By Prabhav Tripathi (IIIrd Year, Institute of Law, Nirma University)
Recently, India began consultations for the auction of satellite spectrum. However, the international findings and practice were discovered to be overwhelmingly against this approach which led to India’s official inclination towards the administrative assignment of the spectrum. Apart from the dozens of reasons that are submitted for the impracticability of auctioning satellite spectrum, the core argument relies on determining the objective usage efficiency of a ‘limited resource’ for the telecommunication satellites - the geostationary orbit. The geostationary orbit provides an advantage over the various other orbits that are capable of holding satellites, mainly because of its quality to facilitate Earth-synchronous rotation, precluding the need for moveable antennas and complex readjustments to avert interruptions. Such satellites, used for telecommunication, meteorology, data relay and space research purposes, operate through signal emissions from radiofrequency spectrum.
With a rapid rise in space technology dealing with the above aspects, there is a shadow of concern cast over the management of international areas. Considering the contemporary scientific advancements and encouragement of space exploration by developing States, the exhaustive nature of orbital positions and frequency spectrum in the geostationary orbit may lead to significant limitations and challenges in their allocation.
Geostationary Orbit and Radiofrequency Spectrum as Limited Natural Resources
The satellites placed in the geostationary orbit match the rotational speed of the Earth - 23 hours, 56 minutes and 4 seconds. Such synchronous movement presents the satellites as a fixed observer of the Earth’s surface, and it appears to be stationary over a specific point of the equator. Moreover, the visible area from a satellite launched in the geostationary orbit captures one-third of the surface and allows almost global coverage with the signals of three satellites. For proper communication and operation of the satellites, a specific band of the electromagnetic spectrum is required. The allocation and management of the orbital position and radiofrequency is coordinated by the International Telecommunication Union (ITU) under various sections categorized on the basis of broader functions. However, the limitations to their usage have often caused issues in the proper administration of the slot-allocation process.
In the case of geostationary orbit, the challenges are mostly based on the physical element. This also justifies the plethora of compliance parameters that are needed to be fulfilled for securing an orbital slot. The non-functional satellites pose a potential threat to the other operators once they are out of fuel and drift uncontrollably in orbit. To move within the desired orbit and continue the synchronicity with Earth, active station maintenance systems are required by the satellites. Further, the permit of ITU on ‘co-located satellites’, wherein more than one satellite is present in the same slot, significantly increases the risk of interference and collision, subsequently leading to debris creation. Owing to the physical features and complimentary hurdles, the geostationary orbit has a limited space to safely accommodate satellites. It should also be taken into consideration that not all available slots in the orbit are of equal interest to the States, and this further narrows down the options. Though there is no scarcity of positions in the geostationary orbit currently, the influx of satellites in the coming years possesses the potential to create physical congestion in outer space.
Surprisingly, even with the presence of these limitations, the impediments pertaining to the radiofrequency spectrum are relatively more critical in the allocation process. Radio communications have faced the issue of frequency interference since their inception. When two transmissions are produced with the same frequency in a specific geographical area, the interference results in deterioration or loss of the signal. In outer space, the congestion of the radiofrequency spectrum leads to interference with satellites functioning on the same frequency band in the geostationary orbit. This, in turn, disrupts the communication services and increases the demand for allocation of alternative frequencies for improved efficiency. Hence, the geostationary orbit serving as the only orbital string with appropriate features, and its radiofrequency spectrum having limited bands that are suitable for the communication arena are considered as essential part of the limited natural resources of outer space. The same has been reaffirmed in Article 33(II) of the 1982 ITU Convention and Article 44 of the 1992 ITU Constitution.
Methods of Allocation
Since the beginning of the space and satellite era, there have been tussles between the developed nations and developing nations on the approach for a frequency allocation system. Though the international administration is the responsibility of ITU, the origin and development of orbital position and spectrum allotment system has been the contribution of two approaches: the a posteriori approach and the a priori approach.
According to the a posteriori approach, the entire method for registration of frequency was based on a ‘first-come, first-serve basis.’ The rights of those registered were protected from the infringement or interference of signals by later users. In the 1959 World Administrative Radio Conference (WARC), the space pioneers led by the United States aimed to orient and incline the procedure towards the early registrants. This would ensure permanent frequency assignment for space services on an exclusive level. Developing nations, like Israel, pushed for multilaterally-negotiated temporary allocation to counter the monopoly plan of the developed nations but failed. As expected, the industrialized nations enjoyed the unlimited use of registered orbital position and frequency spectrum until the expiry of the operator’s system or the State’s will to cease its usage by issuance of a notification to ITU. The regulation process for this was dealt with by ITU’s Radio Regulations (p. 134).
The unfair advantage to the space pioneers in the application of this approach was in contradiction to the principle of freedom of access to outer space enshrined in Article I of the Outer Space Treaty and the non-appropriation principle in Article II of the same treaty.
The request of developing States for a new method of the orbit and spectrum allocation started serious deliberation in international fora with the introduction of the concept of “equitable access.” Though the UN Resolution 1721 (XVI) mentioned the availability of satellite communication on a non-discriminatory basis, it did not help budge the prevailing approach. The first blow to the a posteriori approach was the 1971 WARC, where the principle of equitable access was inserted in the resolution (p. 311). Similarly, the 1973 ITU Convention adopted this principle and under Article 33 it specified that the use of orbital slot and frequency must be “efficient and economic.” Improvements, considerations, and amendments were made in the assignment method in the 1982 ITU Convention that played a relevant role in the introduction of the a priori approach.
The WARC of 1985-1988 led States to agree to a “dual system of allocation” where each ITU member was reserved an orbital position having a predetermined arc and band (p. 240). By this, each State was entitled to one slot and one frequency for use in space services. This was a revolutionary step to benefit developing States, despite the fact that it brought some challenges of its own.
Limitations and Challenges of the Current Allocation Methods
The most relevant issue posed by the a posteriori approach is the administrative burden in coordinating the increasing number of applications for orbital positions and spectrum. Most of these applications are not based on real projects but for securing a slot for speculative activities that may or may not actually happen. To some extent, the 1997 World Radiocommunication Conference tackled this challenge of “paper satellites” by revising its application process.
Secondly, the a posteriori approach has witnessed the presence of entities that apply for satellite slots not with the aim to operate them, but instead to waive off their rights and sell them to satellite operators. The nation of Tonga and TONGASAT received strong criticism for similar activities. However, no explicit rule precludes such sale except Article I of the Outer Space Treaty.
The a priori procedure poses a major challenge to the “efficient and economic” use of the limited natural resource, as potential users do not have to demonstrate a requirement or technical capacity to use an allocation. As a branching consequence, the principle of equitable access pertaining to orbital slots and frequency spectrum remains only theoretical. The less developed States are entitled to an essential position in outer space that may never be used. Therefore, this approach defies the logics of economy by permitting unproductive and inefficient usage of positions. The absence of comprehensive discussion on the role of private players exacerbates the limitations to a different sphere altogether.
Both the approaches to the allocation of orbital slots and radiofrequency spectrum have left the ideal objective unsatisfied. Though the presence of its own challenges has harmed the smooth assignment and use of the limited resources, the a priori method has at least moved a step forward in ensuring participation opportunities for developing nations. It is the responsibility of the ITU to ensure the elements of a legal regime in this arena are properly fulfilled while establishing a new method that suits all the State parties and adheres to the principles of outer space. Ultimately, the entire issue converges to striking a balance between ‘efficient and economic use’ and ‘equitable access.’
 FABIO TRONCHETTI, THE EXPLOITATION OF NATURAL RESOURCES OF THE MOON AND OTHER CELESTIAL BODIES 170 (Brill Publishing, 2009).
 N. JASENTULIYANA & R.S.K. LEE, MANUAL OF SPACE LAW 253 (Oceana Publishing, 1979).
 D. Riddick, Why does Tonga own Outer Space?, 19 AIR & SPACE L. 15 (1994).