Ligado Networks LLC v. United States

N OTE: This disposition is nonprecedential.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
______________________
D ONALD B. VERRILLI, J R., Munger, Tolles & Olson LLP,
Washington, DC, argued for plaintiff-appellee. Also repre-
sented by G INGER A NDERS ; EVAN J ENNINGS MANN, San
Francisco, CA; D AVID COON, YELENA K ONANOVA, P HILIPPE
SELENDY , Selendy Gay PLLC, New York, NY; HARRIS
F ISCHMAN, MARTIN F LUMENBAUM , Paul, Weiss, Rifkind,
Wharton & Garrison LLP, New York, NY; K EVIN F. K ING,
Covington & Burling LLP, Washington, DC.
N ATHANAEL YALE , Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Case: 25-1792 Document: 55 Page: 1 Filed: 03/09/2026

-- 1 of 34 --

LIGADO NETWORKS LLC v. US 2
Washington, DC, argued for defendant-appellant. Also
represented by BORISLAV K USHNIR, P ATRICIA M.
MCCARTHY , BRETT SHUMATE.
______________________
Before M OORE, Chief Judge, T ARANTO and STOLL , Circuit
Judges.
T ARANTO, 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: 2 Filed: 03/09/2026

-- 2 of 34 --

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: 3 Filed: 03/09/2026

-- 3 of 34 --

LIGADO NETWORKS LLC v. US 4
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: 4 Filed: 03/09/2026

-- 4 of 34 --

LIGADO NETWORKS LLC v. US 5
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: 5 Filed: 03/09/2026

-- 5 of 34 --

LIGADO NETWORKS LLC v. US 6
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: 6 Filed: 03/09/2026

-- 6 of 34 --

LIGADO NETWORKS LLC v. US 7
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: 7 Filed: 03/09/2026

-- 7 of 34 --

LIGADO NETWORKS LLC v. US 8
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: 8 Filed: 03/09/2026

-- 8 of 34 --

LIGADO NETWORKS LLC v. US 9
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: 9 Filed: 03/09/2026

-- 9 of 34 --

LIGADO NETWORKS LLC v. US 10
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: 10 Filed: 03/09/2026

-- 10 of 34 --

LIGADO NETWORKS LLC v. US 11
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: 11 Filed: 03/09/2026

-- 11 of 34 --

LIGADO NETWORKS LLC v. US 12
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: 12 Filed: 03/09/2026

-- 12 of 34 --

LIGADO NETWORKS LLC v. US 13
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: 13 Filed: 03/09/2026

-- 13 of 34 --

LIGADO NETWORKS LLC v. US 14
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: 14 Filed: 03/09/2026

-- 14 of 34 --

LIGADO NETWORKS LLC v. US 15
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: 15 Filed: 03/09/2026

-- 15 of 34 --

LIGADO NETWORKS LLC v. US 16
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: 16 Filed: 03/09/2026

-- 16 of 34 --

LIGADO NETWORKS LLC v. US 17
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: 17 Filed: 03/09/2026

-- 17 of 34 --

LIGADO NETWORKS LLC v. US 18
(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: 18 Filed: 03/09/2026

-- 18 of 34 --

LIGADO NETWORKS LLC v. US 19
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: 19 Filed: 03/09/2026

-- 19 of 34 --

LIGADO NETWORKS LLC v. US 20
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: 20 Filed: 03/09/2026

-- 20 of 34 --

LIGADO NETWORKS LLC v. US 21
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: 21 Filed: 03/09/2026

-- 21 of 34 --

LIGADO NETWORKS LLC v. US 22
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: 22 Filed: 03/09/2026

-- 22 of 34 --

LIGADO NETWORKS LLC v. US 23
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: 23 Filed: 03/09/2026

-- 23 of 34 --

LIGADO NETWORKS LLC v. US 24
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: 24 Filed: 03/09/2026

-- 24 of 34 --

LIGADO NETWORKS LLC v. US 25
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: 25 Filed: 03/09/2026

-- 25 of 34 --

LIGADO NETWORKS LLC v. US 26
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: 26 Filed: 03/09/2026

-- 26 of 34 --

LIGADO NETWORKS LLC v. US 27
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: 27 Filed: 03/09/2026

-- 27 of 34 --

LIGADO NETWORKS LLC v. US 28
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: 28 Filed: 03/09/2026

-- 28 of 34 --

LIGADO NETWORKS LLC v. US 29
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: 29 Filed: 03/09/2026

-- 29 of 34 --

LIGADO NETWORKS LLC v. US 30
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: 30 Filed: 03/09/2026

-- 30 of 34 --

LIGADO NETWORKS LLC v. US 31
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: 31 Filed: 03/09/2026

-- 31 of 34 --

LIGADO NETWORKS LLC v. US 32
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: 32 Filed: 03/09/2026

-- 32 of 34 --

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: 33 Filed: 03/09/2026

-- 33 of 34 --

LIGADO NETWORKS LLC v. US 34
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
Case: 25-1792 Document: 55 Page: 34 Filed: 03/09/2026

-- 34 of 34 --