’ includes an individual, partnership, association, joint-stock company, trust, or corporation.”). An

5 Before the Supreme Court decided Will, the Ninth Circuit held that the word “person” in 47 U.S.C. § 401(b) applied to a state public utilities commission. Ha- waiian Telephone Co. v. Public Utilities Commission of State of Hawaii, 827 F.2d 1264, 1270 (9th Cir. 1987). Case: 25-1792 Document: 55 Page: 19 Filed: 03/09/2026

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immediate implication is that the federal government is not subject to the § 301 bar on using radio channels without a license under the Communications Act (specifically, with- out a license from the Commission). b. Commission Allocation and Licensing. Section 303(y) gives the Commission authority “to allocate electro- magnetic spectrum so as to provide flexibility of use,” if “the Commission finds, after notice and an opportunity for pub- lic comment,” that a particular allocation “would be in the public interest,” the use “would not deter investment in communications services and systems, or technology devel- opment,” and the use “would not result in harmful interfer- ence among users.” 47 U.S.C. § 303(y). The provision at least suggests the possibility of non-exclusive users of given spectrum and confirms key policies of investment and non-interference, placing the decision in the Commis- sion’s hands as an initial matter. See Government Reply Br. at 18–19 (first citing § 303(y), and then citing AT&T Services, Inc. v. FCC, 21 F.4th 841, 843 (D.C. Cir. 2021), which does not cite § 303(y) but recognizes non-exclusive use possibility); see also PSSI Global Services, L.L.C. v. FCC, 983 F.3d 1, 9 (D.C. Cir. 2020) (citing § 303(y)). Section 307 provides for the Commission to grant a sta- tion license if “public convenience, interest, or necessity will be served thereby, subject to the limitations of this chapter [47 U.S.C. §§ 151–646].” 47 U.S.C. § 307(a). And section 309 provides for grants of license applications. Id. § 309(a). Those sections provide for grants of a right to use the frequencies specified; they do not define the right granted as an exclusive one or as a right to exclude. Com- pare id. §§ 307(a), 309(a), with 35 U.S.C. § 154(a) (patent right is the “right to exclude”). Section 307(b) directs the Commission to make “a fair, efficient, and equitable distri- bution of radio service” among States and communities when considering applications for, modifications to, and re- newals of licenses. 47 U.S.C. § 307(b). A license for a “broadcasting station” is for up to 8 years, but it may be Case: 25-1792 Document: 55 Page: 20 Filed: 03/09/2026

renewed if the Commission finds that doing so would serve the “public interest, convenience, and necessity.” Id. § 307(c)(1). Section 304 says that the Commission may not grant a license until the applicant has waived any claim to use of particular frequencies of the spectrum “as against the reg- ulatory power of the United States” based on the appli- cant’s “previous use of the same.” Id. § 304. c. Transfer, Revocation, Modification. Section 310(d) gives the Commission power over any transfer of a station license: “No . . . station license, or any rights thereunder, shall be transferred, assigned, or disposed of in any man- ner . . . to any person except upon application to the Com- mission and upon finding by the Commission that the public interest, convenience, and necessity will be served thereby.” Id. § 310(d). That provision indicates that the Commission is not to consider whether there is a better re- cipient of the license in assessing the proposed transfer, as- signment, or disposal. Id. Section 312(a) authorizes the Commission to “revoke any station license,” stating the permissible grounds for revocation in seven paragraphs. Id. § 312(a). The grounds are generally keyed to knowingly false statements, willful or repeated failures or violations, noncompliance with a cease-and-desist order, and violation of certain criminal laws, id., but one ground is: “because of conditions coming to the attention of the Commission which would warrant it in refusing to grant a license . . . on an original applica- tion,” id. (paragraph 2). Section 316 confers modification authority on the Com- mission, providing: “Any station license . . . may be modi- fied by the Commission . . . if in the judgment of the Commission such action will promote the public interest, convenience, and necessity, or the provisions of this chap- ter [id. §§ 151–646] . . . will be more fully complied with.” Case: 25-1792 Document: 55 Page: 21 Filed: 03/09/2026

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47 U.S.C. § 316(a)(1); see PSSI Global Services, 983 F.3d at 7–9 (discussing modification authority). d. Federal Use. Ligado has asserted, as a premise of its argument, that the Commission controls the allocation of spectrum for Federal use (i.e., use by the federal govern- ment) as well as for non-Federal use. It asserts that “the FCC has exclusive authority to allocate bands of electro- magnetic frequencies, license use of those frequencies, and regulate the activities of commercial and government us- ers.” Ligado Response Br. at 6–7 (fist citing 47 U.S.C. § 303(b)–(c), and then citing Complaint at ¶ 22). The Com- plaint at ¶ 22 makes the same assertion, likewise citing § 303(b) and (c), adding that “NTIA assigns the spectrum designated by the FCC for federal government use to spe- cific federal spectrum users, such as DOD.” Complaint at ¶ 22 (citing 47 U.S.C. §§ 305(a), 902(b)(2)(A)). The com- plaint reiterates that, while the “FCC and NTIA coordinate with each other and with other federal stakeholders through the Interdepartmental Radio Advisory Commit- tee,” “the FCC is the only federal agency with the power to grant, modify, or revoke an allocation of spectrum to the federal government or a license of commercial spectrum.” Id. (emphasis added). Through those assertions, Ligado suggests that DoD, with support from NTIA, has been en- croaching on an exclusive Commission allocation power, at least through the alleged DoD use of spectrum within the at-issue bands Ligado has been authorized to use. These assertions by Ligado are assertions about law (which need not be accepted just because they are in the complaint). Here, we do not decide the ultimate correct- ness of such assertions; nor do we explore the possible rel- evance of sources not cited to us for this point, e.g., 47 U.S.C. §§ 303(y) (allocation authority), 323 (“[i]nterference between Government and commercial stations”). We merely note that the apparent assertions about the Com- mission’s allocation authority are not supported by the only sources cited. Case: 25-1792 Document: 55 Page: 22 Filed: 03/09/2026

Section 303 says that “[e]xcept as otherwise provided in this chapter [id. §§ 151–646], the Commission from time to time . . . shall . . . (b) [p]rescribe the nature of the service to be rendered by each class of licensed stations and each station within any class; [and] (c) [a]ssign bands of frequen- cies to the various classes of stations, and assign frequen- cies for each individual station and determine the power which each station shall use and the time during which it may operate[.]” But section 305(a) states that “[r]adio sta- tions belonging to and operated by the United States shall not be subject to the provisions of sections 301 and 303 of this title [title 47].” 6 Section 305(a) immediately adds: “All such Government stations shall use such frequencies as shall be assigned to each or to each class by the President,” id. § 305(a) (emphasis added), adding that, with excep- tions, “[a]ll such stations. . . shall conform to such rules and regulations designed to prevent interference with other radio stations and the rights of others as the Com- mission may prescribe,” id. The President delegated his authority under that pro- vision initially to the Office of Telecommunications Policy (in the Executive Office of the President) and then to the Secretary of Commerce. See id. § 305 note (quoting and describing reorganization plans and executive orders). In 1992, Congress enacted chapter 8 of Title 47, §§ 901–42 (as

6 “The term ‘radio station’ or ‘station’ means a sta- tion equipped to engage in radio communication or radio transmission of energy.” 47 U.S.C. § 153(42). “The term ‘station license’, ‘radio station license’, or ‘license’ means that instrument of authorization required by this chapter [id. §§ 151–646] or the rules and regulations of the Com- mission made pursuant to this chapter, for the use or oper- ation of apparatus for transmission of energy, or communications, or signals by radio . . . .” Id. § 153(49) (punctuation in original as shown). Case: 25-1792 Document: 55 Page: 23 Filed: 03/09/2026

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later amended) to create the NTIA, headed by an Assistant Secretary of Commerce, within the Department of Com- merce. Telecommunications Authorization Act of 1992, Pub. L. No. 102-538, §§ 101–05, 106 Stat. 3533, 3533–40; see 47 U.S.C. § 901. In section 902(b)(2), Congress has pro- vided that, subject to certain reassignment authority of the Secretary, the authority to be assigned to the NTIA and its Assistant Secretary is “[t]he authority delegated by the President to the Secretary to assign frequencies to radio stations or classes of radio stations belonging to and oper- ated by the United States, including the authority to amend, modify, or revoke such assignments, but not includ- ing the authority to make final disposition of appeals from frequency assignments.” 47 U.S.C. § 902(b)(2)(A). Also to be assigned to NTIA and its Assistant Secretary are, among others, the “authority to establish policies concern- ing spectrum assignments and use by radio stations be- longing to and operated by the United States” and the “responsibility to ensure that the views of the executive branch on telecommunications matters are effectively pre- sented to the Commission[.]” Id. § 902(b)(2)(K), (J); see Memorandum of Understanding between the [FCC] and [NTIA], (Aug. 1, 2022), Federal Communications Commis- sion, https://docs.fcc.gov/public/attachments/DOC-385867 A1.pdf (explaining that “[t]he FCC is . . . the exclusive reg- ulator of non-Federal spectrum use” and “NTIA is the sole agency responsible for authorizing Federal spectrum use” and setting out agreement to coordinate in various ways). The presidential authority to assign spectrum for use by the federal government (Federal use) under § 305(a)— now implemented through the NTIA—requires further consideration in the analysis of this case. By way of exam- ple, the existence of that authority might undermine, weaken, or complicate Ligado’s premise that the Commis- sion had full and final power to provide sole use rights to Ligado. Ligado invokes that premise against the non-FCC federal agencies here—particularly regarding the asserted Case: 25-1792 Document: 55 Page: 24 Filed: 03/09/2026

DoD use of the spectrum. An accurate view of the relation- ship between the Commission and non-FCC agencies in the allocation of spectrum-use rights may bear on the property- right analysis. e. Remedy Provisions. Some remedy provisions of the Act are worth noting (there may be others). Section 402 addresses “[j]udicial review of [the] Commission’s orders and decisions.” 47 U.S.C. § 402 (title). Subsection (b) al- lows an applicant for license, renewal or modification, transfer or other disposition that has been denied, or other person aggrieved or adversely affected by grant or denial of such applications, to appeal to the D.C. Circuit. Id. § 402(b). Subsection 402(a) provides that any other “pro- ceeding to enjoin, set aside, annul, or suspend” an FCC or- der is to be brought in the regional courts of appeals under [the Administrative Orders Review Act, known as the Hobbs Act, 28 U.S.C. §§ 2341–51]. Id. § 402(a). Section 401 is titled “[e]nforcement provisions.” Id. § 401. Subsection (a) authorizes district courts to enforce provisions of the Act when asked to do so by the Attorney General at the request of the Commission. Id. § 401(a). Subsection (b) is the provision Ligado and the government cited to us when asked about whether a licensee of certain spectrum has a private right of action to sue a person that is using that spectrum without a license. Section 401(b), titled “[o]rders of Commission,” states: If any person fails or neglects to obey any order of the Commission other than for the payment of money, while the same is in effect, the Commission or any party injured thereby, or the United States, by its Attorney General, may apply to the appropriate district court of the United States for the enforcement of such order. If, after hearing, that court determines that the order was regularly made and duly served, and that the person is in disobedience of the same, the court shall enforce Case: 25-1792 Document: 55 Page: 25 Filed: 03/09/2026

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obedience to such order by a writ of injunction or other proper process, mandatory or otherwise, to restrain such person or the officers, agents, or rep- resentatives of such person, from further disobedi- ence of such order, or to enjoin upon it or them obedience to the same. 47 U.S.C. § 401(b) (emphases added). Some important limitations of this provision, high- lighted above, appear relevant to the present case. First: We have already noted that the United States is not a “per- son” covered by the Act. That is a sufficient reason a fed- eral agency could not be sued under section 401(b), which therefore does not provide a right to exclude a non-FCC federal agency. See supra p. 17 (noting section 301’s limit to “persons,” a term that does not cover federal agencies). Second: As to unlicensed users of spectrum that do qualify as “persons,” the crucial limiting term of sec- tion 401(b) is “order.” Cf. 47 U.S.C. § 227(b)(3) (private right of action under Telephone Consumer Protection Act for violation of statutory “subsection or the regulations pre- scribed under” it); see McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., 606 U.S. 146, 149 (2025). If, as it appears, the term “order” does not cover the Act itself, then section 401(b) (unlike section 401(a)) does not authorize an action to simply enforce a provision of the Act, so it could not be invoked to sue a “person” for merely violating sec- tion 301 by using radio frequencies without a license. That point seems clear notwithstanding that there is uncer- tainty about what kinds of Commission actions come within the term “order.” Section 154(i) separately author- izes the Commission to “make such rules and regulations” and to “issue such orders” “as may be necessary” to carry out its functions, and there has been disagreement about whether Commission regulations come within sec- tion 401(b). See, e.g., New England Telephone & Telegraph Co. v. Public Utilities Commission of Maine, 742 F.2d 1, 4– Case: 25-1792 Document: 55 Page: 26 Filed: 03/09/2026

7 (1st Cir. 1984) (per Breyer, J.) (concluding that “order” does not cover a “rule” adopted through rulemaking, rely- ing on 5 U.S.C. § 551(6), which makes the same distinction while including “licensing” within “order”); see also 5 U.S.C. § 551(8), (9); Hawaiian Telephone, 827 F.2d at 1270–72 (disagreeing with New England Telephone, citing other circuits’ decisions as also doing so, expressly or im- plicitly, while limiting holding to case where the Commis- sion order was conceded by defendant to bind it); Mallenbaum v. Adelphia Communications Corp., 74 F.3d 465, 468–69 (3d Cir. 1996) (holding that an agency regula- tion is an “‘order’ if it requires a defendant to take concrete actions”). 7 We further note that section 503, titled “Forfeitures,” 47 U.S.C. § 503 (title), states that: Any person who is determined by the Commis- sion, in accordance with paragraph (3) or (4) of this subsection, to have— (A) willfully or repeatedly failed to comply substan- tially with the terms and conditions of any license, permit, certificate, or other instrument or authori- zation issued by the Commission; (B) willfully or repeatedly failed to comply with any of the provisions of this chapter [47 U.S.C. §§ 151– 646] or of any rule, regulation, or order issued by the Commission under this chapter or under any

7 In Ellis v. Tribune Television Co., 443 F.3d 71 (2d Cir. 2006), a case under § 401(b), the Second Circuit re- quired a primary-jurisdiction referral to the Commission to address an issue within the Commission’s authority—spe- cifically, a waiver of a Commission rule. The government has not invoked the primary-jurisdiction doctrine here. Case: 25-1792 Document: 55 Page: 27 Filed: 03/09/2026

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treaty, convention, or other agreement to which the United States is a party and which is binding upon the United States; (C) violated any provision of section 317(c) or 509(a) of this title; or (D) violated any provision of section 1304, 1343, 1464, or 2252 of title 18; shall be liable to the United States for a forfeiture penalty. A forfeiture penalty under this subsection shall be in addition to any other penalty pro- vided for by this chapter; except that this sub- section shall not apply to any conduct which is subject to forfeiture under [47 U.S.C. §§ 251–62] or [id. §§ 381–86], or section 507 of this title. 47 U.S.C. § 503(b) (emphases added). The Commission’s regulations, in turn, contemplate forfeitures for actions in- cluding “[u]sing unauthorized frequency,” and “[f]ailure to engage in required frequency coordination.” 47 C.F.R. § 1.80. The Commission, on its website, explains that it has a Spectrum Enforcement Division (SED) “responsible for taking enforcement actions involving unauthorized or unlicensed operations[.]” Spectrum Enforcement Division, Federal Communications Commission, https://www.fcc.gov /enforcement/divisions-offices/sed. Those sources raise ad- ditional questions regarding the Commission’s role and re- sponsibility in addressing unlicensed use of spectrum; Ligado’s ability to initiate and compel enforcement; and what if any recourse is available from the Commission. 3 Also required for a complete analysis of the property- right issue is closer attention to the case-specific Commis- sion actions at issue, which have been described to date at too high a level of generality. Case: 25-1792 Document: 55 Page: 28 Filed: 03/09/2026

Ligado relies on the Commission’s 2020 Order as the source of the asserted property right—which, Ligado re- peatedly asserts is an “exclusive” right to use the frequen- cies at issue. But that Order on its face does not go further than to give Ligado a right to use the spectrum in identified ways subject to various conditions. 2020 Order ¶¶ 159–64, 35 FCC Rcd. at 3842–43. The word “exclusive” (or a vari- ant) is used only twice in the 2020 Order, namely, at ¶¶ 115 n.373, 150, 35 FCC Rcd. at 3828, 3840, and neither use refers to Ligado being an exclusive user. Ligado cites nothing in the order guaranteeing exclusive-use status. To the extent that Ligado is asserting that it is the sole currently authorized user of the spectrum at issue, there is of course a legal question whether that would be enough if true. But even establishing the accuracy of the assertion— accounting, e.g., for activities of the International Maritime Satellite Organization (Inmarsat) of interest to DoD, see 2020 Order, ¶¶ 107–11, 35 FCC Rcd. at 3826–27—requires more focused attention than has been given to the issue. A full analysis should also account for the actions and deci- sions by the Commission that led up to the 2020 Order. For example, one of the predecessor actions, in addressing a different but overlapping band of frequencies, cited feasi- bility and build-out reasons for approving just one mobile satellite system (MSS), jointly owned by a plurality of ap- plicants and subject to open-access requirements. Second Report and Order, ¶¶ 2–9, FCC 86-552, 2 FCC Rcd. 485, 485–86 (1987); see also Notice of Proposed Rulemaking, ¶ 23, FCC 84-558, 50 Fed. Reg. 8149, 8155–56 (1985). And the parties have made suggestions to us that technical-fea- sibility considerations may limit Ligado’s ability to use its license, at least as contemplated, if the license is anything other than exclusive. Oral Arg. at 8:32–38 (Government noting “practical issues . . . in terms of interference”); id. at 9:04–09 (Government noting that “technical feasib[ility]” could limit the Commission’s ability to license another party to use the spectrum at issue); id. at 58:41–47 (Ligado Case: 25-1792 Document: 55 Page: 29 Filed: 03/09/2026

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arguing that “you’ve got to allocate exclusive use because of the interference problem”). Whether there are express guarantees of presumptive exclusivity, or implicit guaran- tees or protected expectations of the same (subject to au- thorized alterations) based on technical or economic considerations, requires careful examination on remand. 8

8 We note here some of the history. In 1987, the Commission allocated certain frequencies within the 1000– 2000 MHz range (the so-called L-Band) for shared use by MSS and aeronautical mobile satellite service (Route) (AMSS(R)). Second Report and Order, FCC 86-552, ¶¶ 1– 2, 2 FCC Rcd. at 485–86. In 1989 it authorized use of rele- vant spectrum by Inmarsat to establish AMSS(R) opera- tions, which as relevant here, provide services to DoD, Report and Order, ¶¶ 55, 73, FCC 89-185, 4 FCC Rcd. 6072, 6079, 6082 (1989), and the same year it granted Ligado a license to provide MSS on the allocated frequencies, see Aeronautical Radio, Inc. v. Federal Communications Com- mission, 983 F.2d 275, 278–79 & n.8 (D.C. Cir. 1993) (citing proceedings). After the Commission allocated additional spectrum in the L-Band to MSS, it authorized Ligado to use 1525–1559 MHz for downlink transmissions and 1626.5– 1660.5 MHz for uplink transmissions. Report and Order, ¶ 1, FCC 02-24, 17 FCC Rcd. 2704, 2704 (2002); see 2020 Order, ¶¶ 4, 7, 35 FCC Rcd. at 3774, 3777. In 2003, the Commission permitted certain MSS licen- sees to integrate an ATC into their MSS networks under certain conditions. See Report and Order and Notice of Pro- posed Rulemaking, ¶¶ 1–2, 218, FCC 03-15, 18 FCC Rcd. 1962, 1964–65, 2068 n.573 (2003), modified by Order on Reconsideration, FCC 03-162, 18 FCC Rcd. 13590 (2003); Memorandum Opinion and Order and Second Order on Re- consideration, FCC 05-30, 20 FCC Rcd. 4616 (2005) (2005 Order). In 2004, the Commission authorized Ligado to do so. Order and Authorization, ¶ 1, DA 04-3553, 19 FCC Rcd. Case: 25-1792 Document: 55 Page: 30 Filed: 03/09/2026

22144, 22144 & n.1 (2004) (2004 Order). But in 2005, the Commission tightened some of the ATC-use conditions in response to submissions from NTIA and others about inter- ference with other uses, notably GPS services using 1559– 1610 MHz frequencies. 2005 Order, ¶¶ 15–18, 40, 68–72, 20 FCC Rcd. at 4621–22, 4630–31 & n.95, 4641–43. Ligado did not (and at times could not) commercially provide ATC services before 2020, given harmful-interference concerns, as expressed by NTIA related to GPS systems and DoD’s use of Inmarsat and in legislation. See Order and Author- ization, ¶¶ 1–12, 27–32, DA 10-534, 25 FCC Rcd. 3043, 3043–48, 3052–54 (2010); Order and Authorization, ¶¶ 1, 39–43, DA 11-133, 26 FCC Rcd. 566, 566–67, 585–87 (2011); Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, § 628, 125 Stat. 786, 927–28 (2012); Order, ¶ 1, DA 12-2051, 27 FCC Rcd. 15882, 15882 (2012); Public No- tice, DA 16-442, 31 FCC Rcd. 3802, 3802–07 (2016); see 2020 Order, ¶¶ 6–8, 35 FCC Rcd. at 3776–78. In late 2015, after reaching agreements with GPS- device manufacturers about proposed modifications, Lig- ado applied for another license modification. See 2020 Or- der, ¶ 9, 35 FCC Rcd. at 3778–79. Ligado submitted studies on the effects of its modifications on interference in 2016–17 and amended its application in 2018 to address the aviation sector’s use of GPS. Id. ¶¶ 10, 13–16, 35 FCC Rcd. at 3779, 3780–82. But in 2019 and 2020, NTIA told the Commission that Ligado had not eliminated its con- cerns about interference with GPS service. Id.¶ 17, 35 FCC Rcd. at 3782–83. The Commission’s 2020 Order followed, setting condi- tions. Among them is that Ligado “cooperate directly with any U.S. government agency that anticipates that its GPS devices may be affected by Ligado’s ATC operations,” in- cluding by “working with the affected agenc[ies] to evalu- ate whether there would be harmful interference from Case: 25-1792 Document: 55 Page: 31 Filed: 03/09/2026

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Also requiring examination is an additional point fo- cused on the specific spectrum at issue—a point related to the statutory issue about the relationship between FCC and NTIA authorities over non-Federal and Federal uses. A post-argument letter from the government, ECF No. 53 (Feb. 13, 2026), directs us to the United States Table of Fre- quency Allocations in the Code of Federal Regulations, which exhaustively displays frequency bands and their al- locations. See 47 C.F.R. §§ 2.105, 2.106. Section 2.105 ex- plains that the Table, found at section 2.106, uses column 4 for the “Federal Table” and column 5 for the “non-Federal Table”; that the former is “administered” by NTIA and the latter by the Commission; that “radio spectrum may be al- located to either Federal or non-Federal use exclusively, or for shared use”; and that, in the Table, the two columns “are merged” when “the frequency band is shared between the Federal and non-Federal sectors under the same condi- tions.” 47 C.F.R. § 2.105(a), (b), (d)(2). The portions of the Table showing the frequency bands at issue here show shared Federal and non-Federal use. 47 C.F.R. § 2.106 (en- tries for 1525–1535 MHz and 1535–1559 MHz at internal page number 34 of Table; entry for 1626.5–1660 MHz at page 35). Ligado filed a response, ECF No. 54 (Feb. 19, 2026) emphasizing that, at present, the primary Federal use of the spectrum is for receivers in the portion of the spectrum for downlink (satellite-to-earth) communications. What to make of this information, as well as what bearing it has on the property-right question, warrants further ex- ploration, in conjunction with the discussion of statutory authority regarding Federal use—especially as to the tak- ings claim based on DoD use of the spectrum at issue. The other type of challenged action in this matter is failure to cooperate in ways that are necessary in order for

Ligado’s operations.” Id. ¶ 144, 35 FCC Rcd. at 3838; see also id. ¶¶ 131–55, 35 FCC Rcd. at 3835–41. Case: 25-1792 Document: 55 Page: 32 Filed: 03/09/2026

Ligado to meet conditions on its commencement of service. We seem not to be presented with a contention that the 2020 Order legally bound the non-FCC agencies at issue to cooperate in the specified ways. This part of Ligado’s case raises questions about whether it had a property right pro- tected against the alleged non-cooperation when the li- cense expressly made its use right conditional on obtaining the identified cooperation without compulsion of the Order. One such question is whether any property right Ligado has in using its spectrum did not vest until Ligado met the conditions for such operation, conditions that were not wholly within its control and whose fulfillment may have been “‘contingent and uncertain,’ ‘speculative or discretion- ary.’” McCutchen v. United States, 14 F.4th 1355, 1368 (Fed. Cir. 2021) (quoting Bowers v. Whitman, 671 F.3d 905, 913 (9th Cir. 2012)); Cienega Gardens v. United States, 331 F.3d 1319, 1328 (Fed. Cir. 2003) (considering whether there was a “vested property interest”). At oral argument, Ligado suggested that facts concern- ing the non-cooperation aspect of its taking claim have changed since the district court acted. Specifically, it indi- cated that Ligado has now met all the cooperation-related conditions of the 2020 Order except one condition stated in ¶ 138, 35 FCC Rcd. at 3837, which applies only to the 1526–1536 MHz portion of the spectrum at issue. Oral Arg. at 1:13:07–1:17:04. We have not been provided support for that assertion, but according to Ligado, the change means that, as to most of the spectrum at issue, it is only DoD’s use of spectrum and not government failure to cooperate that now blocks Ligado’s provision of service. See id. Such facts may warrant attention on remand. Perhaps they bear on the issues currently before us. Perhaps they bear only on issues that might arise if, on remand, the case proceeds to further steps in a taking analysis—e.g., causa- tion and the amount of compensation due for either or both of the two kinds of action alleged to have effected a taking. See Caquelin v. United States, 959 F.3d 1360, 1371–72 Case: 25-1792 Document: 55 Page: 33 Filed: 03/09/2026

LIGADO NETWORKS LLC v. US 33

(Fed. Cir. 2020) (discussing causation); St. Bernard Parish Government v. United States, 887 F.3d 1354, 1359–60, 1362 (Fed. Cir. 2018) (same); Ideker Farms, Inc. v. United States, 71 F.4th 964, 987 (Fed. Cir. 2023) (discussing dam- ages principle that “[j]ust compensation requires putting the property owner in as good a position pecuniarily as if his property had not been taken” and limits on takings damages such as exclusion of consequential damages) (in- ternal quotation marks and citation omitted)); cf. Govern- ment Opening Br. at 32 n.9 (suggesting DoD’s use could not be a taking before Ligado fulfilled the license conditions for offering service). D The remaining issue presented to us is whether, as Lig- ado asserts, the alleged DoD use of the spectrum covered by Ligado’s license comes within the category of “physical takings.” See Ligado Response Br. at 47–50. That category covers cases of physical invasion of or appropriation of land or other physical things in which the plaintiff has a rele- vant property right. See Cedar Point, 594 U.S. at 147–48; Horne v. Department of Agriculture, 576 U.S. 350, 359–62 (2015). It is not clear whether Ligado contends that it may come within this category even if (to date) Ligado would not have been using the spectrum at issue for reasons inde- pendent of the DoD use (such as the challenged non-coop- eration of non-FCC federal agencies). The Claims Court allowed Ligado’s physical-taking claim to proceed. We do not here address this issue. For one thing, the issue might not have to be addressed on remand if the Claims Court holds that Ligado lacks a property right at all. The same could be said of the “authorization” issue we decide supra, but the physical-taking categorization issue presents a harder doctrinal question than the “authoriza- tion” issue. In any event, the aptness of the physical-tak- ing categorization of DoD’s use of the spectrum at issue could well depend on the specific character of any property Case: 25-1792 Document: 55 Page: 34 Filed: 03/09/2026

right identified through the closer analysis of the property- right question we require. At least for those reasons, we do not decide the physical-taking issue raised by the govern- ment in challenging the Claims Court’s refusal to dismiss Ligado’s physical-taking claim. III We affirm the Claims Court’s determinations that the Communications Act does not displace the Claims Court’s jurisdiction and that dismissal is not warranted for want of an adequate allegation that the government conduct at is- sue was authorized. We vacate the Claims Court’s decision insofar as it holds that Ligado has pleaded the existence of a property right and that DoD use of the spectrum might qualify as a physical taking. We have no challenge before us to the Claims Court’s dismissal of the legislative-taking claim or to the ruling that, if Ligado has a property right against the non-FCC federal agencies and the challenged conduct is authorized, the “categorical” and “regulatory taking” claims can proceed. We remand the matter to the Claims Court for proceedings, presumably a new round of Rule 12(b)(6) proceedings, consistent with this opinion. The parties shall bear their own costs. AFFIRMED IN PART, VACATED IN PART, REMANDED IN PART