Landing Rights and the freedom of satellite operators Luxemburg 4-5 June 2015

1. Landing Rights and the freedom of satellite operatorsLuxemburg 4-5 June2015 Prof. Philippe Achilleas Director IDEST Master in Space & Telecommunications Law International Chair of Space and Telecommunications Law

2. Introduction

3. Conditions to enter the market and provide services / networks • Non-financial conditions • Administrative authorization to enter the market and to use scares resources • Financial conditions • Tax contribution • State fees paid in return for benefits of the occupation of the public domain (spectrum) • Fees in exchange for services provided and generally calculated proportionately to the cost of the service

4. Taxes and fees for satellite operators • Fees associated to space licenses to operate the satellite in outer space • Fees related to use the resource “orbit-spectrum” for exploiting the satellite in outer space • Fees to operate terrestrial stations installed on the territory of States ( including teleports )   • So-called “landing rights” for providing a downlink connection in a State to provide services

5. Definition of « landing rights » • The term "landing rights" is commonly used in satellite communications without being legally defined or identified • It echoes the economic rights defined by air law conventions and negotiated between States to allow their carriers to land and / or uplift traffic in the territory of the State granting the right • Definition. Landing rights refer to • An authorization given to the satellite operator to enter a national market to provide a communication service from outer space • a fee payable to the State that receives the signal on its territory (in exchange of some guarantees)

6. Policiesintroducing landing rights

7. Policiesintroducing landing rights

8. Consequences of landing rights in terms of freedom of satellite operators • Restriction of : • Economic freedoms / Freedom of telecommunication • Freedom of outer space • Freedom of information

9. Outline • Rules prohibiting landing rights • Rules implying landing rights • Rules regulating landing rights

10. I. Rulesprohibiting landing rights • Status of outer space • Competition in the telecommunications market (EU)

11. A. Status of outerspace • Non-appropriation • Freedom of outer space

12. 1. Non-appropriation • No appropriation of outer space and its resources • Article II of the Outer Space Treaty (1967) • All forms of ownership are prohibited • COPUOS Legal Subcommittee, 2001 : "The geostationary orbit […] is part of outer space" • The same conclusion applies to space frequencies Assuming that space frequencies can not be appropriated, they do not fall within the public domain of States and could not give rise to taxes or charges (contrary to terrestrial frequencies)

13. 2. Freedom of outerspace • Article I of the Outer Space Treaty • Includes freedom of access, use and exploration • Applies to satellite telecommunications • Applicable without authorization of the States overflight unlike air freedoms recognized by air law • Prior consent prior for DBS (UNGA Resolution 37/92 of 10 December 1982) represents a mere political recommendation that was not followed by implementing measures

14. B. Competition in the telecommarket (EU) • General principles • Satellite provision

15. 1. General principles • Directive 2002/77 / EC on competition in the markets for electronic communications networks and services (16 September 2002) • Member States shall ensure that no restrictions are imposed or maintained on the provision of services other than those arising from the “telecoms package” (art. 2.3) • Objective, non-discriminatory, proportionate and transparent criteria for the frequency regime (art. 2.4)

16. 2. Satellite provision • Art. 7 • Member States shall abolish any regulatory prohibition or restriction • On this basis the landing rights were abolished in Europe

17. II. Rulesinvolving landing rights • Status of spectrum • General principles related to spectrum

18. A. Status of the spectrum • Status of the spectrum – Art. 44 of the ITU Constitution (1992) • States must take into account that the frequencies and associated orbits are limited natural resources which must be used rationally, efficiently and economically • This article can be the basis for landing rights • It implies that states adopt procedures and policies to ensure a rational and efficient use of spectrum and orbits/ These measures have a cost and can be supported by users • It emphasizes the economic use of the spectrum, implying a valuation of the resource

19. B. General principlesrelated to spectrum • Responsibilities of States • the ITU Constitution and the RR define the responsibilities of States in terms of spectrum management : • national spectrum management policy and planning / allocation of spectrum; frequency assignment and licensing; specification of standards and approval of equipment; prevention of harmful interference; spectrum monitoring; international cooperation; liaison and consultation; administrative and legal technical assistance; cost recovery for notification of satellite networks – ITU satellite filings • Some countries use taxes to fund these responsibilities • Among these responsibilities, principles of assignment and license are generally associated with taxes or royalties.

20. B. General principlesrelated to spectrum • Right of exclusion • Landing rights may also be justified or combined with the right of a State to exclude its territory from the satellite broadcasting service area of foreign operators • This right allows any receiving State to object to foreign broadcasting service in its territory - RR (No. 23-13) • Indifference to trade issues • The ITU is a technical organization whose competences does not extend to the commercial aspects of the use of frequencies • Consequently, the Organization is not interested in the establishment of landing rights and associated taxes

21. III. Rulesregulating landing rights • Freedom of information • WTO obligations in telecommunications

22. A. Freedom of information • Protection of satellite operators by freedom of information • Restriction of freedom of information by spectrum policy

23. 1. Protection of satellite operators by freedom of information • Art. 19 of the Universal Declaration of Human Rights (1948) / art. 10 European Convention on Human Rights and Fundamental Freedoms (1950) • Everyone has the right to seek, receive and impart, regardless of frontiers, information through any media • Freedom of information protects all persons, including companies and any medium including satellite (ECHR, Autronic A.G v. Switzerland, 1990) • As soon as satellite operators ensure the transmission of television/radio programs, and access to the Internet, they fall within the scope of freedom of information

24. 2. Restriction of freedom of information by spectrum policy • Three conditions are required to limit freedom – the restriction has to • be prescribed by law • meet one of the legitimate objectives mentioned in the texts • be proportionate to the legitimate objective invoked • Any limitation to telecoms not in accordance with these conditions = violation of freedom of information (ECHR, Autronic 1990 ; Tele 1 Privatfernsehgesellschaft MBH, 2000 ; Ahmet Yildirim, 2012). • The refusal to license broadcast or a measure of excessive taxation of the spectrum can be analyzed as a restriction of freedom of information • See : ECHR,24 Informationsverein Lentia, 1993 / ECHR, Centro Europa 7 s.r.l. and Di Stefano, 2012

25. B. WTO obligations in telecommunications • General obligations • Specific commitments • Application to satellite communications

26. A. General obligations applicable to the telecoms market • Most favored nation provision (GATS, art. II) • Equal treatment among WTO members • Applies to all services • Except in the case of (temporary) exemptions (GATS. II art). • 11 members presented exemptions for telecommunications service. • Some members have taken exemptions for satellite broadcasting services they assimilate to audiovisual services – e. g. USA have excluded DTH, DBS and DARS • Transparency : Members have to publish laws and regulations affecting trade in services (GATS, Art. III) • Competition : consultation procedure on anticompetitive practices – other than public monopolies (GATS, Art. IX).

27. 2. Specificcommitments made by eachmembers • Scope : • Market access (GATS Art. XVI) • National treatment : foreign service providers must be treated identically to domestic service suppliers (GATS, Art. XVIII) • Included in schedules (lists the sectors being opened to competition) • Possible limitations to the national treatment provision • Commitments are mandatory (GATS, Art. XX) and can be modified after negotiations with affected members (GATS, Art. XXI)

28. 2. Specificcommitments made by eachmembers • Uruguay Round Commitments (1986-94) • 108 members have made commitments to facilitate trade in telecommunications services including establishment of new telecoms companies, foreign direct investment in existing companies and cross-border transmission of telecoms services • Post Uruguay Round Commitments (1994-97) • 99 members have committed to extend competition in basic telecoms (e.g. fixed and mobile telephony, real-time data transmission, and the sale of leased-circuit capacity)

29. 2. Specificcommitments made by eachmembers • Commitments on market regulation • Reference Paper adopted by the Negotiating Group on Basic Telecommunications (24 April 1996) • 82 members have made commitments • Set of basic regulatory principles • prevention of anti-competitive practices in telecommunications • transparency in licenses • management of scarce resources (spectrum), in an objective, timely, transparent and non-discriminatory manner - Unjustified, disproportionate or discriminatory taxation is contrary to this principle

30. 3. Application to satellite communications • Satellite telecommunication services are not expressly contained in the WTO lists of telecommunications services • Satellite carriers services are considered included in the WTO classification under the principle of technological neutrality • Chairman's Note : “Unless otherwise noted in the sector column, any basic telecom service listed in the sector column: (a) encompasses local, long distance and international services for public and non-public use […] and (c) may be provided through any means of technology (e.g., cable, wireless, satellites)" - S/GBT/W/2/Rev.1, 16 January 1997.

31. 3. Application to satellite communications • Broadcasting satellites services belong to broadcasting services • Only 20 members made commitments • Practice of USA • US have made commitments for FSS (Fixed Satellite Services), MSS (Mobile Satellite Services) but not for DTH services (Direct-to-Home), DBS (Direct Broadcast Satellite Service) and DARS (Digital Audio Radio Service). • Instead they have taken exemptions to the Most Favoured Nation for these services

32. 3. Application to satellite communications • If members have made commitments in the telecommunications sector, without excluding expressly satellite services, the landing rights will represent a violation of the principles of • Market access • National treatment, if these duties are imposed only to foreign operators • Furthermore, even if licit, landing rights • shall meet the general principle of transparency • should be undertaken in an objective, timely, transparent and non discriminatory manner according to the Reference Paper on Basic Telecommunications (Sect. 6)

33. 3. Application to satellite communications • International Legality of Brazilian legislation (1) • Three barriers to market entry: • License • Fees (procedure of auction) • Requirement to use a local company • Remark : authorization does not represent a discrimination since both foreign operators and national operators are subject to a license

34. 3. Application to satellite communications • International Legality of Brazilian legislation (2) • Brazil's commitments • Exemption for telecoms services supplied for the transmission of radio or TV programs received by consumers • Provision of any telecoms service in Brazil is subject to a license issued in accordance with WTO principles. • Licenses are granted only to legal persons duly constituted in accordance with Brazilian legislation which provides that the seat and management of the company must be in Brazil • The supply of space segment facilities of satellites that occupy orbital positions notified by foreign countries is allowed whenever they offer better technical, operational or commercial conditions. Otherwise, satellites that occupy orbital positions notified by Brazil must be used • This provision tends to concentrate the supply of foreign services on satellites whose files were notified to ITU by Brazil

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