by Gerald E. Oberst Jr.
Earlier this year, the FCC published a guide to the regulatory principles the agency has dealt with over the years. Connecting the Globe: A Regulator’s Guide to Building a Global Information Community aims at advising regulators and policy makers in developing markets. It is based on the premise that all countries are contributing to a dynamic international community thanks to the communications revolution. One of the nine chapters of the lengthy document deals with regulating satellite networks. Although this chapter touches on only the broadest principles, the fact that satellite services are given this level of prominence is a good development.
In the foreword to the guide, FCC Chairman William Kennard identifies four overall principles, which he believes are particularly significant for developing countries. These principles, which he believes have "global applicability," are: privatization, liberalization and competition; deregulation as competition develops; universal access to communications services and technology; and opportunity for underserved populations.
Initial chapters in the guide deal with the need for regulatory independence, essential functions of the regulator, the U.S. model and the structure of the FCC regulatory process. Subsequent chapters get more specific; the longest chapter in the guide (not counting the lengthy and useful glossary of terms) deals with competition in telecommunications services. The FCC strongly encourages free and open competition, and argues that this policy benefits individual consumers and societies as a whole. It notes that as part of the World Trade Organization agreement of basic telecommunications, 49 countries made commitments to open their satellite services markets.
From the satellite perspective, it would be most useful to have empirical data on the benefits of competition and open markets specifically for satellite services. The European Satellite Action Plan sought these types of statistics last year, but found little explicit detail. The FCC guide also lacks these details. It appears that satellite operators are too busy actually doing business to collect the policy information that could otherwise help them open more markets.
Chapter seven deals with spectrum management. While this chapter generally is enthusiastic about the FCC’s experience with auctions, it also acknowledges that auctions are not the preferred approach for satellite systems. In particular, it notes that for global systems, sequential auctions in countries where the operator wants to provide service could cause uncertainty. It questions the feasibility of coordinated multinational auctions and generally advises against auctioning satellite spectrum.
The chapter on satellite regulation starts with the observation that there has been a significant increase in the use of commercial satellite technology over the past decade and that use is expected to escalate. It then describes two essential building blocks for FCC satellite policy: efficient use of orbit spectrum resources and the "open skies" policy. The FCC requires efficient use of spectrum and seeks to license the maximum number of systems possible relying mainly on private industry to determine the proper technology mix. The open skies policy has long served the U.S. satellite industry well by not limiting the number of operators or the types of services they provide.
Notably missing from this discussion is a description of FCC policy on allowing satellites licensed by other countries to serve the U.S. market. This process is generally open, except for service from intergovernmental satellite organizations. Nevertheless, we continue to hear suspicious muttering from foreign satellite operators about the complexities of the U.S. regulatory procedures.
A good half of the satellite chapter deals with coordination through the ITU. The discussion of coordinating and registering satellites is necessarily very simplistic-no thorough understanding of ITU procedures can be set forth in a few pages. The discussion of earth station licensing is useful, and in appendices the FCC includes examples of forms and sample filled-in applications for other types of earth stations (point-to-point, temporary-fixed satellite news gathering, and receive-only).
This FCC guide gives only the broad flavor of the rules without alluding to the full complexity of the rulemakings and technical decisions in the satellite arena. Some further detail could have been added on other policies, for example, on global mobile personal communications by satellite. These GMPCS systems are mainly licensed in the United States and are recognized to be important tools for development of the global information community. Moreover, the success of the ITU GMPCS Memorandum of Understanding shows that international efforts can minimize regulatory burdens for satellite networks. The FCC should encourage new regulators to focus on these international activities as a way to foster "hands off" regulatory policies and best reap the benefits of the information age.
This FCC guide is a basic introduction to the field of telecommunications regulation. The chapter on satellite networks reflects the importance of satellite systems. As such, it may help open new markets and persuade policy makers to apply reasonable regulatory structures.
Gerry Oberst is a partner in the Brussels office of the Hogan & Hartson law firm. His email address is geoberst@hhlaw.com.REGULATORY
