By Gerry Oberst

Our previous article pointed to the opportunity costs that Russia was racking up by not adopting satellite regulatory decisions developed by the European Communications Committee (ECC) and its various administrative levels. Now the ECC has embarked on a review of those decisions to confirm which are really necessary for industry and which could be deleted.

The ECC also is considering whether to change the structure of some of those decisions, which today refer to particular services (such as a license-exemption for a particular Inmarsat service in a particular band). Under consideration is a future approach of creating new generic decisions to replace the existing specific decisions.

The satellite industry prepared a substantial amount of quick input to the ECC query. Industry generally supported retention of all or most existing decisions, which mainly allocate spectrum to particular services and exempt those services from licensing.

This last element has caused controversy in recent years. Many of the ECC decisions apply to satellite services that use small terminals, such as for tracking and monitoring purposes or narrowband data. In theory, most, if not all, of these terminals should already have so-called "free circulation" within European countries due to a European Union directive, the radio and telecommunications terminal equipment directive, or R&TTE directive for short.

However, what applies in principle does not always happen in reality across the many European boundaries. As industry noted to an ECC project team in Copenhagen, some countries say they have implemented the license exemption decisions, although in reality they still require authorizations to operate.

For this reason, at least one service provider emphasized to the project team that it is very important to ensure that as many countries as possible confirm implementation of the ECC decisions. Curiously, among the "problem countries" that the provider named (including Greece, Italy and Turkey) are the same countries that presented difficulties for satellite services across borders 15 years ago.

Taking all this detail onboard, the project team noted it would be possible to abrogate a significant number of system specific decisions at some future point in favor of generic decisions, such as a couple that already exist relating to free circulation and license exemption of terminals operating in the bands 1525-1559 MHz and 1626.6-1660.5 MHz.

Those examples, however, reveal the problem of moving towards generic decisions. Even three years after the ECC adopted those decisions (and it took some time to get the decisions adopted in the first place), there is insufficient implementation to recommend in good faith that the industry should give up the protection of existing decisions that apply to specific systems.

Nevertheless, the project team also supported consideration of developing a new decision embracing all mobile satellite systems operating below 3 GHz. The meeting also suggested dealing with the overlap between specific and generic decisions through an overlapping period where the old decisions co-exist with the new general ones.

As usual, it is the pesky satellite industry raising difficult questions for the ECC, pointing to problems with cross-border services and insisting that ECC administrations should actually implement what they promise to do in their decisions. Two main problems appear to arise from the current structure – failure to implement ECC decisions, about which we have written often, and "fake harmonization." The latter occurs when a decision appears on its face to create a structure for common rules across Europe but in reality avoids hard questions by including within the common rule all the different approaches applied by different administrations.

When this kind of ECC decisions is adopted, the resulting list of countries identified as implementing the decision is of limited value, because the service operator must still go dig up the details of precisely what the country has done.

The importance of the decisions structure was emphasized by industry submissions in January and February, and it is important for operators and service provides to provide consistent input to the ECC bodies. The ECC will start to consider these issues at its main meeting in March (coincidentally, also held in Copenhagen).

Satellite platforms provide likely the best or one of the best opportunities for pan-European services, and an important contribution to innovation. Common rules must be maintained – and implemented – to permit those contributions to grow.

Gerry Oberst is a lawyer in the Brussels office of the Hogan & Hartson law firm.