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Procedures for Authorisation of Satellite Networks

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					    Procedures for Authorisation of
                Satellite Networks
        A statement on procedures for the management of
filings and international coordination for satellite networks




                                     Statement
                                             Procedures for Authorisation of Satellite Networks




Contents
Section                                                                             Page

   1      Summary                                                                       1
   2      Background                                                                    4
   3      Responses and conclusions                                                     8


Annex                                                                               Page

   1      List of respondents to the consultation                                     17
   2      Glossary                                                                    18
                                                               Procedures for Authorisation of Satellite Networks



    Section 1


1   Summary
    What this statement covers

    1.1     This statement presents Ofcom’s conclusions following a consultation on the
            procedures that Ofcom operates on behalf of the UK in relation to the coordination
            and notification to the International Telecommunication Union (ITU) of satellite
            networks registered in the UK, British Overseas Territories, the Channel Islands and
            the Isle of Man. The public consultation was published on 4 February 2005 and is
            available electronically at Ofcom Website | Procedures for Authorisation of Satellite
            Networks.

    The international framework for satellite networks

    1.2     Satellite services have important business, social and scientific applications and offer
            a unique ability to deliver communications capacity to many parts of the World not
            adequately served by other means. In order to operate a satellite network, it is
            necessary to obtain access to spectrum for the uplink (Earth to satellite) and the
            return path from the satellite to stations in the service area. It is also necessary to
            secure an orbital position in space for the satellite. A satellite’s orbital position will
            influence the area it can serve.

    1.3     Spectrum and orbital positions are valuable and limited resources. Radio spectrum is
            in increasing demand as the desire for mobile and broadband applications grows and
            it becomes more and more challenging to find frequencies to deliver new
            communications services. Orbital positions from which satellites can serve
            commercially attractive markets, such as the USA and Europe, are much sought after
            and increasingly congested. If the spectrum and orbital positions are not used
            efficiently, competition, innovation and growth in communications services will be
            held back to the detriment of consumers and businesses.

    1.4     Spectrum and orbital positions have to be managed and planned in order to avoid
            interference and to ensure that adequate separations are maintained between
            satellites. Because of the international nature of satellite services, this coordination
            takes place within a framework of international rules administered by the ITU, a
            treaty-based body formed under the auspices of the United Nations.

    1.5     The ITU Radio Regulations, which have the force of an international treaty, contain
            procedures for the notification, coordination and registration of satellite space
            stations1 and networks and place certain rights and obligations on ITU member
            states. These are designed to ensure that satellite networks operate without
            interference and that orbital positions are efficiently utilised.

    Ofcom’s role

    1.6     Ofcom represents the UK in the ITU and acts as the UK administration for satellite
            networks. Ofcom also represents the British Overseas Territories, the Channel
            Islands and the Isle of Man. As part of this role, Ofcom is required to decide whether
            to submit applications for satellite network filings to the ITU for registration. This
            decision depends on, among other things, whether the applicant can demonstrate the
    1
     The ITU’s responsibilities relate to the “space station”, which is the radio station on board the
    satellite, rather than the spacecraft itself.


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Procedures for Authorisation of Satellite Networks


        technical, financial and legal credentials to construct, launch and operate the
        proposed system in conformity with timescales contained in their business plan.
        Ofcom is also keen to ensure that its decision-making in this area is consistent with
        its broad statutory duties in sections 3, 4 and 154 of the Communications Act 2003
        and its published regulatory principles.

1.7     The consultation sought views on:

       • making the filing process more transparent and competitive;
       • whether or not Ofcom should submit technically conflicting filings to the ITU;
       • whether a system of a re-assigning filings should be introduced;
       • the extent to which market mechanisms could play a greater role in the filing
         process;
       • the responsibilities of Ofcom and operators relating to the coordination process;
       • possibilities for transferring filings between UK operators;
       • the possibility of introducing fees and charges.


Responses to the consultation

1.8     Ofcom received 16 responses from the satellite industry, Overseas Territories, the
        Isle of Man and the States of Jersey. A full list is attached at Annex 1.

1.9     The responses expressed concern about some aspects of the proposals but
        supported others. For example, there were strong reservations about the suggestion
        that Ofcom should publish details of proposed filings before submitting them to the
        ITU and to subject them to a competitive process but a large majority supported in
        principle proposals to forward more filings to the ITU, subject to due diligence, even if
        there is a potential technical conflict with existing UK filings and assignments, and for
        there to be a process for re-assigning to other UK operators filings that do not come
        to fruition. There was also broad agreement in principle that Ofcom should charge for
        processing filings, provided that this was on a cost-recovery basis and subject to
        consultation on detailed proposals.

1.10    Several responses referred particularly to Ofcom’s role in representing other
        territories and suggested that filings made on their behalf should be treated
        differently from filings on behalf of UK operators.

1.11    Views were mixed on whether it should be a condition that the satellite control centre
        (SCC) and tracking, telemetry and command (TT&C) station be located in the UK or
        UK-represented territory.

1.12    There were a number of helpful suggestions for improving aspects of the filing
        process to make it more transparent, effective and efficient and comments on the
        information required by Ofcom to support filings.

Ofcom’s conclusions

1.13    Ofcom is grateful to all who responded and has carefully considered their comments.
        Ofcom’s general approach to managing the radio spectrum is to rely as far as
        possible on market mechanisms. However, Ofcom recognises that the international




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                                                          Procedures for Authorisation of Satellite Networks


        nature of satellite services and the treaty-based regime that applies make it
        necessary to adapt that general approach.

1.14    Ofcom’s conclusions and reasons for those conclusions are set out in following
        sections of this statement. Ofcom has modified some aspects of its proposals to
        meet the concerns that were expressed. Key points may be summarised as follows.

       • Ofcom accepts that it will not be advantageous to publish details of applications for
         ‘unplanned assignments’2 in advance of submission to the ITU and to subject them
         to a competitive process.
       • There are advantages in submitting all filings that meet the due diligence
         requirements, even if there is a technical conflict. However, this policy should not
         extend to ‘planned assignments’.
       • It would be beneficial to re-assign filings to another UK operator where the original
         assignees voluntarily relinquish them or fail to meet the due diligence milestones.
       • The roles and responsibilities of Ofcom and applicants for filings seem reasonably
         well-understood but Ofcom intends to clarify these in guidance that it proposes to
         issue to replace the existing RA301.
       • No radical change seems necessary to the information required to support filings
         although there could be benefit in producing one or more templates. This will not be
         mandatory, however, as Ofcom agrees that it is necessary to retain some flexibility
         to cater for the range of circumstances that may be encountered.
       • Ofcom proposes to relax the requirement with respect to location of SCC and TT&C
         provided that the applicant can demonstrate that there exist firm and binding
         contractual relations that will enable Ofcom to fulfil its international and other
         obligations through the applicant.
       • Ofcom will consult further on fees for satellite filings.
       • Ofcom will take account of suggestions for improving the filing process in the
         guidance it will produce to replace the current information sheet.
       • Ofcom intends, subject to satisfactory conclusion of discussions with the
         Government, to continue to make satellite filings on behalf of British Overseas
         Territories, the Channel Islands and the Isle of Man. As described in more detail in
         following sections of this statement, some aspects of those filings can appropriately
         be determined by the administration of the territory in question.




2
 ‘Unplanned’ assignments result from an application by an operator for an assignment in a given
band, with a specified coverage and from a particular orbital position. A ‘planned’ assignment, on the
other hand, is pre-registered in the name of an administration and is subsequently assigned to an
operator.


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    Procedures for Authorisation of Satellite Networks



    Section 2


2   Background
    Introduction

    2.1     Ofcom has been responsible since 29 December 2003 for representing the UK in
            bodies concerned with the management of the radio spectrum. This includes
            responsibility for operating procedures under the Radio Regulations (RR) of the
            International Telecommunication Union (ITU) for the coordination, notification, and
            registration of frequencies used by satellite networks.

    Procedures for satellite notification and registration

    2.2     The Radio Regulations procedures are intended to ensure efficient use of two finite
            and valuable resources: radio spectrum and satellite orbits.

    Radio spectrum

    2.3     Signals from radio transmitters can interfere with each other unless they operate on
            sufficiently different frequencies, or are located sufficiently far apart, directed at
            different geographical areas or subjected to appropriate power limits. This
            interference can severely impair reception and prevent communication. Satellite
            networks generally have coverage that extends across national borders. There is
            therefore a need for an international framework to coordinate frequency use and to
            deal with interference if it does arise.

    Orbital locations

    2.4     The position in space occupied by a satellite determines the area of the earth that its
            signals can reach and its height will determine whether it remains over the same area
            as the earth rotates. For many applications, such as broadcasting, a geo-
            synchronous (or ‘geostationary’) orbit is highly desirable. Other satellite applications
            use orbits at lower altitudes where the satellites do not appear stationary to an
            observer on the ground. In either case, satellites using similar frequencies need a
            minimum orbital separation to prevent interference.

    2.5     Satellite networks require substantial investment and have a considerable lead time
            because of the need to build and launch the satellite and the associated ground
            infrastructure. It is necessary in order to raise the finance for a prospective operator
            to be certain that a suitable orbital location will be available consistent with the
            service area objectives of the operator. The system of advance publication,
            coordination and notification under the ITU Radio Regulations is intended to identify
            and reserve orbital locations and frequencies. Each administration is responsible for
            the publication, coordination and notification of satellite networks registered on behalf
            of operators within its territory. The UK is the notifying administration for the UK and
            also for the British Overseas Territories, the Channel Islands and the Isle of Man.

    ITU notification

    2.6     ITU Resolution 49 requires administrations to impose certain administrative due
            diligence requirements on satellite networks for which they act as the notifying
            administration, including specific information relating to the contractual status of the
            satellite and launch vehicle. These due diligence procedures are intended to



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                                                        Procedures for Authorisation of Satellite Networks


        minimise the number of speculative filings (known as paper satellites) that became a
        feature of the 1980’s and 1990’s. Paper satellites not only impose significant burdens
        on the ITU and national administrations but also block orbital slots resulting in under-
        utilisation of valuable orbital resource.

2.7     Before registering a prospective system with the Radiocommunications Bureau (BR)
        of the ITU, it is incumbent on an administration to satisfy itself that there is a realistic
        likelihood that the satellite will in fact be launched and will not block a valuable orbital
        location and associated frequency assignment. It is also incumbent on the
        administration to monitor progress against pre-specified milestones for the
        deployment of the satellite network.

2.8     In undertaking its role as notifying administration for satellite networks, Ofcom
        submits information concerning proposed satellite networks to the BR of the ITU and
        facilitates frequency coordination with satellite networks of other administrations. A
        key feature of the process is that the date of filing the coordination request
        determines the priority that is given in terms of coordination so that a filing with an
        earlier date takes precedence if there is a technical conflict. In other words, later
        applications have to adapt, for example by reducing coverage areas or power levels
        or moving to different frequencies, in order to avoid causing unacceptable
        interference to systems with an earlier date.

The roles of Ofcom and the Secretary of State

2.9     The Communications Act 2003 transferred spectrum management functions and
        responsibilities from the Radiocommunications Agency (RA) of the Department of
        Trade and Industry to Ofcom. The Secretary of State may give directions to Ofcom
        for the purpose of securing compliance with international obligations, as well as for
        other specified purposes such as in the interests of national security.

2.10    Ofcom has a duty to do such things as are required by the Secretary of State to
        represent the UK internationally on communications matters. The Secretary of State
        has required Ofcom to represent the UK in the ITU (with one exception that is not
        relevant to this statement). The Act also provides for Ofcom to represent the Channel
        Islands, Isle of Man and British overseas territories if requested by the Secretary of
        State although the Secretary of State cannot compel Ofcom to take on that role. A
        formal request to this effect was sent to Ofcom by the Secretary of State on 31
        January 2005. Ofcom has agreed in principle to the request and is meanwhile
        continuing to represent the territories pending finalisation of a memorandum of
        understanding on procedural aspects. Where Ofcom represents the UK or the
        Channel Islands, Isle of Man or British overseas territories in an international body,
        the Secretary of State may give general or specific directions about how it carries out
        that role.

2.11    Ofcom also has general duties under the Communications Act 2003 in relation to all
        of its activities, including in particular its functions in relation to the management of
        the radio spectrum, which include:

       • the duty to promote competition in relevant markets (sections 3(1)(a), 4(3) and
         154(2)(d));
       • the requirement to secure the optimal use for wireless telegraphy of the electro-
         magnetic spectrum, and the efficient management of that spectrum (sections
         3(2)(a) and 154(2)(a));




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Procedures for Authorisation of Satellite Networks



       • the requirement to ensure that its regulatory activities are transparent, accountable,
         proportionate, consistent and targeted only at cases in which action is needed
         (section 3(3)(a)); and
       • the duty to consider the desirability of encouraging investment and innovation in
         relevant markets (sections 3(4)(d) and 154(2)(c)).
       • Ofcom has published a set of general regulatory principles which it intends to follow
         in all areas of its activities, which include:
       • a bias against intervention, but with a willingness to intervene firmly, promptly and
         effectively where required; and
       • seeking the least intrusive regulatory mechanisms to achieve its policy objectives.
2.12    Ofcom has had regard to all of its general statutory duties and regulatory principles in
        preparing and consulting on its proposed policy in respect of the management of
        satellite filings, and considers that the conclusions set out in this document are fully
        consistent with these duties and principles.

The proposals in the consultation

2.13    The current procedure operated by Ofcom to handle applications for advance
        publication, coordination and notification of UK satellite networks in accordance with
        the requirements of the ITU Radio Regulations (RR) is described in information
        document RA301 published by the RA in February 2000. RA301 is available
        electronically at RA301 - Procedures of the United Kingdom Administration in
        Relation to Satellite Networks.

2.14    The consultation sought views on various proposals to adapt these procedures to
        take account of the transfer of spectrum management to Ofcom and changes to the
        business environment for satellite communications since RA301 was produced. The
        proposals were aimed at enhancing the efficient and effective management of the
        radio spectrum by satellite networks and making effective use of the orbital positions
        at the UK’s disposal, in accordance with Ofcom’s statutory duties.

2.15    Scarcity of spectrum or orbital positions can act as a significant barrier to entry to the
        communications market and hold back competition, innovation and growth to the
        detriment of consumers. In general, Ofcom considers that market mechanisms are
        better than central planning at allocating scarce resource to generate maximum
        benefit although Ofcom recognises that the application of these to satellite networks
        requires special consideration to take account of the international framework.

2.16    Ofcom also aims to ensure that it complies with the international rules that govern
        satellite filings, including the exercise of due diligence to weed out paper satellites.

2.17    Against that background, Ofcom proposed and sought views on the following.

       • In place of the current ‘first come, first served’ procedure, receipt of an application
         for a satellite filing would trigger a competitive process. This would enable Ofcom to
         use a transparent process to select a single application if more than one was
         forthcoming.
       • Ofcom proposed to submit all filings that meet the due diligence test, even if they
         technically conflict with a previous UK filing. This could lead to an increase in the
         number of international filings but would allow UK operators greater opportunity to
         establish priority for coordination purposes. Compared to the alternative of not
         proceeding with conflicting UK filings, this proposal would be less intrusive, more


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                                                        Procedures for Authorisation of Satellite Networks


          proportionate, lower barriers to entry and be more likely to lead to efficient use of
          orbital slots for the benefit of UK operators. It would still be necessary for later UK
          filings to coordinate with earlier filings and this requirement would be rigorously
          enforced.
       • Ofcom proposed that UK filings should be capable of being re-assigned to another
         UK operator in the event that the original assignee decided not to proceed or failed
         to meet its commitments under due diligence requirements.
       • Ofcom asked whether it would be helpful to have a more formal statement of the
         roles and responsibilities of each party in a filing with performance targets and
         whether Ofcom’s information requirements were proportionate and reasonable.
       • Ofcom sought views on the qualification for UK filing of having the SCC and TT&C
         located in the UK. This was in order to ensure that Ofcom’s ability to exercise its
         regulatory powers to ensure compliance with international obligations to control or
         prevent interference.
       • Ofcom asked for views on the principle of charging fees for satellite filings to
         recover its costs and on the basis for such fees.
       • Finally, Ofcom invited suggestions for other ways of improving the process, in
         particular for making greater use of market mechanisms in the satellite filing
         process.
2.18    The consultation included a regulatory impact assessment (RIA) as defined by
        section 7 of the Communications Act 2003. RIAs provide a valuable way of assessing
        different options for regulation and showing why the preferred option was chosen.
        They form part of best practice policy-making and are commonly used by other
        regulators. This is reflected in section 7 of the Act, which means that generally we
        have to carry out RIAs where our proposals would be likely to have a significant
        effect on businesses or the general public, or when there is a major change in
        Ofcom’s activities. In accordance with section 7 of the Act, in producing the RIA,
        Ofcom had regard to such general guidance as it considers appropriate, including
        related Cabinet Office guidance.




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    Procedures for Authorisation of Satellite Networks



    Section 3


3   Responses and conclusions
    Introduction

    3.1     This section summarises the responses to the consultation and presents Ofcom’s
            conclusions. Where appropriate, it indicates special considerations that apply to the
            territories outside the UK that Ofcom represents. Ofcom’s conclusions and their
            application to individual filings are subject to compliance with any directions from the
            Secretary of State, including for reasons of international relations, compliance with
            international obligations and national security. Some or all of the requirements of the
            procedures addressed in this statement may not be applied to UK Government
            systems.

    3.2     The responses, except where confidentiality was requested, may be found with the
            consultation on Ofcom’s website at Ofcom Website | Procedures for Authorisation of
            Satellite Networks.

    Regulatory impact assessment

    3.3     The analysis presented in this section also represents a RIA. It explains how Ofcom
            has decided to modify its proposals in the light of responses to the consultation in
            order to mitigate further the risks identified in the RIA included with the consultation
            document.

    Publication of applications for filing and selection

    3.4     The consultation noted that under the existing procedures, Ofcom operates a ‘first
            come, first served’ system. An operator applies to Ofcom for registration, Ofcom
            assesses the proposal for technical compatibility and against the due diligence
            criteria and, if satisfied, submits the application.

    3.5     This process is not transparent in that other potential applicants have no opportunity
            to indicate their interest in the orbital position and frequency in question at the time of
            the initial application to Ofcom. This runs the risk that a higher value, but later,
            application might be blocked by the first filing or achieves a later filing date simply
            because of timing. It may be argued that this is unlikely to promote optimal use of the
            spectrum and orbital resource.

    3.6     The process could be made more transparent and competitive by triggering a
            comparative selection process when an application is received for submission to the
            ITU. Ofcom would publish details of applications that had been received together with
            sufficient detail to enable other operators to decide whether they wished to declare
            an interest in a competing registration. If any did, this would trigger a competitive
            process.

    3.7     The consultation suggested that this would enable Ofcom to make an informed
            decision based on its assessment of the competing applications on which is more
            likely to generate the greatest benefit and so should receive priority.

    3.8     A possible downside would be the additional time taken to process applications while
            Ofcom carried out a comparative assessment. This and the need to publish details of
            applications might deter applications to Ofcom. Ofcom would aim to ensure that


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                                                     Procedures for Authorisation of Satellite Networks


       publication of information about applications does not prejudice commercial
       confidentiality or national security.

3.9    There were strong reservations about the proposal that Ofcom should publish details
       of applications received as a trigger for a competitive process. There were concerns
       about the loss of commercial confidentiality, that competitors might submit vexatious
       or speculative applications and that the delay caused by the process would result in
       loss of date precedence by UK operators, which would disadvantage them relative to
       those registered in other countries. However, one respondent indicated that the
       proposal might be appropriate for planned assignments, such as BSS and some
       FSS.

3.10   Ofcom has carefully considered the responses. Although Ofcom sees advantage in
       maximising transparency and enabling others to apply for the assignment in a
       competitive process, we understand the concerns that have been expressed and
       have concluded that we should modify our original proposal.

3.11   Accordingly, Ofcom has decided not to publish information relating to filings for
       unplanned assignments prior to submission to the ITU. For planned assignments, on
       the other hand, the balance is different. The priority date is already established by the
       original assignment to the UK and is independent of the date when a filing for a
       specific operator is made. Moreover, the technical details of the assignment are
       already in the public domain.

3.12   For planned assignments, therefore, Ofcom intends to institute a competitive
       approach and to invite expressions of interest in exploiting a UK planned assignment.
       The design of the process will depend on the circumstances.

3.13   Ofcom believes that this approach will be more transparent than first come, first
       served and, by giving others the opportunity to apply, is more likely to lead to optimal
       use of orbital resource.

Application to Overseas Territories, Channel Islands, Isle of Man

3.14   The above conclusion applies to planned assignments that are registered to the UK.
       Where the assignment is registered to another territory that the UK represents,
       Ofcom agrees that it should be considered to be a resource of that territory over
       which the territory itself should have some control and that it should be the
       responsibility of that territory to decide how to select which operators to file for,
       subject to compliance with ITU rules and obligations and any directions that Ofcom
       may receive from the Secretary of State. Ofcom will consult and liaise with the
       administration of the UK-represented territory as necessary about filing for planned
       assignments in their names.

Submitting technically conflicting filings

3.15   The consultation document set out Ofcom’s reasons for believing that a policy of
       submitting technically conflicting filings is preferable.

3.16   The policy of not submitting conflicting filings has the advantage that it keeps down
       the number of satellite filings and nugatory applications that may be prevented from
       proceeding because of technical incompatibility. However, it also has drawbacks.
       These may be summarised as follows.




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       • Automatic application of ‘first come, first served’ may not necessarily give priority to
         the most beneficial application.
       • It increases the barriers to entry relative to the second option. Later operators are
         likely to find it more difficult to raise finance without a clear place in the ITU queue.
       • A blanket policy of not submitting applications that are technically incompatible is
         disproportionate. In some cases of incompatibility, the degree of compatibility is
         relatively small and capable of being resolved in the subsequent coordination
         process. A later filing that is not submitted even if there is only a partial conflict with
         an earlier filing may be considerably disadvantaged. Assessing the degree of
         incompatibility in advance is often not straightforward.
3.17    A policy of submitting conflicting filings has the advantage of lessening the degree of
        Ofcom’s regulatory intervention in line with Ofcom’s regulatory principles.
        Furthermore, the existence of more than one filing makes it more likely that orbital
        locations at the UK’s disposal will be developed for UK-represented networks. The
        later filing would still have to coordinate with the earlier; but, if the earlier network
        failed to proceed, the second network would have established its place in the ITU
        queue.

        The consultation recognised that this policy also has drawbacks.

       • It might lead to a perception that the UK was not committed to weeding out paper
         satellites.
3.18    It would have to be clearly understood that the UK remained committed to rigorous
        application of due diligence. A UK filing that conflicted with an earlier would not be
        able to proceed unless either it was possible to secure the agreement of the earlier
        operator or the earlier application did not proceed to commercial development. Later
        conflicting UK filings would, in that sense, be provisional and would have to be
        regarded as such by the operators concerned and their financial backers. The
        second applicant would still need to demonstrate compliance with Ofcom’s legal and
        financial requirements before its filing was submitted.

       • It might encourage other administrations to adopt a similar policy. If they did, this
         might increase the overload on the international processes and complicate
         coordination between networks as more filings would be made and each would
         need to coordinate with a greater number of prior filings. It would not be in the UK’s
         interest to increase the backlog for dealing with notifications as this would increase
         delay and prolong uncertainty. It would also increase Ofcom’s workload and costs
         and could lead to a delay in submitting applications to the ITU.
3.19    Any such risk would be reduced if the backlog was cleared and the ITU machinery
        became able to cope with a greater number of filings. The backlog has been reduced
        from around 2 years to 6 months. Moreover, rigorous application of due diligence can
        be expected to limit the number of additional filings.

3.20    A large majority of respondents was in favour in principle of submitting conflicting
        filings as this was seen as increasing the opportunities available to UK-registered
        operators. There were some reservations on the grounds that such a policy might
        impact on market confidence in the earlier filing.

3.21    Having carefully considered the responses in the light of the above analysis of the
        advantages and disadvantages of the alternatives, Ofcom remains of the view that
        there are strong arguments in favour of letting all applications that meet due diligence
        to go forward even if they conflict technically with an earlier UK filing. This represents



10
                                                        Procedures for Authorisation of Satellite Networks


        a less intrusive regulatory policy, is more proportionate, reduces barriers to entry and
        seems more likely to achieve optimal use of the orbital slots at the UK’s disposal.

3.22    The potential disadvantages of the policy can be mitigated. The progress made in
        reducing the backlog and the fact that speculative applications will continue to be
        deterred by rigorous application of due diligence by national administrations reduces
        the risk of undesirable consequences for the international system of perception of the
        UK’s commitment against speculative filings. The policy will be kept under review in
        case the filing backlog starts building up again. The enforcement of priority of earlier
        applications should be sufficient to meet concerns about any effects on market
        confidence.

3.23    Some responses felt that it would be illogical to submit conflicting filings as this either
        leaves the process to be determined by the ITU or will undermine confidence in the
        earlier filing. Ofcom does not agree. The process for reaching a technical solution to
        the incompatibility is a matter for the operators. If this cannot be achieved, the rules
        are quite clear that the earlier filing takes priority. There is no need for the ITU to
        intervene. Nor should the policy undermine confidence in the earlier operator since
        Ofcom remains fully committed to maintaining the earlier operator’s priority as is
        consistent with the international framework.

3.24    It was also suggested that conflicting filings should be submitted only if it seems likely
        to Ofcom that the two operators will be able to agree coordination As regards a test
        of likelihood of agreement on coordination, it is difficult to predict this a priori, which
        would make it difficult to apply that test with consistency. This is particularly the case
        where the resolution may be achieved through some operational or commercial
        agreement rather than through technical changes. In Ofcom’s view, the balance of
        advantage lies in enabling the earliest possible filing date for later applications. The
        submission of a conflicting filing should not adversely impact on the earlier filing or
        detract from confidence in its commercial prospects. As stated above, precedence
        will be strictly enforced and the value attached to an earlier filing date will not be
        compromised.

3.25    Delaying the second filing until agreement has been reached would result in a later
        filing, which could incur damaging loss of date priority by the later filing as against
        filings made by other administrations. Ofcom takes the view that such an approach
        would not be in the UK’s interests overall.

3.26    Ofcom has accordingly decided to submit all valid filings to the ITU, even where there
        is a technical conflict with existing UK filings, subject to the exception described
        below for planned assignments.

        It should be emphasised that:

       • this policy is subject to strict compliance with due diligence requirements, which
         Ofcom will rigorously enforce;
       • Ofcom will strictly enforce the coordination priority of earlier UK applications. This
         should meet concerns that operators with later applications might, by launching first,
         supersede the priority of earlier applications or that the policy could lead to a loss of
         confidence in the viability of earlier UK filings.
The exception for planned assignments

3.27    Ofcom intends to make an exception to the above policy, however, where the
        technical conflict is with a planned assignment. In these circumstances, if the



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Procedures for Authorisation of Satellite Networks


        planned assignment has been made available to an operator, Ofcom will require the
        applicant to reach agreement with that operator prior to the later application being
        filed with the ITU.

3.28    If the planned assignment in question is vacant, in the sense that no operator has
        applied to take advantage of it, Ofcom would seek expressions of interest before
        deciding how to proceed. Possible outcomes include relinquishing the planned
        assignment or seeking international agreement to vary it to accommodate the later
        application.

3.29    The reason for proceeding differently in the case of technical conflict with a planned
        assignment is that submitting an application that conflicted with a planned
        assignment may reduce the potential for subsequent use of that planned assignment,
        and would call into question the UK’s commitment to, and the justification for,
        continuing that assignment, which could result in its loss to the UK. Ofcom considers
        that this risk, which does not exist if the earlier filing is unplanned, justifies a different
        approach. It could result in a later filing date for the unplanned assignment. However,
        this should not be a frequent occurrence as the UK has relatively few planned
        assignments.

Application to Overseas Territories, Channel Islands, Isle of Man

3.30    For the reasons given in this statement, Ofcom believes that the policy of making
        conflicting filings except where the earlier filing is a planned assignment will promote
        optimal use of orbital and spectrum resources. It therefore intends to apply that policy
        in relation to all satellite filings for which it is responsible.

Re-assigning filings

3.31    The consultation indicated that applications submitted by Ofcom to the ITU-BR are
        made in the name of the UK administration, with an indication of the network
        operator. In the event that an operator decided not to proceed with the construction
        and operation of its proposed satellite network or, if the operator did not comply with
        its commitments under the due diligence requirements, the filing would normally be
        withdrawn from the ITU. In some cases, the operator and Ofcom may have devoted
        significant resources to obtain coordination agreements with administrations
        responsible for other satellite networks. To withdraw such an application may be
        giving up a resource that might otherwise be used to bring communications services
        to citizen-consumers in the UK or to provide other UK satellite operators the
        opportunity to provide services elsewhere in the world.

3.32    Moreover, a system that allowed filings to change hands could reduce barriers to
        entry and allow filings to transfer to higher value networks. Any such transfer would
        require Ofcom’s consent and would have to be subject to satisfying due diligence
        requirements.

3.33    The consultation noted that Ofcom would expect to re-assign a filing only if:

       • Due diligence indicated that the criteria that had been set were not being met or that
         the original network no longer seemed likely to enter commercial service on the
         timescale envisaged; or
       • The original filing was voluntarily relinquished.
3.34    If a system of re-assignment were introduced, transfers might be facilitated by
        publication by Ofcom of information relating to filings it had submitted to the ITU. This



12
                                                      Procedures for Authorisation of Satellite Networks


       would make it easier for operators interested in assuming the benefits and
       obligations of existing filings to become aware of the possibilities.

3.35   With one exception, there was agreement in principle with re-assigning filings to
       other UK operators where the original applicant is unable to proceed to commercial
       development. Ofcom intends to proceed with the proposal. It will accordingly act to
       facilitate transfers of filings between operators, subject to satisfying international
       obligations on due diligence.

3.36   Some respondents stressed that Ofcom should allow transfers to be made voluntarily
       but should not be able to compel them. Ofcom agrees that it should not have a
       general power to compel operators to relinquish filings. However, in order to ensure
       compliance with ITU rules, Ofcom must retain the power to remove filings from
       operators that do not comply with due diligence commitments. If that happens,
       Ofcom will facilitate a transfer of the filing to another UK operator, subject again to
       ITU requirements. This will enable the benefit of the filing to be retained in the UK.

3.37   Ofcom has no objection to such a transfer being carried out on commercial terms
       whereby the original assignee is paid by the transferee to relinquish the filing. This is
       a matter for the parties. Equally, the filing could be relinquished to Ofcom to offer for
       re-assignment.

Application to Overseas Territories, Channel Islands, Isle of Man

3.38   Some respondents considered that any re-assignment of a filing made on behalf of a
       territory Ofcom represents should be a matter for the administration of that territory or
       that the administration should be given first refusal for a period of time to re-assign
       before the filing reverts to Ofcom. Ofcom agrees that the administration of the
       territory concerned should be given an opportunity to offer the filing to another
       applicant, subject to compliance with ITU regulations and due diligence
       requirements. The administration could then decide whether or not to return the filing
       to Ofcom so that Ofcom could decide whether to cancel it or to offer it to a UK
       operator.

More formal statement of roles and responsibilities

3.39   The consultation described the existing procedures for processing applications for
       satellite filings including the specific actions and schedules both for Ofcom and the
       satellite network operator. The operator must provide technical information to Ofcom
       in a format that is prescribed by the relevant ITU procedures. Ofcom then reviews the
       information to ensure accuracy and consistency with the procedures and submits the
       validated information to the ITU in order to obtain the important filing date which
       establishes the date of precedence with respect to subsequent filings.

3.40   The consultation continued that Ofcom would like to ensure that the procedure for
       consideration of applications for authorisation of satellite networks and their
       subsequent coordination is both transparent and provides to both parties (Ofcom and
       the applicant) a clear description of how the procedures will be implemented

3.41   Views on whether it would be helpful to have a more formal statement of roles and
       responsibilities in satellite filings were mixed. Some suggested that there is already
       sufficient clarity. Others suggested that a more formal statement, especially with
       regard to Ofcom’s role and the timetable for dealing with applications would be
       helpful.




                                                                                                    13
Procedures for Authorisation of Satellite Networks


3.42    Ofcom will give further consideration to the suggestions that were made in its
        preparation of the replacement for RA301.

Information requirements

3.43    The consultation indicated that under the existing procedures, applicants are required
        to demonstrate that they have the required technical, financial and legal credentials
        to construct, launch and operate the proposed satellite network in conformity with the
        timescales in their business plan. The nature of the information required depended
        on the particular stage of the application.

3.44    Most respondents considered that current information requirements are proportionate
        and reasonable. One considered that they would benefit from clarification and
        another suggested a review. There was broad agreement that some form of template
        would be helpful but it was felt that this should not be mandatory and should be used
        flexibly as circumstances and requirements differ across the range of satellite filing
        cases.

3.45    Ofcom has concluded that radical change is unnecessary but will consider the
        whether the requirements can usefully be refined for the replacement for RA301.
        Ofcom agrees that any template should be applied flexibly and pragmatically, subject
        to obtaining the information Ofcom needs to satisfy ITU requirements.

Qualification for UK filing relating to location of the SCC

3.46    The consultation noted that under the current procedures, an operator must be able
        to demonstrate that it has established a satellite control centre in the UK (or an
        Overseas Territory) and suggested that Ofcom may not be able to exercise its
        statutory duty unless the tracking, telemetry and command stations were located in a
        territory where Ofcom has regulatory jurisdiction.

3.47    Responses were divided. The majority of respondents agreed that Ofcom needs to
        ensure it has sufficient degree of control over satellite operation in order to comply
        with international obligations regarding prevention of interference. Many indicated
        that this could be realised by having the SCC located in the UK. Some agreed that
        both the SCC and the TT&C should be located in the UK. Others considered that it
        was not necessary for either to be in the UK.

3.48    Ofcom’s concern is to ensure that it has sufficient control to deal with interference
        should it arise. Physical location of the SCC and TT&C would make this more certain.
        However, Ofcom accepts the view of those who argued that it will not always be
        feasible to locate the TT&C in the UK as it has to be in sight of the satellite.

3.49    Location of the SCC in the UK provides a physical presence within UK jurisdiction,
        which is an aid to effective enforcement. However, on further consideration, Ofcom
        agrees with respondents who suggested that it should be possible to provide
        sufficient legal certainty of compliance without a physical presence, for example by a
        legally binding commitment to cease or modify transmissions in the event of a
        request from Ofcom. It would also be necessary to demonstrate that reliable systems
        and procedures are in place to ensure compliance. Ultimately, failure to comply could
        be penalised by cancellation of the filing, which would remove all international rights
        associated with the filing.

3.50    In accordance with Ofcom’s commitment to less intrusive and less burdensome
        regulation, Ofcom has decided that it will no longer insist as a condition of filing that



14
                                                        Procedures for Authorisation of Satellite Networks


        the SCC is located in the UK provided that credible and binding arrangement s are in
        place to ensure compliance with Ofcom’s requests.

Application to Overseas Territories, Channel Islands, Isle of Man

3.51    It will be for the administrations of those territories to decide whether or not to require
        a physical presence in their jurisdictions as a condition of filing.

Fees for satellite filings

3.52    The consultation stated that, in accordance with Section 28 of the Communications
        Act 2003, Ofcom may provide a service to any person on such terms as they may
        determine in advance or as may be agreed between that person and Ofcom.
        Services provided to UK satellite network operators are considered to be included
        within this provision and accordingly, Ofcom intends to implement an appropriate
        charging mechanism to recover the costs incurred in carrying out this function.

3.53    The RA and, since 29 December 2003, Ofcom had sought to recover its costs related
        to participation in frequency coordination meetings only in as far as seeking
        reimbursement from operators for any travel and subsistence incurred in attending
        meetings held overseas. Operators have been invoiced on the basis of the issues
        considered at each such meeting, and these costs have been recovered.

3.54    The consultation proposed that Ofcom would aim to recover the overall costs
        associated with providing the range of services involved in submitting satellite
        network filings and the subsequent frequency coordination activities. The intention
        would be recover the full cost of Ofcom activities including processing of applications
        for submission to the ITU and related frequency coordination efforts.

3.55    The majority of responses accepted the principle of fees, provided these were set on
        a cost-recovery basis, transparent, proportionate and subject to consultation on
        detail. There were differing views on the basis for setting fees with some preferring a
        fixed tariff and others actual costs. Some responses disagreed in principle and
        suggested that the cost of filing should be offset against the economic benefits to the
        UK of satellite filings.

3.56    Ofcom will consult further on the details of setting fees for filings but can give an
        assurance that they will be set at a level that does not generate surplus revenue.

Application to Overseas Territories, Channel Islands, Isle of Man

3.57    Fees charged for filings on behalf of territories Ofcom represents would take into
        account any reduction in Ofcom workload resulting from functions carried out by the
        administrations of those territories. To the extent that a UK-represented territory
        relieves Ofcom of certain responsibilities and functions, the fee would be lower. It is
        for the administration concerned to set the level of any fees that it charges satellite
        operators registered in its territory.

Other suggestions not covered above to improve the process

3.58    Suggestions made include:

       • greater delegation to operators and administrations in territories Ofcom represents;
       • clarification of the roles of Ofcom and other administrations;



                                                                                                      15
Procedures for Authorisation of Satellite Networks



       • a form of document to confirm the operator has obtained regulatory approval to
         proceed with its network;
       • integration of the Ofcom and BNSC application process.
3.59    Ofcom will take these suggestions into account in the replacement for RA301. This
        statement deals, at least partly, with the first two points above. Ofcom will give further
        thought to the proposed integration of Ofcom and BNSC processes. However, the
        two processes deal with fundamentally different issues and work on different
        timescales with applications made at different stages of the cycle from planning to
        launch. The BNSC application is typically made a short time before launch, which
        may be several years later than the ITU filing. The legal framework is also different,
        especially in some Overseas Territories where legislation equivalent to the UK Outer
        Space Act has not been enacted. However, there may be scope to avoid some
        duplication of information requirements.

3.60    It was also suggested that market mechanisms are not appropriate for satellite
        networks because of their global nature. Ofcom accepts that market mechanisms
        may not be fully applicable to satellite services but, in accordance with the principles
        presented in the Spectrum Framework Review, will continue to explore means by
        which market mechanisms can be further applied.

Next steps

3.61    Ofcom is producing a replacement for RA301 incorporating the conclusions set out in
        this statement and will publish this as soon as possible. It will also proceed to consult
        on the details of the fees regime by the end of the year.

3.62    Please note that you can register at
        http://www.ofcom.org.uk/static/subscribe/select_list.htm to obtain automatic
        notifications of when Ofcom documents are published.




16
                                                    Procedures for Authorisation of Satellite Networks



    Annex 1


1   List of respondents to the consultation
    Appleby Spurling Hunter on behalf of Kiskadee Communications (Bermuda) Ltd

    Cable & Wireless

    EADS Paradigm

    European Satellite Operators Association

    Gibraltar Regulatory Authority

    Government of Bermuda

    Hughes Network Systems Europe

    ICO Global Communications

    Inmarsat

    Intelsat

    Isle of Man Communications Commission

    Loral SkyNet IoM

    ManSat

    Orange

    SES Americom

    States of Jersey




                                                                                                  17
    Procedures for Authorisation of Satellite Networks



    Annex 2


2   Glossary
    API
    Advance Publication Information. First part of the ITU process for coordination and
    notification of satellite networks. Data on proposed new satellite networks provided to the
    ITU BR by the notifying administration responsible for the network.

    Allocation
    The process of identifying specific frequency ranges for specific applications; or a frequency
    band entered in a table of frequency allocations, for use by a particular category of service.

    Assignment
    Authorisation given by a licensing authority for a radio station to use a specific radio
    frequency or channel under specified conditions.

    Band
    A defined range of frequencies that may be allocated for a particular radio service, or shared
    between radio services.

    BR (of the ITU)
    The ITU Radiocommunications Bureau.

    British Overseas Territories
    Those Territories for which the UK administration acts as the notifying administration –
    Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory, British Virgin
    Islands, Cayman Islands, Falkland Islands and Dependencies, Gibraltar, Montserrat, Pitcairn
    Island Group, Ascension Isles, St Helena, Tristan da Cunha, Turks and Caicos Islands

    BSS
    Broadcast satellite service

    Coordination
    This term refers to the process under which a new user seeks the agreement of existing
    users to share access to a particular range of frequencies while avoiding harmful
    interference.

    Due diligence
    Process by which Ofcom ensures that an application to launch and operate a satellite
    network demonstrates sufficient technical, financial and legal credentials.

    FSS
    Fixed Satellite Services: A satellite system, where the ground or earth station is at a
    specified fixed location.

    Geostationary
    Appearing stationary to an observer on the Earth. The satellite appears over the same spot
    on the Earth’s surface as the Earth rotates.

    Interference
    The effect of unwanted signals upon the reception of a wanted signal in a radio system,
    resulting in degradation of performance, misinterpretation or loss of information compared
    with that which would have been received in the absence of the unwanted signal.



    18
                                                      Procedures for Authorisation of Satellite Networks



ITU
International Telecommunication Union: is an international organization within the United
Nations System where governments and the private sector coordinate, discuss and agree
the international framework for telecommunications and, in particular, the international
framework for spectrum management.

Mobile Satellite (MSS)
A service between mobile earth stations and one or more space stations.

Non-geostationary
The satellite appears to move relative to the Earth’s surface. See “geostationary”.

Notifying administration
The governmental department or service responsible for submission of satellite network
applications to the ITU and for ensuring compliance with the relevant procedures of the ITU
Radio Regulations

Ofcom
Office of Communications. Ofcom took over the RA’s responsibility for spectrum
management in the UK in December 2003.

Planned assignment
A satellite assignment that is pre-registered in the name of an administration through an
international agreement. Planned assignments take their priority date from that international
agreement. See also ‘unplanned assignment’.

RA
The Radiocommunications Agency: a former executive agency of the Department of Trade
and Industry, which was responsible for the management of most non-military spectrum in
the UK and for representing the UK in relevant international bodies. The RA’s functions
transferred to Ofcom in December 2003.

RFC
Request for Coordination. Second part of the ITU coordination and notification process for
new satellite networks.

Radio spectrum
A section of frequencies of electromagnetic radiation in the range of approximately 10 kHz to
3000 GHz. A kHz (kilohertz) is a frequency of one thousand cycles per second. A GHz
(gigahertz) is a frequency of one thousand million cycles per second.

RR
Radio Regulations: an international treaty produced by the ITU that sets out at a global level
how spectrum should be used by countries. The Radio Regulations are developed and
maintained by WRCs. See WRC.

SCC
Satellite Control Centre – a facility operated by the satellite network operator which permits
control over the functioning of the satellite in such a way as to ensure avoidance of
interference into other authorised services.

TT&C
Tracking, Telemetry and Command station – a satellite earth station used for the
transmission of control signals to a satellite and reception of associated telemetry data.




                                                                                                    19
Procedures for Authorisation of Satellite Networks


Used, inter alia, to change the operating parameters of the satellite to ensure avoidance of
interference to other radio services.

Unplanned assignment
A satellite assignment that results from an application by an operator for an assignment in a
given band, with a specified coverage and from a particular orbital position. See also
‘planned assignment’.

WRC
World Radiocommunications Conference: an ITU-convened conference, held approximately
every two or three years, which updates the International Radio Regulations.




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