Journal of Air Law and Commerce Volume 63 | Issue 4 Article 7 1998 The aP per Satellite Chase: The ITU rP epares for Its Final Exam in Resolution 18 Henry Wong Follow this and additional works at: https://scholar.smu.edu/jalc Recommended Citation Henry Wong, The Paper Satellite Chase: The ITU Prepares for Its Final Exam in Resolution 18, 63 J. Air L. & Com. 849 (1998) https://scholar.smu.edu/jalc/vol63/iss4/7 This Comment is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Journal of Air Law and Commerce by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. THE PAPER "SATELLITE" CHASE: THE ITU PREPARES FOR ITS FINAL EXAM IN RESOLUTION 18 HENRY WONG* TABLE OF CONTENTS I. INTRODUCTION .................................. 850 II. THE LEGAL AND INSTITUTIONAL CONTEXT UNRAVELED ...................................... 853 A. THE TONGAN SURPRISE ......................... 853 B. THE INTERNATIONAL TELECOMMUNICATIONS U NIO N .......................................... 855 C. THE OUTER SPACE TREATY OF 1967 ............. 856 III. OTHER FACTORS CONTRIBUTING TO THE PAPER SATELLITE PROBLEM .................... 858 A. THE GOLD RUSH PHENOMENON ................. 858 B. LACK OF ITU RESOURCES ....................... 860 C. INCREASED RIVALRIES BETWEEN ADMINISTRATIONS ............................... 861 IV. CURRENT PROCEDURE .......................... 862 A. BACKGROUND ................................... 862 B. PROBLEMS WITH THE CURRENT PROCEDURE ..... 864 V. RESOLUTION 18 .................................. 866 A. REDUCING TIME LIMITS ......................... 866 B. ADMINISTRATIVE DUE DILIGENCE ................ 868 C. FINANCIAL DUE DILIGENCE ...................... 870 D. PROBLEMS WITH IMPLEMENTATION .............. 873 VI. A MARKET DRIVEN APPROACH ................. 875 A. EXPANDING ITU MEMBERSHIP ................... 875 B. INVOLVING THE SATELLITE INDUSTRY IN THE ITU PROCESS ................................... 876 * J.D./M.B.A. Candidate, 1999, American University Washington College of Law/Kogod School of Business Administration. The author would like to thank his mother, father, and sister for their continuing and unconditional love and support. The author is currently an associate in the telecommunications group at the international project finance firm Taylor-DeJongh, Inc. and a former law clerk at INTELSAT's office of General Counsel. 849 850 JOURNAL OFAIR LAW AND COMMERCE [63 C. OTHER BENEFITS OF MARKET DRIVEN APPROACH ...................................... 878 VII. CONCLUSION ..................................... 879 I. INTRODUCTION "Excuuuuuse me, you're parked in my slot. " AMID CONTINUING SKEPTICISM of its role as ombudsman L f the satellite telecommunications industry,2 the Interna- tional Telecommunications Union (ITU) 3 stands at the begin- ning of its greatest challenge yet: whether it can withstand the paper satellite storm and satisfy all of its constituents at the same time.4 The paper satellite problem refers to the gigantic I Delbert D. Smith, Panel Discussion at the Nineteenth Annual Satellite Com- munications Expo & Conference: Excuse Me. You're Parked in My Spot (Sept. 18, 1997) (on file with author) (describing the new era of non-cooperation between administrations brought about by the paper satellite crisis). 2 See Vineeta Shetty, ITU in Mid-Flutter, COMM. INT'L, Nov. 1994, at 5. Global privatization of the telecommunications industry has left the role of the Interna- tional Telecommunication Union (ITU) in question. See id. As state owned ad- ministrations have changed roles from operator to regulator, "new technologies have given rise to new operators." Id. Arrangements negotiated between the op- erators have replaced the ITU's inefficient ways of providing international tele- communications services. See id. In addition, regional organizations have essentially been duplicating the activities of the ITU. See id. Financial accounta- bility at the ITU is also beginning to spin out of control. See id. Increased rival- ries have forced the ITU to deal with its inherently conflicting goals of equitable access and economic efficiency. See id. As a result, dwindling funds, competing alternatives, and increased rivalries may lead to the ITU's undoing. See id.; see also Scott Blake Harris, Complacency Could Kill Off the ITU, COMM. WK. INT'L, Mar. 10, 1997 (discussing the impending challenges faced by the ITU, which could deter- mine its ultimate credibility in dealing with international telecommunications issues). 3 SeeJoseph A. Bosco, InternationalLaw Regarding Outer Space-An Overview, 55 J. AIR L. & COM. 609 (1990). The ITU is an international telecommunications agency of the United Nations. See id. at 622. The ITU was founded in 1865 as the International Telegraph Union to establish regulations for international telegra- phy; PAMELA L. MEREDITH & GEORGE S. ROBINSON, SPACE LAW: A CASE STUDY FOR THE PRACTITIONER: IMPLEMENTING A TELECOMMUNICATIONS SATELLITE BUSINESS CONCEPT 158-79 (1992). The International Telegraph Union changed its name to the present day International Telecommunications Union in 1932. See id. at 158. In 1959, the ITU embraced space communications. See id. See generally RITA LAURIA WHITE & HAROLD M. WHITE, JR., THE LAW AND REGULATION OF INTERNA- TIONAL SPACE COMMUNICATION 30-61 (1988) (discussing the history of the ITU). 4 See Clayton Mowry, Shred the Paper Satellites, SATELLITE COMM., Nov. 1996, at 61. "At the recent Satel Conseil symposium in Paris, France, Pekka Tarjanne, Director General of the ITU, told the audience that the future of his organization depended largely on its collective ability to solve the mounting paper satellite crisis." Id. 1998] PAPER SATELLITE PROBLEM number of applications filed with the ITU Radiocommunication Bureau (RB) to operate satellite systems at specific locations in geostationary orbit.5 Abuse of the ITU's "first-come-first-serve" reservation process has caused congestion in the orbital arc by satellite system projects that exist on paper but not in reality.6 In fact, many of the architects of these filings know their projects will never see a launch pad, but they insist on delaying tangible satellite systems from entering orbit.7 These events culminated at the World Radiocommunications Conference (WRC-97) 8 during the fall of 1997 in Geneva, Swit- zerland. Resolution 18, which was adopted by the WRC-95 to study and recommend possible solutions to the paper satellite 5 See Siegfreid Wiessner, The Public Order of the Geostationary Orbit: Blueprintsfor the Future, 9 YALE J. WORLD. PUB. ORD. 217, 218-20 (1983). The geostationary orbit lies directly above the equator at an altitude of 22,300 miles (35,776 km) in the sky. See id. at 218; see also Sharon L. Fjordbak, The InternationalDirect Broadcast Satellite Controversy, 55 J. AIR. L. & COM. 903, 905 n.12 (1990). A satellite posi- tioned in geostationary orbit provides the most desirable means of relaying tele- communication signals because the satellite travels at the same speed of the rotation of the earth. See id. at 905 n.12. Thus, its fixed position in the sky elimi- nates the need for a land based transmitter to constantly track its location. See id. Three satellites operating in relay can provide worldwide coverage. See id. See generally Martin A. Rothblatt, The Impact of International Satellite Communications Law upon Access to the Geostationary Orbit and the Electromagnetic Spectrum, 16 TEX. INT'L L. J. 207, 209-10 (1980) (discussing the development of the geostationary spectrum). 6 Mowry, supra note 4, at 61. 7 See id. 8 See ITU Press Release, WRC 97 to Shape Development of Tomorrow's Radiocom- munications Environment (October 23, 1997) <http://www.itu.ch/PPI/press/re- leases/1997/itu-19.html> [hereinafter ITU Press Release]. WRC-97 was held October 27 through November 21, 1997, in Geneva, Switzerland. See id. The four week long conference set international regulations for use of radiocom- munication frequencies by terrestrial and wireless systems and satellite orbital slots. See id.; Peter B. de Selding, WRC '97 Targets Glut of Paper Satellites, SPACE NEWS, Oct. 27-Nov. 2, 1997, at 4 [hereinafter Selding, Glut]. The meeting was composed of 1,600 corporate and government delegates from over 140 countries. See Selding, Glut at 4. "Once a low-key conference of engineers who spent days debating issues of little immediate interest to the outside world, the WRC gather- ings have become high-stakes events featuring spare-no-expense corporate lobby- ing and political arm twisting." Peter B. de Selding, Spectrum Crunch Sets Stagefor European-U.S. Scuffle, SPACE NEWS, Oct. 27-Nov. 2, 1997, at 4 [hereinafter Selding, Euro-U.S. Scuffle]; see also Sara Anne Hook, Note, Allocation of the Radio Spectrum: Is the Sky the Limit?, 3 IND. INT'L & COMP L. REv. 319, 331-33 (1993). WRCs are international meetings of government and private industry representatives re- sponsible for making changes to international radio regulations. See Hook at 331. Member nations must adhere to WRC's regulations when formulating their own domestic regulations. See id. However, in the United States, the Senate must ratify the WRC's acts before they become binding on this country. See id. 852 JOURNAL OF AIR LAW AND COMMERCE problem, was among the many issues considered during the conference.' The ultimate success of Resolution 18 however will not come without its share of problems.1" An international sat- ellite coordination process could