SES Satellites (Gibraltar) Ltd
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SES S.A. (hereafter referred to as “SES”), appreciates the opportunity to provide Ofcom with its comments on the proposed changes to the Procedures and should be pleased to address any point noted in this Response in more detail at Ofcom’s request. On behalf of its various UK interests including wholly-owned subsidiaries SES ASTRA UK, Ltd, SES Satellites (Gibraltar) Ltd. and SES Satellite Leasing Ltd., SES welcomes the opportunity to participate in this consultation. SES also holds an approximately 44 percent interest in O3b Limited, a satellite service provider located in Jersey, Channel Islands. In implementing these procedures, we very much recommend that Ofcom be mindful that the Procedures will need to “flow down” to and be implemented in some form by the regulators dealing with filings from operators established in the Overseas Territories, the Channel Islands and the Isle of Man. SES is a provider of fixed satellite services in Europe, the Americas, Asia and Africa reaching more than 99 percent of the world’s population. Several SES satellites are located in UK 1 orbital positions, many are launched pursuant to UK 2 launch authority with the UK as the launching state, many have UK manufactured satellite components, and many are insured by UK entities. For more than a decade, SES has been an important provider of a wide variety of essential satellite services to customers in the UK including for direct-to-home services, satellite news gathering, private networks, broadband services, and more. In particular approximately sixteen (16) million UK households receive television services via SES spacecraft either directly through direct-to-home services or via feeds to cable head ends. General Comments SES believes that Ofcom’s management of satellite filings should be unambiguous and limited to that which is essential to achieve the regulatory goals. Ofcom’s Procedures should protect existing UK satellite assets; attract investment; facilitate coordination of satellite networks; reduce the administrative burden on Ofcom and satellite operators and, where appropriate, deter ‘paper’ filings for the retention of ITU priority and rights to orbital resources. SES is concerned that some of the proposals will have a detrimental effect on investment in the UK satellite industry, and will jeopardise the UK’s reputation for regulatory best practices. We address our concerns below and in some cases propose alternative language intended to better meet the stated Ofcom objectives. Ofcom’s impact assessment indicates that the amended Procedures will provide clarity and certainty for operators and the changes will help Ofcom determine whether or not a project is on-track for the network or system to be brought into use. SES believes that the additional milestones and deadlines are unnecessary, overly burdensome and will not provide more certainty that a project is progressing than do the current Procedures. Ofcom’s regulatory activities are to be “targeted only at cases in 1 Including orbital positions filed with the ITU at the request of the Gibraltar Regulatory Authority on behalf of SES Satellites (Gibraltar) Ltd. 2 Including launch and operational authority issued by Gibraltar pursuant to The Outer Space Act 1986 (Gibraltar) Order 1996 and under the authority of the UK Space Agency. Chateau de Betzdorf L-6815 Betzdorf Luxembourg Tel +352 710 725 1 Fax +352 710 725 227 www.ses.com R.C.S. Luxembourg B81 267 EU VAT Identification Number LU18953352 P. 1 which action is needed” 3 and Ofcom has a duty to review their functions to ensure that regulation by Ofcom does not involve the “imposition of burdens which are unnecessary” 4. The proposed changes to the Procedures meet neither of these duties and objectives. The satellite industry already has a level of self-regulation and the current Procedures already provide an effective mechanism to govern the management of filings. The level of detail and the extensive nature of the milestones, particularly those requiring commercial information which may only be available from operators’ customers, imposes unnecessary obligations on a UK operator. Much of this information is unnecessary for Ofcom to be able to meet its regulatory requirements. The implementation of these milestones will place UK operators on an unlevel playing field and will be contrary therefore to the current UK growth agenda. Timing of the Consultation. The timing of the Consultation immediately prior to the International Telecommunication Union (“ITU”) World Radio Conference-2015 (WRC-15) is inopportune and seems to encourage duplication of effort by, inefficiency and more administration for, both Ofcom and satellite operators. Rather than improving clarity and regulatory certainty as intended by Ofcom, the Consultation and any possible resulting rules create further regulatory uncertainty. This is particularly the case because many of the issues which this Consultation addresses are on the agenda for the upcoming WRC scheduled for November 2015. Following WRC-15, Ofcom will need to implement the decisions taken there including some that will almost certainly directly affect the outcomes of this Consultation. As a result, we recommend that Ofcom delay this Consultation in order to take into account any changes in the ITU Radio Regulations resulting from WRC-15. We further recommend that stakeholders should be consulted by Ofcom concerning the proposed changes to the Procedures after WRC-15. In the end, a single, consolidated consultation related to updated Procedures is more efficient, less burdensome and more transparent for all parties involved, particularly when the ITU Radio Regulations upon which many of the Procedures will be based may soon be amended. Proposed amendments. It is appreciated that, as Ofcom staff explained during the workshop on 10 June, Ofcom will implement the Procedures reasonably. However, nowhere in the proposed amendments to the Procedures is this concept stated. SES therefore proposes that a general statement be included in the Procedures that where reasonable Ofcom will take due account of the commercial and financial reality of the commercial satellite sector. SES would propose the following wording for Ofcom’s consideration: (to be inserted in to the Procedures between paragraphs 5.2 and 5.3) “Ofcom shall implement the requirements set out in this Section 5 with due regard to its regulatory duties to ensure that its regulatory activities are 3 Section 3(3)(a) Communications Act 2003. 4 Section 6(1) Communications Act 2003. Chateau de Betzdorf L-6815 Betzdorf Luxembourg Tel +352 710 725 1 Fax +352 710 725 227 www.ses.com R.C.S. Luxembourg B81 267 EU VAT Identification Number LU18953352 P. 2 implemented in a manner that is transparent, accountable, proportionate, and targeted only at cases in which action is needed in accordance with its statutory duties set out in Section 3. Ofcom shall apply these due diligence requirements in accordance with these duties and taking into account the commercial, financial and technical feasibility of imposing a requirement while having regard to the purpose of these requirements set out in Section 5.1., and the intention of the ITU Radio Regulations. Ofcom shall also take into account technological developments which may allow milestones to be met in shorter periods than those specified in this section 5.” Legal status of the Procedures. The Procedures set out the criteria that must be followed by applicants seeking to submit an application through Ofcom for the management and processing of satellite filings. However, the legal status of the Procedures is not described. In the event of a dispute, an applicant or operator will be assessed against its compliance with the requirements and obligations as set out in the Procedures. However, the Procedures are not clear concerning what is a recommendation versus what is a requirement. As a result, it would be difficult for operators to ascertain when this lack of clarity may lead to an enforcement action for noncompliance with all or certain of the Procedures. There are examples, including a Judicial Review 5 in which a court interpreted the Procedures as mandatory requirements rather than recommendations and an operator was assessed a penalty (including the suspension of a filing). SES therefore recommends that Ofcom expressly clarifies the legal status of the Procedures and identifies the sections of the Procedures which have a legally binding nature or otherwise. Ensuring optimal use and efficient management of spectrum under the Communications Act 2003(Section 3(2)(a)) and the Wireless Telegraphy Act 2006 (Section 3(2)(a)) . SES appreciates that Ofcom has discretion to exercise judgment as to the optimal use of spectrum. To ensure that the best decisions are made concerning the optimal use and value of spectrum, SES urges Ofcom to consult fully with industry and other interested players ( e.g. , the public value of spectrum). SES believes that this is of particular importance if Ofcom seeks to effect changes to the UK Table of Frequency Allocations. Consultation Questions Question 1 Do you have any comments on our proposals to: 5 ICO Satellite Ltd, R (on the application of) v The Office of Communications [2010] EWHC 2010 (Admin). Chateau de Betzdorf L-6815 Betzdorf Luxembourg Tel +352 710 725 1 Fax +352 710 725 227 www.ses.com R.C.S. Luxembourg B81 267 EU VAT Identification Number LU18953352 P. 3 - include additional milestones to provide evidence that the satellite project is on-going and that its frequency assignments will be brought into use within the seven year regulatory period; - clarify what evidence we will accept to demonstrate milestones have been completed; and - set specific deadlines for milestones? Do you have any comments on how these changes are worded in the proposed revised Procedures? Comments: It is understood that Ofcom seeks to minimise the reservation of orbital and spectrum resources where there is no actual intended use. However, the new milestones would impose burdensome reporting requirements that have no relevance to the satisfaction of ITU satellite filing requirements.