Sat firm fails to stop legal challenge

ICO Global Communications has failed to force a judicial review of Ofcom's decision to move to release radio frequencies allocated to the company.

Despite the US-based ICO having invested $3bn in building a satellite network, and launching its first bird into orbit, the UK regulator has won the right to send a letter to the International Telecommunications Union asking that the frequencies that it originally asked be allocated to ICO now be released, though whether the ITU agrees to do that remains to be seen.

Ofcom wants to send the letter on the grounds that ICO had failed to get its satellite network, ICO-P, into operation and had neither the money nor the commitment to do so.

In May 2009 ICO requested a judicial review, saying that Ofcom had no right to send such a letter, and that's the request which has now been turned down.

In a lengthy ruling (html, and surprisingly entertaining) the Honourable Mr Justice Lloyd Jones struggled with a mountainous quantity of email messages, and remembered conversations, as both sides tried to prove their case which ultimately came down to the definition of "operation" and the obligations of the UK regulator.

ICO has one operational satellite in the ICO-P network, the remainder being tied up in ongoing litigation with the manufacturer Boeing. The company argued that having an operational satellite made the network "operational" under ITU rules. Ofcom disagreed, and the ITU was surprisingly unhelpful on the matter.

ICO presented evidence that members of the ITU agreed with their point of view, but when the ITU was approached for clarification it declined to provide it. Instead the international body suggested that both parties drop the UK case and let the ITU rule on the matter instead.

Given the lack of guidance the judge decided that Ofcom's right to send the letter was based on its own interpretation of the rules, but agreed that the rules were far from clear on the matter.

On the subject of Ofcom's obligations, ICO argued that as ITU regulations make no requirement on a satellite operator having money in place to build a network Ofcom had no right to make such a requirement.

That may be true, but Ofcom has its own obligations, and when reserving spectrum for UK interests it is required to ensure that the business concerned is able to make efficient use of them (efficient use of radio spectrum being the regulator's primary aim in life).

That leaves the way clear for Ofcom to send its letter, though ICO points out that the ITU has no obligation to agree to cancel the filing.

"We continue to take exception to Ofcom's unprecedented attempt to ask the ITU to remove an existing operating system from the [international registry]" the company said in a statement, pointing out that "Today's decision, if it stands, is not binding on the ITU".

ICO-P isn't ICO's only satellite business; it also runs a bird covering North America known as G-1. That could be important, since if the company does lose the frequencies needed for ICO-P then the project will have nowhere to go, and the existing satellite will have no one to talk to. ®