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We are happy to announce that starting 31 of January 2020, a new publication will be launched every fifteen days. We invite you to send us an e-mail with your suggestions for future topics, or even to publish your own texts!
ITU taking a step forward to regulate non-GSOs constellations of satellites during the WRC-19
The democratization of space technologies and the development of the space private sector brought a new era in the conduct of space activities. In this era, space actors developed the capacity to produce and operate large-scale constellations of satellites.
The operators involved are not limited to States but increasingly implicate non-governmental stakeholders such as companies. Business models based on the provision of high-speed, reliable, and affordable broadband internet service around the world, as well as Earth Observation or Weather services, trigger the development of such constellations. The choice of constellations is privileged by companies due to the advantages provided in comparison with more traditional geostationary satellites. Economically, constellations of small satellites benefit from economies of scale and reduce the risk (as they permit low-cost replacement in case of malfunction or lost whereas the loss of a single GSO satellite usually involves a very high cost). Technically, the interaction between each satellite in the network can provide coverage over a larger area than GSO satellites. Moreover, as constellation are often located in lower orbits, the minimum theoretical latency from ground to satellite is reduced.
National administration (such as the American Federal Communication Commission – FCC) already approved many plans related to non-geostationary orbit (NGSO) constellation system. It includes for instance Space X, OneWeb, Telesat, LeoSat, Kepler Communications Inc., Planet Labs or Iridium constellations. Each constellation aims to be composed of hundreds to thousands of satellites. For instance, the Space X Starlink constellation on its own will already increase the satellite population by 4,425 satellites in Low Earth Orbit (LEO) and 7,518 satellites in Very Low Earth Orbit (VLEO). These thousands of new space infrastructures will be compelled to share a confined part of the Earth orbit (from 300 to 2000 km) during periods going from 5 to 15 years (according to the expected lifetime of the satellites).
The development of satellite constellations is not without raising many questions in relation to Space Law. Regulatory frameworks related to Space Situational Awareness (the “ability to survey the space environment and safely operate in”) or Space Traffic Management (“the set of technical and regulatory provisions for promoting safe access into outer space, operations in outer space and return from outer space to Earth free from physical or radio-frequency interference”) are hardly impacted.
One particular issue concerns the use and exploitation of orbit and spectrums. Indeed, as “the laws of physics cannot be bent by the will of States […] if two different transmissions are made in the same geographic area at the same frequency, they will interfere with each other resulting in deterioration or even loss of signal”. For instance, in relation to the Geosynchronous Orbit (GSO) and the Geostationary orbit (GEO), the availability of frequency bands below 6 GHz, as well as Ku and Ka bands, became scarce. The addition of new satellite systems in the congested spectrum and orbital environments consequently increases the risk of harmful interference between space radiocommunication services.
At the international level, the mission aiming to prevent harmful interferences between space telecommunication has been assigned to the International Telecommunication Union (ITU). This United Nation related organization results from the transformation of the former International Telegraph Union in 1st January 1866 (International Telegraph Convention) according to the evolution of the ICT sector (the organization changed of name with the 1932 Madrid Plenipotentiary Conference that came into force on the 1st January 1934).
The ITU mandate involves the international coordination, governance and regulation of global telecommunication networks and services. Legally, the scope of the mandate is wider than space radiotelecommunication as the ITU is responsible for any “transmission of signs, signals, messages, words, writings, images and sounds or information of any nature by wire, radio, optical or other electromagnetic systems” having an international dimension. This includes for instance aeronautical mobile service, broadcasting service or maritime mobile service.
With the 1963 Extraordinary Administrative Radio Conference (first conference held by the ITU on space radiocommunications), space activities have become a large component of the organization work. Since this conference, the ITU has been assigned the mission to allocate radio frequencies for outer space activities. Currently, the ITU Space Services Department (SSD) coordinates and records procedures for space systems and earth stations. It handles the processing and publication of data related to the space systems and carries out examination of frequency assignment notices submitted by administrations for inclusion in the formal coordination procedures or recording in the Master International Frequency Register (MIFR).
Concretely, national management authorities are compelled to refer to the procedure, tables or allotment plans enacted by the ITU when assigning spectrum frequencies to domestic stations of a given service.
The construction of the orbit spectrum regulation has been tightly linked to the area of space concentring the more important part of the space activities. Because historically the most coveted satellite localisations were the Geosynchronous Orbit (GSO) and the Geostationary orbit (GEO), most of the rules have been created to apply in these regions. However, “with most of the regulatory focus on GEOs, orbital assignments for low Earth orbit (LEO), medium Earth orbit (MEO), and highly eccentric orbits (HEOs) have been left unregulated”. With the increasing use of these non-GSOs space regions, experts are calling for the clarification and adaptation of the associated legal frameworks.
The ITU Radio Regulations already prohibit non-GSO systems from causing unacceptable interference to GSO FSS and BSS networks. However, legal uncertainty remains around the regulation of non-GSO systems.
During the 2019 World Radiocommunication (held the 20 November 2019 in Sharm el-Sheikh, Egypt), the International Telecommunication Union also pursued active discussion on the issues raised by non-GSO systems. It notably took a new step to address the challenge related to virtual “bringing into use” of frequency assignments to non-GSO systems (also known as “paper satellites”). In that respect, the ITU changed the regulatory paradigm by adopting an innovative milestone-based regulatory approach.
Previously, for the non-GSO arc, if a single satellite of a constellation was launched and operated for 90 days within seven years of applying for spectrum, the operator had the possibility to file a “bring-into-use paperwork” with the ITU in order to preserve desired frequencies for the whole constellation.
Under the new legal regime, satellite operators will have to hit deployment milestones that start seven years after requesting the spectrum to keep their full spectrum rights. At the end of the seven years, “these systems will be required to deploy 10 per cent of their constellations within two years from the end of the current period for bringing into use, 50 per cent within five years, and complete the deployment within seven years.” The failure to bring into use satellites according to the milestones and within the total 14 years will lead to the limitation of the spectrum rights proportionally to the number of satellite truly operating.
This new approach is welcomed as it avoids abusive spectrum warehousing by a company when launching a single satellite of the constellation. This malpractice (known as ‘over-filing’ or “paper satellites”) has been implemented to hold the slot for a and conserve spectrum rights even if the satellites will most likely not be manufactured or launched. Such behaviour should be considered to an abusive appropriation of the orbit scare resource going against the spirit of the International Space Law. The new initiative from ITU to prevent this practice followed other action such as the lowering of the time period from which the satellite must be placed in orbit from nine to seven years.
Besides this regulatory progress, the ITU further addressed the lack of qualification and quantification related to non-GSOs “unacceptable interference” with GSO systems in the 50/40 GHz frequency bands. A new methodology has been proposed to assess the equivalent power flux-density (epfd) generated by non-GSO FSS system and ensure the protection of GSO satellite networks from aggregate emissions.
15 February 2020
 Federal Communications Commission (FCC), November 3, 2017 (IBFS File No. SAT-PDR-20161115-00108); FCC, April 10, 2017, (IBFS File No. SAT-PDR-20161115-00112); FCC, November 15, 2018 (IBFS File No. SAT-PDR-20161115-00114); FCC, June 22, 2017 (IBFS File No. SAT-LOI-20160428-00041); FCC, May 24, 2018 (SAT-AMD-20171106-00151); FCC, August 1, 2016 (IBFS File No. FCC, SAT-MOD-20131227-00148).
 FCC, D.C., March 29, 2018 (IBFS File No. SAT-LOA-20161115-00118); FCC, November 19, 2018 (IBFS File No. SAT-LOA-20170301-00027).
 Cosmic Study on Space Traffic Management, Paris: International Academy of Astronautics, 2006 (ISBN 2-9516787-5-4), p. 10; Laws Applicable to Space Situational Awareness (SSA), Angels project website, visited December 2019 (Adelaide Law School).
 Iulia-Diana Galeriu, “Paper satellites” and the free use of outer space, Hauser Global Law School Program (New York University School of Law, New York 2015).
 Alain Austruy. Orbit-spectrum resources allocations for space and terrestrial radiocommunicationsin the frequency bands below 6 GHz in “Governing the Geostationary Orbit Orbital Slots and Spectrum Use in an Era of Interference” (Institut français des relations internationals, January 2014).
 ITU Radio Regulations, International Telecommunication Union, 2012, Article 1.3
 International Telecommunication Union. ITU website – Space Services Department (SSD), visited December 2019.
 Joseph W. Gangestad. Orbital Slots for Everyone? (The Aerospace Corporation, March 2017).
 ITU Radio Regulations, International Telecommunication Union, 2012, Article 22.2
 International Telecommunication Union, ITU World Radio communication Conference adopts new regulatory procedures for non-geostationary satellites Multiple satellite mega-constellations in low-Earth orbit to provide extensive global telecommunications coverage (Sharm El-Sheikh, 20 November 2019).
 See the case of the fillings implemented by the Tongan and the Iranian Government in Iulia-Diana Galeriu, “Paper satellites” and the free use of outer space (note 4).
 International Telecommunication Union, Preparing for WRC-19: Understanding the issues at stake and the impact of decisions to be made Background Paper (Sharm El-Sheikh, 20 November 2019).
 International Telecommunication Union, Resolution COM5/11 (WRC-19): Application of Article 22 of the Radio Regulations to the protection of geostationary fixed-satellite service and broadcasting-satellite service networks from non-geostationary fixed-satellite service systems in the frequency bands 37.5-39.5 GHz, 39.5-42.5 GHz, 47.2-50.2 GHz and 50.4-51.4 GHz (World Radiocommunication Conference 2019 (WRC-19) Provisional Final Acts Sharm El-Sheik, 28 October – 22 November 2019, Sharm El-Sheikh, Egypt).
SPARC celebrates two years of existence. Officially launched in January 2018, it is the first (and, until now, only) research group in Portugal decided on Space Law. The success of the initiatives organized in the last couple of years is a reason for pride, which increases the responsibility of the present and the future.
Since then, SPARC has participated in the organization and promoted, among others:
(i) Industry Day and Manfred Lachs Space Law Moot Court Competition (May 2018);
(ii) Workshop on Space Resources (January 2019) and;
(iii) Space Law Course (September and October 2019), all of them held in Lisbon.
In between, it attended the “Space Start-Up’s” event held in Coimbra, in May 2019, organized by Instituto Pedro Nunes. Representing SPARC, some of its members were present at national and international events, taking advantage of the opportunities to meet academics and professionals, enthusiasts of Space Law, to make this project known and, also, the Nova University Law School in Lisbon.
SPARC has received many requests for collaboration, requests for information about future events, questions and clarifications. More than interest in SPARC itself, it is the interest in Space Law that makes us happy.
As such, the beginning of 2020 coincides with the kick-off of a new initiative: the launch of the blog. The blog aims to be what a blog is all about; a “space” for SPARC members to publish short opinion articles on limited topics, leaving the door open to further incursions and readings by those who read them. It intends to contribute with clues and research elements on fracturing themes of Space Law and others, associated with it, equally relevant. The articles may be written in Portuguese or in English, preferably on a bi-monthly basis.
The ambition of SPARC’s initiatives will be a constant during 2020. Following last year’s success, the conditions are in place to launch a second edition of the Space Law Course. In parallel, SPARC intends to launch a compendium of articles written by its members, reserving space for external contributions through a call for papers.
These initiatives underpin SPARC’s purpose: to expand awareness of Space Law, particularly in academia, and to enhance the written production of texts to enrich this legal field.
We are counting on you!
João Nuno Frazão