U.S. Landing Rights and International Satellite Services

In the global economy it is important that there be a way for satellite markets to contribute to and benefit from their counterparts internationally. The United States grants access to its own satellite markets in exchange for access to foreign satellite markets. To some extent, this guiding principle reflects an effort to promote competition in global satellite services. This article discusses the general approach by which foreign satellites may acquire landing rights in the United States and offer space segment capacity to U.S.-based ground stations.

Under the right circumstances, satellites not licensed in the United States can offer services to U.S.-based stations, but this privilege is not gained through the issuance of a satellite license from the U.S. Federal Communications Commission (FCC). Instead, a non-U.S. satellite obtains landing rights when the FCC records the satellite in the “Permitted List” — a directory of foreign satellites whose home countries have opened their satellites markets to the United States. Notably, the term non-US satellite does not refer to ownership since some non-US satellites may be majority owned by US investors. Instead, the term means that the non-US satellite is coordinated before the International Telecommunications Union by a country other than the United States.

A satellite can gain a spot on the Permitted List after it petitions the FCC or a U.S. Earth station operator makes a petition on its behalf. The FCC will, in turn, evaluate the application according to internal policies discussed below.

In 1996, the FCC developed a standard for granting U.S. landing rights that follows a two-pronged approach of first, performing an economic analysis, and second, looking at public interest concerns such as national security, law enforcement, spectrum availability and foreign policy.

In the economic analysis, also called the ECO-Sat test, the FCC examines whether the home markets of the non-U.S. satellite have any barriers to entry to U.S. satellites. This analysis determines whether U.S.-licensed satellites have effective, competitive opportunities in the markets of the foreign satellites seeking access to U.S. markets. A non-U.S. satellite is placed in the Permitted List only when both prongs of the analysis yield a favorable outcome from the FCC.

Membership in the World Trade Organization (WTO) plays an important factor in expediting U.S. landing rights applications. The WTO Basic Telecom Agreement was concluded in 1997, and at the time, 69 WTO members made market access commitments under the agreement. These countries represented more than 90 percent of the telecommunications revenue worldwide.

With this consideration in mind, the FCC established a presumption in favor of WTO members. If the non-U.S. satellite seeking access to U.S. markets is licensed by a WTO-member country, the ECO-Sat analysis is forgone. The satellite will be placed in the Permitted List given there are no public interest concerns. Applications from satellites licensed by non-WTO member countries would still undergo the ECO-Sat test. However, the presumption only applies for satellite services where there is reciprocity. Currently, reciprocity only exists for fixed satellite services and not for mobile satellite services, DTH services or DBS services.

U.S. landing rights afford non-U.S. satellites the same treatment as U.S-licensed satellites. On the other hand, non-U.S. satellites also have to comply with FCC regulations. It is important to note that the Permitted List is exclusively for non-U.S. satellites. Since U.S. satellites hold FCC licenses, they do not need to be on the Permitted List as they are already authorized to serve U.S. markets.

U.S. satellites and Permitted List satellites form part of a larger category called the ALSAT satellites — an FCC designation created for the purpose of Earth station licensing. A licensed operator with ALSAT authority can access any ALSAT satellite without having to modify its license given that they use the same antenna and do not exceed licensed power parameters. Therefore, from a regulatory standpoint, any satellite on the Permitted List can compete with any other satellite on the Permitted List as well as with all U.S. satellites. This outcome provides consumers with new alternatives, more competitive prices and increased technological innovation.

Raul Magallanes runs a Houston-based law firm focusing on telecommunications law.
He may be reached at +1 (281) 317-1397 or by email at raul@ rmtelecomlaw.com.