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CHAPTER IV - Satellites and Spectrum Management

Satellite spectrum allocation is managed through long-standing, dated regulatory processes and the satellite industry is somewhat constrained by the established spectrum policy order. Satellites are managed for two crucial reasons: to avoid any physical damage from collisions in space and to avoid harmful radio frequency interference. To help mitigate the potential of interference and to manage the orbital slots used by satellites, the industry is tightly regulated at both a national and international level. Interference occurs at a radio receiver when radios attempt to use the same spectrum, at the same time, in the same place. Spectrum managers work to maximize the valuable use of spectrum by keeping interference to an acceptable level.

There are a variety of mechanisms used to control the potential of interference between different satellite systems, and between terrestrial and satellite users that share spectrum. Generally speaking, policymakers have to be concerned with interference wherever there is a receiver listening on the same frequency or, in some cases, nearby frequencies where others are transmitting. Spectrum managers typically use power limits or require coordination between services to prevent harmful interference. For example, limitations on Equivalent Isotropically Radiated Power (EIRP) and elevation angle are applied to terrestrial stations to protect earth stations and vice versa while power flux-density limits are applied to space stations to protect terrestrial receivers. Power limits may also be used to protect satellite systems from each other, most notably to protect GSO satellite systems from non-GSO constellations.

Satellite management is necessarily an international affair. Downlink transmissions from geostationary orbit can cover one-third of the Earth. The earth stations that receive satellite transmissions and “landing rights” to access a market are also regulated but on a national level. A certain level of management of limited resources like orbital slots and spectrum is necessary to maximize productive use; however, the current regulatory system is a highly complicated, multi-step process that is long and requires deep expertise to navigate. As John Leibovitz, Venture Partner at Columbia Capital, stated when it comes to the actual institutions that have been managing satellite spectrum, “There’s a certain way people have been doing things for a really, really, really long time,” and “there’s a tendency to fall back on prior existing constructs of regulation and expectations of the way the institution” has managed spectrum in the past. It is worth laying out at least a simple overview of current processes of satellite spectrum management before discussing how it could potentially be improved.

International Processes
On the global level, the ITU within the United Nations undertakes the regulation and coordination of spectrum. The ITU process results in a document called the Radio Regulations, with detailed footnotes guiding UN member nations in their own spectrum management. The Radio Regulations consists of articles, appendices, resolutions and recommendations that are contained in four volumes. The Radio Regulations are developed through meetings called World Radiocommunication Conferences (WRCs), where the 193 Member States of the ITU meet every four years to update the treaty.

ITU member nations generally develop national spectrum management regulations consistent with the Radio Regulations developed at WRCs. International spectrum harmonization is an important tool in driving global economies of scale in equipment and devices. However, countries have the sovereign right to administer the radio frequency spectrum in their own territory provided they do not cause interference to others. Some countries do deviate from the Radio Regulations, usually those (such as the United States) with strong enough markets to command attention of equipment manufacturers regardless of harmonization.

Since the ITU is a treaty-based organization, much of the work is done through formal delegations led by Member States and by ITU Sector Members. The United States participates in the ITU through a delegation led by the State Department. Filings for spectrum rights and orbital slots are made at the ITU through the administration of member countries. This means that individual satellite firms work through the administrations of each country, not directly through the ITU, when they want to submit a filing to the ITU for the spectrum they want to use.

Getting any particular policy or allocation change through the ITU is therefore a long, slow process. WRC meetings occur every three to four years, with the next WRC set to occur in October and November 2019, and the next after that is scheduled for 2023. Generally the scope of the agenda for these meetings is sometimes previewed eight years in advance (two WRC’s meetings) and is set by the prior WRC (four years in advance), meaning significant reforms to ITU Radio Regulations (like some contemplated at the AIRS roundtable) will likely have to wait until after 2023.

At the highest level, the ITU Radio Regulations allocates spectrum to different services such as the fixed-satellite service or the mobile service. Separating the frequencies used by different types of service allows the architectures that are compatible with one another to share spectrum. The Radio Regulations also spells out specific protections, for example requiring non-GSO systems to protect GSO satellites in the FSS or BSS allocations from interference. The ITU also processes satellite network filings and records frequency assignments that successfully meet all the requirements of the Radio Regulations in the Master Register Priority of rights to spectrum. This filing process is an important mechanism in determining the relative rights of satellite operators.

Priority Rights: First to File
The primary mechanism to determine spectrum rights in the international arena is simply by the nation first to file paperwork with the ITU for a particular frequency band and, if appropriate, orbital location service. The level of priority—based upon the sequential order filings are made with the ITU—determines opening positions and relative rights when coordinating use of satellite spectrum. Those who are first to file with the ITU are expected to accommodate new entrants, but this expectation is not well defined and it is the later filing that must get the agreement of the earlier filing in coordination. The system is firstcome, first-served, except for the planned bands.

Julie Zoller, Chief Government Affairs Officer with Omnispace, stressed the significance of the priority system at the ITU, saying that she “can’t emphasize enough” the importance of date priority in the international process. She explained “[Y]ou can be first to market, you can be first in orbit, you can have the greatest technology, but if you have no priority in the ITU filing process, you can lose, because the people ahead of you can become a stumbling block for that innovation to happen. Date priority is incredibly important in the scheme of understanding who’s going to succeed on a global level.”

As Valerie Green of Ligado Networks put it, “It’s best if you think of it as the Wild West.” Indeed, the first-to-file priority rights has echoes of how land was granted to those working frontier land in pioneer days. This system is somewhat similar to the FCC’s now-defunct “Pioneer’s Preference” program that offered spectrum rights to those who developed new technologies to access unused spectrum. This was adopted prior to Congress authorizing the Federal Communications Commission to auction terrestrial spectrum rights, thus lessening their value. The primary goal of the Pioneer’s Preference program was to incent development of more efficient spectrum technology. However, the relative abundance of spectrum resource has changed, making such programs more difficult to justify. Perhaps at one time spectrum rights were as abundant as frontier land, but this has not been the case for technologically accessible spectrum in the United States for at least 30 years.

The logic of the system of priority through first filing is also undermined by the ratio of filings to actual satellite operations. There are a significant number of filings with the ITU that never materialize in real launches or operations, and eventually are cancelled. The tremendous advantage of being first to file incents firms to be zealous with filing for potential new satellite services, and also provides an avenue for strategic misinformation to keep competitors second-guessing the competition. Some participants confirmed that there is functionally a market for “first filings,” with equipment manufacturers now often filing themselves in order to attract new business. Service operators who approach equipment companies to manufacture a new satellite are sometimes offered a packaged deal—the satellite along with the first filing rights.

This priority system is also made more difficult by the rise of NGSO systems, especially with the large number of satellites envisioned for some broadband-focused LEO constellations. As John Leibovitz of Columbia Capital explained, the ITU first in time, first-in-right rules made more sense when geostationary service was the primary focus. There, the orbital slot for the service functions like a property right, and others can effectively share the same band of spectrum if sufficiently separated. “But the NGSOs kind of throw a wrench into that whole thing,” Leibovitz said, “The coordination is much more complex, because you’ve got this dynamic aspect of constellations passing each other and passing your competitors’ ground stations.”

Role of Auctions (or the lack there-of)
The reliance on first filings for determining relative rights to spectrum access is one of the most salient distinctions between satellite spectrum use and the more liberalized flexible-use licenses familiar in terrestrial mobile wireless. In terrestrial wireless, the FCC auctions spectrum licenses according to frequency and geography. The economic rationale behind auctions is that they reveal those who are most confident they can produce the greatest value of a limited resource. Auctions for satellite spectrum are generally barred.

The Open-Market Reorganization for the Betterment of International Telecommunications Act, or ORBIT Act, is a key law governing the satellite industry in the United States. The ORBIT Act, signed into law in 2000, came amid the privatization of the historically intergovernmental satellite organizations Intelsat and Inmarsat. Designed to help manage the privatization of major satellite constellations, the ORBIT Act is cited as a bar to auctioning of satellite spectrum.

But the exact extent of the ban on auctioning of satellite spectrum in the ORBIT Act is not immediately clear. The text of the ORBIT Act denies the FCC the authority “to assign by competitive bidding orbit allocations or spectrum used for the provision of international or global satellite communications services.”i Some participants asserted that the law had been interpreted too broadly in the implementing regulations, and only prohibits international satellite spectrum auctions or auctions for orbital slots, but allows for domestic auctions of satellite spectrum and landing rights.

The group explored the possibility of even broader roles for auctions of satellite spectrum and associated rights. Steve Sharkey, Vice President of Government Affairs, Technology and Engineering Policy at T-Mobile, noted that in theory, national-level satellite spectrum auctions, while they may result in somewhat fragmented service and added expense to achieve scale, would not be all that different from how terrestrial mobile spectrum is auctioned today. Wireless operators bid on spectrum rights of certain geographic size, generally not nationwide licenses. Sharkey explained, mobile operators focus first on large markets, then “once you get some of the key markets, where you’re looking for New York or L.A. or big markets... you build that scale, and then smaller markets are going to go for a lot less.” At least for competitive systems, an auction could in theory function similarly for satellite operators: Bidding would take place for rights to serve different countries with a given band of spectrum, companies would then aggregate those rights up with an initial focus on the most important markets, filling out the rights to meet demand.

Jennifer Manner at EchoStar Corporation pushed back on the idea, not just on an operational basis, but also whether auctions were necessary, particularly on the space station side because of successful sharing to-date. She explained, “Satellites have been very successful, no matter what folks feel, at sharing spectrum.” Manner pointed to examples where operators have voluntarily shared spectrum, allowing firms to use more or less capacity in different markets.

Even if auctions could be a beneficial tool for allocating rights, there are institutional questions concerning potential auctions. One government participant asked whether the ITU could potentially hold global auctions for satellite spectrum and orbital slots. Others with more experience dealing with the organization were skeptical of the institutional capability to conduct such an undertaking—“I don’t trust the ITU to hold a global auction,” said one participant. The ITU would not be able to offer enforceable rights through an auction without significant changes to the ITU convention and buy-in from participating nations. Technically the ITU is not a global regulator, but instead akin to an administrator of an ongoing treaty that member countries signed onto. As Julie Zoller pointed out, even if the ITU were to offer an auction, “You don’t know what countries are going to give you landing rights or a license until you go out there and go country to country.” Ultimately the spectrum rights for satellite users rest with the nations that participate in the ITU and have submitted satellite network filings. Therefore, if a sufficient number of nations wanted to make significant changes to the ITUs processes or develop a new model for allocating spectrum, they could do so.

Coordination and Private Delegation
When it comes to direct cooperation between different satellite systems, different bands are governed by different levels of formal processes. “Coordination” is a specific phase in the process of avoiding interference whereby satellite operators, working through administrations, exchange information about proposed satellites, work through the potential interference scenarios and agree on mitigation measures to avoid harmful interference.

Coordination is an ongoing process, functionally similar to a negotiation, that allows for satellites sharing the same spectrum to operate without causing harmful interference. The specific coordination procedures are laid out in the ITU Radio Regulations.ii The importance of coordination in the management of satellite spectrum should not be underestimated. As Jennifer Manner put it, “At the end of the day, what the satellite world is really based on is a matter of coordination and working among operators and trades.”

However, not all services are subject to coordination requirements. As Julie Zoller explained, “In most frequency bands, you find satellite allocations are governed by a coordination process, but there are circumstances where there’s no coordination, where you’re protected by things like equivalent power flux density limits that are applied to non-GSOs to protect GSOs.” But many satellite services have to go through coordination processes, some of which are more amicable than others.

Satellite spectrum sharing can be quite complex, but the coordination process allows private firms to do much of the technical heavy lifting to maintain successful sharing of satellite spectrum. Delegating the complex and costly process of avoiding interference to private parties, and encouraging them to share and coordinate their spectrum use without the costs of the ITU regulation is “natural,” in the words of Thomas Hazlett. When satellites become small and many instead of large and few “the administrative overhead of going with the same system is just exploding, exponentially problematic,” he said.

Harold Feld, Senior Vice-President at Public Knowledge, however, expressed concern with the level of reliance on largely voluntary industry coordination, noting that “there are frequently people who see some advantage in being the first person to break the rules, whatever they are” where an established framework is rapidly disrupted. This concern is magnified “if we assume the ITU process is going to become too slow and unworkable and we assume the FCC cannot move fast enough or there’s a real question of how you enforce when there’s lots and lots of different sovereign nations that are involved in playing these games.” Feld’s enforcement questions echoed Hazlett’s sentiments and he said,“The problem with this whole transition is that when you do cede this kind of responsibility to the marketplace, then you immediately have the question of what are the adjudication procedures when disputes arise outside of the regulator.”

One refrain during the roundtable is the need for improved enforcement or dispute resolution processes, especially if regulators continue to rely on the coordination process and private parties to resolve interference concerns. As the radio environment becomes more complex and more diverse, users are expected to get along and resolve inevitable interference disagreements. Enforcement of rules and expectations becomes a more important concern.

Dale Hatfield, Adjunct Professor and Executive Fellow at the University of Colorado at Boulder, stressed that the enforcement issue is underappreciated, saying even if parties “can negotiate these things, ultimately you’ve got to have somebody that has the ability to enforce it.” Hatfield stressed this concern and its relation to the inherently open nature of wireless systems at the physical layer, and the potential implications for security flowing from that concern.

However, the current enforcement regime, even where there are clear rules, can be lacking. Within the ITU there is a venue to hear disputes: the Radio Regulation Board. However, many roundtable participants agreed that the Radio Regulation Board does not have sufficient power to have the final say in resolving any disputes or enforcing coordination agreements. In the words of one participant, “The reality is the ITU is not going to choose a winner or a loser.”

i 47 USC § 765(f).
ii Coordination procedures for most service classes are found in Article 9 of the Radio Regulations.
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