The Space Law Review: International Telecommunication Union and Access to Spectrum
The use of satellites, whether for communications, Earth observation, navigation or other applications, depends on the ability to receive and transmit data to and from the satellites and the Earth. These transmissions require access to radio frequency spectrum.
The International Telecommunication Union (ITU), as early as 1959, recognised the importance of the spectrum requirements of space research, and began preparing a structured approach to the needs of the space industry. Space, and the management of satellite spectrum, is now a major part of the responsibilities of the ITU.
I Introduction to the ITU and its role
The ITU is a specialised agency within the United Nations system of organisations where representatives from governments and the private sector coordinate global telecommunications networks and services, including satellite spectrum.
The instruments of the ITU are the Constitution, Convention and Administrative Regulations (of which the Radio Regulations are a part). Together these three instruments form an international treaty governing the use of the radio spectrum to which the signatory ITU Member States are bound.
These instruments contain the main principles and regulations governing the following major elements:
- frequency allocations to different categories of radiocommunication services;
- the rights and obligations of Member States in obtaining access to the spectrum and orbit resources; and
- international recognition of these rights by recording frequency assignments and, as appropriate, orbital positions used or intended to be used in the Master International Frequency Register (the Master Register).
Member States are each represented by their national administration, which is the government department, national regulator or service responsible for discharging the obligations set out in the ITU instruments and adopting appropriate national legislation to implement these obligations.
II Radio Frequency Spectrum and the Geostationary Orbit
The position in outer space, or orbital slot, occupied by a satellite determines the area of the Earth that its signals can reach (its footprint) and its orbit will determine whether it remains over the same area as the Earth rotates.
Certain orbital locations are in short supply. Most communications satellites operate in the geostationary-satellite orbit (GSO), which is at an altitude of 35,800km in the plane of the equator. The importance of this orbit is that at this altitude, each satellite rotates around the Earth's axis every 24 hours and so appears to be stationary above a fixed point on the Earth. The GSO represents a scarce natural resource, as does the radio-frequency spectrum.
The role of the ITU Member States in relation to the regulation of the radio-frequency spectrum and orbital positions, such as positions in the GSO, is set out in Article 44 Paragraph 2 (CS 196) of the Constitution of the ITU and reiterated in No. 0.3 of the Radio Regulations. The latter states that:
In using frequency bands for radio services, Members shall bear in mind that radio frequencies and the geostationary-satellite orbit are limited natural resources and that they must be used rationally, efficiently and economically, in conformity with the provisions of these Regulations, so that countries or groups of countries may have equitable access to both, taking into account the special needs of the developing countries and the geographical situation of particular countries.
Two mechanisms for the sharing of orbit and spectrum resources have been developed and implemented:
- a priori planning procedures that guarantee equitable access to orbit and spectrum resources for future use; and
- coordination procedures.
The coordination procedure is an obligatory process of negotiation between national administrations. The aim is to achieve the efficient use of the orbit and spectrum resource through a controlled interference environment in which satellite networks can operate and meet requirements that include GSO networks in all services and frequency bands (which include the target satellites) and non-GSO networks in certain frequency bands.
III Introduction to Frequency Allocation and Coordination
Two important areas of ITU regulatory involvement with regard to satellites are:
- frequency allocations (Article 5 of the Radio Regulations); and
- the coordination, notification and recording in the Master Register (Articles 9 and 11 of the Radio Regulations).
Section IV of Article 5 of the Radio Regulations provides the Table of Frequency Allocations (the Table). The Table sets out, frequency band by frequency band, which radiocommunication services have allocations in each of the three ITU Regions.2 The Radio Regulations, divides the world into three ITU Regions for the purposes of managing the global radio spectrum.
Each ITU Member State may deviate from the Table in their own national Frequency Allocation Table, but only to the extent that harmful interference is not caused to any other ITU Member State that is using the spectrum in accordance with Article 5 of the Radio Regulations.
No. 4.2 of the Radio Regulations states:
Member States undertake that in assigning frequencies to stations which are capable of causing harmful interference to the services rendered by the stations of another country, such assignments are to be made in accordance with the Table and other provisions of these Regulations.
No. 4.4 continues by stating that:
Administrations of the Member States shall not assign to a station any frequency in derogation of either the Table in this Chapter or the other provisions of these Regulations, except on the express condition that such a station, when using such a frequency assignment, shall not cause harmful interference to, and shall not claim protection from harmful interference caused by, a station operating in accordance with the provisions of the Constitution, the Convention and these Regulations.
The Radio Regulations define those uses for specific frequency bands that will have international recognition in each of the three Regions. Within each frequency band, radiocommunication services are allocated on the basis of 'primary' and 'secondary' services, either on a worldwide or regional basis. By definition, stations of a secondary service must neither cause harmful interference to, nor claim protection from harmful interference caused by, existing or future stations of the primary service (No. 5.30 of the Radio Regulations).
In many instances, bands of frequencies are allocated to more than one service on a co-primary basis. In such cases, specific sharing conditions are imposed on each service, for example limitations on equivalent isotropically radiated power, minimum elevation angles for Earth stations and maximum levels of interference.
IV Significance of Recording in the Master Register
The articles of the Radio Regulations contain procedures by which a satellite network's frequency assignments can be registered, through its national administration, with the ITU to obtain international recognition. This means that all national administrations to the ITU are informed of the use of the assignments and that they are taken into account in any future planning conducted at the national, regional or international level.
No. 8.1 of the Radio Regulations states that the: 'international rights and obligations of administrations in respect of their own and other administrations' frequency assignments shall be derived from the recording of those assignments in the Master Register or from their conformity, where appropriate, with a plan.'
The international rights are subject to the provisions of the Radio Regulations and those of any relevant frequency allotment or assignment plan. Recording in the Master Register offers the holder of the filings international recognition and protection of the right to use the spectrum without interference.
The Radio Regulations contain provisions leading to the recording of assignments in the Master Register for space services for bands that are either covered by a plan or that are accessible on a first come, first served basis.
An assignment in a non-planned band results from an application or filing by an operator through its national administration, such as the Office of Communications in the United Kingdom or the Federal Communications Commission in the United States, for a frequency assignment in a given band, with a specific coverage (or footprint) and a particular orbital position. Such filings are, in general, made on a first come, first served basis.
V ITU requirements and processes for registration in the Master Register
i Advance publication information
Section II of Article 9 of the Radio Regulations describes the procedure for effecting coordination applicable to a satellite network. For those satellite networks not subject to the coordination procedure, the first stage of the regulatory process is the submission by a national administration to the ITU Radiocommunication Bureau (ITU-BR) of a general description of the network for advance publication in the International Frequency Information Circular. This stage is called the advance publication information (API).
For those satellite networks not subject to the coordination procedure described in Section II of Article 9 of the Radio Regulations, the date of receipt by the ITU of the API marks the start of their regulatory period. Currently, these networks are required to be brought into use within seven years of the date of receipt by the ITU of the API. The API must be supplied no earlier than seven years and preferably no later than two years before the planned date of bringing into use of the network.
Since 1 July 2016, it has not been necessary to submit the API for satellite networks subject to the coordination procedure, as described in Section II of Article 9 of the Radio Regulations. This was agreed among the Member States of the ITU and benefits operators, as it simplifies the notification procedure described in subsection iii, below.
ii Request for coordination
For those satellite networks subject to the coordination procedure described in Section II of Article 9 of the Radio Regulations, the first stage of the regulatory process is the submission of the complete information, as required by the national administration in compliance with the ITU Radio Regulations, to the ITU-BR. The date of receipt by the ITU of this information marks the start of the regulatory period and establishes the regulatory precedence of the network. Networks whose request for coordination was received by the ITU-BR after the prior request are deemed to have lower regulatory precedence to, and must seek a coordination agreement with, those networks with higher regulatory precedence (i.e., the networks where the relevant request for coordination was received earlier and that are affected by the later network). Currently, these networks are required to be brought into use within seven years of the date of receipt by the ITU of this information.
Before an administration can notify the ITU-BR or bring into use a frequency assignment it must effect coordination with other administrations identified as affected administrations. Coordination is a formal regulatory obligation both for an administration seeking a frequency assignment for its network and for an administration whose existing or planned services may be affected by that assignment. An agreement arising from coordination confers certain rights and imposes certain obligations on the administrations that are parties to that agreement.
Assignments are recognised by prior networks by virtue of the coordination agreements that have been entered into. If coordination is not complete against any assignments with which it was required, then the network operator cannot claim protection from harmful interference from, and must remove any harmful interference caused to, the prior networks. In other words, it must operate on a non-interference, non-protection basis in respect of those assignments.
The notification of a frequency assignment to the ITU-BR in accordance with Article 11 of the Radio Regulations is the final regulatory step leading to the recording of the frequency assignment in the Master Register. The provisions relating to notification of frequency assignments are primarily set out in Article 11 of the Radio Regulations, except for certain services that affect or that are related to the planned assignments. In general, all assignments related to space services need to be notified.
The Master Register provides, in addition to the basic characteristics of the assignment, an indication of each assignment's status with respect to the other assignments, reflecting the findings issued at the time when it was recorded in the Master Register.
iv Regulatory requirements for recording in the Master Register
The status given to each assignment recorded in the Master Register derives from the successful application of the relevant coordination procedures and the resulting coordination agreements. However, the status is conditional on:
- the assignment being brought into use (i.e., used for at least 90 days) within a defined regulatory time limit;
- notification information; and
- due diligence information,3 where applicable, being submitted within the defined regulatory time limit.
v World Radio Conferences
The specific procedures setting out the rights and obligations of each administration in relation to orbit and spectrum management and providing the means to achieve radiocommunication in a controlled interference environment have been laid down by successive ITU World Radio Conferences (WRCs) based on two main principles: efficient use and equitable access.
WRCs are held approximately every three to four years, and have the power to amend the Radio Regulations according to specific agenda items that are identified by the preceding WRC.
The pressure on access to spectrum for satellite operators, for the growing number of satellite applications, is becoming more intense. We can expect greater attention to spectrum issues, including access to spectrum, moving forward.
1 Joanne Wheeler MBE is the managing partner and Vicky Jeong is an associate at Alden Legal Limited.
2 Region 1 comprises Europe, Africa, the former Soviet Union, Mongolia and the Middle East west of the Persian Gulf, including Iraq. Region 2 covers the Americas, including Greenland, and certain eastern Pacific Islands. Region 3 contains most of the non-former Soviet Union Asian countries east of and including Iran and most of Oceania.
3 Resolution 49 (Rev.WRC-07) – Administrative due diligence.