Fighting for Space: Sharing Resources in Space with the International Community

Kaitlyn O’Hara[1]

For the past fifty years, we have commonly referred to space as the final frontier.  During that same fifty years, we have come to realize that space resources are quite finite and sharing such resources with the international community can and is creating global conflicts.  As a result, the methodology for allocating orbital locations used by the International Telecommunication Union (the “ITU”), an agency of the United Nations, will have a lasting impact on the growth and development of technologies dependent on space assets.  Due to the need for unanimous approval of all ITU rules, such rules, the Radio Regulations, often include broad language that allows for technological growth in the satellite industry, but also provides opportunities for speculation of orbital locations.  One example of such broad language is in the ITU’s requirements for demonstrating use of an orbital location.[2]  The 2012 World Radio Conference (the “WRC”) will continue the efforts of previous WRCs to address methods for ensuring efficient use of orbital locations.[3]  Any changes to the Radio Regulations must favor transparency to allow for space-faring nations to take on a greater role in enforcing the Radio Regulations and the ITU to better understand how orbital locations are truly used or not used, as the case may be.

The demand for satellite capacity continues to grow as businesses continue to transmit data across the globe.[4]  Current demand for satellite capacity uses 79% of total satellite capacity globally; however, orbital locations above the areas of greatest demand, such as North America, are largely already occupied.[5]  As a result, satellite operators make numerous filings for various orbital locations to reserve priority over such locations often without business plans for their use.[6]  Once a right to use an orbital location is established, a satellite operator is unlikely to willingly relinquish its rights.[7]  As a result, with few available orbital locations over areas of high demand, there are few new entrants into the satellite industry.[8]  Thus, the ITU’s monitoring of the efficient use of orbital locations is vital to fulfilling future demands for satellite capacity and, though not a core mission of the ITU, creating continued competition in the satellite industry.

The ITU only communicates with nations; the Radio Regulations refer to nations as “administrations.”[9]  As a result, a satellite operator interested in an orbital location in the fixed satellite services frequencies must file a request with an administration to make a filing to the ITU on the operator’s behalf.[10]  The ITU allocates orbital locations based on a first to file method.  Administrations continue to make junior filings however, in case the administration with priority fails to meet the requirements of the Radio Regulations to maintain its status.[11] Once filed, an administration, and in turn the respective satellite operator, must bring the orbital location into use within seven years of the initial filing.[12]  Additionally, the satellite operator must provide certain due diligence information to the ITU, such as the satellite manufacturer, the launch provider and orbital characteristics of the satellite, “as early as possible” but no later than upon bringing the orbital location into use.[13]  Once an orbital location is in use, the satellite operator maintains its rights to the orbital location so long as it remains in use.[14]  However, the satellite operator may suspend use of the orbital location for up to two years without losing its priority status with the ITU.[15] 

All administrations participating in the WRC must reach consensus in order to change the Radio Regulations.  Some administrations take a more lenient view of the Radio Regulations, and seek changes that support such an interpretation, while other administrations prefer stricter interpretation and seek changes to create more clarity.  As a result, the current rules and future changes to the rules are based on a compromise found between these two methods of interpretation and can result in vague or broad language.  The Radio Regulations do not define what is required to bring an orbital location into use.  Additionally, the lack of definite timelines for providing notice of bringing an orbital location into use and for notifying the ITU of a suspension of use causes orbital locations to lay fallow without the ITU’s knowledge.  The due diligence information satellite operators must provide to the ITU does not provide sufficient information to ensure that such orbital locations are actually in use.[16]  As a result, a satellite operator can move a satellite into an orbital location simply to bring it into use without any intent of using the satellite. 

Additionally, the ITU has been timid in interfering with conflicts between administrations over orbital locations.  For example, Iran informed the ITU that it had temporarily hosted its Zohren-2 network on satellites registered in the United States and France.[17]  However, both nations contested that such satellites hosted the Zohren-2 network.  If their statements are true, the Zohren-2 network would have been suspended for more than two years and, in accordance with Radio Regulation 11.49, Iran should lose its priority status to the orbital location.  While an Arabsat satellite currently hosts the Zohren-2 network, France continues to contest Iran’s priority status.  French satellite operator, Eutelsat, currently operates a satellite and seeks to place another satellite near Iran’s orbital location, which, if both Eutelsat satellites operate as intended, would interfere with Iran’s priority status.  Rather than question an administration’s claims, the ITU Radio Regulations Board has encouraged France and Iran to find a compromise.[18]  Without an ability to determine the actual use of an orbital location and effectively monitor what orbital locations have been brought into use, similar international conflicts are likely to occur as orbital locations reach full capacity. 

The World Radio Conference, held every four years, meets in Geneva, Switzerland in January 2012 and, as in past WRCs, will continue to clarify the rules associated with bringing an orbital location into use.  WRCs considers proposals made by administrations, however prior to the WRC, the Conference Preparatory Meeting (the “CPM”) issues a report discussing possible solutions to various topics to be raised at the WRC.[19]  The most recent CPM report proposed two options for defining an orbital location in use.  The first would require a satellite to be located at the orbital location and capable of using its allotted frequencies.  The second proposal requires a minimum period of operation of the satellite, such as sixty days, before such orbital location is considered in use.[20]  While neither proposal defines how a satellite must be used to be in use, the second proposal ensures that orbital locations are not used to store spare satellites.  Alternatively, under the first proposal satellite operators may move spare satellites to orbital locations to maintain their priority status without the intent to use such satellites.

Another issue addresses notifying the ITU of suspension of use of an orbital location as set forth in Radio Regulation 11.49.  Through Radio Regulation 13.6, if the ITU suspects an orbital location is not in use, it may consult with the applicable administration to determine its current use.  In 2009, nearly half of the operations of the satellites in question resulted in filings of a suspension.[21]  Due to the indefinite timeframe for notifying the ITU about a suspension, the ITU cannot sufficiently monitor that suspensions only last two years.  To address these problems, the CPM report proposes (i) requiring notification to the ITU within six months of the start of the suspension or (ii) requiring satellite operators to notify the ITU when a satellite is not in use for a specific amount of time, such as thirty to ninety days.[22]  Given the changing uses of satellites and the resulting increase in filings to the ITU, a requirement to notify for a suspension as short as thirty days is too much of a burden for satellite operators.  However, requiring a notification within six months will both ensure that the ITU and the administrations with junior filings can properly monitor the length of any suspension, thus allowing for greater transparency as to when an administration loses its priority filing and the next most senior filing obtains priority over the orbital location.

Lastly, the CPM addresses whether the ITU should expand the due diligence information requirements in Resolution 49 in order to better understand how each orbital location is being used.  The CPM report proposes either not changing the current due diligence information or expanding the information required and requiring administrations to submit more timely updates about the satellites when such information changes.[23]  Expanding the ITU’s understanding of how orbital locations are used and publically disclosing such information will allow the ITU to better manage the use of orbital locations and allow administrations to monitor such use and prevent speculation.

Making changes to the Radio Regulations is a slow and political process.  However, even minor changes regarding bringing an orbital location into use will expand transparency.  While those administrations who seek broader language may not desire definite terms for bringing an orbital location into use, continuing to create transparency will assist the ITU in resolving conflicts.  Additionally, providing a window to administrations about the use of orbital locations can promote self enforcement within administrations.  Such transparency can prevent speculation in orbital locations and ultimately create efficiencies within the use of space resources.

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[1] Ms. O’Hara is a graduate of the University of Denver, Sturm College of Law and an Associate Corporate Counsel for EchoStar, an international technology company that provides set-top box equipment; digital broadcast operations, and satellite services.  Ms. O’Hara’s practice focuses on commercial and regulatory law within the satellite industry, including satellite services, satellite and launch procurement and export controls.

[2] See ITU Radio Regulation 11.44 (2008).

[3] ITU Resolution 805, 7  (2007); Gerry Oberst, ITU Satellite Registration – Possible WRC-12 Changes, Satellite Today, July 1, 2011, available at http://www.satellitetoday.com/via/globalreg/36941.html.

[4] See Satellite Industry Association, State of the Satellite Industry Report 5 (Aug. 2011), available at http://www.sia.org/PDF/2011_State_of_Satellite_Industry_Report_%28August%202011%29.pdf (global satellite industry grew 11% in 2009 and 5% in 2010).

[5] U.S. Gov’t Accountability Office, GAO-11-777, Telecommunications: Competition, Capacity, and Costs in the Fixed Satellite Industry 11 (Sept. 2011) [hereinafter GAO Report], available at http://www.gao.gov/new.items/d11777.pdf (referring to orbital locations in C-band and Ku-band).

[6] Id. at 26.

[7] Id. at 23.

[8] Id.

[9] ITU Radio Regulation 1.2 (2008).

[10] ITU Radio Regulation 11.2-11.8 (2008).

[11] GAO Report at 25.

[12] ITU Radio Regulation 11.44 (2008).

[13] ITU Resolution 49, 4 and Annex 2 (2007).

[14] GAO Report at 25.

[15] ITU Radio Regulations 11.49 (2008).

[16] GAO Report at 28.

[17] Peter B. de Selding, ITU Board Fails to Resolve Dispute over Iranian Service, Space News, Nov. 4, 2011, available at http://www.spacenews.com/satellite_telecom/111104-itu-fails-dispute-iranian-service.html.  

[18] Id.

[19] See Oberst, supra note 3.

[20] Id.

[21] National Telecommunications and Information Administration, Draft Proposals for the Work of the Conference 1 (Jan. 24, 2011) available at http://www.ntia.doc.gov/legacy/osmhome/ISPPD/WRC_2011/Documents/NTIA_Proposal/NTIA_Proposal_2011-01-24_7%2811.49%29.pdf.

[22] Oberst, supra note 3.

[23] Id.