by Gerry Oberst

Once again, the International Telecommunication Union (ITU) was called on to referee the shenanigans of countries alleged to be taking liberties with the international rules on bringing satellites into use in time to avoid the expiration of priorities in the registration rules. At its December 2003 meeting, the ITU’s Radio Regulations Board (RRB) reviewed papers debating whether the Asiasat network at 122 degreesE was used in time to stay on the ITU’s books. China said yes; Thailand said no.

This stand-off has been an ongoing problem. Thailand has operated, since at least 1997, a Thaicom satellite only two degrees away from the 122 degreesE orbital position. China earlier filed applications with the ITU for the next adjacent slot, with no apparent plans to launch a new satellite to that orbital location. The two countries held numerous discussions since 1999 to resolve the matter. Thailand first complained to the RRB in February 2003, that China had long ago lost its priority to operate a satellite at 122 degreesE. The issue took special prominence at that time because China finally was proceeding with launch of a new satellite into the 122 degreesE slot, which it did with the Asiasat 4 satellite in April 2003.

Thailand maintained that China’s efforts to relocate a series of end-of-life satellites and bring the frequencies into use under international rules failed because those old satellites were never put into use. In addition, Thailand argued, those satellites did not have all the frequencies to cover the filings that China sought to protect and were generally contrary to the spirit and intentions of the ITU constitution and radio regulations.

China responded it adequately protected its orbital slot and frequencies. In addition, China said relocation of in-orbit satellites is a common occurrence. This is a "well- established procedure used by satellite operators," according to China, "and it is seen that satellites are routinely relocated and used in new orbital locations."

In China’s view, Thailand was only seeking a better position in the coordination process. Thus, China argued, the whole disagreement was in essence a matter of coordination strategy.

This is not the first time that the critical issue of filing priorities rested on whether satellite proposals remained in force or instead expired because no operational satellite resided at the desired orbital slot. The RRB interpreted the rules in 1998 concerning a controversy over satellite frequency assignments on a Broadcasting Satellite Service (BSS) satellite, Europesat 1. Because Europesat 1 was not brought into use, the RRB generally agreed that its BSS filings should have expired.

The ITU rules in this area are complicated and in some key respects, vague. The 1997 World Radiocommunication Conference (WRC) decreased the time for administrations to bring a satellite frequency assignment into use and applied due diligence requirements to all assignments. These measures followed in subsequent WRCs by other new rules designed to facilitate the coordination process.

Nevertheless, there is no generally accepted definition of what it means to bring a satellite network frequency assignment into regular use, one of the matters China and Thailand were contesting. It is fairly clear that the satellite must at least have the technical capability of operating on the same set of frequencies that a country filed for at the ITU, in order for a satellite to keep its filing priorities.

China did show, however, that there is a lot of relocation going on in space. In its November 2003 filing, it attached background materials showing, for example, how four different owners in seven different orbital locations operated one communications satellite throughout its operational life. It supplied evidence of another satellite that was located in five different locations, at least three after a power failure that led to a full insurance payment for the satellite.

A bit of "dirty laundry" surfaced along with the arguments, as China identified disparities between Thailand’s satellite filings with the ITU and what it actually was operating. China kindly pointed out that Thailand was the first to attack the credibility of the other party, so it was necessary to look at other "questionable actions" that Thailand took in support of its own interests.

Both sides submitted strongly worded arguments, with many technical specifications, accusing the other of rule violations, expired satellite filings, nefarious actions… . The stage was set for an international resolution of the rules.

Except it did not happen. At its December 2003 meeting, the RRB managed to note with satisfaction that the two administrations finally arrived at a "mutually acceptable solution." Therefore, the RRB would not consider that case any further and would likely be able to close the case entirely at the next meeting.

Maybe next time…

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