ANALYSIS OF THE LEGAL FRAMEWORK ON THE USE OF FOREIGN SATELLITES: NORTH AMERICA
Mariana Riva Palacio
McGiII University Montréal, Canada
Faculty of Law Institute of.Comparative Law
November 2001
A thesis $ubmitted to the Faculty of Graduate Studies and Research in partial fulfillment of the requirements of the degree of Master of Laws (LL.M)
@ Mariana Riva Palacio National Library Bibliothèque nationale of Canada du Canada
Acquisitions and Acquisitions et Bibliographie SelVices selVices bibliographiques 395 Wellington Street 395, rue Wellington Ottawa ON K1A 01'.14 Ottawa ON 1<1 A0lIl4 Canada Canada Your tiIe V",'MHéfërmce
Our file Nctre réfélencB
The author has granted a non L'auteur a accordé une licence non exclusive licence allowing the exclusive pennettant à la National Libr&)' ofCanada to Bibliothèque nationale du Canada de reproduce, loan., distribute or sell reproduire, prêter, distribuer ou copies ofthis thesis :in microfonn, vendre des copies de cette thèse sous paper or electronic fonnats. la fonne de microfiche/film, de reproduction sur papier ou sur fonnat électronique.
The author retains ownership ofthe L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts frOID :it Ni la thèse ni des extraits substantiels may be prillted or otherwise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son pemnsslOn. autorisation.
0-612-79143-2
Canada Abstract
Over the last years satellite communications remained as a government monopoly in
most countries. Recently, that situation has changed and we have witnessed
Iiberalization on trade in satellite services where governmental entities that provided
satellite services were privatized. Also, countries started to allow the entry of foreign
satellites to their markets.
The international scenario on trade in satellite services is of great relevance and it will be analyzed in this thesis. We will see Mexico's, Canada's and the US's specifie commitmentson satellite communications services made in the General Agreement on
Trade in Services (GATS). Ukewise, we will see Mexico's, Canada's and the US's background on satellite communications, and their regulatory framework on the use of foreign satellites will be analyzed.
1 Résumé
Durant de nombreuses années, les communications via satellite ont été l'objet de
monopoles gouvernementaux dans la plupart des pays. Cependant, cette situation a
récemment changé et on a pu assister à une libéralisation des services de satellites
par la privatisation de d'agences gouvernementales qui· offraient de tels services.
Aussi, certains Etats ont autorisé l'entrée de sateHites étrangers dans leur marchés.
Les grands changements dans le commerce des services satellitaux sont d'une
importance significative et méritent d'être étudiés; c'est pourquoi ils seront l'objet de ce
travail. Plus particulièrement, seront étudiés les engagements du Mexique, du Canada
el des Etats~Unisdans l'Accord Généralsur le Commerce des Services (GATS). De la
même façon, sera analysE§ l'évolution des politiques sur les satellites au Mexique, au
Canada et aux. Etats-Unis ainsi que le cadre législatif de régulation dans J'utilisation des satellites étrangers dans ces trois Etats.
II Acknowledgments
1wish to express my gratitude to Professer Ram Jakhu for being my thesis superVisor and for his teachings. Thank you, 1learneda lot trom you in ail the courses.
1would like to thank CONACYTand FIDERHfor granting me a credit for my studies.
1wish to thank Marylena, Charlotte, Rainer, Hassisen, Mark, Adrien, Horacio, Catherine and Guillaume .for the time we spent together, •for their support and unconditional friendship. Thanksfor sharing your time with me in Montreal. 1 love you very much. Catherine and Guillaume, thank you very much for helping me with the French translation of the abstract.
1 also wish to thank Miguel de Erice, José Roldan Xopa, Jorge Nicdlin and Carmen Ochoa for their lettersofrecommendation. Thank you for having confidence in me.
Special mention should be made to the people 1have worked with at COFETEL. 1have learned a lot from Salma Jalife,.Jaime Deschamps, Fernando Carrillo, Carlos Hernandez and Pedro Guerra. Thank you for What you taught me and for your invaluableadvises. 1 must speciaHy thank Jaime Deschamps for allhis help, support and encouragement to accomplish this Master.
III A los abuelos
A mis papas y a la Rata
A Charlie, Blanca, Leonora, Diego, Ceci, Debby, Mau, Bats, Chipocles, Pava y Alicia
IV Table ofContents
Abstract ,. 1 Résumé... Il Acknowledgements...... III Table of Contents ,. V
INTRODUCTION...... 1
ChapterOne Satellite Communications
1. Liberalization of Satellite Communications '" ...... 4
Il. Satellite Services ,. 6
A. Satellite Operators...... 7 B. Satellite Service Providers... 10 C. EarthStations Private Networks '" 10
ChapterTwo International Agreements
r. North American Free Trade Agreement (NAFTA)...... 12
II. World Trade Organization (WTO) '" '" '" 15 A. General Agreement on Trade in Services (GATS)... 16 B. Annex on Telecommunications '" 18 C. Decision on Negotiationson Basic Telecommunications... 21 D. SpecificCommitments ,...... 24
Chapter Three Foreign Satellites
1. Definition of Foreign Satellite '" '" '" . 27 II. Barriers to foreign satellite services...... 28 III. Use of Foreign Satellites... 30 IV. Universal Service...... •...... '" '" '" 32
v Chapter Four Nationalregulation on the use of foreign satellites
1. Satellite Communications in Mexico ,.. , '" 36
A. Mexico's commitments on Satellite Cornmunications '" 41 B. Mexican Regulation on the use of Foreign Satellites... 42 1.· Federal Teleêomrnunications Law , , 43 2. Receive-only earth stations...... 45 3. Earth stations for private ne1Works...... 47
II. Satellite Comrnunicationsin the United States...... 49
A. United States' commitments on Satellite Communications " .. , 51 B. US Regulation on the use of Foreign Satellites ,. 54 1. FCC Orders of November 1997 , ,. '" '" 54 2. FCC Order of October1999...... 56 3. receive-only earth stations , 60 C. Telesat in US 61 D. Satmex in US " 63
III. Satellite Communications in Canada... 64
A. Canada's Commitments on Satellite Communications...... 65 B. Canadian Regulation on the use of Foreign Satellites...... 67 1. Policy Framework for the Provision of Fixed Satellite Services...... 67 2. Procedure for the Submission .of Applications to Ucense Fixed Earth Stations and to Approve the Use of Foreign Fixed-Satellite Service Satellites inCanada... 70 3. Receive-only earth stations 71
Chapter Five Bilateral Agreements on Satellite Communications
1. Agreement Between the Govemment of the United States of America and the Govemment of the United Mexican States Conceming the Transmission and Reception of Signais from Satellites for The Provision of Satellite Services to Users in the United States of America and the United Mexican States " " '" . 73
A. US-Mexico Protocol for the provision of DTH services...... 75 B. US-Mexico. Protocol for the provision of Fixed Satellite Services... 78 C. US-Mexico Protocol for the provision of Mobile Satellite Services... 80
Il. Agreement between the Govemmentof Canada and the Govemment of the United Mexican States Conceming the Provision of Satellite Services , 81
VI A. Canada-Mexico Protocol for the provision of Fixed Satellite Services...... 82 B. Canada-Mexico Protocol for the provision of Mobile Satellite Services... .. 84
Conclusions...... 87
Appendix 1. Mexico - Schedule of Specific Commitments...... 89 Appendix 2. United States - Schedule of Specific Commitments... 91 Appendix 3. Canada - Schedule of Speci.fic Commitments ,, 94 Appendix 4. Mexico - Concessionaires authorized to use foreign satellites... 98 Appendix 5. United States - Permitted $paceStation List.... 99 Appendix 6. Canada - List of Approved FSSSatellites...... 100
Bibliography...... 102
VII nHumanityhas a/ways been confronted by front;ers. fn early historica/ times, the desert and the sep were thebarrirr$ to furtherexpansionBut the. domestication ofthe camel and the construction.ofseaworthy ships enable us tocross thoseobstacles, apd bath tha drsart.andthe sea bacamea rrteansoffivefihoOd and a way of communicati~n,opening up rich /andsbeyond. The frontier tOdé,iy is th.e even greatervastness orouter space...The techn%gica'advances which arethe outcorneoJspacespifl OVef intotha more normaLactivities ofthe We~temvvprldand haveput newpowerfnto tha hands ofcitizens at all/eva/s ofsociety"
John H. Chapman, 1967
INTRODUCTION
Due to its dynamism and complax:ifY,·the telecommunications Se<:fOf represellts an important chaUenge for legislators. and lawyers considerîng that régulation needs to follow the amazing technologicalchanges and the globéil contextof companies and services.
During the last years, telecommunicatiolls servi~s have experiellced important structwal changes ail around the world. In many countriés,from bl:ling public monopolies, they .turned. into·privatè mOllopolies. In othercases,privata companies were aiiowed to provide basiC telephonyservice.Legal frameworks were modified.il'1order toallow private companias to·provide telacommunications services, and to .adjust andredefineimportant concepts.in the telecommunications field.
Once the firststep was taken.and publicmonopolies were· prîvatized;companies with foreign investmentand foreign companies were aUowed to provide 2
telecommunications equipment, telecommunications services and to operate networks.
The satellite service sector of thetelecommunications marketis growing rapidly and continues to diversify its service offerings. The new $atellite systems. bring business and other consumers a wide variety of new broadband and mobile voice and data services and connect users in countries around the globe.
Authorizing the use of foreign satellites is a relevant issue, taking into consideration theglobalization the world is experiencing and that ail sorts of telecommunications service providers use satellites as a means of transmission to access their users.
ln the first. Chapter of this thesis we will talk about the recent liberalization of satellite communications and we will see who are the players involved in the provision of satellite services and who are the U$ers of the services.
ln the second Chapter we will show the important role that international agreements.andintemationa.1 organizations playon trade in satellite services. The
General Agreement on Trade in. Seryices of the WTO is essential to trade in satellite services. Thanks to the GATS, many countries have opened satellite service to foreign competition. 3
Later on, it will beanalyzed how Canada, Mexico and the US regulate the use of foreign satellites by reviewing their domestic lawin this matter and see how their
GATS.commitments are being fulfilled.
ln the last Chapter we will see the bilateral agreements .on satellite communications ·that Mexico has signed, separately, with Canada·and the US, in order to allow US and Canadian satellites to enterthe Mexican market prior tothe date Mexico established in GATS commitments.
US satellite operators had claimed that the Mexico's regulation on foreign satellite.s is not allowing US satellite operators to access Mexican market easily, and they. also say that Mexican law is against US-Mexico bilateral agreement regarding satellite communications. 1would .Iike to discuss this issue and explain why, in my point of view, a wrong Interpretation of the GATS and the reciprocity treaty is being done. 4
CHAPTERONE
SATELLITE COMMUNICATIONS
1. Uberalization of Satellite Communications1
The world satellite communications industry, the mostcommercial and private oriented of ail space sectors, is growing aï .an unprecedented rate? "Right from the start, communications by satellite has been a commercial success, with. ail participants making money - the system owners and operators, the satellite and earth stations builders, the launch vehicle providers, the communications carriers and most importantly, the users"?
The recent changes in international trade have moved satellite telecommunications into a world without borders. "Satellites have never reaUy known borders. It'salways been a matter of power that dictated the geographical
COverage of a satellite and the type of fraffic that it carried.,,4 That iswhy trade negotiationsbetween .govemments regarding satellite communications are very important and necessary.
1 A S[:JtellÎte Communicatio,?s System is the system enabling to send miçrowave signais from.a transmitter statiOn to a satellite, samé satellite thatamplifies them and send themback to the Earth to be picked.upbya.receiving station. 2 See Canadian Space Agençy, Thfi')Canadianspaçe Program: A New fEra of Canada inSpace, ~CatalogueNo.ST31-3211999, Governmènt of Canada 1999.) 1'.5 Burt. Edelson, Four Decade.s of satellite· Communications, (Space News, a Gannett Newspaper, Vol. 11 No. 34, September 2000.) 1'.15 4 D. Billard, Vice. President- Business Development. Telesat Canada, Canadian Satellite Users Association Conference (CSUA), (1601 TelesatCourt, Gloucester, Ontario, Canada, K1B 5P4, Toronto, Mareil 22, 2000) 5
Regarding satellite communications, somecountries have responded unilaterally
to the changes in telecommunications by privatizing and deregulating their
domestic markets. Through privatization, the govemment transforms the
telecommunications sector from astate owned and operated enterprise into a
private enterprise, although the private enterprise can maintain a monopolistic
position.5 Through liberalization, .the govemment allows many enterprises to
compete effectively for consumer demand, 6
Privatization necessarily implies the existence ofa govemment-owned company.
The transition from being govemment-owned to privately-owned might come as a
result of different motivations, their common denomina;tor being an economic
rationale. 7 For exampie, aState may decide to privatize a public company in order
to: a) raise revenue for the State; b) raise investment capital for theindustry or
company being privatized; c) reduce govemment's role in the economy; d)
promotewider shareownership; e) increase èfficiency of the industry; f) introduce
competition to the particular market; g) expose the company to market discipline;
5 Thisis Mexico's .and Canada's case. ln Mexico there iSonly ()n~ satellite operator,Satmex, who ownsand operates the two Mexican satellites. placed in the geostationary orbit, and even if that satellite operatoris no longer a govemmeotentity,bllt a private company, it has a m()nopolistic position. UkeVo/ise, Canadahas rIVe satellites in thegeostationary orbit,Clnd four of them are operated by TelesatCanC)da. So allowing foreign satellitestoprovide services in theseçOl1.ntriesis very important for llsers, becal1se they will have the opportllnity to choose among different competitor~. 6. Ta~nya l. Mc Larty, Liberalized T~/ecommunications Trade in the WTO: Implications for Universal Service Polier, (Federal Communications Law Journal, Copyright (c) 1998, Deeember 1998,51 Fed. COmm. LJ. 1)p. 5 7 Alfredo Gomez-Pérez, Mexiean Telecommurlicatiofis:A Studyof Privatizationof the State Monopoly and Openfng Of the Market to Competition, a th.esis submitîed to the FaeultyofGraduate Studies and Research, MeGill U.niversity, Montreal, May 2000, p.t1 6
and/or h) comply with international treaty obligations orfollow foreign trends.8
Generally, every case will indude a combination of a few of the foregoing.9
Thanks to privatisation of .satelliteoperator companies, the new regulatory
frameworks and the grêat.technological advances, the future of satellite
communicationsappears very b.right. "The ptedlctable burst of opportunity for
satellites liesinlheir integrationJnto globaldatanetworks. SatelliteJink can support
effectively, often better thanopticalcables,rnany future services in electronic
commerce, digitallibraries, telemedicine anddistance learning."10
Il. Satellite Services
According to the definition set up in the Agreement for the Provision of Satellite
Services, which Mexico signed,. separately, with US and Canada, "satellite
service" means any radiocommunication service involving the use of one or more
satellites.
11 Mexico's Reglamento de Comunicaci6n Via Satélite , RCVS, (Satellite
Communications Regulation), defines "satellite services" as the
radiocommunication servicesthat are provided through earth· stations, which use
satellite capacity from one or more national, foreign or international satellites.
8 •. See .UNCTAD, Sectoral· Analysis. Telecommunications, C()mparâtive Experiences With Privatization. Poliey Insights andlessons leamed(Geneva: United Natiolls,1995) 9 Gomez-Pérez, supra note 7 10 Edelson, supra n()te3 11 Reglamento cJeComunicad6n Via Satélite, Diario Oficial delaFederaci6n, August 1, 1997. 7
This last definition explains in a better way what we.should understand when we
think of "satellite services", but still, we should make clear thatsatellite service can
be understood asa service provided to endusers or it could be a ·means to
provide other telecommunications services.
A satellite. operator is the entity that provides the space segment capacity
service to licensed earth stations. So, the end users of a satellite operator could
be either:
a) earth stations licensees that provide services to third parties (service
providers), or
b) earth stations Iicensees that do not provide services, but request the
satellite capacity for private use (private earth stations network).
Most of the telecommunications s~rviœs we know can .be provided via satellite.
So, a TV, cable, telephony or paging carrier can provide their services using
satellite transmissions as a means of transport of the signais. ln this case, a
satellite operator will offer its space segment capacity service to these service
providers, that must hold alicense or otherkind of authorization.
A. Satellite Operator
The bilateral Agreements for the Provision of Satellite Services that Mexicosigned with .the. US and Canada define "satellite operator" as the Person licensed by a 8
Party to operate a. Satellite Space Station to provide Satellite Transmission
Capacity.
According to the·· RCYS, a satellite operator is the. person that, through a concession.... operates and exploits a satellite system, whiçh allows it. exclusively.to offerits satellite capacity.12
Article 28 of the RCVS states that satellite operators can only make available its satellite capacity to persons that hold a concessIon for a public telecommunications network (service providers) or a permit for transrnitting earth stations (private network).
The US Federal Communications Commission (FCC), in an Order issued on
October 199913, established as follows: "...we adopt a procedure that permits the operators ·of in-orbit non-U.S .. satellites to request authority to provide space segmentcapacity service to licensedearth stations in the United States."
We can conclude that satellite opetators are •allowed only to provide space segment capacity·service. and that. capacity service can only be provided to licensed ea.rth .stations (whether they provide telecommunications services or l'lot).
12 800 article~ (VIII) of the RCVS 13 Feder~lç.ommunicationsçomrnissi6n(FCC), Commission Simplifies Procedures forNon-U.S. Ucensed Satellitesto Provide Service to the u.s. Market, Odober29, .1999 lB Docket No. 96-111 Report>No. IN 99-33 9
As an. example of the services that a satellite operator offers, and the kind of
users they have, we will show you three different satellite operators and sorne of their services.
Telesat Canada is an example of a satellite operator. "Telesatserves a growing number of business customers who use satellites to transmit voice, data and image information. Wlth private satellite networks, businesses can interconnect their offices for efficient and flexible communications."14 This· means that Telesat also offers space segment capacityservice to private networks that do not provide telecommunications services.
Satmexis Mexico's only satellite operator. It offers two kinds of services: permanent and oc~sional. "These support applications to satisfy the demands of the businesses that are looking for a link to a world without any frontiers: Internet
Access, Media streaming. and Caching, Broadcasting, ··Direct to home television
(DTH), Corporate television, CorporateNetwork and Videoconferences, Rural and long distance telephony, Telemedicine, Distance Leaming, Satellite News
Gathering".15
PanAmSat is just one of varioiJs satellite operators in the US. PanAmSat transmits digital information around the world· for .telecommunications companies, businesses and Internet service providers. "Telecommuni.cations· carriers and
14 See < http://vNN'I'.teiesat.ca/business/inclex.html>, visited on July 19,2001. 15 See< htlp:!lVINfw.satmex.comiengfapplicationslapp!ic.ations.htm!>, visited on July23, 2001 10
other service providers turn to PanAmSat for· domestic U.S. and international transmissions capacity to facilitate avariety of communications services.,,16
B. Satellite Service Provider
Mexico's RCVSdefines satellite service ·provider as "the person that holds a concession, perrnitorauthorization, thataUows him to provide satellite services throughearth statioos..., and use the capacity of a national, foreign or international sateU itE}system".
A satellite service provider is not thE} owner nor the one that operates the satellite, but the one that makes availâble the satellite capacity of a certain satellite operator. In some cases, a satellite service provider can offer satellite capacity and, throughearth stations, conduct the signais of its users.
C. Earth Stations Private Network
A private telecommunications network is the· telecommunications network use(j.to meetspecific requirements forfelecommunications services of certain people not implying commercial exploitation of servicesorcapacity of said network. 17 A clear example is a. bank, that needs tocommunicate with and senddata to aIl its branch offices or ATM machines.
16 See < http://vv',tvw.panamsatcomfserv/te!ecornseNJ,tm>, visited on July23, 2001. 11
ln the. US, Mexico and Canada, a transmitting earth statiohprivate network needs
alicense,permifor authorization, even if the networkis only for private us.e and
will not provide tel.ecommunications services. This kind of earth stations private
networks will need to lease space segment capacity service from a satellite
operator orfrorn a satellite service provider, as it was explained before.
17 See Mexico'$ Federal Telecommunications Law, June 7, 1995,artide3 (IX). 12
CHAPTERTWO
INTERNATIONAL AGREEMENTS
1. The North AmericanFree TradeAgreement
On January 1994, the North American Free Trade Agreement .(NAFTA), signed among Mexico, Canada and .the US, became effective. NAFTA cre.ates a free trade area in which tariff andnon-tariff·barriers to trade are substantially redueed between the Parties. 18
Chapter 13 ofNAFTAélddressss deregulation, marketaccess, tariffreduction and cross-:border investment in telecommunications equipmenf and services. The policy goal behind NAFTA is to eliminate ail trade barriërs in the telecommunications sector during the first 15 years of the Agreement. 19
NAFTA reduced restrictions thatonee inhibited cross-border investment in telecommunicationsservi~s, the provision of enhanced services suchas voiee mail or· datalinks,alld marKeting .. oftelecommunications equipment. "Subject to certain conditions, public telecommullications networks and services were opened in ail threecountries for purpose of: leasing private lioes;attaChing.terminal
18Jam~l> R. Holbein and. DonêlIdJ.,Musch~ The. Praotitioner's DeskbookSeries: NAFTA, (Oceana publicafionsJnc.,New YorkILondon/Rome, 1994) p.13 19 See G6mez~Pérez,supra note 7.p. 107 13
equipment; interconnecting private circuits; performing switching, signalingand
processing functions.,,2o
Even though NAFTA wasa big step for trade in the telecommunications sector, it
was not enoughbecauseit did not include market access to basic
telecommunications services, such as satellite services.
NAFTA includes an important set of reservations and exceptions, and several of
them have an impact·on satellite communications. "The study of these annexes
reveals that telecommunications and, more narrowly, satellite flows of information,
are a common high priority for each of the three signatories".21
Canada made twogeneral application reservations .in telecommunications, one
with respect toinvestment,. and. another .regarding cross-border services.22 "In
short, the investment reservation aims at enablingithe Canadian government ta
restrict foreign ownershipof Canadian corporations of the telecommunications
sector".23
20 Paul, Hastings, Janofsky & Walker, North American Free Trade Agreement, Summary and Analysis, (Matthew Bender, 1993) p. 62 s1 21 Patrick-Andre Salin, Satellite Communications Regulations in the Early 21 Century, (Martinus Nijhoff Publishers, 2000) p.265 22 NAFTA, Annex il - Canada, Investment. Canada reserves the right to adopt or maintain any measure relating to investment in telecommunications transport networks and telecommunications transport services, radiocommunications and submarine cables, including ownership restrictions and measures conceming corporate officers and directors and place of incorporation. This reservation cloes not apply to providers of enhanced or value-added services whose underlying telecommunications transmission facilities are leased from providers of public telecommunications transport networks. Cross-Border Services. canada reserves the right to adopt or maintain any measure relating to radiocommunications, submarine cables and the provision of telecommunications transport networl
MexiCO expressed reservation with referenœto ail types of telecommunications
services, including satellite services and, more generally, satellite
cornmunications.24 ln aCcordance with Annex Il of NAFTA,
Mexico reserves the right to adopt or maintain any measures relating to investment in,
or provision of, telecommunications transport networks and telecommunications
transport services. Telecommunications transport network include the facilities to
provide telecommunications .transport services such as local basic telephone
services, long-distance telephone s~rvices (national and intemational), rural
telephone services, cellular telephone services, telephone booth services, satellite
services, trucking, paging, mobile telephony, maritime telecommunications services,
air telephone, telex, and data transmission services.
Also, Mexico included a section related to activities reservedto the Mexican State.
Section A of Annex HI states that "Mexico reserves the right to perform
exclusively, and to refuse to permit the establishment of investments in satellite
communications", meaning the establishment, operation and ownership of satellite
systems and earth stations with international Iinks?5 This meant that there was
not private participation atall, not even Mexican nationals· couldinvest or
participate in satellite communications, because ilwas a government monopoly.26
23 Salin, supra note 21,1'.266 24 id, 1'.261 25 See NAFTA, Armex m, Section A number4. 26 Mexico stated the foliowingonSection B of Annex III: "Deregulation ofActlVities Reserved tl) the State: The aclivities set out in Section A are reserved to the Mexlcan State, and private equlty inv~stmentis prohibited under Mexlcan Law. VVher~ Mexico aUows private inve.stment to participate in such activitles throughservice contracts, concessions, .Iendlngarrangements or any othertype of contractual arrangement, such .participation shall not be construed to affect the State's reservation orthose aclivities..." 15
The United States has made about the same type of reservations as Canada and
Mexico the oftelecommunication networks and services. So we can say
"that ail three countries have reserved a large part, if not most of the telecommunications sector, from a strict application of NATFA. Further, satellite communicationshayè totaUY been ousted forrn the scope of NAFTA".27
Il. WorldTrade Organi:zation
The V\lorld Trade·Organization 0NTO). is the only global international organization dealing with the. rules of trade between nations. At its heart are the WTO agreements, negotiated·and signed by a large majority of the world's trading nations, andratified in theirparliaments. These agreements are the legal ground- rules for international commerce. Essentially, they are contracts, guaranteeing me01ber countries important trade rights. They also .bind govemments to keep their trade policies withinagreed limits toeverybody's benefit. The goal is to help producers of goods and services, exporters, and i01porters . conduct their busines$.28
The mOis responsiblefor administ~ring .all·the agreem~nts··concluded within the framework of theLJruguayRouhd29 1tis the forum for ail future trade negotiations, and administers the new dispute settlement mechanism.
27 Salin, supra note 21, p.268 28See < httpllwww.wlo/:lrg>, visiîed on April 3, 2001. 29 The Uruguay Round of international trade negotiations took place within the framework of the General Agreement of Tariffs and Trade (GATT). It was launched at Punta dei Este, Uruguay, in September 1986 by the Trade Ministers of 100 countries. One of the most controversial and 16
A. General Agreement cm Trade in Services
The Gen.eral Agreement ·on Trade in Services (GATS) is the first ever set of multilateral, legally enforceable mIes covering intemational trade in services. It was negotiatedin the Uruguay Round. The GATS forms one of the annexes to the
Agreement Establishing the WTO. '.30
The GATS operates on three levels: the main text containing general principles and obligations;· annexes. dealing with mies for sp.ecific sectors: and individual countries' speciflc commitments to provide access to their markets. GATS has a fourth special element: lists showing where countriesare temporarily not applying the "Most Favourate Nation" (MFN) principl.e of non-discrimination. These commitments are an integral part of the.agreement. 31
Article 1of the GATS, establishes that "for the purposes afthis Agreement, trade
32 in services is definedas the supply afa serviœ : a) tram the territary atan€! Memberinto the territory ofany otherMember; b) in the territory otone Member to the service consumer ofany other Member; histonc deci$iolls of the Punta delEstel1l~etin9 was to initiate, for the tirst tirne, negotiations on trade in services as a major I1egotiatingitem, in thebeliefthat thiswould irnprove the world. trade ~stema$ a whole. • .The GATS. formally consists of29artic~s,8annexes,and 130schedulas of commitments (each WTqMerobermust siJbmita schedu1e)· on. $pecifjcseNices or seNicesector$.Thearticies.orthe GATS layout the. scapa of the Agreement and. thegeneral obligations and disciplines to be observed. They also definethe. specifie.: cpmmltrnentstobe inscribed in schedules and howto go about negotiating them. Fil1ê:llly,thereare· provisions for (jispute setllement and the establishment ofthe .Gouneil for Trade in Services. 31 See
c) by a service supplier of one.MemlJer, through commercialpresence33 1n the
territory ofany othe, Member;
d) bya service supplier ofone Membe" fhtough presence ornatural persans ofa
Memberin the territory ofany otherMember."
The GATS establishes a basic selQfrl..llE:1ls for world trade in services, a clear set of obligationsJor each Membercountry and a legal structure for ensuring that those·obligations areobserye This Agreement and its general mies in principle cover ail commercially traded services, although a few are the subject of specifie annexes which limit the coverage. "Under the system of 'specifie commitments'34, Members are also able to identify exactly in which services they guarantee an open market to foreign service suppliers and which restrictions they wish to maintain in relation to those sectors".35 The GAT8 contains a number of annexes, which take specifie sectors into account. As wewilrsee next, one of these sectoral annexes is the Annex on 32 This includes production, distribution, marketing, sale and delivery. 33 Any type of business or professional establishment, including branches and representative offices. 34 Self-imposed obligations by Members either not to impose new laws limiting market access where there are none, or not to add further limitations apart from those listed, and similarly with respect to conditions on national treatment; and any additional commitments scheduled. 18 Telecommunications. In addition, eight institutional decisionsoni various issues related to the GATS are takenup in a different section .of. the Final Act and considered as separate instruments that Mernbers may choose whether to sign and be bound by. One Of these Decisions is the Deçision on Negotiations on Basic Telecommunications. B. Armex on Telec.ommunications Telecommunications36 formsoneofthelargest and fastest-growing sectors, and it playsa dW31 role as a communications service, as weil as the underlying means of transport for delivering many types of services electronically.lt is a sector of crucial importance to ail service exporters who use it during production and supply. "Telecommunications was until recentlytreatedas a natural monoPQIY,regulated domestically, in which foreigncompanies coul.q not, or would not, meddle. Trade law and policygenerally steered weil clearof tois area".37 According to Feketekuty, "[t]he emergence of competition· in international telecommuni.cations. services .in sOrne countries, while the provision of such 35 European Commission, GATS 2000: the General Agreement on Trade in Services: opening markets for services. (Luxembourg: Office for Official Publications of the European Communities, 1998), p.9 36 Telecommunications: every broadcast, transmission or reception of signs, signais, written data, images, voice, sound or data of whatever nature carried out through wires, radio electricity, optic or ~hysical means or any other eJectromagnetic systems. 7 Robin Ritchie, Free trade in telecommunications is inevitable, (THE LAWYERS WEEKL y September 29, 2000, Copyright © 2000 Butterworths Canada Ud. Vot 20, No. 20) p.23 19 services remains a monopoly activity inother countries, has created commercial problems for both s.etsof countries. International telecommunications obviously requires the cooperation of public telecoiTImurlicationscompanies inat least two countries...,,38 Nevertheless, "the availability of lower-priced, higher-quality capabilities to businesses and workers in countries with more open telecommunications .service markets caused competitors in. other countries. to press their govemment to liberalize those other telecommunications regimes to keep their businesses and workers competitive" .39 Now, we are. witnessing the great telecom monopoliesof th.e world "being wrenchedinto the'borderless economy' and telecommunicationsbeing treatedas just another 'service sector' to be added to the multilateral trading system.,,40 Telecommunications services were addeq in an Annexto GATS. The Annex gives telecommunicationsservice providers. reasonable and nondiscriminatory aCCess to and use of teletommunications services withinthe bordersofWTO Members that have made telecqmrouni.cations commitments. This translates intothe ability of foreign. service providers to enter. a country and interconnectto its public network for the purpose ofOffering telècommunications services to the publiC in that market. 38 GezaFeketél The GATS Annex on Telecommunications sets out the rules for telecommunications, and deals with measures affecting access ta, and use of, public tefecommunications transport networks .and serviCes. It does not apply to measures affecting cable or brqadcast distribution of radio or television programming. Each Member musten.sure that the obligations of the Annex are applied toits own suppl.iérs of public tefecommunication transport networks and services41 by whatever means necessary. Unléss a. Member has sçheduled aspecific commitment that requires access or use,nothing in the Annex reql..liresa Member ta authorize a service supplier of any other Member to estabIish, constl"lJct, acquire, or otherwise supply telecommunication transport networks or services. Likewise, "much to the relief of developing countries, the Annex does not require. a. Member to acquire, lease, or buHd ··atelecommunica.tions networkor to supply tefecommunica.tion services that are not offered tothepubHc generaJly".42 The obligations in the Annex expand the obligatigns of GATS specifiçally for telecommunications."Thére are commitments regarding. transparençy, access ta public networks,andtreatment of developing.countries. However, by the termsof 40 Ritchie, supra note 37, p.24 41 Public tefecomml.Jnications< traf"lsports~rvicemeans s.ervlcethat a member~equin~sto be off~red to the public. generally (thus,JheYrnav>bepriVate1y owned),and includes tel~graph, telephone, tel~x,and data transmission. Publictelec;ommunicaticm transportnetl/llork means the infrastructure thatpermîts telecommunicationsbetWeen defined netwQrkterminationpoints. 42 Kevin C. Kennedy, Market Openings in the TefeCOrnmunicationGoods and Services Sectors, (Th~ Intemationa1Lawyer copyright @ AmericanBar AssociatiOll, Sprtng, 1999, 33lnt'llaW. 27) p.27 21 the Annex, thes~obligationsappfy only· to services for which Members have scheduleda market access comrnitment."43 Paragraph 4 of the Annex on transparency obligates Members to make publicly availableaU r~levantinformatiori on conditions affecting access. to and .use orthe networks and services. The heart of the Annex is paragraph5. ·Its heading .could easily s.erve as the sub title of the Annex: Acc~ss tOGind l.Jseof Public Telecommunications Transport Networks and Services.. Paragtaph 5(a)provides in pertinent part:."Each Member sht:J1r~n$ur~ that any seryicesuppiiergfany otherMember is accorded access to and use of. public telecommunications· transport networks and services on reasonableand non-discriminatory ferros and conditions, for the supply of a service included inits Schedl.1le." C.De.cision on Negotiations on Basic Telec()mmunlcations "Thetelecommunications sector.neededseparate negotiationsfrom other service sectors because ilhas unique attributes aSa backbone for other services and as a service itself.,,44 A Negotiating Group on Basic Telecommunications was created to carry out telecommunication negotiations. These negotiations were focused on the 43 Melany, supra n()te 6,. p.2 22 liberalization of trade in telecommunications transport networks and services within the framework of the GATS. At its final m~eting on 30 April 1996, the Negotiating Group presented the draft Fourth Protocol to the GATS and a draft Decision on Commitments on Basic Telecommunications. On April 30, 1996, Members of the WTOsubscribed the Fourth Protocol to the GATS conceming basic telecommunications, whichestablishes the bases for competition on telecommunications s~rvices. On February 15, 1997, sixty-nine developed and developing countries from fifty- five WTO Members successfully concluded the Agreement on Basic Telecommunication Services. 45 On February 5, 1998, the .results of the WTO negotiations on market access for basic telecommuniçations s~rvices46 formaUy ehtered into force. On themultilateral levaI, the results of the telecornmunications negotiations are extended to allWTO memb~rs on a. non-discriminatory basis thropgh MFN 44 id, p.3 45 The World Trade(>rganizationAgreement on Basic Tel~éOmmuniGations, whith. became effeqtive on Feb/l.lary5,t998, is part oftheGATS,t~eWTO'smasterplanfor removing barriers to trade in services as ithasid treatment However, the legal ba$is for the negotiations made it possible for each WTO Member to decide individuallywhétheror l'lot to file an MFN exemption on a measure affecting trade in basic telécommunications services}? Under the rubric of regulatory. principles,.the N~gotiâting Group on Basic TelecommuniCâtionsdeveloped aReferènc~ Paperpn competition principles based on the U.S. TelecqrnrnunicationsAct of 19.96. Itaddressesthe foJtowing matters: • Safeguards·against anti~competitive practicesby monopolies, such ascross-subsidization orusing information obtained frorncompetitors with anti-competitive results; • Oost-based and timely interconnection on non-disCriminatory term~, rates, and qUâlity; • Transparent and non~discriminatory universal service requirements (i.e., requirement$ that mandate basic telecommunication service for every citizen ataffordable pricès); • Transparent and publ.icly·available licensing criteria, including astatementofreasonsfQf licensingdenial; Ind~pendence of regulatqrs from suppliers of basic télecommunication serviCes; • Transparent and non-discriminatory rulesfor the allocation of scarce resQurces,.such as radio spectrum frequencies; and • Publicationof international aœ6untingrates. s~rvices, gateway earth station servïces,teleconferencing, video transport, and trunked radio system service$. 24 They als.oagreed that each would use the text as a tool in deciding what regulatory disciplines to undertake as additional cornmitments. As Laura B. Sherm.an observes, "effective competition needs more than simple deregulation or.marketopening contained in WTO Member Schedules of Commitments. It will he some lime before the real effect of the Agreement can be measured, but the successful conclusion of the negotiations is evidence that liberalization is inevitable".4S D. Specifie Commitments WTO members have made specificcommitments under GATS stating which of their se.rvices sectQrs they are willîng to open to foreign competition, and how open those markets are. The comniitments are categorized according to the means by which the service is supplied.Underthe GATS, services can be supplied in any offourways:49 47 See III Cross-bordersupply III Consumption Abroad III Commercial Presence III Presenœof Natural Persons ln order to determine the real ·Ievel of·· market aCCess represented by a given scheduleit is therefore necessary to examine the range of activities covered in each service sectorand the limitations on·marketaccess. and national treatment pertaining to the different modes of supply.ln addition, in cases where a country has also tal:)led a Ii$tof MFN exemptions, this must be examined in order to assess .the extent to which the country gives preferential treatment to, or discriminate against,.one or more ofits trading partners. When making a commitment, a govemment therefore binds the specified level of market access. and national treatment. andundertakes not to impose any new measures that would restrict entryinto the market or the operation of the service. For Trebilcock and Howse, the schedules of specifie commitments constitute the pithand substance of the GATS. $0 ln the following chapters we Will see Mexico's, Can~da's and the United States' list of speciflCcommitments on satellite. communications. These commitments s~rvice suppli~r cao fravel ifl p~rson to a co.untry. in order tosupplya service. General immigration mies contif;lue to app,y and the JUles relatingto entry andstay areusually strict, but many countries have still •. und~rtak,en to allow certain types of service supplier, inparticular intra corporate transferees, to enter their markets on a temporary ba.sis. 26 affect aU mo Mernbers. NeVertheless, as we will analyze later, Mexico has signed international treaties with Canada and the United States of Americg regarding satenite communicatiOns, where r~ciprocal concessions are grantedin order to provide satellite services in thase countries. nd 50 Michael J. Trebilcock aooRobertHowse, Thé Regulation ofInternational Trade, 2 ed.. CHAPTER THREE FOREIGN SATELLITES 1. Definition of Foreign Satellite Mexican regulation makes a distinction among national,intemational and foreign satellites. According to Mexico's ReVS, we can define "foreign satellite" as the satellite siWated in a geostationary orbital position or satellite orbit, with its corresponding frequency bands,aUotted by the ITU51 to a foreign govemment. An international satellite is the onesituated in a geostationary orbital position or satellite orbit, aliotted by the ITU to an .intemational organization created l,Inder a multilateralintemationalagreernent. Canadian ·regulàtion defines "Canadian Satellite", as a satellite station that is Iicensed or authorized, asappropriate, bylndustry Canada. But ii do~s not define foreign or intemational satellites. 51 The l.ntema1ionaITel~communicationsUnion(ITU)Wa.sestablishedin·Paris.in1865as the Internatiollal Telegraph Union, tllelTUgot itsname in 19 and tumed into a specializeej a!;Jency oUlle United Nations in 1947,. Since then, .itha~been in charge34 of regulating thetecllnïçal aspects of telecoml1'luniGations,such .• a~Jhe aUocati?n of orbital !?9sitiof}s ·and.·sate.llite .• orbits.• and the allocation offrequencie$ qUheradio .electric; spectrum. The Radiocommunication Sectorofthe ITU has the purpose of ensuring· the rational, ••. eCluitable, •efficient and economiçal use of the radio frequency spectrum by ailradiocommunication· services. 28 Il. Barriers to Foreign Satellite Services For many years international trade wasfocused onlyin goods. Trade in services had been ignored b~cause services were considered to be accessory to goods trade and production. Many services are highly regulated to proteet· both consumers and the domestic econorny, and sorne services are or were public monopolies. "Because the act of selling servicesis more visible than the flow of services across the border, governments have been more inclined to control sales of services through the domestic regulatory .process, rather than through explicit controls on cross-border flows of services, as in the case with goodS..52 To regulate the use of foreignsatellites it is important to be able to identitya set of barriers that should be reduced or removed to facilitate. trade. Forexample, high degree of domestic regulatory control, commercial presence requested inorder to provide services in another country, prohibition or limits to foreign direct investrnent. A barner to a trade in service is a govemment measure that creates an obstacle to the sale of.services produced aboard. NormaUy there is alsoanimplication. that 52Feketekuty,supranote38,p.27. Aecording to Feketekuty, ail intemational tradein services. is Hnked to an intemationçd movlilment of. people, information, money or goOO5, and since the movemènt of services a.crossa border iS.largèly invisible, it is generaily useless to put up barriers to tradein se.rvices attheborde.r.• Sarriers.to international trade .in services have to be erected at a point in the transaction Wherethe govemmentcan exercisesome control overthe transaction. 29 the government measure involved creates a burden on foreign producers that is not borne by domestic producers. As Feketekuty observes, in order todetermine if a trade barrier exists, "it may thereforebe necessary to determine not only if a govemment treats foreign producers ·differently. from domestic producers. but if any differences in treatment that might exist are Justified as a means for achieving equivalent domestic regulatory objectives".53 For exampie,govemment measures that limit the ability of foreign companies to carry out certain aGtivities in the local market can also create trade barriers. But in order to determine if they are really trade barriers, we have to examine whether the restricted activity is essential for meaningful trade in a particular services industry. According .to Trebilcock and Howse, in sorne cases, trade in service occurs through access of the provider and/or consumer to a network, either international or domestic or both, .the terms of access or interconnection with such networks may constitutebarriers to tradein services. "Whére the network is owned and operated by a dominant market player and/or former monopolist, competition poUcy issues become intertwinedwith the removal of barriers to trade in services (as in the case with telecommunicationsservices)".54 53 Fek.etek.uty supra note 38, p. 132 30 ln othercases, itshôuld be establishedweather barriers to the e.stablishmentand operation of foreign-owned firms producingservices are in fact barriers to trade in services. AUhis respect Feketekuty thinks that: Regulations limiting the local production and sale of services by companies owned by foreigners are usually considered not trade barriers, but investment barriers. Nevertheless, restrictions on foreign investment·in services can have a restrictive effect on cross-border trade in services, since trade and investment areoftenclosely linked. Barriers to foreign investment in services thus frequently also constitute barriers to trade in services55 Because of alack of experience with the liberalization of trade in service, which was traditionaUy done on a bilateral and reciprocal basis, complex and Ume consuming negotiations had to take place. As we saw aboYa,. as a result of the Uruguay Round negotiations, tradé in .services was covered for the first time ever by a·global trade agreementthat allowed trade in telecommunications services. m. Use of Foreign Satellites "Ali satellite systems, whether for télecommunications, broadcasting or remote sensing, require the use of radio frequencies, and of either an orbital position (for 54 See Trebilcock and Howse, supra note 50, p.273 55 Feketekuty, supra note 38,.1'.133 31 geostationary satellites), or orbital plane(s) (for non-geostationary satellites) in which to operate optimally',56 The radiofrequency spectrum is used for a wide range of applications, television and radio broadcasts, mobile phones and sophisticated satellite services. The frequency spectrum is a finite but reusable resource, but today new applications and technologies are placing more and more demands upon it.57 Allocation of the radio frequency spectrum isa function of the ITU. There is universal recognition of the need for international cooperation in the use of the radio frequency spectrum in order to avoid harmful. interference among the radio stations of different countries. The ITU· allocatesthe radio .frequency spectrum and requires the registration of frequencyassignmentsby each member country.58 Trying toexplain this in a simpl~ mann~r, we can say that the ITU does the allocation of frequency bands to a certain service, then it makesan allotment of the frequency bands to a certain country and then that county· assigns those frequency bands to its private or governmental entities, following its own domestic licensing procedure. 56 Sylvia Qspina, IntemationarSatellite Telecommunications: Regulation fJystates or by Private Parties? (Kluwer Lawlntemational, Air and Spaœ Law, Vol. XXV, Number 6, November 2000,) ~.278 7 See ITU, Press Release, ITUl97-20, Major Agreements Reached at WRC-97, 21 November 1997. 58 These international ~lIocations are contained in the Radio Regulations, which are created or revised alperiodic special meetings of delegates from ITU member countries. 32 Observingthe rules and procedures established in its national laws, a country can authorize a fore.ign satellite to provide service in itsterritory. Thè way of authorizing foreign satellites varies·from one coulitry to é3nother. When a satellite operator wants to provide services in a foreign country, it must get priorauthorizationbecau$èit would be using that country's radio electric spectrum. Sa whena country authorizes a foreign satellite to provide service in its territory, it nieans that the foreign satellite was already·'icensed in its own country and that. its country assigned it an . orbital position with the corresponding frequency bands. ln the nextChapter, we will see how Mexico,Canada and the US are fulfilling theïr GATS commitments and we. willalso see th.e licensing proœss of these three countries related. to foreignprivate. satellitetelecommunications operators and their regulation on the use of foreign satellites. IV. Unlversal Servicè Within a country's territory, it is olten the case that a single govemment-owned or govemment-/icensedincumbentoperator hascommitted to provide service ta ail or nearly·· ail thecountry's peoPle. 59 This approach has relieved many govemmentsfrom havihg to raise tax (.>r other revenUes to· subsidize service for ifs 59 This is generally coupied withthe abllity ta cross-subsidizeselViceS. 33 citizens who cannot afford to haveaccess tobasic telecommunications services or live in very remote areas.60 Universal service is also addressed in the Reference Paper in the mo Agreement, which provides that: "Any Member has theright to define the kindof universsl service obligation it wishes to maintain. Suchobligations will not be regarded as anti~competitive per se, providedthey are administered in a transparent, non-discriminatory and competitively neutra1manner and are nor more burdensome than necessary for the kind of universal service defined by the Member" According tO the US Fee, the goals of. universsl service., as mandated by the 1996 Act, are to promote the availability of quaHty services at just, reasonable, andaffordable rates; increase access to adVanœd telecommunications services throughout the. Nation; advance the avaHability of such services to ail consumers, including those .in low income, rural, insular, and hi.gh cost areas at rates that are reasonably comparable to those chargedin. urban areas. In addition, the 1996 Act states that aU providers of telecommunications services should contribute to Federaluniversal service in some equitable and. nondiscriminatory manner; there should be specifie, predictable, and sUfficient Federal and State mechanisms to preserve andadvance universal service; ail schools, .classrooms, health care 60 Seê HU, Telecommunication Development Bure~u, WlDC-98, Document 162-E, 25 March 1998, p.14 34 providers, and libraries should, generally, have access to advanced telecommunications services .61 Traditionally, each regulator authority has imposed universal service obligations to its carriers or telecommunications service providers, but there has been no obligation to foreign operators or service providers. Il has been the same for satellite communications. a) the development and operation of satellites in Canada's four orbital positions in the C and Ku bands, should· retain complete national coverage as a primary requirement to .ensure sufficient capacity. b) the. imposition of a universal coverage requirement to foreignsatellites was fundal'l1entally contrary to the spiritandintent of the. GATS protocol; and c).Canadian satellite stations operating in the four Canadian orbital positions in the C andKu bands, in conjunction withthe existing and planned foreign satellite 61 See stations, are sUfficiel1t to ensure that fixedsateHite service. capacity is available to serve ail regions of Canada. The Department will not impose the requirement for universalcoverage .on. foreignsatellites thatare approved, through the earth stationlicensing process, to provide serVices tothe Canadian market. 36 CHAPTER FOUR NATIONAL REGULATION ON THE USE OF FOREIGN SATELLITES L Satellite communications in Mexico Satellite communications in Mexico began in 1968 when the Mexican Govemment placed an earth station for the transmission of signais withINTELSATS2 sateliites. By that lime, ·satellite communications in Mexico could only.· be possible through internati.onal and foreign satellites. ln 1983, satellite communication wasIncorporated into the Mexican Constitution as a "strategie area" to be developed and controlled exclusively by the Mexican Govemment (both space and ground segments). In 1985, the Mexican Govemment placed thefirstMexican satellites, Morelos land Il, in oroit. Later, in 1989, this brpad-based responsibility was redefined to encompass only the installation, operation, control and exploitation of .the spacesegment, white private investors were permittedto .estatmsh and operate related terrestrial infrastructure, exceptforintemationaI links.~ 62 The International Telecommunications Satellite Organization (INTElSAT) started as an international treaty organization eslablished by the Agreement Relating to the International Telecommunications Satellite Organization and iis Operating Agreement, bath of which entered into force on 12 February 1973. INTElSAT provides the space segment for a global satellite telecommunications network. INTElSAT operated as a wholesaler providing service to more tllan 400customers in 143 member countries and numerous non-member countries. Today, INTElSAT in no longer an international organization. On July 18,2001, INTELSAT completed privatization of its commercial operations. 37 The conditions for the installation and operation of earth stations were established in the Reglamento de Telecomunicaciones64 (Telecommunications Regulation) of 1990, which allowed privateinvestment and operation of earth stations through permits (licenses)granted to Mexican individuals or companies by the Secretaria de Comunicaciones y Transportes (SCT)65. The gov~mmental entity Telecomunicaciones de México was created in 1989 to be the Mexican satellite operator for the provision of satellite seNices, Such as conductions of signais. via satellite and leasing dedicate circuits .. for private networks. By late 1994, with the growth in demand fordomestic satellite capacity, and expectations of moving the nation quickly intothe high technology world, the Mexican Govemment decided to openinvestment and operational opportunitiesin Mexican space segment faciHties to private investors. President Zedillo's amèndment to Article 28 of .. the MexicanCon~titution wasapproved by the Congress on January26, 1995, and enteredinto force on March 3, 1995.66 ln essence, th.e amendment converts.satellite· communications from being a "strategie" activity reseNedexclusively for the State to a "priority" activity where 63 See Fee, International Bureaulssues, "Speçi~IReportontv1~xico', Qctober, 1995. 64 Reglamento de Teleœmunicaciones, DiarioOficialde la Federaci6n, October29, 1990. 65 Secretaria. de.Comunicaciones '1 Transportes, whichisSpanish forMinistry ofCommunications and Transport...... 66 México, DiarioOficialde la Federaci6n, March2, tS95. DecretQ mediante elcual se refarmael cuarto pàrrafa dei articula 28 de ia Constituçion Politica de los Estados Unidos Mexicanos. 38 private investors. may participate and compete. The following principles and reasoning were also outlined: (1) The Mexican Govemment will maintain leadership in satellite communications with the objective of safeguarding, at ail· times, the securityand sovereignty interests of Mexico; (2) Individuals may participate in the "establishment, operation, and exploitation" of satellites, through concessions which are granted by the Federal Govemment, with the understanding that the orbital positions and corresponding frequencies will stay under the control of the State; (3) The development of satellite communications will take place in an orderly manner, in accordance with the corresponding international lawsaod treaties. The provision of efficient and accessible services should be fostered at the same time; (4) .At ail times, competition in the sector should be encouraged, avoiding practices which restrictaccess to those services or that are discriminatory,against the interests of consumers; (5) The content ofsatellite transmissions should contribute to the strengthening of cultural values and to the sympols ofMexico'snationaUdentity; and 39 (6) Th.e availability of satellite capacity will be maintained for networks of national security and the provision of services ofa social character, such as rural telephony and distance education. This amendment was the first step, but then it wasnecessary to have a legal framework with the conditions and requirements for private participation, not only for satellite communications services, but also for aU telecommunications services. So the Federal Telecommunications Law ("FTL") was enactedin June 7, 1995. Thislaw esfablishes the conditions for private participation, including those regarding the operation of foreign s.atellites in the Mexican territory, through concassions granted by the Govemment.67 ''The FTL is comprehensive inscope, regulating ail aspects of communications, including the use and operation of radio frequencies, telecommunications networks, and satellite communications within Mexico" ..68 This is also a very progressive Law, since g.etting ahead of the legislation of the 1110st developed countries in the world; itopens ail sectors of the telecommunications industry to competition and private investment. Although the wh.ole telecommunications services have been part of great transformation since the enactment of the new FTL, satellite communications 67 Mexico's Comisi6n Federali delelecomunicaciones ."COFETEl" (Federal Telecommunications Commission) is the govemmental entity that studies and analyzes the requests filed to obtain concessions and licenses regarding telecommunications services. Once the study is done, the COFETEl issues an opinion to the SCT (Ministry of Communications and Transportation).. This entity is the one thatgrantsthe concessions and Iicenses. 40 services are the only ones that have shifted fram a monopoly reserved to the Stateto global competition in only 2 years. ln order to continue with the satellite infrastructure and to be able to pramptly renew the satellites occupying orbital positions assigned to the country, the Mexican Government,in compliance with the spirit of the FTL, started the necessary pracesses to privatize the three satellites owned by the govemmental entity Telecomunicaciones de México (Telecomm). ln order to impiement the privatization, the company with majority state participation called "Satélites Mexicanos, S.A. de CV." (Satmex) was incorporated, which was. assigned the concessions on three orbital positions assigned to Mexico, as weil as the .• ownership of satellites Solidaridad 1, SoHdaridad 2 and Morelos II. (now replaced by satellite Satmex 5). Then, in 1997, 69 $atmex's shares were sold, thraugh· public bid, to. private companies , remaining 25% of the shares to Mexican Govemment. To this date, Mexico has onlyone satellite. operator, SATMEX, who holds three concessions for three orbital positions allocatedto Mexiço by the ITU.. There are only two satellites in use: "Solidaridad2" and "Satmex 5". 68 Aileen A Pisciotta, Te/ecommunÎcations ln MexÎCO: A Market ln TransÎtÎon, (Chicago: CCH Inc.• 1997)p.2 69 Bidding groups could be no more !han 49% foreign .owned. 41 A. Mexico's Commitments on Satellite Communications Services 70 Under GATS, Mexico has inscribed market access limitations with regard to delivery through a commercial presence. Onlycompanies organized under the laws of Mexico are eligible to receive approval from the SCT71 to supply basic telecommunication services in Mexico. Direct foreign participation in such companies is capped at49 percent.72 Mexico agreed market acœss and national treatment for ail services except for requirement to use Mexican satellites for the provision of domestic services untïl 2002. We can find the following limitations in Mexico's schedule of specifie commitments: .. International traffic must be routed through the facilities of an enterprise that has a liœnsegranted by theSCT .. Foreign governments may not participate in an enterprise set up in accordance with Mexican law nor obtain any authorization to provide telecommunications services. 70 See Appendix 10fthispaper for Mexico's Schedule of Specifie Commitments 71 See SCT, supra note 65 72 An exception exists for cellular services where Mexico allows.1 00 percent fôreign ownership. 42 .. In order to provide telecommunications services, a concession from the seT is required.Only enterprises established in conformity with Mexican law may obtain such· a concession. .. Telecomunicaciones de Mexico (Telecomm) has exclusive rights to links with Intelsat and Inmarsat. .. Services otherthan intemationallong-distance services that require use of satellites must use Mexican satellite infrastructure until the year 2002. B. Mexico's Regulation on use of Foreign Satellites According to the GATS list of specific commitments, it is required to use Mexican satellites for the provision of domestic services until .2002. Nevertheless, countries that have signed with Mexico reciprocity treaties regarding satellite communications services, and theircorresponding Protocols for each kind of service, are able to provide satellite services in Mexico.73 The· use of foreign satellites in Mexicohasaspecific regulation that must be observed by Mexican companies or citizens who wish to provide telecommunications services using foreign satellites. Ukewise, when a foreign satellite operator wishes to offer satellitecapacity in Mexico, it has to be done 73 To this date,only Canada, the US and Argentina have signed with Mexico a reciprocitytreaty regarding satellite services. Neverthéless, ooly G~nada and the US have sigued with Mexico Protocols that allow these countries to provide satellite services in Mexico and vice. versa. 43 through a Mexican company that holds a concession that authorizes it to use foreign satellites. 1. Federal Telecommunications Law The company or individual who wishes to provide in Mexico satellite services using. foreign satellites must obtain a concession. Article 11 , fraction IV, of the FTL establishes that "a concession from the SeTisrequired for: Exploiting signal transmission and reception rights offrequency bands associated to foreign satellit~ systems that may cover and render services in the national territory. ,,74 According to Article 12 of the FTL, these concessions shall only be granted to Mexican individuals or companies and foreign investment participation in no case shall be able to exceed 49%. Article 30 of the FTL indicates that the SeT may grant concessions on frequency bands and signal transmission and reception rights associated to foreign satellite systems which cover and can provideserviœs in the national territory provided they have signed treaties· on this matter with the country where the signal originates, .and said treaties consider reciprocity for Mexican satellites. These 74 The procedure and requirements to obtain this kind of concessions are established in article· 8 of the Reglamento de Comunicaci6n Vfa Satélite (Satellite Communications Regulation), issued in August 1, 1997. 44 concessions shall only be granted to companies incorporated according to Mexican law. ln order to provide telecommunications services through. transmitting earth stations, it is required to have a concession ta install, operate or exploit public 75 telecommunications networks , as established in article 15 of the RCVS andin article 11, fraction Il, of the PTL. Therefore, in order to provide telecommunications serviCes through earth stations usingforeign satellites, two concessions are needed, one for the publictelecomltlunications network, and the other, as mentionedbefore, for the useofforeign satellites. 76 On. the other hand, a permit (license) from the SCT is required to install and operate transmitting earth stations for private use. This kind of permit can be owned bya Mexican company with 100%·foreign investment, but it does not allow the holder to provide telecomlllunications services, itis only for a private purpose.77 ln case a company or individual who requests a license for an earth station wants to use a foreign satellite,;t should be proved that the space segmentcapacity service.would be provided by a Mexican company that holds a concession for 75 Public telecommunications network: the telecommunications networkthrough which telecommunications services are commercially exploitee!. The network does notinclude users' terminal telecommunications equipment nor telecommunications networks located beyond the terminal connection point; 76 As it was already mentioned, these concessions can·only be grantee! to Mexican •. individuals or companies and theforeign investment participation in no case shan exceed 49 per c.ent. 77 The SeT must granl aperm.it (and nof a concession) fortlleinstallation and operation of earth stations for private ne1wOrks. If the earthstations are intendedto provide services, then·a concession for a publictelecommunications network must be granted. 45 exploiting signal transmission and reception rights of frequency bands associated to foreign satellites (accordingto qrticle 11, fraction IV, of the FTL). It is very importantto point out that the fact that Mexico requestsa concession for the use of foreign satellites, where the holder must be Mexiêan and have at least 51 % of Mexican investment, does not imply that there is a barrier for allowing foreign satellites to provide services in· Mexico.78 The purpose of this measure is to have a Mexican company responsible for the activities and transmissions of the foreign satellite. 2. Receive only earth stations We already said thaï according to the FTL, a permit is required to install and operate transmitting earth stations for private use. On the other hand, the FTL establishes that no permit is required for the installation or operation of receive only earth stations.79 But noother thingis said about receive-only earth stations. ln the case of receive-only earth stations that provide services, there is no doubt thaïa concessionfor a public telecommunications network is needed,80 be.cause it would be no longer a private network. 78 It would s(:!em that the US and Canada do nothave this "burden" of requesting a concession for the I.Iseofforeign satelUtes. The factisthatthesecol.lntriesasldor almostthe same requirements that Mexico reque!its for granting this concession, .bl.lt theydo it under an earth station licensing process. Soeacl1company or indivldual who WCints a Iicen~e for an earthstation and will use a foreign satellite must prove that the foreign satellite observesalHhe requirements needed. 79 Federal Telecommunications Law, article 34. 46 But, what happens if a receive-only earth station wants to use a foreign satellite? Or wants to receive signais originated in another country? ln the FTL nothing is said about receive-only earth stations for private use using foreign satellites. Nevertheless, the ReVS establishes that "direct or indirect activation of equipment that receives signais of frequency bands associated to a foreign satellite, or any other way of commercial use of thosesignals,within the national territory, will need a concession to use foreign satellites".81 But still, nothing is said of receive- only earth stations receiving signais from a foreign country through Mexican Satellites. 1 think the FTL is not clear in this matter, and it should be stated that when a receive-only earth station is willing to use a foreign satellite, there are two options: a) to obtain a concession for the use of foreign satellites, or b) to lease the service of .conduction of signais from someone that holds a concession for the use of foreign satellite. 82 So, according to COFETEL's criteria , when a receive-only earth station wants to use a foreign satellite, the applicant must prove that aconcessionaire authorized to use foreign satellites will provide the service of conduction of signais. 80 According to article 28 of the FTl: "For the private networl 1think that COFETEL shouldalso consider how to regulate a receive-only earth station receiving signais form another country, even when using Mexican satellites. As we will see later on, the US and Canada establish in their regulations the conditions for the use of receive-only earth stations and a distinction·· is made where a foreign satellite is involved or the signal is originated in a different country. 3. Earth stations for private networks using foraign satellites The lack of clarity of the FTL, as weil as the RCVS, has led many applicants to interpret the· law wrongfully. Many Mexican companies willing to install a private network of earth stations. have required touse a foreign satellite. COFETEL's answer to this request has been that they need to lease the conduction of signais from a company that holds a concession to use a foreign satellite; otherwise, they would have to apply for that kind of concession in addition to the permit for installing earth stations. As we can see, this last option is not a very good solution. First of ail, it is not practical to request the concession to use foreign satellites to each applicant ofa private network, when ONE concessionaire is enough ta offer s~gment capacityof a certain foreign satellite. Second, if we think thata Mexican companywith 100% foreign investment can hold a permit for operating earth stations for private use, 48 those companies are not willing to admit 51 % of Mexican investment just to apply for the concession to use foreign satellites when someone else can get that concession and offer the segment capacity service. This applicants have argued that they will install private networks who will not provide telecommunications services, so they will no "exploit" the signal transmission of the foreign satellite. They argue this matter from the reading of Article 1.1, fraction IV, of the FTL that says: "a concession from the SCT is required for: Exploiting signal transmission and reception rights of frequency bands associated to foreign satellite systems that may cover and render services in the nalional territory". So the applicants of private networks interpret that a concession for the use. of foreign satellitesis needed when the signais are to be "exploited" in Mexico. Again, we could say that the FTL it is not clear in this article, and therecould be confusion on what the word "exploir really means. On the other hand, article 30 of the FTL indicates that. "the. SCT may grant concessions on frequency bands and signal transmission and reception rights associated to foreign satellite systems which.çover and can provide services in the national territory..." Heret the word "exploif' is never mentioned. COFETEL's criteria is that also earth stations for private use must either holda concessionto use foreign satellites orlease that segment capacity froma 49 concessionaire authorized to usethat foreign. satellite. This is because Mexico needs a point of control for the transmissions of the foreign satellite. The process of authorizing foreign satellites is different in Mexico, compared to that in the US and Canada wherea ·Iistof authorized foreign satellites is .issued. But that does not mean thereare fewer requirements or thatit .iseasier to be authorized in these countries. Ali the requirements and information that applicants must comply with in order to obtain a concession to use foreign satellites in Mexico, are almost the same that are required in the US and Canada to the earth station applicants. The difference is that they do not issue an additionallicense for the use of foreign satellites, but the applicantof the earth station license must provide ail the information and requirements of the foreign satellite system. Even if it is done in a different manner, US and Canada will n.ever authorize a foreign satellite unless. ail their requirements are fulfilledandtheir point of control is the earth station licensee. Il. Satellite communications in US The Communications Satellite CorporationS3 (COMSAT) was created byan Act in 84 8S 1962 , to be the US signatory. of the international consortium INTEL8AT . 83 COMSAT is a non-US Governrnentagency, cre~ted forproflt by USlaw and is administered Iike P.trivate corporation. Foreignpersonsmay Ilold no more tllan 20% of COMSAT's stock. Communications Satellite Act of 1962, (31 august 1962). 47 USCS Sec. 701 85 See INTElSAT supra note 52 50 "COMSAT has been the entry door of ail US common carriers to the INTELSAT space segment capacity".86 Later, Hughes Aircraft built Eariy Bird, the first private communications satellite to be located on the geostationary orbit in 1965. In 1970, the Nixon administration asked the FCe to liberafize satellite communications and, in 1972, communications by satellite were opened ta competition withthe adoption of the Open Skies policy.87 "The 1980'5 saw thedevelopment of the first Fee satellite regulations, mostly directed to the Fixed·Satellite Service (FSS) using satellites placed on the GSO. Radical changes were to happen in the following decade with the advent of mobile satellite services, prompting new sets ofregulations".88 The Telecommunications Act of 199689 is of mUe direct interest regarding satellite communications, however "the Act reasserts the deregulation trend within the US domestic telecommunicationsindustry. The philosophy of the Actis given in its introduction: 'An Act to promote and reduce regu.lation in ol"der to Secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunication technologies'."90 86 Salin, supra note 21, p.20S 87 See id, 1'.150 88 Îd,p.151 th nd 89 T~I~communÎcationsActof1996. Publiclaw 104-104,1'.31. 10 Congress, 2 Session. Mareil 1996. 90 Salin, supra note 21, p.156 51 A. United States' commitments on Satellite Communications Services91 United States commiUed to open markets for essentially ail basic telecomm services for ail market segments. The limitations are fourfold. A license may not be granted to or held by: .. a foreign g.overnment .. a non-U.S. citizen .. any corporation not organized under U.S.laws, or .. a U.S. corporation of which more than twenty percent of the capital stock is owned or voted by aforeign government, a non-'U.S. citizen, or a corporation not organized under U.S. laws. United States agreed market access and national treatment for ail services except direct-to-home (DTH), direct broadcast satallite(DBS), and digital audio radio services (DARS), al50 sUbject to an MFN exemption, with a limit .of 20 percent direct foreign investment in· radio licenses.92 The United States has inscribed market access limitations with respect to directforeign ownership of a common carrier radio license. ~1 See Appendix 2 of this paper for United States' Scl1edule of SpeCifie Commitments. 92 The. US negotiating position is that DTH and DBS are treatedas telecommunications in the US, butas broadcastingservices in other countries. Sinœ thoseotherçountries are not Iiberalizing the broadcasting sector, tl1ere is no reason for the US to permit its telecommunications Iiberalization to extend to satellite defivery of videoprogramming. Gerald E. Oberst, Sr., "Satellites and World Trade", Regulatory Update,· p.18 online: "The US. exempted (protected) direct-to-home satel.lite, digital bro~dcast and digital audio -the areas expected to be the most profitable with the convergence of telecom, information and entertainment services.,,93 Mexican firms now have full aCCeSS to the United States market for the provision of ail .basic telecommunications services. Re.gulatory barriers that foreign telecommunicationscompanies face in entering the U.S. are being reduced. The Federal Communications. Commission (FCC) is .the agency >authorized to 94 administer the law and regulations . The FCC has substantial discretion over whether to barforeign ownership in the communications field. This authority differs from the discretionary restraints administered by other agencies where the President ultimately decides whether to. block .an investment. The Communications Act provides that no broadcast or common carrier license may be granted to or held by any alien individual orforeign corporation if the FCC finds that refusai to. grantor revocationof the license wilLserve the public interest. Foreign investors must be mindfu1of this provision not only wheninvesting in U.S. communications cornpanies, but also When acquiring. an interest in a diversified U.S. corporation that does not operate in the communi~tions industry, but that mayhave sorne holdings in cornmon carriers; the FCC could force the acquirer to 93 Ritchie, supra note 37, p. 27 94 See James Shaw, Telecommunications Deregulation, (Artech. House, Boston, 1998.}p.31. The Federal Communications Commission was esfablishedby the 1934 statute, the agencyis charged 53 divest such holdings. The Communications Act also sets forth theexptess prohibition that no station licenseof any kind may be granted to or heId by a foreign govemment. Foreign investorsalso are restricted from wireless satellite communications under the Communications Satellite Act of 1962, whi.ch established a satellite communications system for servicing the United States. Under au~hority of the Act, COMSAT was established to administer this satellite communications system. Although COMSAT is a private corporation, itis subject to federal regulation by the Communications Satellite Act, and foreignownership of shares in the corporation is Iimited to 20%. ln implementing the U.S. WTO commitments, the FCC has opened the U.S. satellite. market by waiving the ECO-Sat test for applicants seeking to access satellite systems licensed byWTO Members to provide satellite services covered by the U.S.commitments.95 ln evaluating wro Member applications, the FCC will determine whether grant of the requested authority is consistent with the public interest, convenience and necessity, considering factors such as the effect on competition in the United withthe responsibility ofimptementing the interitof federal commûnications staMel;. The FCC drawsits b!Jreaucratic authority fromboth the 1934Act and 1996 communications statutes. 95 See. Bobert l. .Hoegle, "Foreign Ownership Caps and the.WTO Agreement: The Movement Toward 'One Size Fits AIl' ", The Catholic University ofAmerica, winter 1998. 54 States, spectrum availability, eligibility and operating requirements, and national security, law enforcement, trade and foreign poUcy concems.96 B. United States' Regulation on the use of fOl'eign Satellites ln order to ensure competitive access to the home markets, the FCC adopted the Effective CompetitiveOpportunities ("ECO") test in November 1995. The ECO test utilizes six competitive access criteria to assess whether the home market of a potential entrant into the U.S. telecom market has reached competitive access parity with the U.S. Under the ECO test, a foreign carrier can only receive a Ucense for providing telecom services in the U.S. if U.S. carriers enjoy "effective competitive opportunîties" in those markets where the foreign carrier is dominant. 1. Fee Orders of 1997 ln 1997, the FCC drasticaHy revised its rules to implement the U.S.WTO market access commitment and open the U.S. telecom market to WTO Members. Applicants from WTO Members no longer need to satisty the ECO test. However, as we will see next, the FCC retained the rigorous ECO test fornon-WfO Member applicants and for DTH, DBS and DARS satellites services. On November 25, 1997, the FCC, in two separate Orders, issued its ownopen market entry rules to commit the United States to the GATS Fourth Protocol for 55 Basis Telecommunications Services. The first arder provides the basic overall guidelines for intemational telecommunication services. The second focuses specifically on market entry of foreign satellite operators in the US market.97 Despite the implementation of the WTO agreement on telecommunications services, US customers who wanted to use a satellite that did not appear on the FCC's list of pre-approved satellites faced additional regulatory barriers. The Permitted Spaœ Station list denotes ail satellites with which US earth stations are permitted to communicate without additional action by the FCC.98 The FCC will not require satellite systems already liœnsed by other countries to obtain redundant space station Iicenses from the United States. Rather, the FCC permits these systems access to the U.S. market by licensing earth stations to operate with non-U.S. satellite systems. Consequently, "the FCC will regulate access to the U.S. by non-U.S.satellites through the earth station Iicensing proœss, because the earth station Iicense m 99 provides 'the only regulatory point available to the Commission • 2. FCC Order of 1999 97 Fed~ral Communiçations Commission (FCq), ln the Matter of Amendment of the Commission's Regulatory Policies ta Allow Nan"U.S.-Ucensed Spaœ Stfjtians ta Provide Domestic and International Satellite Service in the United States, Washington, D.C. 20554, November25, 1997. 98 lnDecember of 1Sl99, Telesatannouncedits full access to the US tixedsatelUte communications market with Cf,inadian satellites Anik gtand E2. These satellites became the tirst non-US satellites to he placed on the Federal Communications Commission's Permitted SPéice Station list. 56 ln an Order adopted on October 2.9, 19.99, the FCC simplified the process by which authorized non-U.S. licensed''fixed'' satellites may serve the U.S. market. 100 This Order establishesstreamlined procedures thalare beneficial in three ways: First, a non-U.S.-Iicensed satellite provider may 1l0W seek,. on Us own initiative, and at any time, Commissionauthorization to provide service in the United States. Upon approval, a foreignspace station operator would beeligible to serve in the United States. The name of that satellite would appear on a list that will be called the "Permitted Space Station" list. This mechanism will be beneficial to a non-U.S. satellite operator on the PermittedSpace Station list because, as a result, that operator could market its satelliteserviœs to potentialearth station customers. Second, the Order also is helpful to earth station providers. It generally allows an earth station operator liœnsed bythe Commission toaccessany satellite on the Perrnitled.SpaceStation list. In addition to authorized non-U.S. space stations, the list willinclude U.S.-licensed spacestation satellites that currently are treàted as "ALSAT.,101 satellites. Third, the Order is valuablefor satellite providers because.it removes the existing requirement thatan earthstation licensee modifyits license prior to accessing an authorized non-U.S. satellite. 99 Hoegl, supra note 95 100 Federal Gommunications.Commission (FCC), Commission Simplifies proce.dures for Non U.S.-Licensed Satef/ites to Provide Service to the u..S. Market, October 29, 1999 lB Docket No. 96-111 Report No. IN 99-33 57 On November 15, 1999,102 the Fee issueda final rule that permits the operators of in-orbit non-U.S. satellites to request authority to provide space segment capacity service to liœnsed earth stations in the. United States. Also, it permits earth station licensees to access aparticuiar non-U.S. satellite to provide fixed- satellite service in the conventional C- or Ku-bands without further regulatory approval, once that non-U.S. satelliteis authorized to serve the United States. Therefore, in addition to obtaining US access through an application filed by an earth station operator, non-US satellite operators may now file Petitions for Oeciaratory Ruling, on their own behalf, seeking a ruling as to whether the Fee will permit the non-US satellite to provide service in the United States. Nevertheless, the Fee will continue to look to. the earth station licensees communicating with the foreign satellites as its regulatorycontrol point.103 101 ALSATmeans "ail U.S.-Ii~ns~Q satellites". 102 Federal Communications Commission (FCC), Common Carrier Services: Satellite Communications-Earth Stations Operatinr; .. with. Non-US. Licensed Space Stations; Application Requirements, 64 FR 61791, FEDERALREGISTER,y0J. 64, No. 219 Rules and Regulations, 47 CFR Part 25 [lB Docket No. 96-111; FCÇ 99<325].tv1onday,November15, 1999. 103 At first, a non-US space stationoperator seeking.immediate accessto the USmatketmust identified a U.~.earth stationoperator tofile an .earth .~tation application ora modificationto an existing earth station Iicenseto communfcate with th~t$pacestatiqn. To determine",hetller tlle non-U.S. satellite (;()mplies with an appli~ble Commission requirements, the.earth station application must De accompanied by· s~bstantially thesame detailed ..informationabout the 1'101'1 U-S. space. station and its operationsthé)ttlle CommissÎQn requireslJ'S, sp()ce station applicants toprovide. Specifically, each eartll stationapplicationmustcontainthe .information required in Section 25.114 of the Commission rules, whic;h ·.. governs . applications for •space station authorizations. So, on April 27, 1998, Telesat Canadarequested that the Commission Issue a Declaratory Rullng orgrant a waiver of th~ Comn'lission's ea.rth station licensing procedures to permit U.~. earthstations to access the Canadian. ANIK Et anQ ANIKE2sateUiteswithout requiring earth >stationlicensees to file modification appli~tions to add these s.atellites as authorized pointsofçommunication, arguing that it is often diffiRu/t fora non"U-S. satelliteoperator to attract an earth. $tation customer befoJ~the Commission authorizes the satellite· operator to offer service in the United States. 58 These Petitions for Declaratory Ruling must be accompanied by the same documentation that must·accompany an earth station application to access a foreign satellite, specitically, ail information required by Sections 25.114 and 25.137 of the Commission's rules for the non-US satellite.104 These actions were intended to simplity procedures for foreign entry into the US market for fixed-satellite services, thereby· enhancing competition. The FCC expects enhanced competition to provide consumers more alternatives in choosing communications providers and services, reduce priees, and facilitate technological innovation. The Commission makes public a list of non-U.S. satellites providing fixed-satellite services in the conventional C- and Ku-bands that have been approved to provide space segment capacity service in the United States, together with any applicable conditions or limitations on that access. 10S Regardless of the level of foreign ownership in the proposed licensee, the FCC has proposed to apply an ECO-sat analysis in evaluatingapplications for earth station Iicenses that involve one-way satellite television and radio services, including DTH-FSS, DBS and DARS, using a foreign-Iicensed satellite and for access to satellites Iicensed by non-WTO Members for ail services. 106 The FCC 104 See Title 47, sect.ion 25.114 and 25.137 oUhe US Code of Federal Regulations. 105 See Appendix 5 oft.his paper for the Permitted Space station List. 106 See Hoegl, supra note 95 59 must determine that US satellites have effective competitive opportunities in the relevant foreign satellite market before it will grant such authorization The FCC has retained the ECO-Sat analysis for such earth station licenses because of the need to encourage open markets for DTH, DBS and DARS serVices and to avoid anticompetitive conduct in the U.S. market. «Note, however, that these services may be covered under a separate bilateral agreement such as that between the US and Mexico,,107 However, because non-U.S. satellite systems are, by definition, systems that operate without space station licenses from the United States, the framework for expanding their access to the U.S. market must include sorne mechanism for achieving thecriticalspectrum management goals thatare normaUy served by the FCC spaœ station licensing prbcess. For example, the FCC indicates that "in order to determine the extent to which competing satellite operators may share frequencies within the same service area withQut interference, it is important that we have the same technical information about non-U.S. systems that we require from U.S. spaœ station liœnsees". 108 Similarly, il is important that U.S. technical standards are observed by ail the systems authonzed tooperate within the United States, regardless of which administration coordinates the space stations intemationally. "The United States 107 Howard J. Barr, "FCC's New Foreign Acœss and Satellite licensing Rules" (pepper & Corazzini, LL.P, Attorneys at Law, October 1998). 60 must also have adequate assurance that interference can be prevented or remedied by any available means, includingpre-Iaunch coordination, modification of system coverage, or, in extreme cases, cessation of s.ervice -ail of which we can require of U.S. licensees".109 3. Receive only earth stations Notwithstanding the rapidly changing regulatory landscape, a Iicense is still required to use a receive-only earth station to.receive any signal transmitted over a non-U.S. satellite. 110 The FCC revised its receive-only earth station rules and decided that operators of receive-only earth stations accessing US Iicensed satellites for the reception of foreign originated signais no longer need be licensed by the FCC. 111 But operators of receive-only earth stationswill still be required to obtain a license to access a non-US Iicensed satellite. The Code of Federal Regulations (CFR) establishes that "reception of signais or programming from. non-US satellites may besubject to restriction as a result of international agreements or treaties". 112 U also establishesthat "receive-only earth 108 FCC, supra note 97 109 id 110 See US CFR, Title 47, part 25, section 25.J31 111 Barr, supra note 107 112 CFR, Title 47, Part 25, section 25.131(9) 61 stations operating with non-US Iicensed space stations shall. request a license or modification to operate such station".113 ln order to minimize the burden of subscription DBS services applications, the Fee pennits applicants to request "blanket" Iicenses covering thousands of technically identicalreceive-onty antennas such as home satellite. dishes. The space station operator, service supplier, equipment manufacturer, or even an electronics retailer may file such blanketapplications. If the FCC previously has granted .a particular foreignsatellite access to the United States to. provide DTH/DBS services, it will permit the applicant for ablanketearth station license to include an exhibit citing the prior grant of access and confirming its intention to providethe same previously authorized services. c. Telesat in US On April 27, 1998, Telesat requested that the FCC issue a declaratory ruling or grant.a petition for waiver of the Commission's earth station licensing procedures to permit U.S. earth stations to access the Canadian ANIK Et and ANIK E2 satellites without requiring earth station licensees to file modification applications to add these satellites asauthorized points ofcommunication.114 113 CFR, Title 47. Part 25, section 25. 131(j) 114 See FCC, "In the Matter of Te.lesatCanada Reqtiest for Declaratory Ruling or Petition for Waiver on Earth Stations' Use of ANIK E1 and ANIK E2 Satellite Capacity to Provide Basic Telecommunications Service in the United States", Order Adopted: December 9, 1999. 62 On December 8, 1999, the FCCadopted the following: "IT 18 ORD6R6D that. .. each E}arth station with "AlSAT" designated as a point of communication,IS GRANT6D authority to provide Fixed SateUiteServices (FSS)... ·to,from, or within the United States, byaccessing the ANIK 61 and ANIK 62 sateIHtes.»115 Nevertheless, this authorization· does not authorize Telesat te> provideany· Direct- to-Home (DTH) service, Direct Broadcast Satellite (DBS}Service, or. Digital Audio Radio Service (DAR8) to, from, orwithin the l.)nited States. 116 Telesat's Anik 61 and 62 satelHteseam.the historic distinction of becomingthe first non-US satellites to be placed on the FCC's PermittedSpace Station list - a designation that paves the way for US customers to use Telesatsatellites for services liberalized under aWTO agreement. 117 Despite the implementation of the WTO.agreement on telecommunications services, UScustomers who wanted to use é3 satellite that did not appearon the FCC'slist ofpre-approvedsate!litestaced. àdditionalregulatory barriers. The PermiUed Space Station list denotes allsatelHtes with whiçh US earth stations are permiUed .to communicate without additional action by the FCC.Now that Telesafs Anik E1 and 62 are. onthis list, the company cancompete on a par with US satelHtéioperators. 118 115 Id, orderingclause 19 116 Jd,orderingclause 22 117 See < trtlD://v!Î\rWdeiesatcafnews/archlved/1999f99-09. > visitedJuly26, 2001. 118 id < 63 As we can see,WTO and GATS commitments do not operate automatically. Telesat Canada had to requestto.be placed in the FCC's Permitted Space Station List, and it took the FCC one year and 8 months to authorize Canadian satellites Anik E1 and E2. Later, on April 20, 2000, Telesat requested the FCC to add ANIK F1 to the PermiUed Space Station List. On December 18, 2000, after a complete DISCO Il analysis, theFCC adopted an order pl~cing Canadian satellite Anik F1 to the Permitted Space Station LiSt. 119 Again, it was stated that Telesat Canada is not authorized use ANIK F1 to provide any DTH, DBS or DARS services to, from, or within the United States. D. Satmex in US On December14, 1999, SatMexrequested the FCC to add satellites Solidaridad 2 and Satmex 5 to the PermiUed List. On October 2, 2000, the FCC adopted an order indicating that each earth station with "ALSAT". communication, .is granted authority to provide Fixed Satellite Services (FSS), including direct-to-home service, to, fram, or within the United States, by accessing the Solidaridad 2 and SatMex Ssatellites. 12o 119See FCC,"Telesat Canada Petition for Oeclaratol'y Ruling For Inclusion of ANIK F1 on the PermittedSpaee Station List" Order Mopted: December 18, 2000. 120 Se.e FCC, "Satélites Mexieanos, SA de C.V., Petition for Deelaratory Ruling",Order adoptee! Oetober 2, 2000. 64 As we will see in the last chapter of this work, Mexico and the United States have reached a bilateral agreement that allow&Mexican satellites to offer DTHservice and DBS service in the UnIted States, and vice versa. tu. Satellite Communications in Canada On September 28, 1962, Canada placed the Alouette 1 communications satellite ona low earth orbit. Later, in 1972, TeleSatCanada launched the first of its Anik satellites for the Fixed Satellite Service.121 "Canada launched a wholeselies of satellites in the 1980's primalily usedfor TV broadcasting purposes (OBS)".122 Telesat Canada was incorporated in .1969 by the Telesat Canada Act to·· provide satellite commercial telecommunications services in Canada. Initially, the Federal Govemment owned49% of Telesat shares,while the rest were divided among approved telecommunications common carriers. 123 Tele.satwas fuUyprivati;zed in 1992 and retained ils statusas CaQada's monopoly domestic satellite operator until March 2000. When the company was plivatized, the federal govemment declared that it would only license Telesat to operate so thatilcould provide fixedsatellite.sêrvicèsin Canada orbetween Canada and the US forten yearsfromthe sale.174 121. Telesatmade history with the launch of MikA1h11972, theworlô's tirst commercial domestic communicationssalelliteplaced in thegeostationary omit. 122 Salin, sut:>renote21 , p,·235 123. $4l1nyHanda, Richard Jal1da, OavidJohliston ;and .. Charle.s Morgan, Communications in Canada, (Butterworths, Toronto and Vancouver, June 2000) p.2.12 and 2.31 1241d, 1'.2.32 65 At the beginning, Telesat was thssole Canadian fixed satellite carrier for domestic and Canada-US traffic until .Mareh 1, 2000. 125 Only earth stations that were liœnsed to Telesat were permitted to route cross-border (Canada-US) fixed satellite traffic. Teleglobe was eligible to be>licensed for earth stations under the previous monopoly for international telecommunications. A. Canada's commitmentson Satellite Communications The adoption of theGATSCommitments and the Reference Paper dispositions, in conjunetion with legislation and regulatory amendments, now makes Canada one of the mostopen and competitive telecommunications markets. Canada·. committed in its GATS schedule to allow the use. offoreign sat~llite stations to provide. international (except Canada-US. traffie) fixed satellits services as· of December 31, 1999. The use of these satellites is approved under a common earth station licensing pro.cess. Telesat Canada's monopoly as the sole Canadian fixed satellite.faciUty provider for domestie (Canada-Canada) and cross-border (Canada-US) satellite services ended on March 1,2000. On the samedate foreign satellites wereabfeto provide telecommunication services to. Canadians· and traffic routing ruIes for ail international servicesatidallsateHite services were removed.Nevertheiess, use 125 The Govemmellt ofCanacla was c()lTImitt~ to maintain Telesafs monopoly statlJs until March 1, 2000, the scheduledtermination date in the GATS commitments. 66 of foreign satellite networks is not permitted for the transmission of Direct-to-Home (DTH) broadcasting services in Canada. The Govemment of Canada ccmsidered that permitting .service providèrs (carriers and resellers)· and private users the flexibility to own and operatè their earth stations wQuld provide substantial benefits and support greater competition and innovative use. of the fixed satellite services.lndustry Canada moved to fully liberalize itslicensing oftransmit and receive-only earth stations to permit service providers and usersJo operate theïr own stations on ail approved fixed satellites. ln accordance with the schedule of Canadian commitments to the GATS"-ABT protocol and other liberalizations introduced in the Policy Framework for the 126 Provision of FixedSatellite Services , foreign owned and .controlled satellite stations are permitted to provide domestic, cross-border and international service. Canada has restricted. the delivery through a commercial presence of basic telecommunication services by Iimiting foreign capital participation in most basic telècommunication service companies based in Canada to a.cumulative total of 46.7 percentof voting shares, basedon 20 percent direct investment and 33 1/3 percent indirectinvestment. Inlight of several developing-country offers that allow moreforeign participation than does Canada, this limitation was not wellreceived by Ganada's major trading partners. 67 An exception to this limitation has been made· for mobile satellite systems and fixed satellites that are 100 percent foreign-owned and controllf3d. These services maybe uSed by Canadian serviCe providers to provide services in Canada. B. Canadian Regulation on the use of Foreign Satellites Canada has already oneot the. most open telecommunications regill'les in the world. Many of the building blocksfor fair and sustained competition that Canada too.k for granted are onlynow being establishedin other countries. For example, Canada has a pro-competitive regulatoryframework and an independent regulatory body - the Canadian Radio-television and Telecommunications Commission (CRTC). The CRTC serves as a model for the many countries.now in the process of establishing their own. independent regulator. The Govemment of Canada has amended its legislation to give effect to its mo commitmentsand has terminatéd the monopoly of Teleglobe Canada over telecommunications facilitieslinking Canadato overseas destinations. 1. Poliey Frameworkforthe Provision .of Fbced Satellite Services The liberalization of communication satellites services is an ·ill'lportantcomponent of the WTOagreement in advancinginternational competitionin a meaningful way and. Canada already has liberalized its mobile satellite policy .. The modemization 126 Indl.lstry Cal)ada. PoNcy Framework for the Provision of Fixed Satellite Services, 68 of the licensing policies dealing with fixed satellite services under the POlicy Framework for the Provision of Fixed Sateflite Services127 represents the final component of Canada's implementation of a licensing regime for communication satellite neîworks to fully meet or exceed its commitments to the WTO. 128 Licenses for earth andsatéllite stations within Canada are issued by Industry 129 Canada under the authority of the Radiocomunication Act . Subsection 4(1) of thisActstipulates thatno person shall instan, operate or possess radio apparatus, except under and in accordance with a radio authorization, or where radio apparatus has been specifically exempted from licensing by the Act or by regulations made> pursuant to the Act. At tirst, Industry Canada opened the licensing of transmit earth stations immediately to service providers and private users using Canadian and foreign satell.ite stations for intemational telecommunications (excluding Canada-US traffic). After March 1, 2000, with full competition in aiL satellite markets, the limitation of licensing earth stations only to Telesat for cross-border (Canada-US) fixed satellite traffic was removed. The lise of foreign satell.ite stations will be approved by means of Iicensing the associated Canadian earth stations. The approval processforearth stations using fixed satellite stations that have completed intemational coordination and are (Radiocommunications Act, NoticeDGTP-019-98, Deœmber 1998). t:nSee id 128 See Iicensed by a member of the wro, or operated byINTELSAT, will ensure that Canadian speetrum policy, technical and operational requirements are met. The applicanthas an agreement withia providerof satellitefacilities to accessa satellite station, or constellation of satellite stations, which has been approved for use by Industry Canada for the provision of. fixed· satellite· services; and the operation of the earth station complies with spectrum policy, radio system standards and procedures with respect tofrequency allocation, spectrum utilization and efficiency, orderly deployment and co"existence withother radio services and networks. 130 Also, the proposed satellite service must beable to co-exist and operate with existing stations operatihg in the fixed satellite and otheraUocated services. Applications proposing to Utilizesatellite stations which are licensed by a non- MO member willbe .•.. treated on a case--by-case basis. Certain additional requirements may be imposed, asdeemedappropriate, for allowing these satellite stations to access the Cahadian markets. 129 RadiocommuniçationsAct, RS.C., 1985, c.R-2. Industry Canada. Spectrum Management. RA Issue 3, 1January 1994. 130 Seelndustry Canada, supra note 126. 70 2. Proceduœfor theSubmissionofAppUcations to License FixedEarth Station~andtoApprove the Use of Fo~ignFixed,.SateIUteService Satellites in Canada131 To apply forapproval for the.·useof foreign FSSsatellit~s in theCanadian market, applicants such as satellite operators (or their representatives in Canada), radiocommunication carriers, servic:éi providers orusers, lTlay submit the information Jisted in Annex V of thisProcedure. 132 Where Industry Canada is satisfiedthal the proposed satellite{s) meetsall the criteria for usage in Canada, as described in the FSSpo!icy fral11ework, the department will advise the applicant and add. thé·· particulars of the·satellitf:} to the list of approved FSS satellites. 131 Procedure for the Submission of Applications to Ucense Fixed Earth Stations and to Approve the Use ofForeign Fixed-Satellite Service (FSS) Satellites in Canada. Industry Canada, Spectrum Management and Telecommunications Policy, Client Proc~dures Circular, CPC-2-6-01, July 2000. 132 Annex V. Information Required to Obtain Approval to Use a Foreign Space Station in the Fixed-satellite Service: Applicant: 1 Give the full name and address of the applicant, as weil as a contact name, telephone number, facsimile number, and electronic mail address. 2 Describe the nature of the relationship between the applicant and the satellite operator. Satellite: 1 Give the name of the satellite and the satellite operator. Include the name of the satellite as notified to the ITU. as weil as the commercial name of the satellite. 2 Indica1e the remaining life expectancy of the satellite. 3 Name the administration responsible for the satellite and indicate whether the administration is a member ofthe World Trade Organization (WTO). 4 Give the dates that the administration coordinafed and notified the satellite, in its current or proposed operating condition, to the International Telecommunication Union (ITU), and provide the ITU special section reference number and publication date for both filings. 5 For geostationary orbit satellites, provide the orbital position of the satellite in degrees West longitude. 6 For non-geostationary orbit satellites, provide the number of orbital planes, the number of satellites in each orbital plane, the angle of inclination of each omit, and the altitudes (in kilometers) of the apogee and perigee ofthe satellites. 7 Describe the extent and nature of the satellite coverage in Canada. Inciude coverage maps if necessary. 8 Ust the frequency bands that will be used by the satellite, and indicate which bands the associated earth sfation(s} will use in Canada. 9 Describe the types of services to be provided in Canada. 71 Requests to utilize non-Canadian satellite. stations to provide fixed satellite services for Canadian international markets will be assessed to ensure that: • the satellite station has been authorizedby a mo member administration; • the satellite network has been successfully coordinated via the appropriate ITU (International Telecommunications Union) procedures andregulations (if coordination has not been completeçl,approval may be granted subject to.successful completion); and • the satellite station complies with Canadian spectrum policy requirements, in particularwith respect to frequency allocations, utilization and efficiency, orderly deployment and co-existence with other radio services and stations. Industry Canada will continue to require that Canadian authorized satellites In the C (6/4 ·GHz) and Ku (14/11 GHz) frequency bands provide universal coverage of ail regions of Canada, but there will be no such requirement placed upon foreign satellite stations as a condition to access the Canadian domestic market. 3. Receive-OnlyEarth Station Authorizations Industry Canada solicited comments regarding extension of license exemption of receive-onlyearthstations. Many receive-only earth stations alreadyoperate under an exemption from the requirement to obtain a radio station license, more 72 specifically, receive-only earthstationswhich operate with a Canadian authorized satellite station. Those receive-only earthstations not explicitly covered by an exemptionrequirea radio station·'icense, whichis issuedin accordance with the policies applicableto transmitearth stations. 133 The Departmel1tconsid~rs il to .be in the publicinterest to ext~nd the r~ceive-only earth station exemptions to encompass ail earth stations providing a telecommunications service via an approved satellite station. Effective March 1, 2000, aH receive-only earth stations which provide a telecommunications service and which operate with an approved satellite will be exempt from licensing provided they meet the technicalcriteria specified in Radio Standards Specification 210 (RSS-2tO). These stations will not be protected from potentially·harmful Interference sources. The Department will·considerapplicatiQnsto Iicense receive-only earth stations if protection is requiredfrom potential Interference or if coordination· is required with other services or radio stations. Until March 1, 2000, the existing policy provisions for the Iicense exemption of receive,.only·earth .statiôns using Canadian satellites for Canada-Canada traffic will remain.îneffect.134 133 Seelndustry Canada, supra note t26,.secti<)O 4.4.3. Public Comment Opinions of the respondents varied withrespect to thebeneflts t() he achieved by extending the.dass.. ofstations that shol.lld. be exempted froltt thelic~nsingrequirement S~cificallyi .certain respondents advocatedtheextension ofthee.x~mption toinclude ail receive-only earthst~tions, other proposed the extension •. ofth~ exemption. to .include r~ceive-only earth sta~ions. operated· by a.·· Broadcast Distribution Undertaking, Whne the maJority of resp()ndents indicated. that no further Iiberalization of the licenseexemption criteria was needed. 134 Seelndl.lstry Canada, supra note 126. 73 CHAPTER FIVE BILATERAL AGREEMENTS ON SATELLITE COMMUNICATIONS 1. Agreement Bemeen the Government of the United States of America and the Govemment of the United Mexican· States Conceming the Transmission and Reception of Signais from Satellites for The Provision of Satellite Services to Users in the United States of America and the United Mexican States "In order to be able to start competition in satellite services by means of the use of foreign satellites, on April 28, 1996, the [MexicanJ Senate ratified the Treaty between the Government of the United Mexican States and the Government of the United States of America. This legal instrument permits the reciprocal provision of services in the territory of bothcountriesusing satellites of any of these."135 This Agreement. was. signed in order to establish the conditions for the transmission and reception Of signais from satellites for the provision of commercial satellite services to users inthe United States and Mexico. Following, we will see sorne of the most important provisions of this Agreement. Article IV (1). Conditions of use: "...satellites (ofeach county) are permitted to provide service to, from. and within (theotber country) in conformance with applicable laws (of the other country), to theextent these servic~s enhance rather 74 than distort competition in the (reception) market... and to the extent that these services enhance public interest objectives.,,136 Article IV (1.2) of the Agreement establishes as follows: "United States Satellites will be permitted to provide service to, fromand within Mexico, in conformance with applicable provisions of· Mexican law, to the extent that these services enhance rather than distort competition in the Mexican market for Satellite Services, and to the extent that these services enhance public interest objectives, and reciprocityisafford~d.to Mexican Satellite operators in the United States". This provision is very important because it clearly states that US satellites can provide service in Mexico· "in conformance with applicable provisions of Mexican law". It is important to point out that the provision of services in Mexico by US satet/Ites .is not automatic once the Agreement entered intoin force. The provisions of the FTL and the RCVS must be observed, as explained before on section LB of ChapterlV, which means that US sateUiteoperators must provide their services through a Mexican entity that holds a concession that authorizes the use of foreignsatellites. The advantage of this treaty is that Mexico at/ows US satellites operators to provide services in Mexico before 2002. 137 Under this framework agreement, separate·. protocols have. been negotiated on Direct-to-Home (DTH) broadcasting satellite service, andfixed and mobile satellite 135 PiscioUa, supra note 68, p. 5 136 Salin,sup(f~ note 21, p.256 137 ·ill the GATS list of specifie oommitments Mexiooestablished that services that require use of satellites must m~e Mexican satellite infrastructure until the year 2002. 75 services permitting satellite operators in either country to access the markets of the other. These protocols allowed the privatized Satmex system to operate on an international basis in the U.S.-Mexico market. Because of this reciprocity treaty and itsprotocols,US satellite operators did not have 10 wait unti.l 2002 to provide services in Mexico, as established in Mexico's GATS commitments. This matter is not discriminatory ta WTO members, beçause, at any time, a WTO member could ask Mexico to sign a reciprocity >treaty regarding satellite communications In order to enter the Mexican satellite market before 2002. A~ US-Mexico Protocol for DTH Satellite Services This Protocol138 is the first to beestablished between the two countries and is a direct consequence of the bilateral Agreement. "This Protocol and the bilatera1 Agreement which stands behind .may be considered as a first document of this type among western nations".139 The purpose efthis Protocol is te establish conditions and technical criteria for the use of U.S. and Mexican Satellites for the delivery of Direct-to-Home Fixed- 138 011 November 8, 1996, the US and Mexico signed the Protocol Conceming the Transmission and Reception of Signais from satellites for the Provision of Direct-to-Home Satellite Services in The United States ofAmerica and.The United Mexican States. The Protocol enteredintoforœ on November 11,1996. 139 Salin, supra note 21, p.257 76 Satellite Services (DTH-FSS) and Broadcasting-Satellite Services (BSS)140 to, from, and within the territories of the Parties, andto facilitate the provision of these services, from, and within the United States and Mexico via Satellites licensed by the Parties.141 Article VIII (2) of this Protocol indicates as follows: "Mexico agrees to permit Satellites licensed by the United States to provide DTH ... FSS and BSS to, from, and within Mexico, given that the conditions set forth in Article ]V (1.2) of the Agreement have been met. .In order to receive a Ucense in Mexico to transmit or receive DTH... FSS or BSS signais via Satellites licensed by the Parties (including a License for transmission to, or for commercialization of signaIs coming from, such Satellites), entities must comply with applicable Mexican laws, regulations, rules, and licensing procedures." As we saw before, the US reserved to open to competition on DTH and BSS services, so this Protocol is very important because it makes Mexico the only country allowed to provide thiskind of services in the US. 142 140 Forthepurposes of Ulis Protocol, it is understood that "Direct-to-Home Fixed-Satellite Services" and "Broadcas;ting-Satellit~ Services" mean one-way, encrypted video or video/audio radiocommunication signais that are transmitted by Satellites licensed by the Parties for direct reception bysubscribers forperiodic remuneration. 141 Article 1 of the .US-Mexico ProtocoUor DTH Satellite Services 142 Article VI.H(1): .The United States agrees to permit Satellites licensed by Mexico to provide DTH-·FSS ancf BSS. to, tram, and within the United States, given that the conditions set fortll in Article IV(U)ofthe Agreement have been met. In order to receive a License in the lJnited States to transmit qr receive DTH-FSS or BSS signais via Satellites licensed by·the Parties (including Ucenses for U.S. As a result of the US-Mexico Bi.lateral Agreement and this .Protocol, the Mexican Government has issued concessions to Mexican companies to use US satellite systems to provide DTHin Mexico, and the FCe has licensed companies to provide DTH services in the US using Mexican Satellités. On December 10, 1996, Mexico's SCTgranted a concession tothe Mexican company "Grupo Galaxy Mexicana, S. de R.L. de CV." (known as DirecTV), to provide DTH using a US satellite (Galaxy HI-R). Also, on November 27,2000, the SCT granted· a concession to "Corporaci6n de Radio y Televisi6n dei Norte de México, S. de R.L. de CV." (known as Sky), to provide DTH via a US satellite (Panamsat's PAS-9). On August 18, 1997, the FCC granted Televisa International, LLC, a license to use a Mexican satellite for the provision of DTH service. The licensee is authorized to· receive Direct-to-Home Fixed-Satellite service (DTH-FSS) television service from Mexico to the US via Mexico's Solidaridad 2 satéllite. Prior FCC decisions grantinga blanket license to Televisa International, LLC and dismissing without prejudicethe application of Telquest Ventures, L.L.C., suggest that the regulatory treatmentof DTH. proViders in the foreign applicant's country willbe critical toth.e Commission's review of an application and grant of authority.143 143 See Hoegl, supra note 95 78 B. US-Mexico Protocol for Fixed Satellite Services (FSS) On OCtober 16, 1997, the United States and Mexican Governmeots signed the Protocol Conceming the Transmission and Reception of SignaIs From Satellites for the Provision of Fixed-Satellite Services in the United States of America and the United Mexican States. This Fixed-SateHite Service (FSS) Protocol is the second Protocol signed under the U.S-Mexican. Satellite Services Agreement of April 1996. This Protocol allows U.S. and Mexican satellites to provide fixed-sateUite services into both countries,using FSS trequency bands (including the C-, Ku-, and Ka- bands). Under the Protocol U.S. satellites may provide international fixed-satellite services to and from Mexico. immediately and domestic flXed-satellite services within Mexico on the earlier date of January 1, 1999 (three years earlier than Mexico commiUed to under the February 1997 wro Agreement on Basic Telecommunications Services), or the date on which the Morelos IIreplacement satellite becomes operational. The Protocol further demonstrates the commitment thatthe United States and Mexico share in enhancing satellite comp~tition in our national markets through the introduction of new services providedbyU.S. and Mexicansatellites,144 144 Fee Report No. 97-34, October 17, 1997, ol'lline: l1ttQ:f/wv\lw-fcc.gov/Bureausl IntemationaIlNeWS_Rele(iSes/1997/nrîn7039.html 79 Even though this Protocol was signed in 1997, it was until October 2000, that the Fee placed Mexican satellites Solidaridad 2 and Satmex 5 on the Permitted Space Station Ust. Before August 2001, there were no Mexican companies offering space segment capacity from US satellites. The problem thatMexieq faced was that it took a long time before someone requesteda. concession to use a for~ign satellite to offer space segment capacitv service. Ali the concessions to use foreign satellites that were granted before, were not for offeringcapacity service. For example, those concessiol1s were requested to use a certain US satellite for DTH transmissions only for the company's subscribers. Or, Iike Iridium de México andGlobalstar de México, that requested concessions to use foreign satellites, but to provide specific services only to their users, where those foreign satellites are only useful to their particular systems. US companies have claimed that the fact of requesting a concession to use foreign satellites, where the company must have 51 % Mexican investment, is against the reciprocity Agreement signed between Mexico and the US. But, as it was explained before, this reciprocity Agreement clearly states that US satellites can provide service in Mexico "in conformanœ with applicable provisions of Mexican law". 80 Last year, four companies requested a concession to use foreign satellites to offer space segment capacity service. After COFETEL issued favorable opinions to the SCT regarding those concessions, on August 10, 2001, the SeT granted three of the fpur concessions that were requested. These new threeconcessionaires will offer space segment capacity from US satellites. Now, US satellite operators (Loral, GE Americom and PanAmSat), will offer theirservices in MexiCO through thèse concessionaires. The other concession will be granted to a company that wmprovide satellite services using a Canadian satellite operated.by TMI Communications. C. US-Mexico Protocol for Mobile Satellite S.ervice (MSS) On December 21, 1998, in Mexico City, the United States and Mexican Governments signed the Protocol Concerning the Transmission and Reception of Signais From Satellites for the Provision of Mobile-Satellite Services and Associated Feeder Unks in the United States ofAmerica and the United Mexican States. This Mobile-Satellite Service (MSS) Protocol is the third Protoc61 signed under the .U.S.-MexicanSatellite Services Agreement ofApril 1996. This Protocol allows U.S. and Mexicansatellites to provide mobile-satellite services, like low-earth omit satellite·.systems, into bothcountries, u$ing MSS, and 81 associated feeder link, frequency bands.. The Protocol enables U.S. licensed MSS providers to access the Mexican market immediately.145 Thanks to this Protocol, Mexico's SCT was able to grant concessions to the companies "Iriduim de México", "Globalstar de México" and "Orbcomm de México", in order tb provide mobile satellite services in Mexico. Il. Canada-Mexico Agreement Conceming the Provision of Satellite Services On April 1999, Mexico and Canada signed the "Agreement between the Govemment of Canada and the Government of the United Mexican States Conceming the Provision of Satellite Services', and the Protocols concerning fixedand mobile satellite service were signed on January 16, 2001. Now, Mexican satellites will be allowed ta provide services in Canad~ and vice versa, except for DTH because no protocol on DTH was signed. 146 The purpose of this Agreement is to facilitate the provision ofservices to, from and within Canada and the United Mexican States via commercial satellites that each Party licenses and coordinates pursuant to ITU Radio Regulations, and to establish the conditions relating to .the use in both countries of satelliteslicensed in Canada and in the United Mexican States. 145 Fee Report IN 98-73, December 22, 1998, ol'llÎne: http://www.fcc.gov/Bureaus/lntemationalf News. Releases/1998/nl'in8045.l1tml 146 Article 1(4lestî:!lbli.shes that the Agreementapplies tovarious Satellite Services.except for those which are. regulated under the Broadcasting Act .of Canada, the ley Federal de Telecomunicaciones and the ley Federal de Radio y Television of the United Mexican States, where suchservices areintended for direct reception by the public. 82 Article IV (3) of the Agreementestablishes that the Parties agree that the Mexican or Cam:3dlan entities that operate commercial Satellites and Earth Stations may be establiShed with either public or private participation in conformity with the legal and regulatory provisions of eaCh CO!,mtry. A Party shall not require a Satellite Operatorlicensed by the other Party to.obtain ·an additionallicense for either the construction or the operation of the Satellite. Licensees for Earth Stations and Satetlite Services mustcomply with national laws and regulations, as amended from time to time. Foreign ownership restrictions on Earth Stations and Satellite Service Providers operating within the territory of a Party are defined by the laws and regulations of each Party. For Canada, foreign ownership restrictions and provisions are contained in the Telecommunications Act, the Radiocommunication Act, the Broadcasting Act, the Investment Canada Act and their subordînate Regulations, asamended.from time to time. For the United Mexican States, foreignownership restrictions are at present contained in Article 12 of the FTL, and the Ley de Inversiôn Extranjera published in 19.93.147 A. Canada-Mexico Protocol for fixed Satellite Services.(fSS) On January 16, 2001, Mexico and Canada signed the Protocol Between the Government of Canada and the Government of the United Mexican States 83 concerning the Transmission and Reception of Signais from Satellites for the Provision of Fixed-Satellite Services in Canada and the United Mexican States. The purposesof this Protocol are to establish conditions and technical criteria for the use of Canadian and Mexican Satellites and Earth Stations for the provision of 148 Fixed-Satellite Services , to, from, andwithin the territories of the Parties and to facilitate the provision of Fixed-Satellite Services covered by the Protocol to, from, and within Canada and Mexico via Satellites licensed by either Party. Article V(2) establishes that the use of the frequency bands set forth in the Appendixin the territory of a Party, must comply with the applicable Canadian and Mexican laws, regulations, rules, administrative provisions, policies, Iicensing procedures, conditions set forth in this Protocol and the respective national frequencyallocation tables, andtake into consideration the systems currently operating in these bands and any applicable international agreements of the Parties. 149 147 L~y de Inversion Extranjera, which is Spanish for Foreign Inllestment Law. Diario Oficial de la Federaci6n: December27, 1993 148 According to the. Protocol, Fixed-SatelliteServices ("FSS") mean any radiocommunication signélls that aretransmitted andlorreceived by Earth Stations, located at specified .fixed positions or at any flXed point within a specified area,using one or more Satelliteslicensed by eitherParty; 149 ThisProtocoldoes l'lot appiy to frequency bands noUisted in this Appendix. The following FSS frequency bands are referred to byArticle V ofthis Protocol: Uplink Freauencies Downlil1k Frèguel1cies 5.925 -6.425 GHz 3]00- 4.200 GHz 14.0-14.5GHz 11.7 -12.2 GHz 12.75 -13.25 GHz 10.70 -10.95 GHz 11.20-11.45GHz 13.75 -14.00 GHz 11.45 -11.70 GHz 10.95 -11.20 GHz 27.50- 30.00 GHz 1 7.70 - 20.20 GHz 84 ArticleVI(1 )indicatesthat licenses or authori.zç:!fions for the provision of FSS shall be issued as efficiently and expeditioiJSly as possible by the Administrations in conformance with their respective laws, r~gulati()l"ls, rules, administrative provisions, policies and .Iicensing procedures for transmit and/or receive. Earth Stations(inciudingBlanketUcenses andspectrumLicenses for transmit and/or receive Earth Stations) and any otherapplicableLicense for the provision of FSS. To this date, no M~xical"l satellites are. placed onlndustryCanada's List of Approved Fixed Satellite·Service (FSS) SatEHlit~s. B. Canada-Mexico Protocol for MobileSatellife Services (MSS) The Protoeol Betweenthe Govemment ofCanada and the Govemment of the United Mexiean States. CQnçerning the Transmission and ReCéption of SignaIs from Satellites for the Provision .ofMobile-Satellite Services and ASsociated Feeder Links in Canada and in the United Mexiean States, was si.gned by the parties on 16 January,2001. The use ofthe frequéncy.bands set forth in the Appendix,l50 in the territory Of a Party, must comply withthe applicable Canadian and Mexican laws,.regulations, 150 This Protocol does notapplyto frequencybands notJisted in the Appendix. The follbwing frequency bands are referredtoby Article V ofthis Protocol: MSS Frequency Bands Uplink Freguencies QoWhlink Fregl.lsncies 148 -150,05 MHz 137 -138MHz 399.9 - 400.05 MHz 400.15 - 401 MHz 85 rules, administrative provisions, policies, licensing procedures, conditions set forth in this Protocol and the respective national frequency allocation tables, and take into consideration the systems currently operating in these bands and any applicable intemational agreements.of the Parties. Article VI(1). Ucenses or authorizations for the provision of Covered. Services shall be issued as efficientlyand expeditiously as possible by the Administrations in conformance with their respective laws, regulations, mies, administrative provisions, policies and licensing procedures for transmit and/or receive Earth Stations (including Blanket Licenses and Spectrum Licenses for transmit and/or receive Mobile Earth Stations) and any other applicable Ucense for the provision of Covered Services. According to Article 6 (8), eachAdministration shall ensure that Earth Stations licensed by such Administration for the provision of Covered Services are able to 454 -456 MHz 459 -460 MHz 1610 - 1626.5 MHz 2483.5 - 2500 MHz 1626.5 -1660.5MHz 1525 - 1559 MHz 1990 ~ 2025 MHz 2165- 2200 MHz MSS Feeder Link Frequency Ban$ Uplink Freguencies Downlink Freguencies 5 150 - 5 250 MHz 6 700- 7075 MHz 12.75 -13.25 GHz 10.7 -10.95 GHz 11.2 -11.45 GHz 29.1 - 29.5 GHz 19.3 -19.7 GHz MSS Inter-Satellite Links: 23-23.55GHz 86 interconnect to such Party's public switched telecommunications network: and/or other networks under non-di~criminatory,.transparent and cost-oriented terms at any technically feasible point in the network:. This disposition is very important for the provision of mobile satellite telephony service. The Mexican company "Astrum Comunicaciones, S.A. de C.V." requested a concessionto provide mobile satellite service in Mexico fram a Canadian satellite operated by TMI Communications. The most probable is that the SCT will grant this concession this year. 87 CONCLUSIONS Satellite communication systems are growing very fast and each time offering new services. Most of the present telecommunications services use satellites as a meanof conduction for their signais. 50 the space segment capacity service is beingrequested more and more by most telecommunications service providers, as weil as by private networks using earth stations. Liberalization oftelecommunications services, including satellite services, was a major GATS achievement because a lot of countries opened their satellite markets to competition. This means that a satellite from one country can provide services in· another country. The fact that end users and telecommunications service· providers can choose a foreign satellite operator is a big step in international competition and deregulation. With different options of satellite service providers, prices will lower and quality will increase. What we shouldhave clear is thateven though WTG Memberscommitted them~el\fes to open satellite services to competition, .it should. be done in accordance toeach country's domestic laws. 50, if a satellite operator wants to provide services inanother country, it hasto follow the domesticrequirements of 88 the national regulatory authority. This should not be considered as a bamer, but as the right of each county to regulate its telecommunications. When a country allows a foreign satellite to provide services, there is recognition of the license issued by itsowncountry, but still, .the foreign satellite operator must comply with certain technical,economical andlegal requirements. The process to solicit these requirements to the foreign sateUite operator is different· in every county, because it depends on each country's national regulation, but it is usually done through the applicants that request to use the foreign satellite. The process of authorizing foreign satellites is different in Mexico, compared to that in the US and Canada where a list of authorized foreign satellites is issued. But that does not mean there are fewer requirements or that it is easier to be authorized in these countries. Mexico and the United States have reached a bilateral agreement that allows Mexican satellites to offer DTH service and DBS service in the United States, and vice versa. Mexico is the only country authorized to provide DTH and DBS service in the United States. Canada does not allow use of foreign satelHte networks for the transmission of DTH broadcasting services in Canada. So neither Mexico nor the US allow Canadian satellites to provide DTH in their countries. APPENDIX 1. MEXICO - SCHEDULE OF SPECIFIC COMMITMENTS151 The first column in the standard format contains the sector or sub sector that is the subject of the commitment; the second column contains limitations on market access; the third column contains limitations on national treatment. In the fourth column governments may enter any additional commitments. Modes of supply: 1) Cross-border supply 2) Consurt1ption abroad 3) Commercial presence 4) Presence of natural persons S~ctor or Sub-sector Limitations onMarket Access 1 Limitations on National 1 Additional Treatment Commitments None, except the following: 2.C. Telecommunication 1 1) 1) None Mexico undertakes the Services obligations contained in the reference .paper Internationaltraffic must be routed attached hereto. Telecommunications through the facilities of anenterprise services supplied· by a thathasalicense granted by the public Mlnistry of Communications and telecommunications Transport (SCT). network and based on 2) None the use of facilities (wire-based .and. radio 2) None electric) through any 3) None existing technological 1 3) A concession152 from the SCT ls medium, included in required. Only enterprises subparagraphs (a), (b), established in conformity with (c), (f), (g) and (0). Mexican law may obtain such a concession. 151 WTO,GATS/$C/56/SUppl.2. April 11. 1997 152 Concession: Referes to the granting of a title to insatll, operate or exploit a public telecommunications netv.tork based in infrastrcture. 89 Modes ofsupply: 1) Cross-border supply 2) Consumption abroad 3) Commercial presence 4) Presence of natural persons Sector or Sub-sector Limitations on Market Access Limitations on National Additional Treatment Commitments Radio broadcasting, cable television,sateUite Concessions for spectrurn transmissions of DTH frequency bands for specifie uses and DBS .services and will be granted by public invitation of audio digital services to tender. are excluded. Foreign governrnents may not participate in an enterprise set up inaccordance with Mexican law nor obtain any authorization to provide telecornmunications services. Direct foraign investment up to 49% is permittedin an enterprise S.at up in accordance with rnexican law Telecomunicaciones de Mexico (Telecomm) has exclusive rights to links with Intelsat and Inmarsat Services other than international long-distance services which require use of satellites must use Mexican satellite infrastructure until the year 2002. 4) No Unbound, except as 4) No Unbound, except as indicated indicated in the horizontal in the horizontal section. section. 90 APPENDIX 2. UNITED STATES· SCHEDULE OF SPECIFIC COMMITMENTS153 Modes of supply: 1) Cross-border supply 2) Consumption abroad 3) Commercial presence 4) Presence of natural persons Sector or Sub-sector Limitations on Méu"ketAccess Limitations on National Additional Treatment Commitments 2. C.TELECOMMUNICATIOS SERVICES*: 2. C.a. Voice services (1) None (1) None The United States undertakesthe 2. C.b. Packet-switched data (2) None (2) None obligations contained in transmission services thereference paper (3) None, other than (3) None attached hereto. 2.C.c. Circuit-switched data transmission services Comsat has exclusive rights ta links with Intelsat 2.C.d. Telex services and Inmarsat. 2.C.e. Telegraph services Ownership of a common carrier radio license: 2.C.f. Facsimile services Indirect: None 2.C.g. Private leased circuit services Direct: May not be granted ta orheld by: 153WTO, GATS/SC/90/SuppI.2, April 11 ,1997. 91 Modes of supply: 1) Cross-border supply 2) Consumption abroad 3) Commercial presence 4) Presence of natural persons Sector or Sub-sector Limitations on Market Access Limitations on.Natiônal Additional Treatment Commitments (a) foreign governmèht orthe representativé thereof (b) non-U.S. citizen or the represf;)ntative of any non.. U. S. citizen 2. C.o. Other (c) any corporation not organÎzed under the laws Mobile Services of the United States or Analogue/Digital (d) U.S. corporation of which cellular more than 20% orthe services capital stock isowned or voted by a foreign PCS (Personal government or .its Communications representative, non-US. services) citizens Or theÎr representatives or S (4) Unboundexcept as Paging services corporation not organized indicatedby horizontal under the laws of the commitments. Mobile data services United States. 92 Modes of supply: 1) Cross-border supply 2) Consumption abroad 3) Commercial presence 4) Presence of natural persons Sector or Sub·sector Limitations on Market Access Limitations on National Additional Treatment Commitments Excluding one-way satellite (4) Unbound except as indicated transmissions of DTH and by horizontal commitments DBS television services and of digital audio services 93 APPENDiX 3. CANADA - SCHEDULE OF SPECIFIC COMMITMENTS154 Modes of supply: 1) Cross-border supply 2) Consumption abroad 3) Commercial presence 4) Presence of natural persons Seçtol'or Sub-sector Limitations on Market Access 1 Limitations on National 1 Additional (GNS1W1120 Coding) Treatment Commitments 2C Te.lecommunicaticms Services"', ** 2C(a) Voice.telephone (1) None, otherthan: (1) None Canada undertakes the services obligations contained in Routing .. of basic telecommunications the •• reference paper155 2C(b) Packet-switched servicesbetween points within Canada, and attachedhereto. data transmission between Canada and point$ outside of services Canada, j$ regulatedto promote the use of Canadian transmission faciHties, except that 2C(C) Circuit-switched routing of: data transmission mobile satellite services willbe services unrestricted as of January 1, 1998 betwe.en points in Canada, and 2C(d) Telex services between Canada and points in the United States; 2C(e) Telegraphservicesl.. ail· mobile satellite services will be unrestricted as ofOctober 1, 1998; 2C(f) Facsimileservices ail international services will be unrestricted as of December 31, 1999, 154 GATSfSCf1t)/SuppI.3, April 11, 1997, p13 155 The Reference Paper contains definitions and principies on the regulatory framework for the basic telecommunications services. Ii is part of the Fourth Protocol to the GATS. 94 Mode$ of supply: 1) Cross..bordersupply 2) GohSl..lmptionabroad 3) Commercial presence 4)·Presence of natural persons Sector or Sub..sector limitations on Market Access 1 limitations on National 1 Additional (GNS1W/120 Coding) Treatment Commltments 2C(g} Private leased except for fixed satellite services circu it services betweenGanada and points in the 1 (2) None United States; 2C(0) Other- satellite services will be unrestricted Mobile services as of March 1, 2000. (2) None *Excluding . services regulated under the Bro~dcasting Act and measures affecting such services. **Excluding telecommunications services supplied for the transmIssion of services re~ulated under the Broadoa.sting Aot where such services are intendèd for direct receptionby the public. (3) None, other than: (3) None, other than: Foreign investmentin facilities"based At least· 80 percent of the telecommunications serVice suppliersis members of the board of permitted up to a cumulative total of46.7% directors of facilities-based 95 Modes ofsupply: 1) Cross~border supply 2) Consumption abroad 3) Commercial presence 4) Presence of natural persons SE)ctoror Sub~ctor limitations on Market Access 1 limitations on National 1 Additional (GN51W/120 Coding) Treatment Commltments of voting shares, based on 20% direct telecommunications investment and 33% indirect investment. service suppliers must be Such $uppliers must be controlled in fact by Canadian. Canadians. E){cept that: foreign investmentwill be allowed up to 100% as· of October 1, 1998 for operations conducted under an international submarine cable licence; mobile satellitE) systems oWned and controUed up to a level of 100% by a foreign ·service provider maybe used bya Oané;1dian service provider to provide services. in Canada; fixed satellites owned and controlled up to a level of 100% by foreign service provicjers may be used to provide services between points in Canada and ail points outside of Canada, except in the United States,é:1s of December 31, 1999; fixed satE)lIitesowned and controlled up to a level of 100% by foreign service providers may be used to provide services betweenpoints in Canada and between Canada and points in the United States, as of March 1, 2000. Facilities-based telecommunications service 96 Modes of supply: 1) Cross..border supplY 2) Consumption abroad 3) Commercial presence 4) Presence of natural persons Sectoror $ub-sector Limitations on Market Access 1 Limitations on National 1 Additional (GNS1W/120 Codlng) Treatment Commitments suppliers thêt exceeded. the permissible cumulative foreign investmentlevel cited above on July 22, 1987 and continue to exceed this level may be subject to restrictions. On March 1, 2000, Telesat Canada will no longerbe. authorized to be the sole operator in Canaqa.offixed satellite space segment facilities used to provide national and Canada-U.S.fixed satellite services. Until March 1, 2000, licences to operate earth stations for the provision of Canada U.S. fixedsatellite services may be limited. (4) Unbound, except as indicated in the (4) Unbound,exceptas horizontal section. indicated in the horizontal section. 97 98 APPENDIX 4. MEXICO - CONCESSIONAIRES AUTHORIZED TO USE FOREIGN SATELLITES ln Mexico there is no list of approved foreign satellites. Nevertbeless, there are concessionaires authorized to use foreign satellttes.ln the following list, the tirst six companies are authorized to use foreign satellites for their own networks, and not to offer space segment capacity service. The last three companies, were granted a concession on August 2001, to offer space segment capacity service using US satellites. Mexican concessionaire Foreign Satellite Network Iridium de México, S.A de C.V. Iridium .Constellation (US) Globalstarde México, S. de R L. de CV. Globalstar Constellation (US) Orbcomm de México, S.A de CV. Orbcomm Constellation (US) Grupo Galaxy Mexicana, S. de RL. de Galaxylll-R (US) C.v. Corporaci6n. de Radio y Televisi6n dei PAS-9(US} Norte de México, S.de R.L. de C.V. Telesistema Mexiçano, S.A de C.V. Panamsat (US) Controladora Satelital de México, S. de Panamsat (US) RL. de C.V. Sistemas Satelitales de México, S. de GE (US) RL. de CV. Enlaces Integra, S.A de C.V. Loral (US) 99 APPENDIX 5. UNITED STATES - PERMITTED SPACE STATION LIST Pursuant to the DISCO /1 First Reconsideration arder, FCC 99-325 (released October 29, 1999), a U.S.-licensed earth station with an ALSAT license is permitted to access any space station on this list, providedthat it complies with the Commission's technical requitell1ents, and .operates under the conditions on ifs license and set forth in the Orders cited below. Nothihg in the DISCO Il First Reconsiderafion Order, however, eliminates the need for an earth station operator or space station operator to request authority to make technical· changes to its facility where those changes require prior Commission approval under Sections 25.117 and 25.118 of the Commission's rules. See DISCO /1 First Reconsideration Orderat para. 13 n.31. Permilted Space Station List ( 09/05/01) Name of Satellite Network Licensing Administration ANIK E1 Canada ANIK E2 Canada ANIK F1 Canada Brasilsat A2 Brazil EUTELSAT II-F2 France EUTELSAT AB-1 France EUTELSAT AB-2 France Mabuhay Indonesia NSS-513 Netherlands NSS'-S03 Netherlands NSS-80e Netherlands NSS-K Netherlands SatMex 5 Mexico Solidaridad 2 Mexico 100 APPENDIX 6. CANADA - LIST OF APPROVED FSS SATELLITES This table gives a list of Fixed Satellite Service (FSS) satel.lites that are approved for use in Canada. Canadian satellites are approved by means of a licence issued by Industry Canada. Foreign satelliteS in this list were approved pursuant to the procedure set out in Industry Canada's Client Procedures Circul.ar-2-6-01 (CPC-2-6-01), Procedure for the Submission of Applications to Ucense Fixed Earth Stations and to Approve the Use of Foreign Fixed Satellite Service (FSS) Satellites in Canada. List of Approved FSS Satellites (as perCPC-2-6-01) (Last revision: September 1,2001) Name of Satellite Network Orbital Position (degrees West) 1. Anik E1 111.1 2. Anik E2 107.3 3. Gafaxy IlIR 95 4. Galaxv IV-R 99 5. Galaxy VII 91 6. Galaxy X-R 123 7. GE-1 103 8. GE-2 85 9. GE-3 87 10. Telstar 4 89 11. Telstar 5 97 12. Telstar 6 93 13. Telstar 7 129 14. Telstar 11 37.5 15. Telstar 12 15 16.C1 137 17.C3 131 18.C4 135 19.C5 139 20. Galaxv VI 74 21. Galaxy IX 127 22. NSS803 21.5 23. NSS806 40.5 24. EUTELSAT 2F2 12.5 25. SSS-6 74 26. GE-5 79 27. GSTAR-4 105 28. PAS 1R 45 29. GE-4 101 30. HISPASAT IC 30 101 31.INTELSAT 706 53 32. INTELSAT601 34.5 33.INTELSAT603 24.5 34ANTELSAT 605 27.5 35. INTELSAT 602 182 36. INTELSAT 903 24.5 37. INTELSAT904 34.5 38. INTELSAT 707 1 39. INTELSAT 705 18 40. INTELSAT 709 50 41. INTELSAT 701 180 42.INTELSAT 702 183 43. INTELSAT 802 186 44. INTELSAT801 31.5 45.INTELSAT 511 29.5 46. INTELSAT 805 55.5 47. NSS 513 177 48. NSS K 21.5 49. PAS 3R 43 50. GalaxYXI 91 Conditions: 1. Foreign satellite networks that havebeen successfully coordinated with Canada but are not yet notified with the ITU are approved for. use on a no-protection, non-interference basis with respect to other foreign satellite networks for which .international coordination has not been completed. 2. UseOfforeign satellite networks is not permitted for the transmission of Direct-to-Home (DTH) broadcasting services in Canada. 3. In the band 13.75 - 14 GHz, the e.ï.r.p. of any emission from an earth station in the fixed-sateHiteservice shall be. at least·68 dBW, and should not exceed 85 dBW, with a minimum antenna diameterof 4.5 metres. 102 BIBLIOGRAPHY A. Books Cass, Ronald A, International Trade in Telecommunications, AEI Press and MIT Press, Washington D.C. and Cambridge, Mass., 1998. Feketekuty, Geza, International Trade in Services: an ·overview and blueprint for negotiations, Ballinger Pub. Co., Cambridge, Mass 1988. G6mez-Pérez, Alfredo, M~xican Telecommunications: A Study of Privatization of the State Monopoly and Opening ofthe Market to Competition, a thesi.s submiUed to the Faculty of Graduate Studies and Research, Faculty of Law, McGiII University, Montreal, 2000. Handa, Janda, Johnston and Morgan, Communications Law in Canada, Butterworlhs, Toronto and Vancouver, June 2000. Holbein, James R. and Musch,· Donald J., The Practitioner's Deskbook Series: NAFTA, Oceana Publications Inc., NewYorkiLondon/Rome, 1994. Paul, Hastings, Janofsky& Walker, North American Free Trade Agreement, Summary and Analysis, Matthew Bender, .1993. Pisciotta, AHeen·A., Telecommunications ln Mexico: A Market ln Transition, Illinois, CCH Inc., 1997. Salin, Patrick-Andre, Satellite Communications Regulations in the Early 21st Century, Marlinus Nijhoff PubHshers, The Hague/ Boston/London, 2000. Shaw, James, Telecommunicalions Der~ulation, Artech House, Boston, 1998. 103 Trebilcock, Michael J. and Howse, Robert, The Regulation of International Trade, Routledge, 2nded., London, 1999. B. Articles Barr, Howard J., "FCC's New Foreign Access and Satellite Licensing Rules", Pepper & Corazzini, L.L.P, Attorneys at Law, October 1998. Billard, D., Vice PrElsident - Business Development, Tetesat Canada, Canadian Satellite Users Association Conference (CSUA), Toronto, March 22,2000. Canadian Space Agency, "The Canadian Space Program: A New Era for Canada in Space", Catalogue No. ST31 732/1999, Government of Canada 1999. Edelson, Burt, "Four Decades of Satellite Communications", Space News, a Gannett Newspaper, Vol. 11, No. 34, September 11, 2000. FCC, International Bureau Issues, "Special Report on Mexico", October,1995. Hoegle, Robert L., "Foreign Ownership Caps and the WfO Agreement: The l\IIovement Toward 'One Size Fits Ali' ", The Catholic University of America, winter 1998. Kennedy, Kevin C., "Market Openings in the Telecommunication Goods and Services Sectors", The International Lawyer, American Bar Association, 33 Int'I Law. 27, Spring, 1999. McLarty, Taunya L., "Liberalized Telecommunications Trade in the mo: Implications for UniversalService Policy", Federal Communications Law Journal, Copyright (c)1998, 51 Fed. Comm. L.J. 1, December 1998. Millstein, Leo, "INTELSAT Restructuring", IBA Section on Business Law, Outer Space Newsletter, July 1999 104 Ospina, Sylvia, "International Satellite Telecommunications: Regulation by States or by Private Parties?", Kluwer Law International, Air and Space Law, Vol. XXV, Number 6, November 2000. Ritchie, Robin, "Free trade in telecommunications is inevitable", THE LAWYERS WEEKLY. Copyright © 2000 Butterworths Canada Ud. Vol. 20, No. 20, September 29,2000. Rourk, Chris, "Analysis of the Technical and Economie Issues Raised in the Consideration of International Telecommunications Satellite Systems Separate fram 1NTELSAT", online Sherman, Laura B., "'Wildly Enthusiastic" About the First Multilateral Agreement on Trade in Telecommunications Services", Federal Communications Law Journal Copyright (c) 1998,51 Fed. Comm. l.J. 61, December, 1998. C. International Materials European Commission, GA TS 2000: the General Agreement on Trade in Services: opening markets for services, Office for Official Publications of the European Communities, Luxembourg, 1998. ITU, Press Release, ITU/97-20, Major Agreements Reached at WRC-97, 21 November 1997. ITU, Telecommunication Development Bureau, WTDC-98, Document 162-E, 25 March 1998. UNCTAD, Sectoral Analysis. Telecommunications, Comparative Experienceswith Privatization. Policy Insights and Lessons Learned (Geneva: United Nations, 1995) 105 o. Web Sites httpllgats-info.eu. intlgats-info/gatscomm.pl httpllstrategis.ic.gc.ca/spectrum/SSG www.cft.gob.mx WNYV. fcc. gov/BureausllnternationaIlNews_Releases/1997/nrin7039.html www.fcc.gov/ccb/universaLservice Wl'NI. satmex.com/eng/applications/applications.html www.panamsat.com/serv/telecomserv.html www.telesat.ca/business/index.html www.telesat.ca/news/archived/1999/99-09.html www.wto.org E. Legislation 1. Canada Radiocommunications Act, RSC., 1985, c.R-2 Telecommunications Act, S.C.1993, c.38 Industry Canada, Policy Framework for the Provision of Fixed Satellite SeNices, RP-008, December 1998, Spectrum Management and Telecommunications Industry Canada, Procedure for the Submission of Applications to License Fixed Earth Stations and to Approve the Use of Foreign Fixed-Satellite SeNice (FSS) Sateflites in Canada. Spectrum Management and Telecommunications Policy, Client Procedures Circular, CPC-2-6-01, July 2000. 106 n. Mexico Reglamento de Telecomunicaciones, October29,1990 Ley Federal de Telecomunicaciones, June 7,1995 Reglamento de Comunicaci6nVfaSatélite, August i, 1997 Deçreto mediante el cual se reforma el cuarto parrafo delarticulo 28 de la Constitucion Politica de los Estados Unidos Mexicanos.(Amendment to article 28 of the Mexican Constitution) DOF, March 2, 1995. III. United States ofAmerica Telecommunications Act of 1996, Public Law 104 -104, 10th Congress, 2nd Session. March. 1996. Code of Federal Regulations, Title 47, Volume 2, Part 25, Sec. 137, Application requirements for earth stations operating with non-V. S. licensed space stations, (47CFR25.137) Code of Fedéral Regul.ations, Title 47, Volume 2, Part 25, Sec.131, Filing requirements for receive-onlyearth stations, (47CFR25.131) FCC, ln the Matter of Amendment of the Commission's Regulatory Policies to Allow Non-V. S. -Licensed Space Stations to Provide Domestic and International Satellite SeNice in the United States, Adopted November 25,1997. 107 FCC, Commission Simplifies Procedures for Non-US.-Licensed Satellites to Provide Service to the US. Market, October 29, 1999 lB Docket No. 96-111 Report No. IN 99-33 FCC, Common Carrier Services: Satellite Communications--Earth Stations Operating with Non-US. Licensed Space Stations; Application Requirements, 64 FR 61791, FEDERAL REGISTER, Vol. 64, No. 219 Rules and Regulations, 47 CFR Part 25 [lB Docket No. 96-111; FCC 99-325}. Monday, November 15,1999. Fce, ln the Matter of Telesat Canada Request for DeclaratoryRuling or Petition for Waiveron Earth Stations' Use of ANIK E1 and ANIK E2 Satellite Capacity to Provide Basic Telecommunications Service in the United States. Order adopted: December 9, 1999. FCC, Telesat Canada Petition for Declaratory Ruling for Inclusion of ANIK F1 on the Permitted Space Station List, Order adopted December 18, 2000 FCC, Satélites Mexicanos, S.A. de C. V., Petition for Declaratory Ruling, Order adopted October 2, 2000 F. Interna.tiona.1 Agreements Agreement Between the Government of the .United States of America and the Government of the United Mexican StatesConcerning the Transmission and Reception of Signais from SateHites for The Provision of Satellite Services to Users in the United States. of America and the United Mexican States. April 28, 1996. Protocol Concerning the Transmission and Reception of Signais from Satellites for the Provision of Direct-to-Home Satellite Services in The United States of America and The United Mexican States. November 8, 1996. Protocol Concerning the Transmission and Reception of Signais From Satellites for the Provision of Fixed-SateUite Services in the United States of America and the United Mexican States. October 16, 1997. 108 Protocol Concerrling the Transl11issionand .Reception of Signais From Satellites for the Provision of Mobile-Satellite Services and Associated Feeder Links in the United States of America and the United Mexican States. December 21, 1998. Agreement between the Govemment of Canada and the Govemment of the United Mexican States Conceming theProvision of Satellite Services. April 9, 1999. Protocol Between the Govemment of Canada and the Govemment· of the United Mexican States conceming the Transmission and Reception of Signais from Satellites for thé Provision of Fixed-Satellite Services in Canada and the United Mexican States, January 16, 2001. Protocol Bet'JVeen the Govemment of Canada and the Govemment of the United Mexican States Concerning the Transmission and Reception of Signais from Satellites for the Provision of Mobile-Satellite Services and Associated Feeder Links in Canada and in the United Méxican States. January 16, 2001. North American Free Trade Agreement (NAFTA) World Trade Organization Agreement .(WTO) General Agreement on Trade in Services (GATS)FETEl's resoll.looo number PI240698/0140, •of June 24, 1998, indicates thatapplications which Tnvolve the use offoreign satellites will not be resolved until the applicant proves that the service of conducting the signais witt he Provided by a concessionaire authorized by the SeT fo.r exploiting transmission and reception rights ·of the signais aS$ociated to the foreign satellite. 47