Murray Rothbard's discussion of the radio spectrum and waterways in Man, Economy, and State was an early and remarkably systematic attempt to drag two supposedly "exceptional" resources back into the ordinary law of property. In 1962, he argued that usable radio frequencies were scarce and therefore ownable, and that fishing areas in oceans could likewise be appropriated, bounded, and exchanged. He even said the relevant water areas could be marked off by latitude and longitude. Rothbard was not inventing these ideas out of thin air; in the footnotes of the text he cited Ronald Coase on spectrum and Jerome Milliman on water, showing that he knew he was entering a real but still small debate. What made Rothbard distinctive was not simply that he liked markets. It was that he insisted on asking the prior question: who has title?

That question mattered because the American legal regime for radio had been built to avoid answering it in property terms. The Radio Act of 1927 placed control over interstate and foreign radio transmission under federal authority, required applicants to waive claims of right against the United States, and declared that licenses created no right beyond their own limited terms. It also tied licensing to the vague standard of "public interest, convenience, or necessity." The Communications Act of 1934 then created the Federal Communications Commission (FCC) and centralized that administrative framework rather than abandoning it. Rothbard's proposal, in this context, was a rejection of the architecture of command-and-license broadcasting itself.

On spectrum, Rothbard's claim was simple and radical: ordinary breathable air is too abundant to be property, but the electromagnetic spectrum used for broadcasting is scarce, so it should be appropriated by first users "just like" land or livestock. He wrote that the first user of a frequency would own it for his relevant wave area, and that a later broadcaster transmitting on that same wavelength would be guilty of invasion in the same way a trespasser invades land. In the same passage he cited Coase's 1959 article arguing that federal ownership of the airwaves had been justified less by true "chaos" than by the suppression of emerging common-law claims. Rothbard's great move was to turn what Coase framed largely as an allocation problem into a deeper problem of justice, title, and trespass.

That helps explain both Rothbard's kinship with and distance from the early market critics of spectrum regulation. Leo Herzel proposed auctioning spectrum in 1951, and Thomas Hazlett's later history identifies Herzel and Coase as the key early proponents of market allocation. Congress did not give the FCC authority to use competitive bidding until 1993, and the first FCC auctions began in 1994. Yet auctions, for Rothbard, were not the heart of the matter. As B.K. Marcus later stressed in one of the Mises Institute's Essays in Political Economy, Rothbard's question was not merely whether markets could price licenses more efficiently, but whether the state had any right to stand between homesteading users and full property title in the first place. That is a more radical question than modern spectrum policy usually permits itself to ask.