Original URL: http://www.theregister.co.uk/2009/05/26/ec_mobile_satellite_services_awards/

EC spectrum rights fuel industry turf fights

Get your satellites off my lawn

By Bill Ray

Posted in Broadband, 26th May 2009 07:02 GMT

Two weeks ago the European Commission awarded bandwidth to two companies to deliver S-band mobile data satellite services (MSS) across the EU. But does the EU actually have the legal authority to make trans-national spectrum awards? And what will happen to the company that is already operating a satellite service in the S-band spectrum?

The winners, UK-based Inmarsat and Ireland-based Solaris Mobile, gain 30MHz of S-band spectrum for 18 years. They must launch services, such as phone and mobile TV offerings, within two years.

In a release announcing the awards, EU Telecoms Commissioner Viviane Reding proclaimed:

"Mobile satellite services have huge potential: they can enable Europeans to access new communication services, particularly in rural and less populated regions. I therefore welcome that we have now cleared the way for the swift launch of these pan-European services.

"This was possible thanks to the first pan-European selection procedure... A Europe-wide market for mobile satellite services is now becoming a reality. I call on the Member States to take without any delay all the required follow up steps in order to allow a timely and proper launch of mobile satellite services."

But there is a spanner in the works, namely the two losers in the Commission's MSS beauty parade, which are separately fighting the EU decision in the courts. ICO Global Communications, the US satellite operator, argues that only the International Telecommunications Union (ITU) has the authority to allocate and manage spectrum and orbit resources on an international basis.

And yesterday TerreStar Europe, the other loser, said it was applying to the Court of First Instance in Luxembourg to seek the annulment of the decision on procedural grounds.

According to Terrestar, the Commission's decision "excluded TerreStar Europe on a technicality at a preliminary stage of the selection procedure. The action argues that the Commission misread TerreStar Europe's submission, finding an inconsistency where none existed. In addition, the Commission failed to investigate the supposed inconsistency - and notably failed to review the clarifications voluntarily submitted by TerreStar Europe, which fully explained the issue".

It thinks a court can rule on the issue promptly, without interfering with the Commission's goals for services launches within two years.

ICO's argument is more interesting, and it has even more at stake than Terrestar.

'Jeopardises years of international cooperation'

In a statement attacking the EC decision, Michael Corkery, acting chief executive officer of ICO, said: "ICO has spent years clearing the S-band worldwide, has an operational satellite using this frequency band and is registered in the International Telecommunications Union (ITU) Master International Frequency Register (MIFR). We believe the just-concluded EU process jeopardises years of international cooperation and coordination that has governed satellite communications worldwide. ICO will continue assessing its options in defending its international legal rights."

ICO has one satellite in the air operating in the 2GHz spectrum. It launched this in 2001, and got UK regulator Ofcom to ask the International Telecommunications Union (ITU) to reserve some spectrum for its operation. This is the same spectrum that the EC has awarded to Inmersat and Solaris for cross-Europe broadcast and broadband services.

ICO would be happy to provide those services. Indeed, it participated in the Commission process run to select the winners - despite legal action began last September which argues that any decision is illegal and should be annulled.

But the EC appears to have Ofcom as an ally. In February this year Ofcom said it would instruct the ITU to cancel ICO's assignment spectrum. According to Ofcom, ICO has made insufficient use of the bandwidth.

Satellites gone

This prompted an immediate response from ICO, which threatened to ask for a judicial review. Ofcom agreed to hold off until 23 May, the latest date for filing such a review, after which it would write to the ITU and ask for the spectrum back so it can be handed over to Inmarsat and Solaris.

ICO says it has several satellites under construction - albeit in storage, following a lengthy breach of contract case with Boeing, which has hampered roll-out. On March 2 a California court confirmed an early jury award of $603m to ICO that Boeing must pay in compensation and punitive damages.

Even if ICO fends off Ofcom, it still has the EU legal action pending. If it wins, this will establish only that the ITU is the proper international body to award spectrum. But ICO would still have to re-apply for spectrum rights.

It is remarkable that there's so much interest in providing satellite broadcasting, or broadband, given the slim margins everyone else in the business is making. But clearly someone thinks there's money to be made, and it seems that a bird in the air is not worth much when it comes to trying to grab some radio spectrum. ®