Regulatory Review: Orbital Slot Limits–The System’s Not Broken

by Gerry Oberst

Recent press reports started a furor about rumors of possible International Telecommunication Union (ITU) efforts to limit the length of time that a satellite company can occupy a particular orbital slot. A consultant was quoted for his assessment that roughly 15 companies hold the “vast majority” of current orbital positions, and questioning whether there should be limits on the validity of their operation. A regulator was quoted saying there will surely be an ITU proposal to limit a company’s access to orbital slots. Suddenly industry sources were calling for mobilization to fight the threat of term limits.

My view? This is a “slow news day” type of report and no limits are on the horizon.

First off, the orbital slots are not owned by companies–they are administered on behalf of governments, as members of the ITU. Those governments control the companies that have rights to use orbital positions and the associated frequencies.

Second, among the “15 companies,” the largest users were, until recently, intergovernmental organizations representing many sovereign countries. Those countries remain as shareholders.

Third, orbital positions and frequencies already are set aside for all ITU members, through the “planned bands.” Love them or hate them for their inefficiency, these planned bands give opportunities to new companies and developing countries by setting aside satellite spectrum and thus orbital positions for national systems.

This complaint about orbital slot access is nothing new. As long ago as the 1979 World Radio Conference, there was debate on how to limit the term of orbital positions.

Resolution 2, adopted by the 1979 conference, resolved that registration of satellite frequencies should give no permanent priority to any country. Further, Resolution 4 was adopted as an “experimental procedure” to define the term of satellite registrations. That resolution was later amended at a 1988 radio conference dedicated to space issues (called ORB-88). It remains on the books and provides a structure, however vague, for term limits and follow-on rights.

In general, a government has the right to define the operational lifetime of its registered satellites and to replace a satellite with one having the same basic technical characteristics. There are some limits to these principles. For planned bands, when these were first developed in 1977 it was anticipated they would last for 15 years. (Thus, there is nothing new in the 15-year terms adopted at the most recent World Radio Conference for broadcasting satellites.)

Resolution 4 could lead to the cancellation of a satellite registration, but countries have the option of notifying the ITU three years in advance that they want to extend the registration.

By the early 1990s, experience showed that few countries had requested the application of Resolution 4 procedures. Instead, most countries simply started the notification, coordination and registration procedures from scratch for new satellites at the same position.

One disquieting development led to some concern, however, as a few countries unreasonably claimed that their satellites’ operational lifetime could stretch to as much as 50 years. Thus, the 1994 radio conference included the issue of “operational lifetimes” as one of a long list of satellite coordination issues to be examined.

Most of those issues involved the familiar problem of “paper satellites,” i.e., filings for satellites that will never be built and clog up the international registration system. But the operational lifetime issue was the complete opposite of paper satellites–rather than dealing with hypothetical and wasteful filings, this issue dealt with real, live satellites up in space, for which extensive ground networks had been built and enormous investments made.

Predictably, this operational lifetime issue was submerged in the thousands of pages of expert opinions on the paper satellite problems. Along the way, however, international experts essentially concluded that the system was not broken so there was no need to fix it. A few key paragraphs in the stacks of papers said that no improvements to Resolution 4 had been identified, no practical remedies had been suggested, and as a practical matter it would be difficult to remove an operational system from the ITU satellite registry.

As one European administration put it, “Theoretically it is nice to envisage that an administration would only have the rights to use certain frequencies/orbital positions for a limited time period…. However, it is necessary to be more realistic. A satellite system operator, after having invested significant money into the hardware facilities (space and ground segments) over the 20-30 year period, will also have a large number of service providers as users of the system….”

At the end of the day, it is governments that administer orbital positions. And there is no way that the major spacefaring nations are going to agree to give up orbital positions that have been built up over decades. Alarmist reports to the contrary, this is an issue for which a system already exists, and the system is not broken.

Gerry Oberst is a partner in the Brussels office of the Hogan & Hartson law firm. His email address is [email protected].