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The New World Satellite Order: A Report from Geneva

Published online by Cambridge University Press:  27 February 2017

Gregory C. Staple
Gregory C. Staple*
Affiliation:
Of the District of Columbia and New York Bars
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Extract

In a city that hosts a continuous series of international gatherings, last year’s path-breaking Geneva conference on satellite communications went largely unnoticed as the news media concentrated on preparations for the Reagan-Gorbachev summit. Yet for many of the 112 nations attending this 6-week-long assembly, the results of the meeting—the launch of a new global satellite plan—were arguably more significant (albeit less “telegenic”) than the East-West rapprochement that followed.

Type
Current Developments
Information
American Journal of International Law , Volume 80 , Issue 3 , July 1986 , pp. 699 - 720
Copyright
Copyright © American Society of International Law 1986

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References

1 The New York Times, for example, devoted only one major story to the conference. Nether, , Third World Seeks Its Place In Space , N.Y. Times, Sept. 15, 1985, §E, at 21 Google Scholar. The absence of significant press coverage can be attributed, in part, to the ITU’s self-imposed exclusion of journalists. Ironically, the world’s foremost international telecommunications body is almost the only United Nations agency to maintain such a ban (the other offender is the International Postal Union). Notwithstanding its oft–stated commitment to the “free flow of information” (see, e.g., Senior Interagency Group on International Communications and Information Policy, A White Paper on New International Satellite Systems 5 (1985) [hereinafter cited as White Paper]), the United States has yet to challenge this ITU policy.

See Codding, , Public Access to International Organizations—The ITU , Intermedia, November 1984, at 8 Google Scholar.

2 The formal title of the conference is “World Administrative Radio Conference on the Use of the Geostationary Satellite Orbit and the Planning of Space Services Utilizing It.” See International Telecommunication Union [hereinafter cited as ITU], Final Acts of the World Administrative Radio Conference, Res. No. 3 (1979). In ITU parlance, the first session of the conference was dubbed WARC-ORB(1) or WARC-ORB-85. In this paper, conference documents will be cited by title and number, the year 1985 being included in the ITU-ORB-85 designation.

3 The ITU is governed by the International Telecommunications Convention, which is revised approximately every 10 years by plenipotentiary conference. The current Convention [hereinafter cited as ITU Convention], adopted in October 1982 at Nairobi, Kenya, generally became effective on Jan. 1, 1984, but was not ratified by the United States until December 1985. See S. Exec. Rep. No. 4, 99th Cong., 1st Sess. (1986). For the prior Convention, done at Málaga-Torremolinos Oct. 25, 1973, see 28 UST 2495, TIAS No. 8572.

The standard history of the ITU is Codding, G. Jr., & Rutkowski, A., The International Telecommunication Union in A Changing World (1982)Google Scholar. For a capsule overview of the Union’s main functions, see Robinson, , Regulating International Airwaves: The 1979 WARC , 21 Va. J. Int’l. L. 1, 6–12 (1980)Google Scholar.

4 WARC-ORB-85, Report to the Second Session of the Conference, para. 3.3.4 [hereinafter cited as 1985 WARC Final Report].

5 ITU, Radio Regulations (1982) [hereinafter cited as ITU Radio Regulations].

6 1985 WARC Final Report, note 4 supra, para. 3.3.5.

7 See, e.g., Rutkowski, , Six Ad-Hoc Two: The Third World Speaks its Mind , Satellite Com., March 1980, at 22 Google Scholar; Srirangan, , Why Orbit Planning: A View from a Third World Country—Part II , in New Directions in Satellite Communications, Challenges for North and South (Hudson, H. E. ed. 1985)Google Scholar. For further background on the legal, political and economic origins of the WARC, see Smith, , Space WARC 1985: The Quest for Equitable Access , 3 B.U. Int’l L.J. 229 (1985)Google Scholar.

8 See Additional Technical Information relating to the Situation Prevailing in the 6/4 GHz Frequency Bands, ITU-ORB-85 Doc. 116, at 1.

9 See Memorandum Opinion and Order, 50 Fed. Reg. 35,228 (1985) [hereinafter cited as 1985 U.S. Orbital Assignment Plan].

10 See DeMac, D., Codding, G. Jr., Hudson, H. & Jakhu, R., Equity in Orbit: the 1985 ITU Space WARC, Ann. B (International Institute of Communications, 1985)Google Scholar.

11 See White Paper, supra note 1, and note 15 infra.

12 INTELSAT Report 1984–1985, at 17 (1985). The treaty of Aug. 20, 1971 governing Intelsat’s activities is at 23 UST 3813, TIAS No. 7532. Separate regional satellite organizations exist for both Europe (Eutelsat) and the Arab states (Arabsat). Yet another multilateral body, the International Maritime Satellite Organization (INMARSAT) (done Sept. 3, 1976, 31 UST 1, TIAS No. 9605), will soon launch a series of mid-ocean satellites to provide expanded service to international shipping and airline fleets. The Soviet bloc also has an international satellite system, known as Intersputnik.

13 Cable TV Investor, Sept. 24, 1985, at 4.

14 Estimating the dollar value of trade in services is notoriously difficult because the accounting categories used by the Department of Commerce are largely designed to track flows of goods. The $70 billion figure used here is based on a 1984 estimate by the Office of the U.S. Trade Representative (USTR). See Stokes, , Beaming Jobs Overseas , Nat’l J., July 27, 1985, at 1727 Google Scholar. U.S. exports are directly affected by the ITU’s “bread and butter” work of bringing together global telecommunications operators and equipment manufacturers to agree upon technical and operating standards. These include system interference specifications, signaling protocols and emission characteristics so that telecommunication systems around the world can operate on a relatively integrated basis.

[T]he first radiotelegraph conference at Berlin in 1903 was called to adopt standards to eliminate Marconi’s restrictive agreements with the operators of its equipment. See deWolf, F. C., International Control of Radio Communications , Dept. of State Bulletin XII (Jan. 28, 1945) at 134 Google Scholar. More recently, the adoption of CCIR color television standards provided a fertile forum for defining markets. See Crane, R., The Politics of International Standards , Ablex Publishing Corp. (1979)Google Scholar.

Rutkowski, , History of the ITU and Current Developments , in Yurow, J., Issues in International Telecommunications Policy: A Sourcebook 55, 69 n.7 (1983)Google Scholar.

15 The Reagan administration’s effort to encourage new overseas communications delivery systems has been focused on promoting competitive alternatives to INTELSAT, assertedly without compromising the organization’s basic purposes. See, e.g., White Paper, supra note 1. The administration’s policy was implemented by the FCC in Report and Order, 50 Fed. Reg. 42,266 (1985) [hereinafter cited as FCC Separate Satellite Systems Order]. But, to date, only one alternative international satellite system, Pan American Satellite Corporation, has obtained the necessary foreign correspondent. See Com. Daily, Apr. 8, 1986, at 1. For a review of the political dispute occasioned by the administration’s separate systems initiative, see Staple, , The Assault on Intelsat , Nation, Dec. 22, 1984, at 665 Google Scholar. See also Rein, , McDonald, , Adams, Frank & Nielsen, , Implementation of U.S. “Free Entry” Initiative for Transatlantic Satellite Facilities, Problems and Possibilities , 78 Geo. Wash. J. Int’l L. & Econ. 459 (1985)Google Scholar.

The FCC also has approved several transatlantic and transpacific fiber optic cables for service in 1988–1992. See, e.g., AT&T [TAT-8], 98 F.C.C. 2d 440 (1984); Tel-Optik Ltd., 100 F.C.C. 2d 1033 (1985); Memorandum, Order and Authorization [TPC-3], FCC Mimeo No. 1794, Jan. 7, 1986. For a general overview of the FCC’s recent competitive initiatives in the international arena, see Chiron, & Rehberg, , Fostering Competition in International Telecommunications , 38 Fed. Com. L.J. 1 (1986)Google Scholar.

16 For background, see Leeson, & Jacobson, , Trade in Telecommunications Equipment and Services , in Yurow, J., supra note 14, at 255 Google Scholar. On trade in services, see also Stokes, supra note 14, at 1730–31; on trade in telecommunications products, see Com. Week, Mar. 24, 1986, at 1. U.S. trade in telecommunications products, as opposed to services, has shown a deficit in recent years. In 1985 the deficit reached $1.252 billion. Id. at 4.

17 On the initial GATT impasse, see Financial Times, Sept. 6, 1985, at 4. On WARC, see Telecom. Rep., Sept. 9, 1985, at 19.

18 These technical directions occupy but two pages of Directives to the IFRB, ITU-ORB-85 Doc. 356 (Rev. 1). Even so, they were the subject of considerable dispute during the waning hours of the conference. See Minutes of the 16th and 17th plenary meetings, ITU-ORB-85 Docs. 358 and 360. Only 900,000 Swiss francs were allocated to intersessional work for 1986, with just 150,000 francs included for the development of computer software to implement the allotment plan. ITU-ORB-85 Doc. 360, supra, at 24.

19 Simply put, the general mandate consists of a dual planning approach under which equitable access to the radio spectrum used for most GSO satellites will be guaranteed through an a priori allotment plan and the use of new multilateral planning meetings (MPMs). See 1985 WARC Final Report, supra note 4, para. 3.3.1.

20 This orbit provides a critical parking place for communications satellites because, at this distance, satellites orbit the earth roughly once every 24 hours. They thus become stationary antennas for relaying communications between numerous ground antennas placed in the arc within which the satellite is “visible.” GSO satellites can provide a variety of services including radio navigation, space research, satellite-to-home broadcasting and the provision of communications between fixed ground stations. Only this latter service, technically known as the Fixed Satellite Service (FSS) (see ITU Radio Regulations, supra note 5, Art. 1, §3.2), will be subject to the new regulatory regime discussed at the 1985 WARC. See also note 37 infra.

21 For a technical review of the sources of intersatellite interference and the engineering techniques that can be used to mitigate it, see ITU, Report of the CCIR [International Radio Consultative Committee] Conference Preparatory Meeting [CPM], Joint Meeting, Study Groups 1, 2, 4, 5, 7, 8, 9, 10 and 11 (1984) [hereinafter cited as CPM Report].’Much of this material is summarized in Withers, , Freedom of Access to the Radio Spectrum for Satellite Services , Telecom. Pol’y, June 1985, at 109 CrossRefGoogle Scholar.

22 The breadth or number of frequencies within any radio band may be measured in Hertz (Hz): 1 Hertz equals 1 cycle per second. Thus, 1 Gigahertz (GHz) equals 1 billion Hz. The amount of information that can be transmitted by radio at any given moment depends directly on the breadth of the band; a telephone circuit generally requires 4,000 Hz; a television channel, 6,000,000 Hz (or 6 GHz). See, e.g., Pierce, J., Signals—The Telephone and Bevond (1981)Google Scholar. Article 8 of the ITU Radio Regulations, supra note 5, contains a detailed allocation of the radio spectrum from 9 KHz to 275 GHz, on a region-by-region basis, to various radio services.

23 In the Western Hemisphere (Region 2 in ITU parlance), the specific frequencies allocated for the FSS are 5.925–6.425 GHz uplink and 3.7–4.2 GHz downlink for the C band; 11.7–12.7 GHz downlink and 14.0–14.5 GHz uplink for the Ku band; and 17.7–21.2 GHz downlink and 27.5–31.0 GHz uplink for the Ka band. See ITU Radio Regulations, supra note 5, Art. 8. See also Jackson, , The Allocation of the Radio Spectrum , Sci. Am., February 1980, at 34–39 CrossRefGoogle Scholar. For additional background on the legal and scientific characteristics of the orbit/spectrum resource, see Rothblatt, , Satellite Communication and Spectrum Allocation , 76 AJIL 56, 57–65 (1982)Google Scholar.

24 Advisory Committee to the Federal Communications Commission on the 1985 Space Warc, Second Report 2 (1985).

25 Id. at 4.

26 See CPM Report, supra note 21, pt. II, at 195–202.Some of the engineering techniques upon which this projection is based are currently being implemented by the United States to enable all of its domestic satellites to provide acceptable service with 2° spacing instead of the 3° or 4° orbital separation required in the 1970s. See Report and Order, 54 Rad. Reg. 2d (P&F) 577 (1983) [hereinafter cited as FCC 2° Spacing Order]. See also 1985 U.S. Orbital Assignment Plan, supra note 9.

27 Proposals for the Work of the Conference, ITU-ORB-85 Doc. 18, at 2. The British also noted that a 1984 ITU survey disclosed that only a few countries (India, France and Mexico) had acknowledged difficulty in coordinating new satellite systems with existing users. Id. This survey was distributed at the 1985 WARC as Ann. F to Note by the Secretary-General, ITUORB-85 Doc. 4. .

28 Statistics relating to the Occupancy of the Geostationary Orbit (GO) by Bands and Frequencies, ITU-ORB-85 Doc. 65, at 2.

29 Id. at 4.

30 See Orbit Assignment Order, 84 F.C.C. 2d 584 (1981).

31 The initial U.S. domestic communications satellites were placed into the GSO shortly after the FCC’s landmark “open skies” decision in 1972 to permit private companies to operate satellites on a competitive basis. See Domestic Satellite Communications, 35 F.C.C. 2d 844 (1972). The first generation of satellites was owned by RCA, Western Union and the Communications Satellite Corp. (Comsat), a quasi–public company established by Congress to serve as the U.S. representative to INTELSAT. See 47 U.S.C. §701 et seq. (1982 and Supp. 1985). The FCC’s most recent orbital assignment plan, announced barely 2 weeks before the opening of the 1985 WARC, awarded approximately 25 “domestic” satellite slots to 11 different companies. See 1985 U.S. Orbital Assignment Plan, supra note 9. The FCC simultaneously approved, in principle, applications for several international satellite systems. See FCC Separate Satellite Systems Order, supra note 15.

32 See note 15 supra.

33 See Ann. B to the IIC study, note 10 supra.

34 Art. I, Treaty 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 Jan. 27, 1967, 18 UST 2410, TIAS No. 6347,610 UNTS 205 (entered into force for the United States Oct. 10, 1967) [hereinafter cited as Outer Space Treaty of 1967].

35 Id.

36 ITU Convention, supra note 3, Art. 4.

37 The 1983 Broadcast-Satellite Service (BSS) plan for ITU Region 2 was ratified at the 1985 WARC and appears in the Final Acts of the 1985 WARC. For a review of the events leading up to the Region 2 plan, see Du, Charme, Irwin, & Zeitoun, , Direct Broadcasting by Satellite, the Development of the International Technical and Administrative Regulatory Regime , 9 Annals Air & Space L. 267 (1984)Google Scholar. BSS plans for Regions 1 (Europe, Africa, the USSR) and 3 (Asia and Oceania) had been adopted earlier. See ITU, Final Acts of the World Administrative Radio Conference for the Broadcasting Satellite Service in the Frequency Bands 11.7–12.2 GHz in Regions 2 and 3 and 11.7–12.5 GHz in Region 1 (1977).

38 See ITU Convention, supra note 3, Art. 10.

Operationally, [the IFRB] is the key staff organ of the ITU. [It] consists of five members elected at plenipotentiary conferences. The IFRB maintains the international list of frequency assignments and, in the case of geostationary satellites, orbit positions. . . . Each frequency and orbit assignment notified to the IFRB by ITU members must be examined for conformity to the ITU regulations—for example, whether the assignment is in accordance with the international table of frequency allocations and whether it is compatible with other registered assignments.

Robinson, supra note 3, at 8–9.

39 See generally Christol, C., The Modern International Law of Outer Space 555–68 (1982)Google Scholar. See also Rothblatt, supra note 23, at 60; Smith, supra note 7, at 234 n.16.

40 See Rutkowski, note 7 supra. Most of the difficulties faced by India arose from its obligation as an INTELSAT member to adhere to the coordination requirements established by Article XIV of the organization’s charter, not the ITU regulations. See Doyle, Regulating the Geostationary Orbit: The ITU’s WARC-ORB-85, at 5 (Paper presented at ABA Forum Comm. on Air & Space Law, Oct. 11, 1986). At the time, these requirements were somewhat stricter than the ITU’s own guidelines. See Levy, , Institutional Perspectives: The ITU Common User Satellite System and Beyond , 16 Case W. Res. J. Int’l L. 171, 194–95 (1984)Google Scholar.

41 In the words of one observer: “If the [IFRB] can be compared to a traffic officer, it is an officer unable to adequately measure the traffic, whose ‘tickets’ for violations are often ignored, and who lacks not only a jail but also a court for the offenders.” D. Leive, International Telecommunications and International Law: The Radio Spectrum 22 n.8 (1970).

42 Broadcasting, Aug. 29, 1983, at 113.

43 Broadcasting stated that, as of 1983, “it appeared” that the United States had completed the ITU notification process before launching “in no more than a few instances.” Id. The ITU’s rules have required advance coordination of GSO satellites since 1963 and advance publication and coordination of system specifications since 1971. See generally C. Christol, supra note 39, at 557–68. However, the United States did not adopt formal rules to ensure that commercial satellite applicants supplied the FCC with adequate information to comply with these treaty obligations until 1983. See FCC 2° Spacing Order, supra note 26, and 47 C.F.R. §25.202 (1985). The procedures that the FCC and other government agencies are required to follow in notifying U.S. satellites to the ITU are detailed in FCC & Dep’t of Commerce, National Telecommunications and Information Administration, Manual of Instructions for Notifying U.S. Radio Frequency Assignment Data to the International Frequency Registration Board (1984).

44 ITU Convention, supra note 3, Arts. 50, 80 and Optional Additional Protocol.

45 This statement is based on the author’s notes of the proceedings of Committee 5A, Aug. 12, 1985. No official minutes of this meeting were taken.

46 See Rutkowski, supra note 7.

47 See, e.g., Proposals for the Work of the Conference, ITU-ORB-85 Doc. 9. Despite the USSR’s preconference support for a priori planning, as a major satellite power and as one of the principal beneficiaries of the existing first come, first served regime, the Soviet Union tended to side with the United States and its European allies where planning proposals threatened to compromise its sovereignty or to implicate national security considerations. The Soviet Union’s mid-conference proposal, limiting a priori planning to the C and Ku expansion bands (see Agenda Items 2.2 and 2.3, ITU-ORB-85 Doc. 189), thus distinguished it from many developing nations. Compare, e.g., Algeria et al., Proposals for the Work of the Conference, ITU-ORB-85 Doc. 146; India, Proposals for the Work of the Conference, ITU-ORB-85 Doc. 54.

According to the United States, “The primary concern of the Soviet Union was to protect their existing systems while appearing to support developing countries.” Dep’t of State, Report of the United States Delegation to the First Session of the ITU World Administrative Radio Conference on the Planning of the Geostationary Satellite Orbit and the Space Services Utilizing It 45 (1985) [hereinafter cited as U.S. WARC Delegation Report]. See also note 92 infra.

48 See generally CPM Report, pt. I, supra note 21.

49 The U.S. proposal for multilateral planning meetings is fleshed out in Additional Proposals on a Multilateral Planning Meeting, ITU-ORB-85 Doc. 107.

50 See Additional Proposals to WARC–ORB(1) regarding Agenda Item 2, ITU-ORB-85 Doc. 30. The proposal for a C-band moratorium represented an evolution from the initial public bargaining position of the United States. Compare Proposals for the Work of the Conference, ITU-ORB-85 Doc. 5, with the FCC’s recommendation to the Department of State, App. B-1 to First Report and Order, 100 F.C.C. 2d 976 (1985).

51 See Report by the IFRB to the WARC-ORB(1) on the Situation in the Expanded Parts of the Bands 4/6 and 11–12/14 GHz, ITU-ORB-85 Doc. 275.

52 See, e.g., Smith, , Space WARC 1985—Round One Ends , Air & Space Law., Summer/Fall 1985, at 17 Google Scholar.

53 Based on the author’s notes of the proceedings of Committee 5A, Aug. 16, 1985. No official minutes of this meeting were taken.

54 ITU Convention, supra note 3, Art. 77, paras. 581 and 582. A country may also decline to ratify an ITU agreement with which it disagrees.

55 In these circumstances, some observers found it hard to credit the U.S. strong show of displeasure over the alleged “filibuster” by developing countries in the WARC’s final weeks. For example, the Director of the Department of State’s Bureau of International Communications and Information Policy later stated that the conference’s work “was, in effect, held hostage by a handful of delegates who seemed prepared to jeopardize the interest of the majority in pursuit of their own narrow ideological goals.” Broadcasting, Nov. 4, 1985, at 71. See also Telecom. Rep., Sept. 9, 1985, at 20.

56 See Structure of the First Session of the WARC, ITU-ORB-85 Doc. 79.

57 See, e.g., Smith, supra note 7, at 243 n.70. The Bogotá Declaration is reprinted in C. Christol, supra note 39, at 891.

58 Outer Space Treaty of 1967, supra note 34, Art. I. See also Gorove, , The Geostationary Orbit: Issues of Law and Policy , 73 AJIL 444 (1979)Google Scholar.

59 See Note by the Secretary–General, ITU-ORB-85 Doc. 355.

60 The record of the U.S.-Colombian exchange is based on the author’s notes. See also Minutes of the 5th plenary meeting, ITU-ORB-85 Doc. 263, at 5–7. Colombia also challenged the legality of the U.S. action in changing by 10° the announced position of another cable television satellite. See id. and Minutes of the 16th plenary meeting, supra note 18, at 16–18.

Curiously, neither Colombia nor Cuba, which generally supported Colombia’s position at the 1985 WARC, sought to reopen the controversy raised by Cuba’s 1983 IFRB filing (see text at note 42 supra), though an ITU background report distributed to the conference appeared to confirm that, in several cases, the United States had been lax in coordinating its satellites before bringing them into service. See Note by the Secretary-General, ITU-ORB-85 Doc. 105, Ann. 1. For example, according to the IFRB’s information, the United States brought into use two satellites owned by Satellite Business Systems (US SAT 6A and 6C) before even completing the first step (advance publication) of the required ITU coordination process. The annex also purportedly shows that several other U.S. satellites were launched before coordination had been completed. The accuracy of the IFRB’s data, however, has been questioned by FCC sources familiar with the coordination of U.S. satellites.

61 Based on the author’s notes; see note 60 supra.

62 Minutes of the 5th plenary meeting, supra note 60, at 7.

63 Intelsat Report, note 12 supra, at 1.

64 See Dizard, , Space WARC and the Role of International Satellite Networks (Center for Strategic and International Studies, Georgetown University, 1984)Google Scholar. See also Levy, supra note 40.

65 See Planning Principles, ITU-ORB-85 Doc. 216; see also Consideration on the Requirements of the International Multilateral Intergovernmental Organizations, ITU-ORB-85 Doc. 166.

66 See First Report of Committee to Plenary Meeting, ITU-ORB-85 Doc. 324.

67 Dr. Stajanovic’s statements are based on the author’s notes of the Sept. 2, 1985 session of Committee 5. An abbreviated account is provided in ITU-ORB-85 Doc. 220.

68 ITU-ORB-85 Doc. 220, supra note 67, at 2.

69 Document from the Chairman of Working Group 5A, Organization of Work, ITU-ORB-85 Doc. DT/70 (Rev. 1), Ann. 3.

70 See ITU-ORB-85 Doc. 116, supra note 8, at 2.

71 See, e.g., ITU-ORB-85 Doc. 189, supra note 47.

72 See, e.g., ITU-ORB-85 Docs. 54 and 146, supra note 47.

73 See Summary Record of the Eighth Meeting of Committee 5, ITU-ORB-85 Doc. 293. Twenty nations including the United States reserved their position regarding this compromise. See First Report of Committee 5 to Plenary Meeting, ITU-ORB-85 Doc. 324. See also Minutes of the 10th and 11th plenary meetings, ITU-ORB-85 Docs. 339 and 341.

74 See 1985 WARC Final Report, supra note 4, para. 3.3.1(b). The bands to be studied are: 18.10–18.30 GHz; 18.30–20.20 GHz and 27.00–30.00 GHz. A report is to be made to the 1988 WARC “with the view of taking a decision on the future plan of these bands by a future competent conference.” Id.

75 Id., para. 3.3.4.1. Multi–administration systems may still benefit from the allotment plan to the extent administrations are able to pool or combine allotments. Notably, paragraph 3.3.2 of the Final Report provides that “[b]oth parts of the planning method [the allotment plan and the improved procedures] will need to conform to the planning principles contained in [paragraph] 3.2.” These principles include “tak[ing] into account the requirements of administrations using multi–administration systems.” Id., para. 3.2.6(a). See note 77 infra.

76 Id., para. 3.2.6(a).

77 The plenary debate over the compromise language regarding multi–administration systems is reported in Minutes of the 12th plenary meeting, ITU-ORB-85 Doc. 342, at 2–3. For the U.S. interpretation, see Statements relating to the Report, ITU-ORB-85 Doc. 361, at 6. See also U.S. WARC Delegation Report, supra note 47, at 56–57.

78 The controversy over the appropriate construction of “the rights of national systems” is a continuing one. See, e.g., the FCC’s post-WARC discussion of the competition for transatlantic satellite slots in its Separate Satellite System Order, on reconsideration, FCC 86-144, ¶¶44-56 (Apr. 17, 1986). However, the reaction that the administration’s “separate systems policy” has engendered seems disproportionate to the policy’s near–term economic impact on INTELSAT. In contrast, the Government’s 1985 decision to permit AT & T and other overseas carriers to reduce their use of Atlantic region satellite circuits in favor of cable circuits may cost INTELSAT $40–50 million for the 1986–1991 period. See North Atlantic Region Facilities Planning Order, 50 Fed. Reg. 34,813, 34,822–23 (1985).

79 It bears noting that “[a]fter nearly ten years the ITU’s 1977 Broadcasting–Satellite [Service, BSS] Plan [for ITU Regions 1 and 3] has yet to see a single satellite put into use under it, and is likely to be used for a few systems at best. The technology has simply far outstripped the assumptions imbedded in the plan.” Rutkowski, , Space WARC: The Stake of Developing Countries , Space Pol’y, August 1985, at 240 CrossRefGoogle Scholar. See also Smith, supra note 7, at 248–49. Moreover, planning for the FSS is far more complicated than for the BSS because technical parameters, operational standards and services in the FSS generally are not homogeneous. See 1985 WARC Final Report, supra note 4, para. 3.4.2.4.

80 The French position is outlined in Proposals, and Predetermined Arc Allotment Plan, ITU-ORB-85 Docs. 217 and 347, respectively.

81 See ITU-ORB-85, Minutes of the 17th plenary meeting, supra note 18, at 18.

82 id.

83 The U.S. WARC Delegation Report, supra note 47, at 89, provides the following assessment of the events surrounding the Secretary-General’s announcement that the absence of a quorum precluded any further decisions from being taken by a vote:

1. The SG knew that a quorum was not present and did not want to have a vote that could later be called into question. . . .

2. No delegation wanted to be viewed as responsible for causing the conference to be a failure and thus none was willing to push the debate on the quorum issue. The key questions on planning approaches and frequency bands to be planned and even many of the underlying principles had not yet been formally agreed in Plenary. If the quorum issue had been pushed, they would remain unagreed and thus there would be a ‘failure.’

3. . . . [I]t was finally tacitly agreed that inasmuch as the output of the first session was a “Chairman’s Report” (and not Final Acts) to the second session, that report could reflect the discussion of the closing hours of the conference, could express the varying views of the delegates, and could thus leave the question of legal authenticity of the decisions in limbo.

84 The U.S. WARC Delegation Report, supra note 47, at 2, states that a principal U.S. objective was “to avoid the imposition of any planning of the kind known as a priori.” See also Robinson, supra note 3, at 27–28.

85 The 1985 WARC Final Report, supra note 4, para. 3.3.1(b), provides that the MPM shall be applied in the C band at 3.7–4.2 GHz and 5.850–6.425 GHz; in the Ku band at 10.95–11.20 GHz, 11.45–11.70 GHz, 11.70–12.20 GHz (Region 2); 12.50–12.75 GHz (Regions 1 and 3) and 14.00–14.50 GHz; and in the Ka band, subject to further study, at 18.10–18.30 GHz, 18.30–20.20 GHz and 27.00–30.00 GHz. The remaining radio spectrum allocated to the FSS by Article 8 of the ITU Radio Regulations will continue to be governed by existing coordination procedures.

Apart from that of the United States, MPM-type proposals were introduced by France, Proposal–Cyclic Planning Method, ITU-ORB-85 Doc. 12; the Netherlands, Planning Method for Guaranteeing in Practice Equitable Access to the GSO-Agenda Item 2, Doc. 127; New Zealand, Proposals for the Work of the Conference, Doc. 8; and Canada, Proposal for the Work of the Conference, Doc. 222. These rather disparate proposals (along with others that will be advanced during the intersessional period) must somehow be reconciled and translated into draft Radio Regulations by the close of the 1988 WARC.

86 See 1985 U.S. WARC Delegation Report, supra note 47, at 3 and 16.

87 The author’s notes of Ambassador Burch’s remarks at Washington, D.C. conference sponsored by the Annenberg School of Communications (Oct. 29, 1985).

88 See ITU Convention, supra note 3, Additional Protocol I.

89 This budget was not substantially changed by the ITU’s June 1986 Administrative Council meeting. See Com. Daily, July 7, 1986, at 9.

90 Statements relating to the Report, supra note 77, at 6.

91 Broadcasting, Sept. 23, 1985, at 57.

92 The USSR also appears to have a major stake in the viability of the WARC’s allotment plan. In addition to its allotment, the Soviet Union will have over 20 other satellites “grandfathered” into the plan because they were formally announced before last year’s WARC. See ITU-ORB-85 Doc. 275, supra note 51.

93 Even on its own terms, the MPM strategy may prove self–defeating. Writing up a new set of ITU Radio Regulations to accommodate equitably the competing demands of a score or more countries at periodic multilateral meetings is likely to be an administrative nightmare. The present, primarily bilateral, coordination process, whose Byzantine rules are virtually incomprehensible even to most lawyers, works as well as it does largely because of the expert offices of the IFRB. Creating another regulatory labyrinth, particularly one that will be applied largely by committee (the MPM) rather than by bureaucrats (the IFRB), does not seem to be what the quickly changing world of satellite communications needs.

Countries investing billions of dollars in satellite systems, especially developing countries with scarce resources, can ill afford unworkable international arrangements. Hence, if the MPM cannot be kept simple and understandable to all, then perhaps its life should be limited (e.g., to 10 years) until an appropriate variant of the informal regulatory regime now used by the ITU to harmonize most equipment standards can be developed. See, e.g., Rutkowski, , Deformalizing the International Radio Arrangements , Telecom. Pol’y, December 1983, at 309 Google Scholar. For more modest, but still useful, reforms of the Radio Regulations applicable to the FSS, see also the United Kingdom’s suggestions in Proposals for the Work of the Conference, supra note 27, at 7.

94 The United States argued strenuously at the WARC that, because of the inherent limits that any a priori allotment plan would impose on satellite service areas, a marketplace reallocation of unused satellite slots was technically impossible. See Two Real Problems with a Priori Planning, ITU-ORB-85 Doc. 164. Despite the Reagan administration’s general support for free–market policies elsewhere, the Government’s failure to support such schemes at the ITU appears to stem largely from private sector concerns that such a policy could lead to proposals to auction portions of the “domestic” radio spectrum. Neither the Communications Act of 1934, 47 U.S.C. §151 et seq. (1982 & Supp. 1985) nor the FCC’s rules thereunder currently require licensees to pay for using radio frequencies, regardless of their economic value. Last year, however, as part of the Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99–272, 100 Stat. 82, Congress directed the FCC to collect “cost of regulation” fees for processing most license applications. The congressionally prescribed schedule includes a fee of $18,000 for commercial satellite applications.

For a review of some of the problems associated with marketing orbital slots, see Robinson, supra note 3, at 47–52; Wihlborg, & Wijkman, , Outer Space Resources in Efficient and Equitable Use: New Frontiers for Old Principles , 24 J. L. & Econ. 23 (1981)Google Scholar.

95 Despite the unprecedented series of recent rocket failures, which have grounded the U.S. space shuttle and Europe’s Ariane fleet, the West still is likely to enter the 1990s as the principal launch contractor for commercial communications satellites. See, e.g., Com. Daily, June 17, 1986, at 2; Economist, June 7, 1986, at 105. Thus, although near–term launch problems may blunt the practical urgency for a new world satellite order, the technical and political issues raised at the 1985 WARC can be expected to reassert themselves by the decade’s end.

Readers interested in a further exploration of this and other issues raised by the Space WARC may wish to obtain a copy of the PAIL Institute’s teaching package “The New World Satellite Order: A Documentary Review, with Commentary of the 1985 Space WARC.”