주파수 회수·재배치 및 손실보상 제도의 문제점과 개선과제

Abstract

Spectrum refarming, a tool for spectrum management, means a combination of present and future administrative, financial and technical measures within the limits of frequency regulation in order to make a specified frequency band available for a different kind of usage or technology. The Spectrum Act provides as one way of refarming a revocation and/or redeployment of spectrum license with compensation to incumbent spectrum user. What is the legal nature of the “compensation” for license revocation, compensatory protection of legitimate expectation for prior administrative act or constitutional just compensation for infringement of property right? Even though it is general interpretation of the “property right” provision of the Constitution that legal entitlements with economic value are also “property rights” constitutionally protected, all the legal status to use spectrum cannot be protected as a property right. Spectrum license assigned through auction deserves protection as property right, but traditional license for radio-station using specific frequency and band entitles licensee to use the spectrum only while the license is valid. When the license is revoked, there remains no more interest legally protected in principle. But even under the radio-station license the legitimate expectation for the license to be valid during the original license period should be protected. Therefore, the compensation for license revocation differs in its legal nature depending on the type of spectrum license. The Spectrum Act treats the compensation for different types of licenses basically alike, and the standard for compensation is “ordinary loss” which is standard for tort or breach of contract liability, not the “value of property.” So under the present Act, it is proper to regard it compensatory protection of legitimate expectation rather than just compensation for property right infringement. In the Act there are not enough elaborate rules to handle various situations of spectrum refarming. The practical issues such as whether the ‘ordinary loss’ standard falls under “just compensation,” whether direct payment by new user to the incumbent user is permitted in case the incumbent is government entity, and the compensation is also required in case the general authorization is repealed with the reallocation of spectrum. It is necessary to develop more elaborate and flexible provisions for spectrum refarming.