spectrum resource

International legal norms governing development of the

orbit/spectrum resource

Martin A. Rothblatt Resource development is the process of dispersing concenUalad values. Intematim~ law relating to

A resource may be viewed as a reservoir of wealth. Resource developm e n t occurs when this wealth, or concentrated storehouse of value, is unlocked and distributed through space and time. The process of resource development is well illustrated by the case of mineral wealth. It is customary, for example, to see oil and gas production as the unlocking o f a hidden reservoir o f wealth and the distributing of its values among the oil-consuming nations of the earth. Geostationary satellite communications is another clear example of resource development. In this case, however, two reservoirs of wealth are simultaneously unlocked - the geostationary orbit and the electromagnetic spectrum. Communication pathways are the concentrated values stored within these resources. The communication satellite liberates this hidden wealth and distibutes the values of communication pathways across the face of the earth and over the life of the satellite. '

resource develocmem establkCtes objectives for value dispersion and puts forward rules by which these obj~ti~ may be ~ I n ~ l . ~ l , : , ~ t i o m ~ omit and the ma~rN~ic ~ am two h o u s ~ of ~lue, or moou,=~, coming under incr, mdngly vigorous international control. The author first describes geo6;~;;onary satellite ¢ommunica~tms as the dispersion of values concentraWd in me geon,tiom~ omit and ~ the ele,momagneUc spectrum. Xe me. addresses the objectives of intst- Satellite c o m m - n i c a t i o n s a s r e s o u r c e development national satellite communications policy and the relative eflecliveness The communication pathway of relevant legal rules in Implement- T h e communication pathway or 'channel' is the route a message may take between communications. Telecommunication channels are routes in ing those objectives. which the message travels upon a stream of oscillating electromagnetic The author is wilh the Departme~ of energy. All channels have three d i m e n s i o n s - depth, distribution and Communication Studies, Royce Hall directionality. The depth of a communication pathway is the message 232, University of California, Los v o l u m e it can conduct per unit of time. The message volume a teleAngeles, CA 90024, USA (Tel: 213- communication channel conducts varies directly with the rate at which its 825-3303 or 213-397-5200). electromagnetic energy oscillates. For this reason, extremely high freq u e n c y microwaves are capable of routing many more messages than very 'Arthur C. Clarke may be credited with the discovery of geostatJonaw satellite com- low frequency radio waves. munications as the first space resource As well as being able to conduct a characteristic volume of messages, development technology (ArthurC. Clarke, channels are also capable of distributing or routing the messages varying 'ExVa-terresU~ relays: can rod~ stations give world-wide radio coverage?', Wireless distances. Some pathways, such as local television stations, distribute World, October 1945, p 305. messages over only a limited area. Other pathways, such as direct broad0308-5961/81/020063-21 $02.00 c 1981 IPC Business Press

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International legal norms governing development of the orbit~spectrum resource

cast satellites, distribute messages across entire nations. The distributiveness of a communication pathway is the mean distance b e t w e e n communicators. C o m m u n i c a t i o n pathways are also characterized by a dimension of directionality. Broadcast pathways convey messages in only one direction, whereas non-broadcast pathways, such as telephone networks, convey messages between and among all participants. Given this description of a c o m m u n i c a t i o n pathway, what can be said of the value of a channel? In a subjective sense, the value of a telecommunication channel is obvious to a n y o n e making regular use of telephone, radio and/or television. To address value with some objectivity, it is necessary to agree value measurem e n t procedures. The disciplines of economics and mathematics both suggest possible procedures. T h e economist's measure of value is price. While there are many ways to ascertain the price of telecommunication channels, 2 a common characteristic o f these procedures is the association of a dollar amount with the probable commercial productivity or social utility of some increm e n t a l a m o u n t electronic message-conveying ability or 'bandwidth'. ' S h a d o w pricing', for example, involves estimating 'the maximum sums that users of spectrum would be willing to pay rather than do without some marginal a m o u n t of bandwidth'.3 In essence, then, a channel has value to the extent that someone is willing to pay for the sending and/or receiving of messages through that channel. The enormous sums of m o n e y invested in developing, producing and operating communication satellite systems provides an implicit measure of the great economic value o f satellite communication channels." T h e mathematical, discipline of information theory provides an alter2H Levin, The Invisible Resource, Johns native means o f ascertaining the value of a communication pathway. Hopkins University Press, Baltimore, MD, I n f o r m a t i o n theorists quantitatively evaluate channels in terms of their 1971, pp 117-158. ability to reduce uncertainty, s This ability to reduce uncertainty is called ~lbis, pp 118-19. "According to INTELSAT Director General 'information'. Television channels, for example, have greater informaSantiago Astrain's calculations, the 'comtion values than radio channels because video and audio signals reduce munications satellite industry, including both its electronic and aerospace com- uncertainty more than audio signals alone (that is, they leave less to the ponents, already represents a global busi- imagination). Satellite communications channels have very high informaness that ranges between $1 500 and tion potential because of their ability to deliver video and/or audio signals $2 000 million per year in volume. Based on current rates of growth, it is possible that to places which are difficult or impossible to reach (and therefore are in a this will become a $10 000 million per year state of greater uncertainty) with terrestrial channels. activity by the mid- to late-1980s'. S. H e n c e , whether one employs a subjective, economical or mathematiAstrain, 'Telecommunications and the cal perspective, it is clear that telecommunications pathways are values, economic impact of communications satellites', paper presented at 31st Congress of and that these values are highly regarded when dispersed as communicathe International Astronautical Federation, tions satellite channels. Tokyo, 1980. SAnatole Rapoport, 'What is information?' in A. Smith, ed, Communication and Culture. Holt, Reinhardt and Winston, New York, 1966, p41. 'This volume of space is centred around the plane of the Earth's equator, has a mean altitude above the Earth's surface of 35 786 km and contains about 300 billion cubic kilometers. James Gehrig, 'Geostationary orbit - technology and law', Proceedings of the Nineteenth Colloquium on the Law of Outer Space, Anaheim, CA, October 1976, University of California Press, 1977, lap 267 and 268. 7Final Acts of the World Administrative Radio Conference, Geneva, 1979, art N1, Sec 8.13.

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The orbit~spectrum resource As n o t e d above, satellite communication is a form of resource developm e n t in which communication pathways are dispersed by simultaneously exploiting the geostationary orbit and the electromagnetic spectrum. The geostationary orbit is a doughnut-shaped volume of space 6 in which a satellite can remain 'approximately fixed relative to the [e]arth'. 7 By virtue of its apparently stationary position high above some terrestrial location, an appropriately equipped geostationary satellite can continuously transmit and receive electronic signals from any number of communicators spread over 40% of the earth's surface. The geostationary orbit, therefore, is a storehouse of an essentially unlimited number of pathways between communicators. TELECOMMUNICATIONS

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International legal norms governing development of the orbit~spectrum resource 'Largely frequencies between 2.5 GHz and 14.5 GHz, with expansion up to 30 GHz in the very near future. J. Mar~n, Communications Satellite Systems, Prentice-Hell, Englewood Cliffs, NJ, 1978, pp 132-133. 9The highest energy stream to be employed in this century will be the optical electromagnetic frequencies of laser communications satellite systems. See Aviation Week and Space Technology, 28 July 1980, lap 62--63. '°One gigabit per second, for example, is equivalent to transmitting the entire contents of the Encyclopedia Brittanica every second. Laser transmitter technology now being developed for communications satellite application is capable of supporting 16 gigabits per second - a capacity well beyond our current usage abilities (S. Fishbein, 'Laser communications', Satellite Communications, May 1979, p 28). "See Martin, op c/t, Ref 8, 1978, pp 160162, for a description of AT&T's once proI:)Osad 100 million voice channel domestic communications satellite system. '2'The number of satellites and number of communications channels that can be accommodated at any particular time is a function of the state of the technology and how it is used.' (Gehdg, op cit, Ref6, 1977, ~)p267 and 269.) '3For a full inventory of the formidable challenges engineers face in exploiting the spectrum resource, see Martin, op cit, Ref B, pp 17-163. "Not only is it more difficult (and expensive) to manufacture signal transmission equiprnent for higher mm and o ~ f ~ , 3ut the strength of ell signals diminishes as ;he square of the distance they travel and signals of different frequency are suscepIible to significantly varying amounts of ztmospheric absorption (ibid, pp 99--111). '`Gehrig (op c/t, Rof 6, p 269) notes that unlike terrestrial telecommunications sys:eros, whose emissions can be substantially sulated from each other, transmissions to and from space stations cannot be confined ~o that the emissions of one satellite netNork become the noise (interference) in

~veryother natwockon the s=me ~ ' . "Generally, 'as the longitudinaldistance on :he Earth's surface that must be covered by z geostationary satellite increases, the ~rbitel segment in which the satellite can be cositioned decreases',/b/d, p 271; see also N. yon Kries, 'The legal status of the geo='tationary orbit', Proceedings of the =.ighteenth Colloquium on lhe Law of Outer ~pace, Usbon, September 1975, Univer;ity of California, 1976, pp 27 and 32-33. ~TMartin,op c/t, Ref8, pp 69-72. ~"Reudink and Yeh, 'Rapid-scan area.-overage communication satellite', Journal )f Spacecraft, Vo117, No9, 1980. 'Goldman and Ede~mn, 'On several comnunications satellite designs using large ;pace antennas', Pacific Telecommunica~ons Conference Honolulu, HI, January I979, pp 3B-5. "°NASA is underwriting the developmentof continued on page 66

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TO use geostationary pathways, messages must be able to traverse the earth-space environment quickly. This can be done by impressing the message upon a stream of oscillating electromagnetic energy. The streams of energy now employed" or shortly available for employment 9 have sufficient message-carrying abilities or 'bandwidth' to convey any forseeable volume of telecommunication traffic. ,o The electromagnetic spectrum, therefore, is a storehouse of an essentially unlimited ability to route messages along geostationary pathways. The combined orbit/spectrum resource is clearly a great reservoir of telecommunications channels. '] These stored channels are dispersed from the orbit/spectrum resource with the resource development technology of satellite communications. As with other resource development technologies, hardware limitations truncate the ability of satellite communications to exploit fully the orbit/spectrum resource. ,2 Three of the most important '~ obstacles the orbit/spectrum presents to full resource exploitation are constraints relating to the propagation of certain higher spectrum frequencies," constraints relating to electromagnetic interference between satellites using the same frequency, Is and constraints relating to pathway availability from given orbital positions. '+ However, rapid advances in satellite power supplies, ,7 beam shaping, TM frequency reuse, ,9 higher frequency cultivation 2°and intersatellite signal switching 2' are combatting these obstacles and are paving the way for a greatly enhanced dispersion of space-based telecommunication channels. It is to the international resource development regime which guides and regulates the dispersion of these channel values that this inquiry now turns.

International resource development regime International law 'rests upon a consensus of civilized States', z2 and this consensus must be ascertained 'as often as questions of right depending upon it are duly presented for their determination'. 23 In discovering the consensus of international law, reference may be made to international conventions and treaties; international custom; general principles of law recognized by civilized nations; and the works of eminent legal scholars. 2, Each of these sources will be consulted for evidence as to the current state of international satellite communications law, with the fourth source, the works of scholars, being used to help elucidate the other three. Geostationary satellite communications, the development of the orbit/ spectrum resource, involves the dispersion of communications pathway values concentrated in the geostationary orbit and in the electromagnetic spectrum. The clear consensus of the international community is that this value dispersion process should be maximized. While various sources of international law place different emphasis on the particular value dispersion dimensions of depth, distributiveness and directionality. 25 There is uniform agreement on an overriding objective of maximum resource development. For each indication of international consensus, there will be a description of its basic identity, a determination of its evidentiary significance, and an examination of its substantive commitment to maxim u m channel dispersion as the fundamental international legal principle for geostationary satellite communications. I n t e r n a t i o n a l conventions and treaties

International conventions are a particularly valuable reference for international law because they expressly state and recognize a worldwide

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International legal norms governing development of the orbit~spectrum resource continued from page 65 consensus. The International Telecommunication Convention and Radio an experimental common carrier oriented communications satellite to operate in the Regulations of the International Telecommunication Union are the most virtually untouched 30/20 GHz Ka band comprehensive and most widely adhered to statements of worldwide (Broadcasting, 16 June 1980, p 68; Wright, consensus with regard to geostationary satellite communicationL Also of '30/20 GHz wideband technology verification program', International Conference on great importance, however, are the INTELSAT and INMARSAT Communica~ns, Boston, MA, June 1979, accords, and the Treaty on the Peaceful Uses of Outer Space. Vel 1, 15.31, 1979. 21Lewis Pollack, 'Technologies for future Intalsat satellites', Journal of Spacecraft, The International Telecommunication Conventions and Radio RegulaVol 17, No 4, 1980, laP 6-7; Deal, 'Digital tions of the International Telecommunication Union. The International transmission involving intersatallite links', Telecommunication Union (ITU) was formed by merging the two sepain Digital Satellite Communications, 1978, p 16; Burgess and Schmidt, 'Satellite con- rate international regulatory regimes for wire and wireless communicastallations using multiple-beam satellites tions which existed in 1932 into 'a single convention containing the with onboard-switched "I'DMA', in Jarett, general principles considered to be common to the telegraph, telephone ed, Satellite Communications: Future System, American Astronautical Society, and radio services...'. 26 This hybrid international organization grew 1976, p 468. quickly, and today it is 'the major international institution responsible for 22West Rand Central Gold Mining Co v The achieving global agreement on the use of telecommunication'. 27 The King, (1905) 2 KB 391. 2~The Paquete Habana, 175 US 677, 700 great significance of ITU pronouncements as evidence of international (1900). telecommunications law is attested to by its universal membership (153 2*Statute of the International Court of Jusstates), its highly focused domain of competence (electronic communicatice, art 38, 1945. International treaties are the clearest source of international law tions channels), 28 and its truly remarkable track record in forging interbecause they contain explicit statements of national consensus. 29 international consensus. The works of emiThere is evidence of consensus within the ITU in the International nent legal scholars, while extremely valuTelecommunication Convention, 3° in the technical Regulations annexed able, are at best a subsidiary means of discovering international law because of the to the Convention, 31 and in the formal Resolutions and Recommendadanger of relying upon the scholar's opinion tions of the ITU's several constituent bodies. 32 The International Teleas to what the law ought to be (ibid). 25For definitions of depth, distribution and communications Convention and the annexed technical Regulations are directionality, see text accompanying Refs treaty obligations of the signatories. 33While the Resolutions and Recom1-2. mendations of the ITU's constituent bodies are not legally binding, 2~G. Codding, jr, The Intemational Telecornmunication Union, E.J. BriU, 1952, p 'compliance is virtually universal in actual practice...'.3" 136; International Telecommunication The ITU regulatory regime appears to be clearly committed to the Convention, Madrid, 1932, 49 Stat 2391, maximum dispersion of telecommunications pathways as a fundamental TS No 867. For a description of the preguiding principle. Article IV of the International Telecommunication 1932 regulatory regimes for telegraph, telephone and radio, see ibid, pp 4 - 1 3 0 Convention (Malaga-Torremolinos, 1973) establishes this principle in and J. Tomlinson, The Intemational stating that a purpose of the ITU is to make telecommunications services Control of Radiocommunications, 1945, laP 14-76. Tomlinson notes that the new "so far as possible, generally available to the public') s In maximizing the regime differed very little from its prede- public availability of telecommunications channels, the ITU is also cessors, the formally established Intercharged with encouraging 'full advantage' to be taken of 'space technational Telegraph Union and the ad hoc International Radiotelegraph Union, and niques'.36 Hence the ITU Convention reveals universal agreement on the that 'the creation of the International Tale- principle of maximum dispersion or 'availability' of telecommunication communication Union was in reality an channels and on full employment of space techniques towards this end. attempt to achieve universality at the exThe ITU Convention also contains substantial evidence of worldwide pense of substantiality' (ibid, p 75). Z~A.Rutkowski, 'The 1979 World Administra- consensus as to the need to maximize growth in each of a channel's three tive Radio Conference: the ITU in a changdimensions. The dimension of depth, or message volume per unit of time, ing world', Intemational Lawyer, Vol 13, is maximized via 'the development of technical facilities and their most 1979, pp 289 and 290. 28While some attribute the ITU's longevity efficient operation',37 'the operation of the maximum practicable number to its preoccupation with technical matters, of radio channels in those portions of the spectrum where harmful interthe better view recognizes that the ITU conference may occur',3s and the minimization of wasteful use of the orbit/ tinually faces and resolves many p o l ~ questions. G. Codding, jr, 'The United spectrum resource. 39 Distribution of telecommunications pathways is States and the ITU in a changing wodd', Telecommunication Journal, Vol 44, 1977, maximized in the ITU duty to 'foster the creation, development and improvement of telecommunication equipment and networks in developpp 231 and 232. 2 9 1 ~ ~ on ~ ing countries by every means at its disposal...'.'° The distribution dimention matters dates back to 1865 in the case sion is also recognized in the protection of 'equitable access' rights to of one ITU parent, the International Telegraph Union, International Telegraph Con- channels derived from the orbit/spectrum resource as each administracontinued on page 67 tion acquires the requisite technical facilities."

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International legal norms governing development of the orbit~spectrum resource continued from page 66 vention (Pads, 1865), BddL~ and Foreign State Papers, Vol 56, p 294 and back to 1906 in the case of the ITU's other parent, the Intemational Radiotelegraph Union, International Radiotelegraph Convention (Berlin, 1906), 37 Stat 1565, TS No 568. Since 1932, the ITU has agreed to five modified versions of an International Telecommunication Convention: International Telecommunication Convention (Atlantic City, 1947), 63 Slat 1399, TIAS 1901; Intemational Telecommunication Convention (Buenos Aires, 1952), 6 UST 1213, TIAS 3266; International Talecommunication Convention (Geneva, 1959), 12 UST 1761, TIAS 4892; Intemational Telecommunication Convention (Montreux, 1965), 18 UST 575, TIAS 6267; Intematiot~ Teieconlmur~c~on Convention (Malaga-Torremolinos, 1973), 28 UST 2497, TIAS 8572. '°The ITU Convention sets forth the basic principles of the organization and has been referred to as the equivalent of a domestic constitution. Rutkowski, op c/t, Ref 27, p 290. 3,There are specialized Telephone, Talegraph, Radio and A d d ~ Radio Regulations, each of which sets forth particular controls and procedures (ibld). J=Resolutions and Recommendations are agreed upon at Administrative Radio Conferences which meet to revise the technical Regu~ons and d~rent ~ are made by the CCIR and CCI'I-r, special technical consulting committees for radio and wire communication, respectively (ibid; D. Smith, Intemationel Telecommunication Control, Sijthoff, 1969, p 20; Harold Jacobson, 'International institutions for telecommunications: the ITU's role', in E. McWhinney, ed, The International Law of Communications, 1971, Oceana Press, pp 54-60. "'lbid, 60; Hearings on Internationel Telecornmunicaticns Policies Before the Subcomm on Communications of ~Te Senate Comrn on Commerce, Science, and Transportation, 95th Cong, 1st Seas, 167 (1977) (background article). "lbid, see also Cad Chdstol, 'The International Telecommunication Union and the international law of outer space', in Proceedings of the 22nd Colloquium on the Law of Outer Space, Munich, July 1979, University of California, 1980, pp 35 and 42. 35International Telecommunication Convention (Malaga-Torremolinos, 1973) art IV (1)(b), 28 UST 2497, 2512, TIAS 8572 (emphasis supplied). "*/bid, art IV (2)(c). 3"lbid, art IV (1)(b). See also ibid, art XXIII (1) ('Members shall take such steps as may be neceesanj to ensure the establishment, under the best technical conditions, of the channels and inaalla~kxts~ to carry on the rapid and uninterrupted exchange of international telecommunications.') Wbid, art X (3)(c). Wbid, art XXXlII. Minimization of wasteful use of the orbit/spectrum resource allows a continued on page 68

' Finally, directionality, the measure of increments in channel utility as a result of being able to both send and receive messages, is supported with commands to increase the usefulness and public availability of electronic bandwidth,4Z to 'recognize the fight of the public to correspond' by means of international telecommunications service, 43 and to keep channel access costs 'at levels as low as possible...'.'4 In addition to the International Telecommunication Convention, ITU Radio Regulations, Recommendations and Resolutions also indicate worldwide consensus on the goal of maximum dispersion of geostationary bandwidth. The Radio Regulations, for example, are largely addressed to the minimization of interference between different radio services (eg fixed (terrestrial) service, broadcasting-satellite service) and between different stations within each service (eg two satellites or earth stations on same frequency). Interference pollutes telecommunications channels and thereby diminishes their capacity and decreases their utility.4s Extensive ITU coordination procedures ~ minimize interference so that channels may carry their maximum message volumes and may be available throughout their distribution network. Channel dispersion is further enhanced by the Recommendations of the ITU's technical study groups, the CCIR and CC1TT. The CCIR Recommendations, for example, not only form the technical basis of the ITU coordination procedures, 47 but also address higher frequency use (which yields deeper channels), standardization of technical parameters (which improves pathway distribution) and technical means of generating greater network access and flexibility (which encourages multidirectional channels). 48The international legal significance of CCIR Recommendations on matters of communications pathway dispersion, including some very valuable work on optimal utilization of the orbit/spectnun resource,49 is heightened by the 'great efforts' made 'to achieve consensus and unanimity'.s° Resolutions are one final example of the many forms consensus can take within the ITU. Adopted at Administrative Radio Conferences held periodically to modify the voluminous ITU Radio Regulations, the Resolutions are important barometers of world opinion and often evolve into legally binding obligations. For example, at the 1971 World Administrative Radio Conference for Space Telecommunications (WARC-ST), ITU concern that de facto acquisition by administrations of exclusive priority rights to the orbit/spectrum resource would impede maximum channel dispersion s~ culminated in passage of Resolution Spa 2-1. This resolution expressed the international consensus: that the registration with the ITU of frequency assignments for space radiocommunication services and their use should not provide any permanent priority for any individual country or groups of countries and should not create an obstacle to the establishment of space systemsby others, s2 ITU Secretary-General Mili has observed that when national plenipotentiaries met two years later to revise the ITU's constitution, they incorporated the considerations of WARC-ST Resolution Spa 2-1 into article XXXIII of the new International Telecommunication Convention.5~ A recently passed ITU Resolution which is certain to have some impact upon the development of the orbit/spectrum resource is Resolution BP of the 1979 General World Administrative Radio Conference (WARC-79). This Resolution calls upon the ITU to convene a conference 'not later than 1984 to guarantee in practice for all countries equitable access to the

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International legal norms governing development of the orbit~spectrum resource continued from page 67 greater volume of messages to flow along geostationary channels. "°/bid, art IV (2)(e) (emphasis supplied). "/bid, art XXXIII (2). "~lbid, art IV (1)(b). "31bid, art XVIII. See also ibid, art XXXIV (1) (binding stations 'to exchange radiocommunications reciprocally without distinction as to radio system' employed). "/bid, art IV (2)(d). "'C. Jackson, 'The allocation of the radio spectrum', Scientific American, February 1980, pp 34-39; Levin, op cit, Ref 2, pp 16-22. "ITU Radio Regulations, arts VII, IX. Pursuant to the coordination procedures 'any possibilities of (harmful) interference that may be revealed by close studies of existing and planned services will need to be removed by an agreement (between concemed administrations) to make the necessary technical changes on one side or the other.' Jowett, 'Power limits and coordination procedures applying to frequency bands shared by space and terrestrial services, Telecommunication Journal, Vol 31, 1964, pp 249 and 252. See generally, D. Leive, International Telecommunications and International Law: The Regulation of the Radio Spectrum, A.W. Sijthoff, 1970, pp 215-228. "71bid, p 216; Hearing on International Telecommunications Policies Before the Subcomm on Communications of the Comm on Commerce, Science, and Transportation of the Senate, 95th Cong, 1st Sess, 167 (1973) (background article). "SThese and many other CCIR activities are summarized in Kirby, 'CCIR past, present and future,' op cit, Ref 20, 1979; 9.1.1; 'Satellites and space communication for all applications have been a major preoccupation of CCIR now for twenty years.' (ibid, 9.1.2). 49Christol, op cit, Ref 34, p 37. "°Jacobson, op cit, Ref 32, pp 51 and 57. Jacobson notes that as a result of CCIR failure to agree upon television standards 'different television systems are now employed in different parts of the world, and the reception of programs transmitted from stations of one system by receivers designed for another system is difficult' (ibid, p 58). Jacobson's observation ably illustrates the inseparability of 'technical' issues, such as standards, and legal concepts, such as the free flow of information (see Gehrig, 'Broadcasting satellites - prospects and problems,' JoumalofSpace Law, Vol 3, 1975, p 25. s'This concern finds strong support in McDougal's research finding that 'inclusive usa and competence', as opposed to exclusive authoritative control, 'most often achieve(s) the greatest production and widest distribution of goods and services.. .'. McDougal, H. Lesswell and I. Vlesic, Law and Public Order in Space, Yale University, New Haven, 1963, p 749. S~FinalActs of the World Admvdstratk,e Radio Conference for Space Telecommunications, Geneva, 1971, Res Spa 2-1,23 UST 1527, continued on page 69

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geostationary-satellite orbit and the frequency bands allocated to space services'. 5, It is anticipated that access to the orbit/spectrum resource will be 'guaranteed' through the adoption of one or more Plans which assign space service frequencies and satellite positions on an apriori country-bycountry basis. 55 It has been argued that a priori plans which reserve orbital positions and frequencies to states in advance and in excess of their needs 'freeze technology' and institute 'a permanent or semi-permanent priority, contrary to the principles stated in Resolution No Spa 2-1' of WARC-ST.56 If this view is correct, the consensus stated in resolution BP may raise important questions as to the future vitality within the ITU of the fundamental resource development principle of maximum channel dispersion. s7 Another view, however, deems a priori planning to simply be 'a collection of all the technical parameters necessary for the purpose of ensuring the optimum use of available resources', s8 According to this second view, orbital position and frequency reservations are made to minimize intraservice interference and do not constitute exclusive appropriations of the orbit/spectrum resource. 59 If this second view is correct, then Resolution BP advances channel availability by minimizing interference and is in accordance with basic resource development principles. The legislative history of Resolution BP reveals that it was proposed to alleviate the coordination problems of countries such as India, which are orbiting their first satellite systems and are encountering great difficulty in squeezing their systems between the already existing geostationary satellite communications systems of other states. 6° Viewed against this historical backdrop, it becomes possible to argue that critics and proponents of a priori planning are simply focusing upon different dimensions of channel dispersion, with the former emphasizing depth and the latter emphasizing distribution.6' Commitment to the overarching principle of maximum availability of geostationary satellite communications paths remains firm. T h e I N T E L S A T A g r e e m e n t . T h e International Telecommunications Satellite Organization (INTELSAT) is a second major source of expressly stated global consensus on communications pathway dispersion. The INTELSAT organization exists to develop and operate the space segment of a global commercial telecommunications satellite system. 62The significance of INTELSAT policy positions as an indicator of global consensus is evidenced by the organization's very large membership of over 100 countries and its respectable achievement of agreeing upon five generations of satellite systems in fifteen years. 63 INTELSAT's constitution, the Agreement Relating to the International Telecommunications Satellite Organization (the 'Agreement')/" is a multilateral treaty and a prime source of evidence of international consensus with regard to satellite communications channel dispersion. 6s The Agreement reveals the need for greater geostationary channel dispersion to be the very reason for the organization's formation. Article II, for example, states that INTELSAT is being established with 'full regard' for international principles requiring 'expanded telecommunications services to all areas of the world', the utilization of 'the most advanced technology available' for these services, and the resultant establishment, 'for the benefit of all mankind', of 'the most efficient and economic facilities possible consistent with the best and most equitable use of the radio frequency spectrum and of orbital space'. 66When so very many countries

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International legal norms governing development of the orbit~spectrum resource continued from page 68 TIAS No 7435. The implications of Res Spa 2-1 are discussed at length in Christol, op cit, Ref 34. S~M. Mill, 'World administrative radio conference for the planning of the broadcastingsatellite service in frequency bands 11.712.2 GHz (in regions 2 and 3) and 11.712.5 GHz (in region 1), in Proceedings of the 20th Colloquium on the Law of Outer Space, Prague, September 1977, University of Caiifomia, 1978,10P346 and 3,53. S'Finai Acts of the World Administrative Radio Conference (Geneva, 1979) Res BP. "See A. Rutkowski, 'Six ad-hoc two: the Third World speaks its mind', Satellite Communications, March 1980, p 22. S'lbid, p 25 (statement of the delegate of the USA). STA complete technology freeze prevents any growth in channel depth (message volume per unit time) and would therefore certainly be incompatible with a principle of maximum channel dispersion. SSR. Butler, 'World Administrative Radio Conference for Planning Broadcasting Satellite Service', Journal of Space Law, Vol 5, 1977, pp 93 and 98. Sglbid. ~°Rutkowski, op cit, Ref 55, p 23. 6~While proponents of a pr/or/orbit/spectrum planning are motivated by a desire to facilitate broader access to Itm orbit/spestrum resource, it is doubtful that the chosen tool of rationing thin slices of orbit/spectrum will significantly advance their aims. See text accompanying Refs 169-178. '2Agreement Relating to the International Telecommunications Satellite Organization, TIAS No 7532 (1973) art II; J. Kildow, Intelsat, Praeger, New York, 1973, pp 4-5 63j. Pelton, 'The Intelsat global satellite system and the Pacific: past, present and future', ol3 cit, Ref 19, pp 2E-23; S. Astrain, 'lntelsat and international digital satellite communications issues and opportunities', in Digital Satellite Communications, 1978, p 1. See also Pollack, op c/t, Ref 21. "This Agreement, concluded among governments, sets forth INTELSAT's basic purposes, functions and organizational framework; an accompanying 'Operating Agreement', signed by governments or their designated telecommunications entities, details 'technical, operationai and financial aspects of system operation', R. Colino, 'International cooperation between communications satellite systems: an overview of current practices and future prospects', Journal of Space Law, Vol 5, 1977, 10p 65, 72-73; Operating Agreement Relating to the International T • • Satellite Organization, TIAS 7532 (1973). 6SExcellent accounts of the painstaking procees of achieving this consensus through the negolialfon of 'definitive arrangements' for INTELSAT are R. Colino, The Intelsat Deffni~ve Anangemee~: Ushedng in a New Era in Satellite T e l e s o m m u n ~ , European Broadcasting Union, 1973; S. Levy, 'lntelsat: technology, politics and the lrenscontinued on page 70

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expressly agree not only to worldwide dispersal of space-biased communications pathways, but also to maximize this goal with the ' m o s t advanced technology', the m o s t efficient and economic facilities', and the b e s t u s e o f the orbit/spectrum resource, ~v one is confronted with very powerful evidence of an international legal principle demanding maxim u m resource development for geostationary satellite communications, u A key point on which to probe this international commitment to resource development is the issue of the rights and obligations of I N T E L S A T members with respect to the establishment of separate, n o n - I N T E L S A T satellite systems. While a consensus on this issue was eventually reached, negotiating positions ranged from support for total f r e e d o m to establish or participate in separate systems to support for the prohibition of I N T E L S A T members utilization of n o n - I N T E L S A T systems. 69 The eventual consensus was that separate satellite systems would be allowed, but that I N T E L S A T members TM participating in such systems had certain affirmativC ~ procedural 7~ and substantive 73 obligations to designated I N T E L S A T governing bodies. TM These obligations are designed to provide 'existing or planned 'Ts I N T E L S A T space systems with special protection from physically, and in certain cases economically, competitive uses of the orbit/spectrum resource/6 By raising unnecessarily high protective barriers to market entry by entities desiring to supply new geostationary bandwidth, 77 the obligations all I N T E L S A T m e m b e r s agree to undertake could bring the strong global commitment to maximum channel dispersion into question. H o w e v e r , this commitment is currently far too strong. I N T E L S A T has n e v e r tried to block any new satellite system, and would in fact be both legally 78 and practically ~9 unable to do so. In the view of more than one scholar, there was never any consensual support for an anticompetitive ban on n o n - I N T E L S A T bandwidth and the concomitant harm such a ban would cause to the principle of maximum channel dispersion2 ° Instead, efforts to protect I N T E L S A T from competition are generally attributed to the natural efforts of Comsat, a private US firm which was the key force in I N T E L S A T , to maintain an unchallenged position of dominance in international satellite communications. 8~ It is a great tribute to the forces promoting greater development of geostationary bandwidth that the anticompetitive provisions of the I N T E L S A T Agreement are very weak and do not seem to be impairing the creation of either domestic, regional or specialized satellite communications systems2 2 T h e I N M A R S A T C o n v e n t i o n . A new n o n - I N T E L S A T source of globally distributed geostationary bandwidth was created in July of 1979 when the C o n v e n t i o n and Operating Agreement on the International Maritime Satellite Organization entered into f o r c e . " While the I N M A R S A T C o n v e n t i o n is much less significant as a source of international law than is the I N T E L S A T Agreement, ~' the Convention contains important expressions of international consensus on geostationary channel dispersion and t h e r e f o r e warrants substantial respect as a source of international legal norms for geostationary satellite communications. I N M A R S A T ' s purpose is 'to make provision for the space segment necessary for improvingmaritime c o m m u n i c a t i o n s . . . ' . " In meetingits purpose, I N M A R S A T must 'seek to serve all areas where there is need for maritime communications', and must keep its space segment 'open for use by ships of all n a t i o n s . . . ' . 8 6 International commitment to maximum d e v e l o p m e n t of the orbit/spectrum resource is manifest in INMARSAT's

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International legal norms governing development of the orbit/spectrum resource continued from page 69 formation of a regime', Intemational Organizations, Vol 29, 1975, p 655; R. Doyle, 'Permanent arrangements for the global commercial communications satellite system of INTELSA'I", Proceedings of lhe 17th Colloquium on the Law of Outer Space, Amsterdam, October 1974, University of California, 1975, p 123; A. Ende, 'INTELSAT: evolution or revolution', Law and Policy in International Business, Vol 4, 1972, p 529. For a comprehensive business and policy analysis of INTELSAT, see M. Snow, International Commercial Satellite Communications, Praeger, New York, 1976. '*Agreement Relating to the Intemational Telecommunications Satellite Organization, TIAS No 7532 (1973) (hereinafter cited as INTELSAT Agreement) art II, Preamble. ~71bid. ~Cf V. Vereshchetin, 'International space communications systems', Proceedings of the 13th Colloquium on the Law of Outer Space, Constance, October 1970, University of California, 1971, p 259, for a comparison of the organizational principles underlying INTELSAT with those of the much smaller Soviet-bloc Intersputnik system. See also J. Galloway, The Politics and Technology of Satellite Communications, D.C. Heath, Lexington, MA, 1972, pp 121-136. °gColino, op cit, Ref 64, p 77. 7°Including state parties, signatories, and persons under the jurisdiction of state parties. ?qntemational satellite communications law expert Colino has observed that an evldentiary 'burden would rest with the proponents of a regional system separate from INTELSAT to demonstrate to INTELSAT (through representative organs), that their establishment, acquisition or utilization of such a system is justified in terms of the obligations they undertook pursuant to the Agreement'. This interpretation of the obligations of article XIV 'would appear to accord better with the text and intent behind the text than would a contrary interpretation to the effect that INTELSAT members would be free to establish, acquire or utilize separate regional systems unless INTELSAT made a negative finding, le technical incompatibility and significant economic harm, thus shifting the burden of proof and action onto INTELSAT' (Colino, op cit, Ref 65, p 94). 7ZObligations to consult and to furnish relevant information vary depending on whether the separate satellite system will be used for domestic public telecommunications, international public telecommunications or specialized telecommunications service (INTELSAT Agreement, art XIV (c), (d), (e)). 73An evidenciary burden of showing technical compatibility 'with the use of the radio frequency spectrum and orbital space by the existing or planned Intelsat space segment exists for all non-defansa separate satellite systems' (ibid, (c)-(g)). For separate satellite systems providing international public telecommunications service, continued on page 71

70

undertaking to develop new geostationary telecommunications paths, to distribute these paths globally and to make these paths capable of conveying messages in two directions.87 I N M A R S A T is modelled after INTELSAT and faces many of the same problems as the older organization. .8 For example, in the event that a sigdatory plans to make use of a different maritime satellite service, they must undertake 'to ensure technical compatibility [with] and to avoid significant economic harm to the INMARSAT system'. 89This apparent quest for a monopoly position provides yet another test for maximum resource development principles. For international resource development principles to prevail, new supplies (and in the absence of natural monopoly conditions, new suppliers) of geostationary maritime bandwidth must not be inhibited as a consequence of the INMARSAT accords. Fortunately, it seems that there will be at least three different sources of maritime-oriented satellite communications channels 9° and INMARSAT has been given the authority to lease the capacity it requires. ~ These conditions allow for the possibility of INMARSAT assuming full responsibility for natural monopoly functions such as providing all categories of ships with basic safety-related telecommunications services, 92 while certain specialized maritime communications services, such as high-speed data and slowscan video, could be open to competitive supply by separate, nonI N M A R S A T entities. ~3 In this way, channel dispersion is maximized because an international organization with a public service mission9" is best able to maximize the often unprofitable process of universal channel distribution, while the competitive efforts of several entities are best able to maximize channel dimensions of depth and directionality. O u t e r s p a c e treaty. T h e preambulatory provisions of both the INTELSAT and INMARSAT accords pay tribute to the special relevance to satellite communications of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies ('Outer Space Treaty'). 95Indeed, the Outer Space Treaty expressly claims jurisdictional competence over both national and international activities in outer space, 96 and as a matter of customary international law, geostationary satellite communications is one such outer space activity.97 With over 90 signatures to its credit, the Outer Space Treaty is one of the world's most important sources of positive international law and is of considerable value in further clarifying the legal norms which govern exploitation of the orbit/spectrum resource. The Outer Space Treaty contributes two important legal norms to this examination of international resource development law for geostationary satellite communications. The first requires activities in outer space to be conducted 'in accordance with international l a w . . ?.98 This strengthens the legal import of the international consensus reached elsewhere 99 requiring maximum dispersion of geostationary communications paths. The second norm declares outer space to be a domain which is utilized 'for the benefit and in the interests of all countries', tooopen for 'use by all States without discrimination of any kind', ~°' and governed 'by the principle of cooperation and mutual assistance...'. ~02These considerations are expressed efficiently by Professor McDougal as descriptive of a domain of 'shared competence', ie a realm which is under 'inclusive authoritative control', t03 The Outer Space Treaty necessarily prohibits

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International legal norms governing development of the orbit~spectrum resource continued from page 70 there is an additional burden of showing an absence of 'significant economic harm to the global system of INTELSAT' (ibid, art XlV (d)). •'The Board of Governors, where voting is weighted ___accord_ ing to use of the INTELSAT system, is the designated entity for ell nondefense separate satellite systems; actual decision-making authority rests with the one-state, one-vote Assemblyof Partiesfor separate satellite systems providing specialized or international public telecommunications services (ibid, art XIV (c), (d),

the converse o f inclusive control, namely exclusive 'national appropriation by claim of sovereignty, by means of use or occupation, or by any

o t h e r means'. 1o4 T o assess the impact o f this second legal norm upon the existence and strength o f a m a x i m u m channel dispersion principle, it is first necessary to determine whether the production of values such as geostationary telecommunications pathways is maximized under inclusive or exclusive a u t h o r i t a t i v e control. Professor McDougal exhaustively researched this issue and concluded that no fixed judgment can ever be made as to w h e t h e r 'the greatest production and widest distribution o f values' can be achieved through inclusive or exclusive use. '°5 This is because value (e)). production and distribution does not rest in some 'reified essence' of the Wbid. '61NTELSAT requestsmore systeminforma- resource, but depends upon a complex interaction of many dynamic tion from its signatories than does the ITU, and, at times, usas more stringantfrequoncy i n t e r d e p e n d e n t factors.'°~ N e v e r t h e l e s s , it did generally appear that to interference criteria than the ITU when co- the extent a resource physcially admits of shared use, inclusive enjoyment ordinating the planned separate systemsof produces the greatest production and widest distribution of values. This is its signatories with its own intemational system. But INTELSAT does not recognize especially true of 'vast' or 'flow' resources because: reciprocal coordination obligations beyond use by one participant does not diminish and seldom interferes with use by another those required by the ITU when modifications to the INTELSAT system are planned or with future rates of use; instead, the total produciton and sharing of values which might impact upon the separatesatel- increases in direct proportion to the number of participants. 107 lite systems of its signatories (Coiino,op cit, Ref 64, pp 86-89). Special protection from F u r t h e r m o r e , if the resource is of any strategic value, as the geostationary economic competition is sought through orbit most certainly is, 108inclusive use appears to be the optimal regime. requiring INTELSAT signatories participat- This is because maximum production and distribution of values is ing in a separate satellite system providing intemationel public telecommunications possible only in a stable geopolitical climate and service 'to avoid significant economic harm Past experience in the allocation of the resources of the earth has shown that to the global system of INTELSAT' (INTELSAT Agreement, art XIV (d)). See descrip- minimum order (peace) is far more easily maintained where the pattern of use and tion of INTELSAT analysis of economic im- competence is inclusive. The authorization of exclusive acquisition often leads to pact of the US MARISAT system, ibid, pp arbitrary seizure, with each state trying to acquire as much as possible as quickly as 83-84. possible, limited only by the coercion it can impose upon others. ,o9 7~"hesa barriers could include the obligation 'to avoid significant economic harm to O n the o t h e r hand, the exploitation of 'scarce resources may on occasion the global system of INTELSAT', (ibid), an obligation the INTELSAT accords do not require extensive expenditures of capital, which in turn create a demand impose upon proposed internationalpublic for exclusive use in order that participants may be guaranteed a return on telecommunications services by means of their investments'. ' 10 underwa~ cabiss. Ses cableversussa~lite Based on these considerations, it seems fair to conclude that produceconomic analysis in Stanley, 'Economic issues in intemationel telecommunications: tion and distribution of geostationary channels will be maximized by a public policy dilemma', in J. Pelton and M. keeping the geostationary orbit under inclusive control. The orbit physiSnow, eds, Economic and Policy Problems in Satellite Communications, Prseger, New cally admits of limitless sharing (with appropriate technology),"' and the York, 1977, laP 62-88. The imposition of a m o u n t o f pathways dispersed from the orbit must vary directly with the unnecessarily high coordination costs, n u m b e r of entities establishing geostationary communications satellite through a combination of stringent frequency interference standards and reti- systems.Furthermore, while exclusivity may be the price of capital for cence to modify INTELSAT systems al- risky space systems, an inclusive right to share in the use of the ready on orbit, is another example of how geostationary orbit would be meaningless without a protected right (for entry into the geostationaty bandwidth market could be discouraged. Colino, op the satellite's life) to enjoy one's ' s h a r e ' - a n orbital position and cit, Ref 64, pp 84-87, and Rutkowsld, op cit, f r e q u e n c y band within the orbit/spectrum resource. In support of this Ref 55, p 23 for summaries of coordination right to quiet enjoyment, the Outer Space Treaty requires a state to problems involving Indonesia's Pelapa satellite, India's INSAT satellite and a pro- ' u n d e r t a k e appropriate international consultations before proceeding' spactive Brazilian satellite. with any space activity it has reason to believe 'would cause potentially 7BShould it be determined that a proposed harmful interference' to the outer space activities of other states.~'z It separate system is technicallyincompatible and/or economically harmful, INTELSATis m a y t h e r e f o r e be concluded, at least tentatively, that the inclusive only empowered to express its findings in e n j o y m e n t regime of the Outer Space Treaty maximizes the production the form of recommendations (INTELSAT and distribution of geostationary bandwidth, and therefore further Agreement, art XlV (c), (d), (e)). "See, descr~pUon of us po~y to provk~ strengthens the maximum resource development principles found in each continued on page 72 o t h e r source of international satellite communications law. ,13 T E L E C O M M U N I C A T I O N S P O U C Y June 1981

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International legalnorms governing developmentof the orbit~spectrum resource continued from page 71 satellite launch assistance even in the absence of a favourable INTELSAT recommendation so long as certain other conditions exist (Colino, op cit, Ref 65, p 94; Department of State Bulletin, Vo168, 1972, pp 533-534; Depatlment of State Bulletin, Vo165, 1971, lap 624-627. ,oj. Kildow, op cit, Ref 62, pp 59-82; S. Levy, 'INTELSAT: technology, politics and the transformation of a regime', International Organizations, Vo129, 1975, pp 677-675. S'lbid. See also M. Kinsley, Outer Space and Inner Sanctums, John Wiley and Sons, New York, 1976, for a critical analysis of COMSAT's formation and operating policies. An excellent policy-oriented account of the formation of COMSAT and of its key role in the establishment of INTELSAT is J. Galloway, The Politics and Technology of Satellite Communications, D.C. Heath and Co. Lexington, MA, 1972, pp 1-104, 137-184. ~21ndeed, INTELSAT recently endorsed the technical and economic compatibility of several regional and international public communications satellite systems, including INTELSAT member Algeria's planned use of the Soviet-bloc Intersputnik international public telecommunications satellite system and a new Indonesian Palapa satellite providing regional service to ASEAN nations (Aviation Week and Space Technology, 10 November 1980, p 22). On the policy and planning issues raised by the proliferation of often competitive communications satellite systems, see insightful analysis in J. Pelton, 'Key problems in satellite communications: proliferation, competition, and planning in an uncertain environment', in Pelton and Snow, op cit, Ref 77. ~3Convention on the International Maritime Satellite Organization, 1979. S'This is because (1) INMARSAT has only 27 members compared to INTELSAT's 100plus members, (2) INMARSAT's scope of competence, maritime communications, is much more narrowly circumscribed than that of INTELSAT, and (3) INMARSAT is very young with no operational experience. But it should be noted that while the USSR and the PRC are members of INMARSAT, they are not members of INTELSAT (although they each have INTELSAT earth stations). 8SlNMARSAT Convention, art III (1). ~°lbid, arts Ill (2), V (3), VII (1). sTOporational requirements for an INMARSAT satellite system include telephone, facsimile, telex, data, slow-scan video and Emergency Position-Indicating Radio Beacon (EPIRB) services (H. Sondaal, 'The current situation in the field of maritime communication satellites: INMARSAT', Journal of Space Law, Vol 8, 1980, p 21 ). SHNTELSAT was not acceptable as the organization responsible for maritime satellite communications because important maritime countries were either not INTELSAT members (eg USSR) or would have had only minor control over maritime continued on page 73

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International custom and the orbit spectrum resource

International custom, as evidence of a general practice accepted as law, supplements the expressly recognized rules of treaties as an indication of that consensus of civilized states which forms the sum and substance of international law. "l~e sources of positive international law examined above appear to support international legal principles which call for maximum development of the orbit/spectrum resource. In particular, these principles appear to require the maximum dispersion of geostationary telecommunications channels along dimensions of depth, distribution and directionality. International custom and channel depth. Enhancement of channel depth,

which measures the volume of messages a channel can conduct per unit of time, has been pursued in two complementary ways. One way to increase message volume is to make a given amount of bandwidth convey information more efficiently. This generally requires the replacement of primitive technologies with more modern ones. For example, primitive radio transmitters called 'spark sets' wasted most of their assigned band and were gradually replaced with more efficient apparatus. As this became a matter of general practice, the ITU gradually banned spark sets as a matter of positive law. ~t4Similarly, today's communications satellites waste most of their assigned bandwidth and are slowly being replaced by more efficient satellites which have at least some capability for frequency reuse. The ITU recognizes and confirms this trend with appropriate Regulations and Recommendations. ~5 A second means of enhancing channel depth is to use higher spectrum frequencies. Generally, the message volume per unit time of a channel varies directly with the frequency of electromagnetic oscillation employed. The general practice has been to employ higher and higher frequencies for wireless communications. As use of these higher frequencies becomes foreseeable, the ITU codifies practice by allocating the higher bands to particularly appropriate services. ~6 While a global custom of enhancing channel depth cannot be denied,'Xv worldwide disregard for the market value of the orbit/spectrum resource raises an issue as to whether international practice has really sought to m a x i m i z e channel depth. When the right to exploit a scarce resource is given away free, as is the case for the orbit/spectrum resource, there is a strong presumption that the resource will not be exploited as efficiently as it might be. t's However, because no country has a true 'spectrum market', ~t9 international custom must be said to eschew any free market approach to the assignment of rights to develop the orbit/spectrum resource. The rejection of a market approach to the development of the orbit/spectrum resource does not necessarily mean that international custom is unconcerned with maximizing channel depth. Countervailing factors have been identified, including several of an international character, which inhibit the creation of markets for spectrum. ~2° Nevertheless, it should be recognized that granting orbit/spectrum development rights without some kind of price system necessarily entails the loss of certain economic incentives to maximize channel depth. custom and channel distribution. The geographical distribution of satellite communications channels can be enhanced for both international service and domestic service. The ultimate goal for International

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International legal norms governing development of the orbit~spectrum resource continued from page 72 satellite policy as a result of relatively low utilization of the overall INTELSAT system. Jasentuliyana, 'The establishment of an intemational maritime satellite system', Annals of Air and Space Law, Vol 2, 1977, pp 323 and 327. 8"INMARSAT Convention (Ref 83), art VIII (1). This does not apply to 'separate space segment facilities for national secudty purposes', (ibid, art VIII (5)). *°Maritime communications packages are being added to five INTELSAT V satellites, the European Space Agercy has ~ three maritime MARECS satellites, and the American MARISAT consortium 'expects lifetimes several years beyond the nominal five' for its three spacecraft launched in 1976 and 1977 into orbits over the Pacific, Atlantic and Indian Oceans (Aviation Week and Space Technology, 20 August 1979, p

international service is that every country should have an earth station linking it to an international satellite communications network. The general practice of nations has been to strive for this goal. By establishing and improving on an international satellite communications network of over 200 antennas in over 100 countries, INTELSAT has made global distribution of geostationary telecommunications channels an undeniable tenet of customary international law. The distribution of satellite communications channels for domestic service involves providing each country with an improved ability to relay or broadcast messages within itself. For relatively small countries, a regional service is generally more appropriate. ,21 International custom appears to support strongly the distribution of satellite communications channels for both domestic and regional systems. Nine countries have one or more dedicated domestic communications satellite systems on orbit or on order, ,22 at least fifteen countries lease domestic communications satellite service from INTELSAT, '23 and about three dozen 66). countries are participating in various planned regional communications 9qNMARSAT Convention (Ref 83), art VI. 9~his has been recognized as an 'important satellite systems. ,24 Current 1TU and INTELSAT plans to bring domestic operational requirement' of an initial satellite communications to rural areas holds promise of a still greater INMARSAT system (Sondaal, op cit, Ref distribution of geostationary bandwidth. '2s Hence customary inter87). '31NMARSAT's Preparatory Committee national law does appear to underscore neatly the expressly recognized has identified needs for these advanced commitment to universal distribution of communications satellite services (ibid). ~'A key difference between INTELSAT and channels observed in positive international law. INMARSAT is that the latter is 'less subject to strict commercial pdnciplas' and was created through the initiative of the International Maritime Consultative Organization, whose principle concem is maritime safety (ibid, pp 16--17). The negotiated consensus as to INMARSAT's basic nature was that it 'should be operated as an economically viable organization but without emphasizing that it is primarily a commercial operation, or in any way detrac~ng from its public service nature', (Jasentuliyana, op cit, Ref 88). Indeed, the 'European and major maritime nations', excluding the USA, look at INMARSAT 'as a public service organization' (ibid, p 330). 'STreaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature 27 January 1967,18 UST2410, TIAS No 6347, 610 UNTS 205 (entered into force for the USA on 10 October 1967). °61bid, art XIII. "'S. Gorove, 'The geostationary orbit: issues of law and policy', American Journal of International Law, Vol 73, 1979, 1313444 and 447. "sOuter Space Treaty (Fief 95), arts I, III. "*See Rofs 25-94 and accompanying text. '°°Outer Space Treaty (Ref 95), art I. iO,lbid. '°21bid, art IX. '°3McDougel, Lasswell and Vlasic, op cit, Ref 51, pp 770-827. '°'Outer Space Treaty (Ref 95), art I1. On the origin of inclusive and exclusive claims to resources, McDougel has observed: 'The prototypes of probable claims to inclusive enjoyment extend back to the demands, in continued on page 74

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International custom and channel directionality. Channel directionality, the measure of balance or lateralness between message transmission and message reception, is promoted by decentralizing the means of making and sending messages. The general practice of nations has been to subordinate development of this dimension to the development of channel depth and channel distribution. This custom may be attributed to a political reluctance to democratize the power associated with message production and transmission 126 as well as to very real economic and technological barriers to the mass provision of two-way communications channels.127 However, largely as a result of the success of efforts at channel depth and distribution, the economic and technological barriers to greater directivity are beginning to crumble'28 and initial assaults are being launched against political impediments. The political assaults upon centralized message production and transmission seek recognition of a 'right to communicate"29 and of a 'New World Information Order'. ,~0 As a matter of international custom, these efforts to bring the directivity dimension to the level of prominence enjoyed by channel depth and distribution have yet to establish themselves in the generally accepted practices of nations. For the present, international custom with regard to directivity requires only that some international telecommunications channels be capable of conveying messages in two directions. ,3, This unconcern with the degree of lateral structure to the international flow of messages should be contrasted to the record of affirmative global efforts in maximizing the message volume and geographical distribution of satellite communications, t32 General principles o f municipal law

If an international consensus requiring dispersion of geostationary pathways does exist, there must be various expressions of this principle in the positive law and/or accepted practices of the international community's

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International legal norms governing development of the orbit~spectrum resource continued from page 73 constituent municipalities. O f course, self-executing treaties are part of primitive societies, of nomadic tribes for inclusive access to broad grasslands, and the municipality's positive law and customary international law is simply encompass, in more contemporary times, the sum of many municipalities' similarly oriented and generally accepted the whole range of claims to inclusive use of practices. H o w e v e r , because 'international consensus' is often a very and competence over the oceans of the world, the airspace over the oceans, inter- o p a q u e and complex concept, it should be useful to gain a little more national rivers, and the polar regions. Simi- insight into international telecommunications law by examining some larly, the prototypes of the probable claims wholly municipal legal norms and practice. to exclusive appropriation can be traced Dispersion of telecommunications channels appears to find wide back to the first demands of people in an agricultural stage of development for the acceptance as a fundamental general principle of modern municipal legal continuous and exclusive possession of the systems. In the U S A , for example, a Federal Communications Comlands of their harvest, and today embrace the claims, characteristic of the nation- mission (FCC) was created 'for the purpose of securing a more effective state, for exclusive control over land execution' of a national 'policy': masses, closely proximate waters and airspace, and intemal rivers. (McDougal, to make available, so far as possible, to all the people of the United States a rapid, Lasswell and Vlasic, op cit, Ref 51, p 772.) efficientr, Nation-wide, and world-wide wire and radio communication service '°'lbid, p 775. ('No matter how obvious it appears at any specific cross-section in the with adequate facilities at reasonable charges...', t33 stream of history that a given set of environments will remain sharable or nonsharable, T h e U S Supreme Court has declared that the 'avowed aim' of US teleno critical adviser on policy performs his communications law is to 'secure the m a x i m u m benefits of radio to all the function responsibly unless he whispers a p e o p l e o f the US'. T M For this reason, the FCC cannot discharge its word of doubt and helps to keep community statutory obligations 'merely by finding that there are no technological policy from self-defeating rigidity.') '°61bid, pp 774-776. objections' to the granting of radio licenses, '35 but must instead employ '°~lbid, p 777. its 'comprehensive powers to promote and realize the vast potentialities '°SThe geostationary orbit is not only a necessary location for current military com- o f radio', t36 munications satellites, but also for future While it appears rather clear that the FCC has been invested with an spaca-bom anti-ballistic missile laser battle affirmative obligation to maximize channel dispersion, a recent deregulastations now in a technology definition stage of design (Aviation Week and Space tion trend in Commission decisions raises a question as to whether there is Technology, 28 July 1980, p 57). a growing administrative reluctance to fulfill this statutory obligation. ,37 '°gMcDougal, Lasswell and Vlasic, op cit, H o w e v e r the proponents of deregulation actually rely upon a broad and Ref 51, pp 782-783. growing dispersal of channels as the guarantor of the public weal, ,38 and "°lbid, p 818. '"'For example, in a country like the United feel that in most instances channel dispersal or 'technical efficiency' is States, if 30-foot antennas were used on a m o r e capably p r o m o t e d by the economic incentives of the free market cluster of three satellites - one each for C band, Ka band and Ku band, and if these forces than by the subjective vagaries inherent in lengthy administrative frequencies were interconnected at a cen- procedures. ~39 tral switching satellite, an excess of T h e p r o m o t i o n of channel dispersal is a basic legal tenet outside the 150000 megacycles of communication bandwidth would be available at each orbi- U S A as well. Since the days of Lenin, a fundamental norm of Soviet tal slot. Such bandwidth, which exceeds our communications policy has been to maximize the 'wide dissemination present ability to use, is derived from only through all media of officially approved facts and opinions'. ,,o The Soviet one orbital space'. These satellite clusters are 'feasible today and use existing tech- constitutional right of freedom of speech is said to be realized through nology'. (P. Visher, 'Satellite clusters', 'the creation of a vast network of mass information organs accessible to Satellite Communications, September the workers...'. ~4z Both channel depth and distribution have been aided 1979, pp 22 and 23.) greatly by a strong Soviet commitment to establish and upgrade satellite '~Outer Space Treaty (Ref 95), art IX. "3The demonstrated utility and productivity systems for the distribution of television programming. ~,2 On the other of the inclusive enjoyment regime applied hand, the reticence of an authoritative regime to decentralize message by the Outer Space Treaty undoubtedly underlies the widespread disapproval with transmission equipment has caused channel directionality to lag in which efforts to impose exclusive control development..43 over the geostationary orbit have been met Communications policy in the Third World is closely geared to national (see Gorove, op cit, Ref 97; J. Bussk, 'The d e v e l o p m e n t goals, and the expansion of telecommunication channels is geostationary satellite orbit -intemational cooperation or national sovereignty', Tele- generally considered 'an essential development input'. ~*' A fundamental communication Journal, Vo145, 1978,p 167). d e v e l o p m e n t goal is national cohesion,'4s which involves the creation of ' "G. Codding, Jr, The International Tele'a sense o f national identity' within societies composed of 'disparate communication Union, 1952, pp 123-124. "sSee, eg, ITU Radio Regulations, art N4/ ethnic, tribal or linguistic segments', ''6 and the generation of a sense of 12, 1979. national purpose throughout populations that are generally unaware of "61TU frequency allocations to services now extend up to 275 GHz - comfortably their vital socioeconomic role in promoting the 'larger purposes of the continued on page 75 nation as a whole'. '4~ National cohesion is not, however, 'an effect of the

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International legal norms governing development of the orbit~spectrum resource continued from page 74 beyond the range of current hardware (ITU Radio Regulations, art N7, 1979). .... Over the last cantury the capacityof major telecommunications facilities has doubled every five years' (Pelton and Chitre, 'international digital communications and the INTELSAT Global CommunicationsSatellite System', Telecommunication Journal, Vol 44, 1977, p 372. "SLevin, op cit, Ref 2, p 85. '~'Cf Colombia's ~ u n i c a t i o n statute, described in Communications Policies in Colombia, UNESCO, Pads, 1977, p 16, which allocates 'broadcasting time on talevision to the highest bidder following a public tender procedure which also lays down programme times and programme content'. '=°Levin, op cit, Ref 2, pp 89-115. 'z'See inventory of probable regional communicationssatellite systems in A. Chayes, Satellite Broadcasting, Oxford University Press, 1973, laP8-9. ~2ZThe Soviet Union, Canada, Indonesia, United States, India, Japan, France, Germany and Australia. Brazil and China may soon place orders as well. 123S~ Satellite Communications, Soptember 1979, lap 28-32. ,2"SeeThe Agreernent of the Arab Corporation for Space Communications, reprinted in US Senate, Committee on Aeronautical and Space Sdenoas, Space Law: sakcted Basic Documents, 94th Cong, 2d Sess, 400-16 (Comm Print, 1976); See also Request of African Post and Telegraph Union for a d e f i n ~ study of a regional African communications satellite system, Satellite Communications, December 1980, p 6. 'ZSR. Butler, 'The application of telecommunication technology to development', paper presented st ~ Co&3quiem on Science, Technology and Society, Vienna, 1979; Kelley, 'Domestio-regional arena: INTELSAT's future', Satellite Communications, September 1979, p 30. ,26j. d'Arcy, The Right to Communicate, International Commission for the Study of Communication Problems, Doc No 36, 1979, pp3-4 and 15. ('The entire history of mankind bears witness to the fact: whoever controls communications controls society, whoever is master of the information flow ensures for himself- for a time - order and stability'.); J. Schwoebal, The True Problem: Democratl~.ingInformation, International Commission for the Study of Communication Problems, Doc No 70, 1979. '27Parker and Mohammadi, 'National development support communication', in M. Teheranian, ed, Communications Policy for National Development, Routledge and Kegan Paul, London, 1977, pp 167 and

170. *=S'Recent advances in telecommunications technology, including mini-computers for reduced cost switching, satellites for long distance circuits with costs independent of distance, and single channel per carrier equipment for iow-dansity routes, have continued on page 76

m e s s a g e s in the communications system', ''s but flows instead from the

depth, distribution and directionality of the communication system itself. Indeed, communications research indicates that the 'goal of national cohesion is synonymous with the goal of creating a communication system through which people in every segment of the society have bidirectional communication with other people in the society. '"~ To promote national development, virtually all developing countries maintain radio broadcast services as the least expensive and most rapid means of dispersing at least some bandwidth nationwide. 's° Certain forward-looking developing countries, such as Colombia, have committed themselves to the early establishment of complete telephone networks. ~Sl However, the commitment of the Third World to bandwidth dispersal is most dramatically evidenced by the considerable number of developing countries embracing and relying upon satellite communications as a cost/effective means of maximizing the national distribution of bidirectional channels. ~se From this necessarily brief survey of municipal norms, one can conclude that while national motivations vary, there is an invariable commitment to ever greater channel dispersal. The US commitment to a 'nationwide broadband communications grid' ~53may be seen to flow from a belief that only a great 'diversity of tongues'~S" can ensure realization of basic values such as discovery of truth, participation in community decision making, evaluation of societal consensus and pursuit of individual self-fulfillment, tss The Soviet commitment to universal distribution of broadband television channels may be seen to flow from an ideology which invests the state with a 'clear duty to lead the proletariat - to raise their general cultural level and to guide them toward their social, economic, and political destiny'. ~56The commitment of the developing countries to nationwide ratio service and to satellite-relayed two-way bandwidth may be seen to flow from the fact that achievement of lofty national development goals is paced by the dispersal of electronic pathways. ,sT It therefore does appear that the commitment to a maximum dispersal of communications pathways, which is expressly recognized in treaties and conventions, and which is broadly accepted in international practice, is also generally acknowledged in municipal law and custom.

Application of international resource development principles During the 1980s, the international community must agree on a policy for the optimal development of the orbit/spectrum resource at three frequency bands - the C band, the Ku band and the Ka band. There must be international agreement because the orbit/spectrum resource is legally subject to the inclusive authoritative control of all states ~s8and is practically subject to severe interference-induced degradation in the absence of conscnsual norms. ,s9 However, policies need only be established for these three frequency bands as the hardware necessary for large-scale exploitation of higher bands is unlikely to be available in the 1980s. The key fora in which decisions will be made are a 1982 ITU Plenipotentiary Conference in Nairobi, Kenya, and two ITU Space Conferences scheduled for the mid 1980s. The sections below analyse the impact on the deliberations of these conferences of the international legal requiring maximum development of the orbit/spectrum resource.

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International legalnorms governing developmentof the orbit~spectrumresource continued from page 75 changed the cost considerations in telephone planning' (ibid). '=~l'he 'right to communicate' embraces the concepts of access, participation, and twoway information flow as a means of replacing the 'vertical, one-way flow from top downwards of non-diversified, anonymous messages, produced by a few and addressed to all' with 'a horizontal, inter-active flow.., a human web or social relationships . . . . ' (d'Arcy, op cit, Ref 126, p4). '3°The New World Information Order seeks to rectify 'the fact that the developed countries dominate the information circuit from start to finish' by promoting activities and legal norms aimed at effecting quantum improvements in the abilities of developing countries to produce and transmit messages (M. Masmoudi, The New World Information Order, International Commission for the Study of Communications Problems, Doc No 31, 1979). ~3'See comprehensive report and statistics on worldwide market growth for telephone network equipment in London Times, 18 September 1979, section III. '~2See Refs 114-124 and accompanying text. But see also Delbert Smith's astute observation: 'Would not the developmentof a 'right to communicate' imply a present right as opposed to a future right?. If so, then the telecommunications systems must be established in order to serve developing countries and rural areas as soon as possible. This means that emphasis should be on institutional configurations combined with the right of equitable utilization by all countries rather than claims by each nation to natural resources and technology necessary to create a separate and duplicate system'. (D. Smith, Institutional Configurations for Large Space Communications Structures: A Basis For the Development of International Space Communications Norms, Intemational Commission for the Study of Communication Problems, Doc No 88, 1979). '~347 USC 151; Washington Utilities and Transportation Commission v Federal Communications Commission, 513 F. 2d 1142 (gth Cir), cert denied 423 US 836 (1975). "'National Broadcasting Co v United States, 319 US 190, 217 (1943). m/bid, 216. '361bid, 217. See also 47 USC 4303 (g) (the Commission shall ('encourage the larger and more effective use of radio in the public interest'). '37For example, the FCC staff recently opined that 'whenever possible the Commission should allow consumer choices (based on free market forces) rather than regulatory decision making (based on statutory interpretation) to be the determinant of the public interest' (Notice of Inquiry and Proposed Rule Making, 77 FCC 2d 384, Docket No 79-219, para 268, 1979). '~8'lt can be safely stated, however, that increasing the number of economically continued on page 77

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The policy proposal Maximum development of the orbit/spectrum resource entails the promotion of maximum dispersion of geostationary bandwidth. To this the international community has clearly given its assent, although increases in the message volume (depth) and geographical distribution of channels appear to have priority over efforts at lateralizing information flows (directionality). ,6o It has been argued, however, that international legal rules designed to maximize channel depth, such as bestowing 'international recognition' on the first entity to use a frequency band at a position in the geostationary orbit, fail to adequately promote the maximum distibution of communications satellite channels. ~6' Conversely, argue others, international legal rules designed to maximize the global distribution of channels, such as reserving broadcast frequencies and associated orbital positions for each and every country in the world, fail to promote the most efficient use of communications satellite channels. ,62 Finally, there is discord as to whether international legal rules designed to maximize either channel depth or distribution are giving sufficient attention to the dimension of directionality. ,63 The key to resolving these conflicts lies in understanding the interdependencies among channel dimensions, and, with full regard to these interdependencies, promoting that mix of channel development rules which maximizes the total development of the orbit/spectrum resource. As a practical matter, there must be channel depth before bandwidth can be distributed, and there must be a distribution of channels before messages can flow in many horizontal directions. In other words, the ability to use a particular frequency band to convey messages must first be technologically developed (depth) before the ability to receive and convey messages on that frequency band can be spread across the globe (distribution and directivity). I suggest that policy should maximize channel depth until this dimension's marginal contribution to total orbit/spectrum development is less than that which would flow from an effort aimed at maximizing channel distribution. I would then suggest that policy emphasize maximum channel distribution until greater marginal increments to total orbit/spectrum development would be generated by efforts designed to improve channel directionality. In this way, the maximum dispersal of geostationary bandwidth can be assured and maximum adherence to international orbit/ spectrum resource development law can be realized. While detailed proposals for implementing this policy fall well beyond the confines of this article, certain important possibilities and parameters may be briefly presented. The following discussion, therefore, is not intended as a comprehensive substantive analysis of the proposals discussed, but simply to exemplify a procedural process which international lawmakers can follow in determining how to develop the orbit/spectrum resource. Possible channel development rules The orbit/spectrum market approach. A proposal has been advanced to create an international orbit/spectrum market. '64 Legally defined, freely transferable and practically utilizable shares of the orbit/spectrum resource (at each frequency band) would be vested in the ITU or distributed among all countries in an equitable manner. These entities would then lease the right to use their share of the orbit/spectrum resource for TELECOMMUNICATIONS

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International legal norms governing developmentof the orbit~spectrum resource continued from page 76 viable stations in a market will improve consumer well-being' (ibid, para 149; FCC Staff Report on Policies for Regulation of Direct Broadcast Satellites, September 1980, pp 78 and 90--96). See also Final Decision, Docket No 20828, pare 7 (1980) ('the absence of V a d ~ public ut,,y regulation of enhanced services offers the greatest potential for efficient utilization and full exploitation of the interstate telecommunications network'). 13WVith regard to direct broadcast satellite service, it has been suggested by the FCC's Office of Plans and Policy that 'additional burdens imposed by a regulatory agency, might severely affect investors' estimates of the service's profita~lity and might reduce the probability that it would be initiated at all' (ibid). See also ibid, pp 6465, 82-84. Domestic US policy objectives for satellite communicatk)ns have been given as: '(1 ) to maximize the opportunities for the early acquisition of technical, operational, and marketing data and experience. .. ; (2) to afford a reasonable opportunity for multiple entities to demonstrate how any operational and economic characteristics peculiar to the satellite technology can be used to provide existing and new specialized services more economically and efficiently than can be done by terrestrial facilities; (3) to facilitate the efficient developmerit of this new resource by removing or neutralizing existing institutional restraints or inhibitions; and (4) to retain leeway and flexibility in . . . policymaking' (Second Report and Order, 35 FCC 2d 844, 845 (1972) (Docket No 16495, para 7)). The open entry policy this Report initiated, however, is now being held in abeyance while the FCC determines how it will assign scarce orbital positions at C and Ku band frequencies among competing applicants. Regulatory alternatives are discussed in Satellite Communications, August 1980, pp 12-15. See excellent survey of US satellite communications policies in Oslund, 'Open shores to open skies: sources and directions of US satellite policy', in Pelton and Snow, op c/t, Fief 77, pp 143-199. "°B. Paulu, Radio and Television Broadcasting in Eastern Europe, Minnesota University Press 1974, p 38. 14'Poliakov, A National Policy For Purposeful Use Of Information, Intemational Commission for the Study of Communication Problems, Doc No 63, 1979. "='Concem about social equality of access to information was the main factor which derided the Soviet Government to estabash the first national, satellite television network in the wodd, using ~ earth stations and the Molnija communications satellites.' (V. Korobejr,~,ov, C o n ~ k ~ n of Sc/ent~c and Techno/og/cal Progress to #~eDevekc)ment of Communication, Intemafmnal Commission for the Study of Communication Problems, Doc NO 85, 1979. ~'3With only 7.5 telephones per hundred inhabitants, the Soviet Union lags far behind continued on page 78

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floating usage fees c o n ~ u a l l y determined by a public bidding system. ~6s Inflated prices for highly demanded share of the orbit/spectrum resource should trigger technological efforts at increasing channel efficiency and cultivating new frequency bands as orbit/spectrum lessees sought to maximize their welfare. ,66 These same inflated prices, however, will tend to assymetrically attract shares of the orbit/spectrum resource to countries whose value for geostationary bandwidth is efficiently expressed by a price system. Furthermore, assymetrical orbit/spectrum share allocation will be occurring at the expense of countries whose value for bandwidth may be equally as great but grounded in its social utility, a source of productivity which is measured very poorly by prices. Those who derive resource allocation policy from neoclassical economics argue that if the market allocates the flow of geostationary channels to capital-rich countries, it is not because they are rich, but rather it is because these countries 'value' the channels most highly, ie the geostationary channel will produce a more valued total of goods and services in the capital-rich countries than anywhere else. ,6~ Where this argument fails, however, is in its inattention to the social goods and services associated with activities such as nation-building.'~ The value of these social goods and services is not reflected in prices (because payments cannot be collected for the public benefits they generate), and social uses of communications pathways will, therefore, always lack the directly acquired economic resources with which to bid competitively for bandwidth in an orbit/spectrum market. ,69 What the neoclassicial economist must then really mean is that channels will flow to their most highly 'valued' use in terms of readily marketable commercial goods and services. But the marketability of bandwidth, like that of cars or clothes, depends on demand. And demand is certainly constrained by wealth. Hence an orbit/spectrum market tautologically inhibits channel distribution by allocating geostationary bandwidth in accordance with demand or value measures which are simple functions of national wealth. The orbit~spectrum rationing approach. An alternative to the market model is an orbit/spectrum rationing approach based upon an ITU Plan which allots specified orbital positions and associated narrow (20 MI-Iz) frequency bands to all countries in the world. Above a floor of four such position/bands, allotments are made in accordance with 'the special characteristics of the countries (size, time zones, language differences, etc)'.'v° This rationing approach was applied to the Ku band broadcasting-satellite service (downlink) in a Plan adopted at a 1977 World Administrative Radio Conference (WARC-BS). ,7, Through overspecification of technical parameters and non-marketability of allotted position/frequency combinations, technological innovation is severely hampered to the substantial detriment of channel depth. For example, a technically efficient Plan modification, such as consolidating a country's four allotments into one contiguous allotment, is strongly discouraged by the requirement that a great many specified countries agree to such a modification.'72 Should even one of the specified countries disagree with the modification, a satellite system based on the modification may not be brought into registered service even though it may be able to operate without causing any harmful interference to others. ~73 The rigidity caused by discouraging modifications is exacer-

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International legalnorms governing developmentof the orbit~spectrum resource continued from page 77 other commensurately developed countries such as the USA (74.4), Japan (42.4), France (32.9), Spain (26.1) and Czechoslovakia (19.0) United Nations Statistical Yearbook, 1978, pp 628-630. On the other hand, the Soviet press devotes a large percentage of each newspaper to letters from readers, and almost half the staff of some newspapers are employed to process such letters (C. Wright, Mass Communication, 2 ed, Random House, New York, 1975, p34). This may be viewed as a rigidified, and therefore less useful, form of directionality. '"Raghawan and Gopalakrishan, Towards a National Policy on Communication in Support of Development, Intemational Commission for the Study of Communication Problems, Doc No43, 1979. "'Parker and Mohammadi, op cit, Ref 127, p170. "'ibid. "TRaghawan and Gopalakrishan, op cit, Ref 144, p 5. a'~Parker and Mohammadi, op cit, Ref 127, p 170. "Ibid. ~s°See UNESCO Statistical Yearbook, 1977, pp 991-1007. See also excellent reports in S. Head, ed, Broadcasting in Africa, Temple University Press, 1974. 's'Op cit, Ref 119. 'S21ndonesia, for example, relies upon its Palapa satellite to link electronically its 100 million people spread across thousands of islands. India will launch a domestic telecommunications satellite in 1982. Nigeria, Brazil and Saudi Arabia each spend several million dollars a year to lease domestic communications satellite service from INTELSAT. Algeria, Zaire, the Sudan, Oman, Egypt, Malaysia, Philippines, Colombia, Chile, and Peru also rely upon leased domestic communications satellite service (Satellite Communications, September 1979, p 29). See also Refs 121125 and accompanying text. For examples of very early Third World recognition of the value of satellite communications, see M. Khatib, 'Achieving a balance between regions', and I. Lasode, 'The possible use of communication satellites in Africa' in Communication in the Space Age, UNESCO, Paris, 1968, pp 113-122. See also Mowlana, 'Political and social implications of communications satellite applications in developed and developing countries', in Pelton and Snow, op cit, Ref 77. tS3National Association of regulatory Utility Commissioners v Federal Coam~unications Commission, 533 F. 2d 601,613-14 (D.C. Cir. 1976) (Court unconvinced that statutory goal of achieving nationwide broadband communications grid will be impaired if states and localities are allowed to regulate intrastate two-way, non-video communications over leased access cable channels.) 's~See Citizens Committee To Save WEFM v Federal Communications Commission, continued on page 79

78

b a t e d by the fact that, while allotments were 'prepared in order to meet the r e q u i r e m e n t s o f the broadcast-satellite service in the bands concerned for a period of at least fifteen years', the Plan itself has an indefinite life. ~7, It should also be noted that artificial, unnecessary and virtually immutable constraints on satellite system architecture also impede channel distribution by degrading the cost/effectiveness of satellite communications. ' 75 The orbit~spectrum engineering approach. A third alternative is the orbit/ spectrum engineering approach in which rights to use a share of the orbit/spectrum resource are acquired by the first to use that share and to notify use to the ITU's International Frequency Registration Bureau. T h e 'international recognition' right thereby acquired, however, is a limited non-transferable one, and a constant obligation exists to accomm o d a t e o t h e r satellite systems which may interfere with one's own system t h r o u g h a process of mutual technical coordination. ~76 T h e essence of the right acquired through first use and notification is a p r e f e r r e d position in the technical coordination procedures. This is because if a satellite system operating in accordance with the ITU 'Convention, Table of Frequency Allocations and other provisions of the R a d i o Regulations', ~77 receives harmful interference from an uncoo r d i n a t e d subsequently deployed satellite system, 'the latter [satellite system] must, upon receipt of advice thereof, immediately eliminate this harmful interference'. ~7s Hence, significant power is placed in the hands of the 'first-comer' to an orbital position and frequency. While this first-comer is obligated to engage in a coordination process, it can never be forced to modify its system so as to make more room for a new system. T h e 'latecomer' can always be forced to absorb all the system compromises so as to avoid causing harmful interference to the firstcomer. As the orbit/spectrum resource becomes crowded at a particular freq u e n c y band, 'latecomers' to the geostationary orbit face coordination which is increasingly difficult, lengthy and costly in terms of compromised system performance. In such a case the 'demand for a resource exceeds its supply at the going price', and one would expect channel depth to increase through an unleashing of technical forces. ~79For example, high coordination costs at popular lower-frequency bands are an incentive to cultivate higher currently unused bands. These same high coordination costs, however, impede the flow of geostationary channels to countries which are "latecomers' in the utilization of satellite communications while protecting the on-orbit channels of the 'firstcomers' - usually technologically advanced nations. A modified engineering approach could moderate the present asymmetrical bias against channel distribution to latecomers by amending the R a d i o Regulations to place more power in the hands of the latecomer. T h e a m e n d m e n t can provide that when a planned satellite system represents at least a 50% increase in an administration's satellite channel capacity, the failure of any other administration with which coordination is sought to effect timely coordination with the planned system will be d e e m e d (a) an undertaking that no complaint will be made in respect of any harmful interference to the services for which coordination was r e q u e s t e d , tso and (b) a violation of the ITU Convention in the event that a complaint is made in respect of harmful interference to the services for which coordination was requested. ,8~ Pursuant to this amendment, firstc o m e r s inhibit the b r o a d e r distribution of channels at the risk of losing TELECOMMUNICATIONS

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continued from page 78 506 F. 2d 246, 274 (D.C. Cir. 1974) (en banc) (Bazelon, concurring, attributes inability of 'multitude of voices' to fully produos a 'multitude of ideas' on 'technology limits' on the FCC's ability to increase the number of these voices and further implies that a significantly enhanced number of communications channels would obviate the need for direct government action to increase the diversity of ideas.) lS~l'. Emerson, The System of Freedom of Expression, Vintage Books, New York, 1975, pp 6-9. '56Wdght, op cit, Ref 143, p32; See Inkales, Public Opinion in Soviet Russia, 1951), especially chapters I and 2, for a discussion of the impact of Lenin's theories on mass communication. "~See Parker and Mohammadi, op cit, Ref 127, pp 179-181. 'sgSee Refs 95-113 and accompanying text. '~gSee Ref 15. "°See Refs 130-136, and accompanying text. '6'See, eg, excerpts of WARC 79 clcoeddoor proceedings published in Rutkowaki, op cit, Ref 55, and much more extensive excerpts in unpublished version available from author at FCC Office of Science and Technology, Washington DC; Final Acts of World Administrative Radio Conference (Geneva, 1979); Refs 51-53 and 58-59 and accompanying text. See also E. Reinhart, 'Impact of the 1979 WARC on certain space communications services', International Conference on Communications, Seattle, WA, June 1980, 7.6.1. '6=lbid, 7.6.4. See Refs 55--57 and accompanying text. ~3'Over fifty years' experience of the mass media - press, film, radio, television - have conditioned us, both at the national and intemational levels, to a single kind of information flow, which we have come to accept as normal and indeed as the only possible kind...'. ' ~ t e d by this problem, however, our "mass media mentality" reacts only by stepping up the vertical flow, increasing everywherethe number of newspapers, radio and television receivers, and cinemas, especiallyin the devaloplngcountries, without recognizing that it is this very vertical nature of the flow which is at issue. Thus the definition of a new concept making possible a horizontal flow based on the right to communicate is an urgent task' (d'Arcy, op cit, Ref 126, p4). '6'(3. Jackson, 'The orbit-spectn~ resource: market allocation of intemational property', Telecommunications Policy, Vol 2, No 3, September 1978, pp 179-190. ~651bid,pp 184-188. '~Levin, op cit, Ref2. '6~See, eg, line of reasoning in D. Webblnk, Frequency Spectrum Deregu/a~on A/tematives, FCC Office of Plans and Policy, October 1980,10p35-37. 168See Refs 144-149 and accompanying text. continued on page 80

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International legalnorms governing developmentof the orbit/spectrum resource t h e i r protection from ltatmful interferenCe. The lost protection results from either the presumed undertaking that there will be no harmful interference or the general ITU rule that only stations operating in accordance with the 1TU Convention and Radio Regulations have a recognized right to protection from harmful interference. ~82 This provides latecomers (those whose existing stock of satellite channels can at least be doubled by a new satellite) with some bargaining power, and provides firstcomers with strong incentives to absorb some compromises in order to reach agreement. The organized participation approach to orbit~spectrum development. A final alternative is to develop the orbit/spectrum resource through international organizations created especially to develop and distribute geostationary bandwidth. Membership is always kept open to all states or their designated private representatives. Decision making functions are shared between a constituent entity in which each member has one vote and another constituent entity in which voting is weighted according to investment in hardware and use of exploited bandwidth. INTELSAT is a fine model. ~83 The organized participation approach has already demonstrated great facility at technologically increasing channel depth and, to a somewhat lesser extent, at distributing both international and domestic satellite communications channels throughout the world. ~s4However, the significance of even these accomplishments could be dwarfed by an application of the organized participation approach to the development of large platforms for satellites in geostationary orbit. Geostationary platforms have been hailed as a means of providing a greatly increased array of communications satellite services while simultaneously using the orbit/spectrum resource in a very conservative manner. ~85 The platforms allow the deployment of very large space antennas and the use of very powerful transmitters. These innovations can result in the use of quite simple ground receivers - an opportunity of particular benefit to developing countries; the transmission of extremely high data rates - an opportunity of particular benefit to developed countries; and the accommodation of many more satellite services in less spectrum and at lower costs than is possible with conventional communications satellites - an opportunity of obvious benefit to all. However, satellite communications law expert, Delbert Smith, has observed that these opportunities: ...will be of no avail unless the institutional configuration designed to utilize the technology is structured so as to ensure that the benefits of space communications are equitably distributed and made available to all nations. For this to occur, the institutional configuration must be based on a premise that rapid deployment of operational systems with the highest capacity is most desirable. Furthermore, creation of international norms with regard to utilization of space facilitiesshould be developed to assure equitable distribution of benefits to all nations. 186 A new INTELSAT/INMARSAT type organization could be created and chartered to establish geostationary platforms over each of the ITU's three Regions. The Geostationary Platform Organization (GEOPLAT) would contract with space-faring states (and/or private aerospace firms within their jurisdiction) to deploy and maintain the platforms, while reserving for itself (or a manager under contract) the common carrier duties of leasing space on the platform to entities desiring a structure and

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International legalnormsgoverningdevelopmentof the orbit/spectrumresource continued from page 79 rich source of power to which their large communications assemblies '69Levin, op cit, Ref2. could be affixed. Because geostationary platforms 'promise service capa"°l=inal Acts of the World AdministTative Radio Conference (Geneva, 1979), Appen- bility for a vastly greater number of users than conventional satellites', dix 29A, art 12.9.1. the ITU should grant them orbital and spectrum priorities beyond those tT~While a detailed Plan was promulgated available to single-purpose satellites, t87 for ITU Regions 1 (Europe, Africa) and 3 (Asia), a detailed Plan for Region 2 (Americas) was delayed until a 1983 Regional Conference (ibid, art 12.9.1 and Res CH). t'21bid, Appendix 29A, art 4.3. '731bid, Appendix 29A, arts 4.1-5.2. '7"lbid, Appendix 29A, art 16. '75D. Smith, Institutional ConfiguraE~n for Large Space Communications Structures: A Basis for the Development of Intematk~al Space C o m m u n ~ Norms, I ~ Commission for the Study of Communication Problems, Doc No 88, 1979. 'TqTU Radio Regulations, art 9A, para 639AJ, AO, AS. '~71bid, 639 BM. 'Wbid, 639 DD-DE. "gSpectrum economist Levin notes that the forces of technological change required to improve channel depth are unleashed 'whenever the demand for a resource exceeds its supply at the going price' (Levin, op cit, Ref 2, p 71). 's°Precedent for this prong of the amendment is ITU Radio Regulation 639 AX, which states that in the event an administration fails to comply with certain-tFRB correspondence requirements within 30 days, 'it shall be deemed that the administration with which coordination was sought has undertaken that no complaint will be made in respect of any harmful interference which may be caused to the services rendered by its space or terrestrial radiocommunication stations by the use of the assignment for which coordination was requested...'. '8'Article 35 of the International Telecommunication Convention (Malaga-Torremolinos, 1973) only proscribes harmful interference to services 'which operate in accordance with the provisions of the Radio Regulations'. '82D. Leive, International Telecommunications and International Law, Sijthoff, 1970, p 23. '83See materials cited in Ref 65. ~8'See materials cited in Ref 63 and see Refs 121-125 and accompanying text. '85Smith, op cit, Ref 175; E. Katz and R. Donavan, 'The design of communications systems on large space platforms, in International Conference on Communications, Seattle, WA, 1980, 9.4.1; S. Astrain, 'Telecommunications and the economic impact of communications satellites', paper presented at the 31st Congress of the International Astronautical Federation, Tokyo, 1980; S. Fordyce and R. Stamminger, 'The use of geostationaryplatforms for future US domestic satellite communications', International Conference on Communications, Boston, MA, 1979, 49.4. For platform construction issues, see S. Zylius and R. continued on page 81

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Selection o f legal rules governing channel development It is now possible to structure a policy for implementing the objective of maximum disposal of geostationary bandwidth. The policy selects those resource development rules which can maximize a particular channel dimension, and applies those rules in a sequence determined by the natural interdependencies among channel dimensions. These interdependencies, it will be recalled, logically require (a) the development of an ability to use the orbit/spectrum resource at a particular frequency band as a prerequisite tO the wide distribution of channels on that band; and (b) the wide distribution of channels on a band as a prerequisite to the establishment of lateral information flows among those channels.

Selection o f legal rules which do not inhibit the initial development of orbit~spectrum resource at a new frequency band. This first stage of policy implementation is of critical importance to any legal regime for resource development. Without an adequate supply of geostationary bandwidth, attainment of distribution and directionality goals becomes problematic at best. It is somewhat providential, therefore, that higher frequencies have more bandwidth and that frequencies become higher without limit. Of the four approaches to resource development discussed above, the basic thrust of all but the planning approach is to encourage cultivation of new frequency bands. Hence if internationally agreed objectives for maximum development of the orbit/spectrum resource are to be realized, frequency bands for which satellite systems have not yet been coordinated, such as the ka band, should not be planned. Selection o f legal rules which do not inhibit the distribution of geostationary channels at a developed band. Once satellite systems for a particular frequency band are being designed and coordinated, pathway distribution becomes the pacing dimension for attainment of maximum development of the orbit/spectrum resource. Of the four approaches to resource development, only the modified engineering and organized participation approaches facilitated broad channel distribution. Hence to implement international resource development law, frequency bands which have been technologically developed but not yet globally distributed should be neither marketed nor planned. Selection o f legal rules which do not inhibit the directionality of distributed geostationary channels. Lateral information flows among communicators is realizable only if an extensively distributed network of channels exists. The applicability of the four policy approaches to the dimension of directionality is somewhat uncertain, as the four approaches were designed to address issues of channel depth and distribution. With this caveat in mind, it may be said that information flows will be determined according to economic efficiency in a market model. This could inhibit directionality if market pricing mechanisms fail to reflect accurately the social benefits of horizontal information flows. Directionality might be enhanced by a planning approach which reserved channel capacity for TELECOMMUNICATIONS

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information flows from all possible sources or from a modified engineering approach which made room for under-represented sources in crowded channels. Finally, if lateralization of information flows were an organic objective of an approach based on organized participation, such an approach would also, no doubt, contribute to channel directionality. Constraints to implementation While the above analysis of approaches to orbit/spectrum development has produced an optimal mix of legal rules, two aspects of the international law-making process for geostationary satellite communications impose further limits on which rules can actually be implemented. Perhaps the most important parameter in implementing international policy is the ever-present need for consensus. While everyone agrees on maximizing the dispersal of geostationary bandwidth, there are important differences as to which channel dimension will be emphasized. 188 Achievement of consensus will require the adoption of legal rules which promote both depth as well as distribution. While channel depth was found to be furthered by market, modified engineering and organized participation approaches, only the last two of these approaches also maximized channel distribution. Hence, if the constraining factor of consensus is applied to the optimal mix of legal rules, it is clear that the market approach cannot be implemented. Another constraint is national reluctance to cede any sovereignty to the I T U beyond that necessary for the minimization of harmful interference. While the engineering approach is, by its very nature, addressed to the minimization of radio interference, modifying it to promote channel dispersion in the distribution dimension will probably ruffle the feathers of the space-faring nations. However the modifications are only procedural coordination measures, affect only those frequency bands in which technology is mature, and are dearly within the range of the ITU's acknowledged competence. Sovereignty constraints raise more serious questions as to the organized participation approach. But, by focusing upon projects like the geostationary platform, proponents of organized participation can argue convincingly that their approach will minimize interference problems by effecting quantum improvements in the efficiency, economy and equitability of orbit/spectrum resource development. Sovereignty constraints raise very critical questions about any potential rules aimed at lateralizing information flows. When dealing with the directivity dimension, one is most removed from traditional ITU functions. It appears that there must be greater evolution of the 'right to communicate' and greater distribution of satellite channels before the international community will embrace optimal rules for lateralizing information flows. Actions to be taken at ITU conferences continued from page 80 :)onavan, 'Assembly in space of large comnunication structures', in R. Van Patten, ~d, The Industrialization of Space, Part

3he, ~

Astronaut~a Sock,

1978, p 501. ""Smith, op ci~ Ref175, p1. "~lbid, p 10. 8'See Refs 159-162 and accompanying ext.

International law, as expressly stated in treaties and as implicitly evidenced in custom, mandates maximum development of the orbit/spectrum resource as a fundamental principle. While a number of resource development rules have been proposed, only those approaches based on modified orbit/spectrnm engineering and international organized participation appear to be capable of both maximizing geostationary channel dispersion and securing the international approval needed for implementation.

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International legalnormsgoverningdevelopmentof the orbit~spectrumresource Recommendations related to implementing the modified engineering approach to orbit/spectrum development. To be implemented, the modified engineering approach requires only an amendment of the ITU Radio Regulations. The amendment simply enforces the requirement, enshrined in article 33 of the International Telecommunication Convention, that all countries have equitable access to the orbit/spectrum resource. ~89 The ITU Conference on Uses of the Geostationary Orbit scheduled for 1984 was given express authority to consider regulatory approaches that could 'guarantee in practice for all countries equitable access to the geostationary-satellite orbit and the frequency bands allocated to space services'. ,9oBy making loss of protection from harmful interference the price of inhibiting equitable access, the amendment ensures that access rights will become guaranteed in practice. Implementing the organized participation approach to orbit~spectrum development. A significantly greater effort will be required to implement an organized participation approach to the development of geostationary platforms. Such an effort nevertheless appears to be warranted by the great, indeed unprecedented, promise geostationary platforms hold for maximizing the efficient, economical and equitable use of the orbit/ spectrum resource. The ITU is the appropriate forum for initiating this effort because it has a constitutional mandate to: • •

•

•

'8"See Refs 50-53 and accompanying text. "°Final Acts of the World Administ~ative

Radio Conference (Geneva, 1979). "'International Telecommunication Convention (Malaga-Torremolinos, 1973) art IV.

~gzSeeSmith, op cit, Ref175, p11.

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Maintain and extend international cooperation for the improvement and rational use of telecommunications of all kinds. Promote the development of technical facilities and their most efficient operation with a view to improving the efficiency of telecommunications services, increasing their usefulness and making them, so far as possible, generally available to the public. Coordinate efforts to eliminate harmful interference between radio stations of different countries and to improve the use made of the radio frequency spectrum. Coordinate efforts with a view to harmonizing the development of telecommunications facilities, notably those using space techniques, with a view to taking full advantage of their possibilities. ~gt

In fact, there are very few, if any, activities which could simultaneously address as many current and evolving ITU functions as the initiation of an organized international effort to establish geostationary platforms for communications satellites. ~gz The 1982 ITU Plenipotentiary Conference will meet to revise the International Telecommunication Convention and to pass resolutions. I recommend that article IV of the Convention be amended to state that 'the Union shall in particular...foster collaboration among its members with a view to establishing geostationary platforms over each ITU Region', I further recommend that a Resolution be passed calling for the convening of Regional Administrative Radio Conferences for the Establishment of Geostationary Platforms. The Resolution should further provide that these Conferences undertake to form Geostationary Platform Organizations (GEOPLATS) pursuant to the purposes of the ITU and as a means of providing all countries with equitable, efficient and economical access to the orbit/spectrum resource. The Resolution should also seek the assistance of the CCIR, the ITU's technical advisory committee, to begin immediate analysis of appropriate technical design parameters. TELECOMMUNICATIONS

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Finally, when the World Administrative Radio Conference on the Use of the Geostationary Orbit meets in 1984, it is recommended that a Resolution be adopted which accepts geostationary platforms under organized participatory control as an approach which can 'guarantee in practice' that all countries have equitable access to the orbit/spectrum resource.

Conclusion These practical recommendations for actions at forthcoming ITU Conferences are designed to provide continued realization of the international legal principle demanding maximum development of the orbit/ spectrum resource, and of its corollary requiring maximum dispersion of geostationary bandwidth. To what ultimate result can all these pathway proliferation efforts possibly lead? The scenario of one creative thinker is that we are building the nervous system of mankind, which will link together the whole human race, for better or worse, in a unity which no earlier age could have imagined. ~93

~93A. Clarke, 'The social impact of communications satellites', in Proceedings of the 4th Colloquium on the Law of Outer Space, Washington, DC, October 1961, ed A. Haley, University of California, 1963, pp 70 and 83-84.

The evolution of this global message network, however, is unlikely to dampen the tenor of international debate over appropriate orbit/spectrum development policy. Unlike its biological analog, the extremities of mankind's nervous system increasingly seek the democratization of new wealth, the decentralization of exploited value, and, not surprisingly, the right to communicate in new channels. Conflict must, therefore, be endemic to resource development, for new wealth must flow somewhere first; value cannot be dispersed everywhere at once. By expeditiously developing new resources and equitably distributing exploited value, inherent conflict may, nevertheless, be kept within manageable limits. These are the critical tasks that international lawmakers are charged with accomplishing, and by means of the maximum channel dispersion principle, these are the very tasks that international legal norms are quite successfully addressing.

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