 | Issue: | Europe II 2009 |
| Article no.: | 13 | |
| Topic: | Mobile satellite and spectrum harmonisation | |
| Author: | Stewart White | |
| Title: | CEO | |
| Organisation: | White Consulting | |
| PDF size: | 164KB |
About author
Stewart White is the CEO of Stewart White Consulting; he is also acting as the Public Policy Advisor of Solaris Mobile. He served previously as the Group Public Policy Director of Vodafone Group. Originally from Australia, Mr White moved to Europe to join a UK based law firm where he advised on satellite related issues for the Murdoch group and on the first satellite procurements of SES-Astra. He has advised a number of satellite operators, such as PanAmSat and Thuraya, as well as service providers such as CNN, and has been an expert advisor to the European Commission on a range of policy issues in the ICT sector. Mr White has had a long involvement with the ITU and has also advised a number of governments on sector reform, drafting legislation to implement and establish regulatory authorities, drafting licences and interconnection agreements, particularly in the Middle East. Stewart White is a lawyer by training and has spent more than 25 years specialising in satellite law, regulation and policy as well as other regulated sectors.
Article abstract
Mobile service innovation, especially in regions poorly served by traditional networks, depends upon the availability of broadband services that satellite transmission can bring. The EU’s recent regulatory initiatives will harmonise the 2 GHz S-band throughout the EU and make it available, on a competitive basis, to groups seeking to introduce EU-wide mobile satellite services. The regulatory certainty this provides will reduce the risks faced by satellite operators and foster investments to meet the increasing consumer demand for ubiquitous, cross-border services.
Full Article
With the European Commission’s objective of facilitating the introduction of innovative communications underway, and having focused their attention on a harmonised authorisation for mobile satellite services (MSS) and spectrum, there remain challenges aplenty. Keeping on schedule is first among them. How the Commission is able to do this will have significant implications within the EU and beyond. Regulatory certainty can provide a welcome backdrop against which satellite operators and their investors may evaluate the substantial risk over the long lead times involved in the introduction of satellite-delivered services. Such certainty should be seen as an important public policy goal, both at a European Level and against the overarching processes of the International Telecommunication Union (ITU) to secure relevant space segments, and coordination of proposed satellite services with other potential satellite systems. With increasing consumer demand for ubiquitous, cross-border services, the Commission has been aware of the public policy benefits of adopting a harmonised regulatory framework for delivery of mobile data multicasting and voice services across the community as part of the Lisbon agenda1, however this is the first time that they have adopted such a framework. Background On December 3, 2004 the Council of Ministers concluded that an effective and coherent use of radio spectrum was essential for the development and growth of competitive and flexible electronic communications services and to offer greater consumer choice. This was followed by a resolution of the European Parliament on February 14, 2007 entitled ‘Towards a European Policy on the Radio Spectrum’2, which focused on the importance of communications for rural and less developed regions and the deployment of broadband by various means to provide efficient solutions to achieving universal coverage in the 27 Member States. On the same day, the European Commission adopted the Spectrum Decision3 allocating the 2GHz S-band spectrum to MSS, including those with a complementary ground component (CGC) in all Member States. This decision complements an earlier Commission Communication of April 26, 2007 on European Space Policy – a common regulatory framework for electronic communications networks and services aimed at encouraging ubiquitous service throughout the European Union. Following the allocation of S-band spectrum to MSS through the Spectrum Decision, on June 30, 2008 the European Parliament and Council adopted its MSS Decision4 defining the European Selection and Authorisation Process (ESAP) for systems providing MSS in the S-band. Although the MSS Decision establishes a harmonised spectrum allocation process, the subsequent authorisation to use spectrum in national markets is the responsibility of individual Member States. Once the Commission’s selection process is concluded, the selected operators will submit a notification to Member States before exercising their rights under the selection process5. Because the selection results hold for all Member States, each State has only to grant the selected applicants the right to use the S-band spectrum already assigned. No additional competitive process must be established by Member States. These national authorisations will apply to the MSS and to the CGC6, both of which may be deployed as part of the MSS network. Where costs are levied by Member States for national authorisations, doing so on a cost-recovery basis is the best way to ensure that the EU’s public policy objectives are met. Indeed, the European Framework Directive7 mandates that National Regulatory Authorities (NRA) take appropriate measures when levying fees to ensure that there is no distortion or restriction of competition, to encourage efficient investment in infrastructure, and to promote innovation. To that end, any national authorisation framework that imposes authorisation costs above those of administrative cost recovery creates an entry barrier for providers of alternate communications platforms, and tends to undermine the economies of scale for user equipment and service charges delivered through the harmonised single market spectrum allocation process. This would fragment the internal market. Commissioner Reding recognised the need to alleviate the necessity to seek authorisations from individual countries within the EU in announcing the MSS Decision to allow selected operators to provide their services using 2GHz spectrum ear-marked for the purpose EU-wide and not only in metropolitan areas. Importantly, she recognized that: “these satellite services depend on substantial investment and therefore need simple and swift procedures as well as long-term legal certainty. This is why the Commission, in close cooperation with the European Parliament and the Council of Ministers, set up, in a record time of only 10 months, a single EU procedure for selecting interested operators of mobile satellite services. There is now one market, not 27 in Europe for mobile satellite services. Henceforth, the ball is in the camp of the industry.” Harmonising process The sector has accepted the challenge laid down by Commissioner Reding and broadly welcomed the opportunity for simple and swift authorisation procedures and for long-term legal certainty, but the ball is not only in their camp. In order to meet the timetable laid down in the MSS Decision not only does the Commission now need to adhere to the timetable itself in order to issue the relevant authorisations, but Member States through their NRAs also have an important part to play. Each NRA must observe the timetable in issuing the necessary authorisations for each Member State for the space segment, the MSS component (although in some Member States reliance for the MSS may simply be placed on the Commission’s blanket authorisation) and the necessary terrestrial authorisations for CGC. On October 7, 2008 the Commission received four applications for S-band spectrum from: ICO Satellite Limited Solaris Mobile Limited Inmarsat Ventures limited TerreStar Europe Limited These applicants are now subject to a two-phase selection process. During the first phase, the technical and commercial ability of the candidates to actually launch their systems, as well as their compliance with a set of contractual and manufacturing milestones, will be assessed. Applicants successful in the first phase are required to have committed and demonstrated substantial investments and procured the construction and launch of the necessary satellite in order to meet the timetable laid down by the Commission in their Call for Applications8. If, following this phase, the Commission determines that there is insufficient spectrum available to award each viable applicant the spectrum that it has sought a second selection phase will take place. The second phase involves assessing candidates against four pre-defined selection criteria, those being: 1. consumer and competitive benefits provided, including rural coverage and the number of users supported; 2. spectrum efficiency; 3. the speed at which all Member States will be covered by S-band MSS and 4. the capacity of the systems to fulfil public policy objectives. Timeline Under the current Commission timetable9 announced on December 19, 2008 a selection Decision is expected between May and August of 2009 – depending on the results of the first selection phase and the cumulative spectrum requirements of the credible applicants. This represents a delay of more than one month in the initial indicative timeline published in the Commission’s Call for Applications. The Commission is working hard to meet the timetable, since any delays introduce an element of regulatory uncertainty; especially applicants who intend to launch their satellite in 2009 or otherwise well ahead of the Commission’s prospective target launch date of 2011. A further element of uncertainty involves the status of the UK administration’s ICO-P satellite filing with the Radiocommunications Bureau (BR) of the ITU, which received notification on January 26, 2004. ICO launched an action on September 26, 2008 against the Parliament and Council10 seeking orders that the MSS Decision is void for a number of reasons including that the MSS Decision did not acknowledge the existence of its pre-existing rights derived from the ITU. This aside, the Commission is proceeding with the selection process as announced.11 Recital 10 of the MSS Decision recognises that the regulations of the ITU provide procedures for satellite radio frequency coordination as a tool for management of harmful interference, but do not extend to selection or authorisation. Conclusion In conclusion, the regulatory landscape within the EU is being changed for those seeking to introduce MSS services in the 2GHz S-band. The policy objectives stated in the MSS Decision have been broadly supported by all of the applicants in the ESAP process. It remains to be seen whether this move by the European Commission, the Council of Ministers and the European Parliament will deliver in a timely way the public policy objectives stated in the MSS Decision and whether this can therefore be regarded as a successful move into future pan-European spectrum planning and authorisation. For the applicants, regulatory certainty and timely authorisation of their proposed MSS services remains a goal yet to be delivered. The industry world-wide is watching with interest these developments in Europe.
