Can’t Auction Satellite Spectrum: Terrestrial concept of exclusivity doesn’t apply, hence auctioning is not applicable

In India, the so-called Radio Spectrum for Mobile Services is an emotive subject, and needless confusion has recently arisen over the allocation of spectrum for satellite communications, including broadcasting.

First, one must understand that spectrum is not a single commodity. Many types are involved—the several varieties of terrestrial spectrum for mobile access or for backhaul or for WiFi, etc, and the non-terrestrial, or satellite, spectrum. These involve completely differing treatments. It is also understandable that, by its very nature, satellite spectrum has no national territorial limits and is international in character and is therefore coordinated and managed by the UN agency, International Telecommunications Union (ITU), Geneva. There is, in fact, a specific treaty in place for spectrum cooperation, and India is a signatory to it.

The satellite systems have to be internationally coordinated as per relevant ITU Regulations, for the satellite networks to operate without harmful interference. Satellite-network operations require bilateral/multilateral coordination and cooperation. It is incumbent on the potential satellite operator (or operating agency) to obtain access to frequency assignments and suitable orbital position.

ITU’s Radio Regulations are based on the principles of `efficient and rational use of the RF spectrum’ and ‘equitable access’ to spectrum/orbit resources for countries, laid down in No. 196 (Article 44) of the ITU Constitution. Resolution 2 of the Radio Regulations provides that “all countries have equal rights in the use of both the radio frequencies allocated to various space radio-communication services and the geostationary-satellite orbit and other satellite orbits for these services.” Resolve 1 of Resolution 2 states that the registration with the Radio-Communication Bureau of frequency assignments for space radio-communication services and their use does not provide any permanent priority to any individual country or groups of countries and does not create an obstacle to the establishment of space systems by other countries. To use a commercial analogy, countries should not see the ITU as a wholesaler of spectrum rights granted in perpetuity, which countries can then market at retail to satellite operators.

The world over, satellite spectrum is authorised for ‘right-to-use’ by all administrations and is allocated only by administrative process, at charges that essentially cover the cost of administration.

Unlike terrestrial spectrum, satellite spectrum is never exclusively assigned to the operator but coordinated internationally and shared among multiple operators for different orbital slots and all types of satellites. Thus, the terrestrial concept of exclusivity does not apply and auctioning therefore is not applicable. Moreover, any commodity to be auctioned has, obviously, to be free from any encumbrances. Satellite spectrum has international encumbrances.

Since inception, in every nation, microwave backhaul spectrum has never been auctioned. If satellite spectrum were to be auctioned, by the same logic and for level playing field, it would entail the taking back of all backhaul microwave spectrum from mobile operators and auctioning them. Similarly, WiFi spectrum which is delicensed the world over and in India, would have to be taken back from operators and the public, and auctioned.

It is interesting that the other camp seeks to invoke level playing field conditions promised by Article14 of the Constitution and also the famous judgement of the SC in the 2G spectrum matter, to demand auction of satellite spectrum. Unfortunately, this is a grossly flawed argument and confirms the opposite. In the cited 2G Spectrum case, there was a Presidential Reference No.1 of 2012, wherein the Supreme Court, opined, in its advisory jurisdiction, that “Auction, as a method of disposal of natural resources, cannot be declared to be a Constitutional mandate under Article 14 of the Constitution of India.” The SC further stated that “Auction may be the best way of maximising revenue, but revenue maximisation may not always be the best way to serve public good.” India has only one-third of its Asian peers’ satellite connectivity per capita and only one-twentieth or even lower than that of Europe and the US. A very poor position for our digital ambitions. We must expeditiously move ahead, in tune with global trends and practices which definitely preclude auction of satellite spectrum.. Policymakers should not allow the commercial vested interests of a few terrestrial incumbents to stall or block the massive potential contributions of the satellite sector.

With research inputs from Debashish Bhattacharya