by Gerry Oberst

Can Europe develop a unified satellite policy? European countries more or less coordinate satellite spectrum policies through the European Conference of Post and Telecoms Administrations (CEPT). The European Commission also provides impetus for harmonized policies under European Union (EU) decisions. But on many levels the resulting satellite policy is based on a jigsaw puzzle of national approaches, which inevitably holds back an industry that by its very nature crosses national boundaries.

The CEPT is made up of 44 countries, which include the 15 members of the EU, plus many other non-EU European countries. The CEPT’s operating arm in the communications field is the Electronic Communications Committee (ECC), which adopts decisions on spectrum allocations and various technical and licensing issues after much hemming and hawing by national delegations. But those decisions are not legally binding–they must be implemented through national law and regulation. A December 2002 report from an ECC project team shows the results: there are enormous variations in the implementation rate among European administrations for decisions that affect the pan-European satellite industry.

Records of all ECC decisions throughout the last eight years, both within and outside the satellite sector, show only a single decision implemented by as many as 33 CEPT countries during that period. On average, about a third of all decisions adopted in that same period are formally in place within CEPT countries. Of the close to 100 decisions adopted in the last four years, in half or more of the CEPT countries only 15 decisions were adopted.

The satellite sector shows worse results. Only a handful of decisions over the last eight years were implemented by more than a third of CEPT countries. These results are further skewed by a few such decisions that EU law required the 15 EU member states to implement. Of those decisions that depended solely on normal CEPT procedures, without EU law behind them, approximately four of close to 40 satellite-related decisions were implemented by as many as half of CEPT countries.

Among non-EU countries, there are 10 CEPT administrations that have not formally adopted any such decisions. Another nine have adopted less than a third of the satellite decisions. Even among the EU countries, however, a third has implemented only a few of the satellite-related decisions. Notably, these include among them some of the countries that throw their weight around the most in the ECC.

The response is that some countries rely on ECC decisions without necessarily implementing them formally, which contributes to legal uncertainty and raises the cost to industry of confirming the situation. Some administrations argue it takes time to implement ECC decisions–but the decisions themselves are debated for several years before being adopted in the ECC, so these administrations have plenty of notice.

In the licensing field, the new package of EU directives will instill consistency, at least in the EU, but member states still rely on different legal definitions of terms and varying license conditions. Furthermore, an August 2002 Dutch study noted that in Europe only six countries (France, Germany, United Kingdom, Norway, Sweden and Italy) even have national space laws, covering licensing of space stations and liability. Those administrations that do not license space stations or have national operators often have little incentive to foster licensing of satellite services within their borders.

Satellite services themselves are delivered in national terms, and rarely European. Satellite digital broadcasting has been a major European success story. Nevertheless, the European Commission in July last year noted a trend for such services to be delivered purely on a national basis, with copyright licenses prohibiting reception outside that territory. There is a good trend for telecommunications services being delivered across European national boundaries, but it is hampered by the licensing context.

The distinction between a national and a European approach toward satellite operation has been starkly emphasized by the embarrassing debate over the Galileo system. Galileo is Europe’s answer to the U.S. Global Positioning System–a high prestige, strategic and long-term project. Yet its genesis has been held up by squabbling among European governments over where the headquarters will be located, who runs the program and the nationality of its director. The German spokesman for his country’s ministry was quoted in January saying, "We do not want German money to fund work going on in other countries."

Only long-term solutions will help this situation and create a true European satellite policy. The CEPT, to its credit, is focusing on how to improve its members’ sorry implementation record, and also working toward a one-stop-shop for licensing satellite networks and services. The European Commission has a new tool bag under the electronic communications framework to foster harmonization, but the Commission needs more staff to focus on spectrum issues. Its overworked officials are probably outnumbered several hundred to one by national regulatory staff in the spectrum area. It will only be when Europe treats satellite as European, rather than national priorities, that the sector can match the effectiveness and reach of its U.S. counterpart.

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