13 January 2011
Space Engineering Section,
Spectrum Infrastructure Branch,
Australian Communications and Media Authority,
PO Box 78
BELCONNEN ACT 2616
Dear Sir/Madam,
Review of Satellite filing and coordination procedures – Optus’ comments
I write to provide Optus’ response to the Australian Communications and Media Authority’s (the ACMA) “Review of Satellite filing and coordination procedures” Discussion Paper (Discussion Paper).
Executive Summary to Optus’ Comments
Optus welcomes this review and thanks the ACMA for the extensive effort put into the Discussion Paper.
In Optus’ view, the ACMA has an important role to play in ensuring that international satellite filings are managed in a way that both:
(a) complies with international procedures and
(b) protects and advances Australia’s national interests.
For these reasons, Optus recommends that the Authority formally adopts the decision that the satellite co-ordination services are a “spectrum management” function of the ACMA
Keeping in mind the above, Optus believes that any changes to the current procedures should aim to achieve the following:
1. Ensuring that filings made through the ACMA are used efficiently and in a manner that benefits Australia (including by reducing the number of paper satellites)
Optus applauds the ACMA’s aim of reducing the incidence of speculative, purely defensive or even malicious applications that may impede development of genuine satellite networks that benefit Australia. However any additional criteria imposed in pursuit of this aim should be applied in a targeted way where concerns are raised. Raising administrative burdens across the board may increase the workload of the ACMA and operators to an unsustainable level.
2. Protection of existing satellite network infrastructure, particularly networks currently relied on by Governments, corporations and individuals in Australia
An important part of the assessment criteria of any new satellite filing should be its potential impact on existing services or the integrity of any existing fleet which services Australia.
3. Encouraging investment in satellite networks that benefit Australia by providing certainty
Satellite networks cannot exist without very large investments of capital. To attract actual investors rather than speculative filings, it is vital to provide the satellite operator with legally enforceable access to the filing once the initial criteria have been met, as long as the operator continues to meet its ongoing obligations. Vagueness in the nature of the rights to use the filing or any risk that the criteria for access may change during the life of the spacecraft will make it more difficult to justify an investment in satellite infrastructure that benefits Australia. For this reason Optus supports the use of a legally enforceable agreement that provides the satellite operator with rights as well as obligations. Obligations that have the potential to affect access to a filing must be enshrined in a contract or deed, rather than sitting in a Manual which can change from time to time. Optus would be reluctant to commit significant funds to a satellite network if access to the filings could later be denied as a result of new criteria inserted into the Manual.
4. Reducing or eliminating red tape where appropriate, in order to avoid waste of time and resources of the ACMA and its stakeholders.
ITU satellite filings and co-ordination procedures are extremely complex and impose a significant burden on satellite operators and Administrations alike. For this reason the ACMA should avoid imposing additional administrative burdens over and above the ITU requirements in circumstances where this is unnecessary. Additional information or technical analysis may be required from operators from time to time in order to overcome specific concerns; however these requirements should be applied in a targeted manner, not across the board. For example, a start up satellite operator may need to provide extensive information to show that it is capable of operating a satellite programme. However an established operator should not be asked to provide the same level of detail. As every satellite filing and its associated satellite co-ordination is different it is not practicable to provide an all encompassing set of procedures covering every case. To this end, Optus recommends:
(a) that the ACMA continue using the existing ITU satellite co-ordination arrangements as the basic threshold (rather than creating a new set of arrangements) retaining flexibility to request further information where particular concerns are raised;
(b) that only the ITU co-ordination arc approach be used to determine whether co-ordination is needed between existing and proposed Australian filed networks
(c) that no new Milestones be adopted for Australian filed networks, except where there is reason to believe that the filing is not for the purpose of a genuine satellite system; and
(d) that the ACMA review the proposed amount for assessment of applications and reduce it taking account of the ITU filing fees.
Background to Optus’ Experience with Satellite Filings
The initial filings for what was to become the AUSSAT A series satellites were made in 1981 by the then Department of Communications. Those satellites were launched in 1985 and since that time, Optus and its predecessors have needed to be engaged in intersystem satellite frequency co-ordination on an ongoing basis. Optus has replaced a number of its satellites over the years and has needed to make additional filngs to cover the increased capabilities of its replacement satellites. Optus currently has 5 satellites in orbit at 4 different orbit positions providing services mainly to Australia, New Zealand and parts of Papua New Guinea. These satellites operate in the 14 /12 GHz Fixed Satellite service and 1.5/1.6 GHz Mobile Satellite bands. In addition one satellite uses frequencies in the Broadcasting Satellite Plan in accordance with Appendices 30 and 30A of the Radio Regulations.
Optus Networks Pty Limited, a subsidiary of Optus, executed a Deed with the then ACMA for satellite co-ordination and other services in November, 2001. Optus has developed significant expertise in the co-ordination of its own fleet of satellites. In the late 1990’s Optus was issued with a number of “Letters of Delegated Authority” by the then ACA to conduct its satellite co-ordination activities directly with other operators provided the other Administration agreed. Many bi-lateral co-ordination agreements have been achieved by Optus since that time. Each co-ordination agreement has been submitted to ACA/ACMA for ratification and the foreign operator has used a similar process with their administration. Travel to other countries to negotiate these agreements is often required although Optus encourages working by correspondence as much as possible.
In the case of Mobile Satellite Services in the 1.5/1.6 GHz bands, Optus has supported Australia’s involved in a Multi-Lateral process governed by a Memorandum of Understanding of which Australia is a Party. This has required Optus’ attendance at an annual meeting of other GSO/MSS Operators and also Australia’s attendance at meetings of Parties held at least every 5 years.
As a result of these efforts, Optus is able to note that many of its current assignments have completed Notification and are permanently recorded in the MIFR whilst the remainder are working through the ITU Notification procedures and permanent recoding is expected in the next few years.
Against this background, Optus is pleased to be able to respond to the ACMA’s Discussion paper and offers responses to the specific questions posed in the Discussion Paper below. Optus has also examined the UK Ofcom’s “Procedures for the Management of Satellite Filings” dated 27 March, 2007.
Question 1: Please outline any advantages or disadvantages of the existing model.
Overall Optus has been able to work with the existing model, which involves entering into a legally enforceable deed with both rights and obligations.
The advantages are as follows:
(a) the Deed gives Optus legally enforceable rights to use the filings, as long as Optus complies with its obligations;
(b) the Deed clearly sets out Optus’ obligations with respect to the filings. This provides certainty about what Optus must do (or refrain from doing) in order to maintain access to the filings; and
(c) this level of certainty is crucial to the decision of whether or not to invest significant capital in a satellite that is designed specifically for use at a particular orbital location or locations.
The disadvantages are as follows:
The current assessment process:
(i) does not have procedures for assessing the impact that a new filing may have on existing satellite infrastructure. For example, collocation of two satellites at the same orbital location may increase the risk of physical collision and is likely to reduce the orbital life of an existing satellite at that location;
(ii) relies too much on ‘first come first served’ in allocating scarce resources, without sufficient consideration of whether that resource is likely to be used for the benefit of Australia (or at all); and
(iii) is not always able to respond quickly to secure scarce filings at an international level, where these filings are necessary to provide services for Australians.
Question 2: Comment is invited on the change in classification from ‘additional’ to ‘spectrum management’ function.
Optus fully supports the change in status of this function from “additional” to “spectrum management”, as this new description recognises the ACMA’s role in ensuring that the allocation of filings in done in a manner that supports the national interest.
Question 3: Do you have a comment about the manual of procedures—its form or content?
Optus believes that a Manual could be a useful tool for setting out assessment criteria and coordination procedures, although query whether the same outcome could be achieved by providing this information on the ACMA website.
Optus does not support the use of the Manual for the purpose of setting out legally enforceable obligations, where these obligations can be changed unilaterally by the ACMA. Any obligations that apply to the operation of a satellite in a certain filing must be fixed at the time the satellite operator enters into a contract to purchase or build the satellite. It is not acceptable to have a moving target once significant resources have been irrevocably committed by the satellite operator. If there is a risk that new criteria can be introduced that the satellite operator cannot meet for some reason it will act as a deterrent to actual investment in services for Australia.
Optus also takes the view that the current draft manual attempts to be too prescriptive in a number of areas. Specific comments are set out in a mark up in Attachment 1.
Question 4: One of the assessment criteria states: ‘The applicant must demonstrate that it has the technical and financial credentials required for the coordination of the satellite network and design of the physical satellite.’ Is there anything you, as a satellite operator, currently use (financial statements, etc) that could be used to satisfy a financial due diligence requirement?
Where it is obvious that an applicant has the scale and expertise to successfully operate a satellite programme and meet its obligations, we do not believe the ACMA should be burdened with the obligation to perform a detailed assessment of credentials. For example, an existing satellite operator which is currently meeting its obligations with respect to its satellites in Australia and elsewhere should not need to supply any information that is not available in the public domain, such as a link to annual reports or information released to the stock exchange. This is an example of an area where detailed assessment would be burdensome and unnecessary, except where there is reason to have concern. Optus does not believe that business plans should be required to be submitted to ACMA as a matter of course as part of the filing process.
However for a new entrant, Optus believes that an assessment of financial viability is warranted. For example, Optus does not believe that a filing should be allocated to a new entrant that cannot show that it has secured funding for its proposed satellite programme. A scarce resource should not be locked up where there is little or no chance that the resource will be used to benefit Australia or Australians.
Similarly, it is clear that a significant level of skill and knowledge of satellite parameters is necessary to develop a filing using ITU software with the appropriate validation. Where the filing has been correctly developed and the applicant is an existing satellite operator, there is no need to make an investigation about the applicant’s technical skills. However for a new entrant, or in the case of a poorly conceived filing, it is clear that the ACMA should reserve the right to require production of additional information, such as curriculum vitae of experts involved in the proposed programme.
Question 5: In relation to milestones, the ACMA invites comment on any tool currently used that would enable the ACMA to assess the present state of coordination for the satellite network.
Optus has worked with Australia in the ITU environment to establish the current Due Diligence arrangements under Resolution 49. In addition, there are Milestones under the MSS MoU which must be re-certified each year before spectrum access is granted. Optus is aware that in the European and USA environments, there are Milestones regimes of various sorts.
Optus believes that there should not be any additional milestones imposed by ACMA in the Australian process and the ACMA should simply apply the ITU arrangements, except where there is a concern about the financial or technical viability of the applicant (see above) or where there is reason to doubt the genuine nature of the application.
If milestones are applied, the ACMA should take into account genuine possibilities of moving satellites into an orbital location in order to bring a filing into use. A ‘one size fits all’ approach is not appropriate in all cases. Optus believes any milestones, if applied, should be tailored to suit the particular programme and included in the Deed or agreement.
Question 6: The ACMA requests input on the proposed methodology for coordination between Australian satellite networks. In addition, we seek comments on the balance between protecting existing and facilitating new satellite networks.
Optus has had extensive experience in co-ordination satellite networks in several frequency bands. In addition, Optus has, on several occasions, been involved in co-ordinations with other Australian networks and, in one case, did result in agreements. Optus reaffirms very strongly that all co-ordinations are different and care must be exercised in being too prescriptive about when co-ordination is not required.