Legal Issues of Using Foreign Communications Satellites in Kazakhstan
Yuliya Mitrofanskaya, Senior associate with SALANS international law firm, PhD in Jurisprudence and LLM (USA),
Ivan Zaitsev, Former associate with SALANS international law firm
Advances in science-intensive technologies at the end of the millennium provided a strong impetus for the international telecommunications market. This influence was as palpable in Kazakhstan as anywhere, since for a country situated in the heart of Eurasia, its landlocked position makes telecommunications development a crucial task. The use of high-speed data transmission facilities became a routine operational need to many national and foreign companies working in various sectors of the Kazakhstan economy. On the other hand, Kazakhstan law - enforcement practices do not seem adequate to keep up with the rapidly growing international telecommunications business which nowadays relies on both cable and satellite technology. This article provides an overview of the legal regulation of foreign communications satellites1, or, to be precise, the capacities of their transponders2 (hereinafter referred to in this article as “satellite capacities” or “capacities of satellites”) in international and Kazakhstan law. In addition, on the basis of SALANS’ experience in this area, an analysis is provided of issues arising in the practical application of the law.
1. In this paper “satellites” means artificial satellites of the Earth which are space components of satellite communications systems.
2. A transponder is a wireless control or monitoring device which automatically receives and responds to an incoming signal. The term is a combination of “transmitter” and “responder”. See http://searchnetworking.techtarget.com (visited on 15 July 2003).
International regulation of communications satellites
Communications satellites are artificial satellites of the Earth, i.e. are space objects. Therefore, international space law applies to the launch and operation of communications satellites. International law determines the jurisdiction of states with respect to communications satellites, their orbits, general rules for operating satellites, and the procedure for assigning radio frequencies.
Jurisdiction of states with respect to artificial Earth satellites is established by the international Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.3 According to Article 8 of that Treaty, “a State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object?while in outer space or on a celestial body.”4 Hence, the jurisdiction of the launching state applies to artificial Earth satellites, including satellites that are components of satellite communications systems.
3. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Moscow, Washington, London, January 27, 1967). The Republic of Kazakhstan joined that Treaty by the RK Law of May 15, 1997, On Kazakhstan Joining the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.
4. The procedure for maintaining the register and for registering space objects is regulated by the Convention on Registration of Objects Launched into Outer Space (New York, January 14, 1975), ratified by the Republic of Kazakhstan Law of May 15, 1997, On Kazakhstan Joining the Convention on Registration of Objects Launched into Outer Space. According to that Convention, the launching state has the obligation to maintain a register and to register objects launched into space.
The Convention on Registration of Objects Launched into Outer Space establishes that artificial Earth satellites, as space objects, include all component parts5 of a satellite, including its satellite capacities. Accordingly, the regulation of all issues associated with the operation of satellites, including issues related to using satellite capacities that are an element of satellite communications, are under the jurisdiction of the national law of the launching state. This means that no state, except for the launching state, may impose any limitations on the use of its space objects or their parts. The said limitations may be imposed only in pursuance of international law provisions.6 The position of a satellite in space is not subject to jurisdiction of any one state, which is associated with the non allowing of the national appropriation of space as declared by Article 2 of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space.
5. Convention of Registration of Objects Launched into Outer Space, Article 1 (b).
6. For example, Article 4 of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies sets the following limitation: “States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner”.
The radio frequency spectrum is to regulated differently. Sovereign rights of each state for the independent regulation of the radio frequency spectrum in its territory are secured by international law.7 According to the Constitution of the International Telecommunication Union, radio frequencies and orbit slots of satellites are limited natural resources which should be used “rationally, effectively and economically?to ensure fair access to all orbits and frequencies of various countries or groups of countries?”.8 Traditionally, states create a settlement system for using radio frequencies on their territory, which is associated with the need to realize such aims as priority use of space technologies pursuant to national or international space programs, protecting the domestic market for similar services, and the maximum protection of state security and interests of consumers.
7. Preamble of the Constitution of the International Telecommunications Union (Geneva, December 22, 1992). The Republic of Kazakhstan joined the Convention and the Constitution of the International Telecommunications Union on July 28, 1994.
8. Constitution of the International Telecommunications Union, Article 44. The Republic of Kazakhstan joined the Convention and the Constitution of the International Telecommunications Union on July 28, 1994.
The use of satellites, i.e. space objects, subject to the jurisdiction of the launching state but which are in space, i.e. outside any jurisdiction, should not infringe upon the rights of third parties or particular states, including the right of a state to regulate the radio frequency spectrum in its territory. The unauthorized use of the radio frequency of another state may cause damages, including disruptions in the radio communications of state services (including services responsible for state security), the operations of radio networks performing certain economic goals, and leaks in information that is a commercial of state secret. However, international space law does not envisage special liability for such type of disruptions and the resulting damage. For instance, the Convention on International Liability for Damage Caused by Space Objects) categorizes damage exclusively understood as “?loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organizations.”9 Therefore, disputes associated with damage due to unauthorized use of the radio frequency spectrum of a state are to be resolved by international law. The Constitution of the International Telecommunication Union envisages the resolution of disputes for using the radio frequency spectrum, including regarding the legality of specific actions and compensation for such damage, through arbitration created to resolve a specific dispute pursuant to the Constitution of the Telecommunications Union.10
9. Convention on International Liability for Damage Caused by Space Objects. Kazakhstan joined the Convention on International Liability for Damage Caused by Space Objects by Law of May 15, 1997, Article 1(?).
10. Constitution of the International Union of Telecommunications, Article 56.
Consequently, international law established that the jurisdiction of the launching states applies to communications satellites. Therefore, a state, users of which directly or indirectly (through local operators) use capacities of foreign satellites do not have the ability to control satellites and companies providing their capacities. Therefore control of the use of foreign satellites may be performed by regulating communications satellite operators owning the ground stations in the state on whose territory the satellite communications are being carried on. In this case, ground equipment and radio frequencies are the subject of legal regulation. With respect to liability for damage caused by foreign communications satellites to the interests of another state and the population thereof, despite the nature of the item damaged, issues related to liability are to be resolved pursuant to international law on compensating damages.
Experience of other countries in regulating foreign communications satellites
To ascertain possible ways of Kazakhstan law development, we should consider the experience of Russia and the United States with respect to regulating foreign communications satellites.
In Russia, as in Kazakhstan, telecommunications are a relatively new area for legal regulation. The use of foreign communication satellites is regulated by the Statute on the State Regulation of the Permitting and Use of Foreign Communications and Broadcasting Satellite Systems in the Information (Telecommunications) Space of the Russian Federation approved by the RF Government Decree on February 1, 2000. The Statute regulates authorization and use of foreign system of satellite communications for the rendering of communications services in the Russian Federation.11 According to the Statute, “providing communications services using foreign satellite communications and broadcasting systems in the RF should be carried on pursuant to the procedures and rules stipulating the sovereign right of each state to regulate its activities in the area of communications.”12 In its essence, this condition is a key principle of international law on the state regulation of the use of satellite capacities of foreign satellites.
11. RF Government Decree of February 1, 2000, Statute on the State Regulation of the Permitting and Use of Foreign Communications and Broadcasting Satellite Systems in the Information (Telecommunications) Space of the Russian Federation, Clause 1 // Collection of RF legislation, #6 (2000), 768.
12. Statute on the State Regulation of the Permitting and Use of Foreign Communications and Broadcasting Satellite Systems in the Information (Telecommunications) Space of the Russian Federation, Clause 13.
The Russian law defines a foreign communications satellite as a “satellite manufactured and put into operation by a foreign enterprise (organization) or international organization?”.13 As stated in law, foreign systems of telecommunications are allowed on the telecommunications market of Russia only if such systems belong to international organizations or if there are no similar telecommunications systems in Russia.14 As regards creation and maintenance of ground-based communications infrastructure and provision of telecommunications services, according to the Statute on the State Regulation of the Permitting and Use of Foreign Communications, these kinds of activity are carried out exclusively by Russian operators, i.e., companies which are registered in the Russian Federation.15 Thus, it is clear that the legislative intent was to restrict access of foreign telecommunications systems and foreign operators on the Russian telecommunications market, as well as existence of local investors who are interested in investing in the Russian telecommunication sector.
13. Statute on the State Regulation of the Permitting and Use of Foreign Communications and Broadcasting Satellite Systems in the Information (Telecommunications) Space of the Russian Federation,” Clause 2.
14. Id., Clause 6.
15. Id., Clause 7.
Access to the Russian telecommunications market for foreign satellite systems created outside international agreements is provided by way of the foreign satellite operator entering into an agreement with the Russian operator who has a license for the provision of services with the use of foreign systems.16 Such agreement should set forth that the owner of the communications satellite guarantees that the satellite communications system does not have an espionage reconnaissance purpose, and may not cause harm to individuals, society or the state. An agreement between a Russian communications operator and the owner of the satellite is to be agreed to with the RF Ministry for Communications and Information Policy, the Federal Security Service, and with the Federal Agency for Government Communications and Information under the RF President and the Defense Ministry.17 Thus, the use of foreign telecommunications satellites on the territory of Russia is regulated by agreements between the Russian operator and the owner/operator of a foreign satellite; no other permits are required. However, regulation of access of foreign satellites to Russia appears to be cumbersome and restrictive for foreign satellite systems. The system lacks clarity and transparency for applicants. It gives an impression that in order to protect interests of Russia, the state uses the methods that do not necessarily correspond to best world practices.
16. Id., Clauses 7 & 10.
With respect to U.S. experience in regulating the use of foreign communications satellites, the USA uses completely different approach in regulating foreign satellites, which is provision of equal access to the American telecommunications market to foreign satellite systems.
In the USA., all issues associated with such regulation are under the authority of the Federal Communication Commission (“FCC”). In May 2003, the FCC made significant amendments to the procedure for granting permits to use foreign communications satellites. In its approach, the FCC follows the requirements adopted in the U.S. pursuant to the Agreement on Basic Telecommunications Services, concluded under the terms of the World Trade Organization (“WTO”). According to that Agreement, WTO members made binding commitments to open their markets to foreign competition in satellite services. In amending its law, the United States took the position that “providing opportunities for non-U.S.-licensed satellites to deliver services in the United States brings U.S. consumers the benefits of enhanced competition.”18 The main idea of lowering the regulatory burden was that “the policy of openness of the U.S. market, in turn, promotes greater opportunities for U.S. companies to enter previously closed foreign markets, thereby stimulating a more competitive global satellite services market.”19
18. First Report and Order and Further Notice of Proposed Rulemaking, Article 285 (page 108) in IB docket No. 02-34, DISCO II, 12 FCC Rcd at 24102 (para. 19). See http://hraunfoss.fcc.gov (visited on 15 July 2003).
The FCC has developed two procedures for ensuring access of foreign satellites to the U.S. market. The first procedure allows the non-U.S. satellite operator to participate in a space station processing round through an earth station application seeking to communicate with the satellite, or through a letter of intent to use a communications satellite to provide services in the USA In this case, the foreign satellite should meet all requirements of the FCC applicable with respect to U.S. communications satellites.20
20. Id., Article 286.
The second procedure applies in instances where the foreign communications satellite operator requests access to the U.S. market through a satellite in orbit and has initiated a coordination procedure pursuant to the Rules of the International Telecommunication Union. According to that procedure, the American operator of a fixed station intending to establish communications with a foreign communications satellite should file to obtain a license for the operation of a fixed station if it still does not have a license, or file to amend an existing license indicating therein the foreign communications satellite as the communications source and also confirming the conformity of the foreign communications satellite to the Commission’s requirements.21
Consequently, the American model for authorizing foreign communications satellites does not have a burdensome authorization procedure with respect to a foreign satellite company in case of the use of satellite capacities by American telecommunications companies. Along with this, the model makes it possible to exercise certain control with respect to the use of foreign communications satellites by American operators. The authorization procedure is established only with respect to foreign satellite companies intending directly to carry on telecommunications activities in the USA. All procedures adopted in the United States are ultimately aimed at lowering the regulatory burden on foreign satellites. According to FCC Chairman Michael K. Powell, “the fundamental changes we have made today will enhance the ability of the market to encourage competition both within the satellite industry and across technologies with other types of facilities-based providers.”22
22. Separate Statement of Chairman Michael K. Powell (Re: Amendment of the Commission’s Space Station Licensing Rules and Policies; IB Docket #02-34). See http://hraunfoss.fcc.gov (visited on 15 July 2003).
The above analysis of the regulation of foreign communications satellites in Russia and the United States, and an analysis of international law, allows the clear conclusion that the application of an authorization system with respect to satellite communications companies providing satellite capacities for use by local operators contradicts international law and the experience of foreign countries. The only possible form of control of foreign communications satellites is the application of an authorization system with respect to operators operating fixed stations.
Regulation of foreign communications satellites in Kazakhstan
Based on our experience with foreign clients operating in the area of satellite telecommunications in Kazakhstan, to use the capacities of foreign communications satellites before 2001, their authorization was required, i.e. it was necessary to obtain permits to use the capacities of foreign satellites by Kazakhstan users. Even though normative legal acts did not envisage the obligation to conclude any agreements with the Ministry for Transport and Communications, satellites were authorized by concluding such agreements. They defined the procedure for the Ministry to issue permits to provide satellites capacities to so called authorized Kazakhstan users. We can see from agreements available to us that they were concluded mostly to establish control of the use of the radio frequency spectrum in the Republic of Kazakhstan and were standard agreements, i.e. concluded with all companies intending to provide satellite services. From the start of 2002, that practice has been terminated which, obviously, was due to the aforementioned lack of an obligation to conclude such agreements.
Since 2001, Kazakhstan law in the area of communications and telecommunications has developed quickly. Amendments have been made to the RK Law On Communications, the new RK Law On Information Policy has been adopted, a Conception for developing the RK telecommunications sector from 2001 through 2005 has been developed,23 and many Government decrees have been adopted on issues related to the regulation of telecommunications. At present, Republic of Kazakhstan law has a sufficient base to control the activities of fixed satellite communications stations using capacities of foreign satellites, and to obtain information regarding such satellites.
23. RK Law of May 18, 1999, On Communications, RK Law of May 8, 2003, On Information Policy, and the Conception for Developing the RK telecommunications sector from 2001 through 2005, as approved by RK Government Decree of December 4, 2001.
What does the legal regulation of the providing of services using foreign satellites in Kazakhstan consist of? According to the RK Law On Communications, the use of the radio frequency spectrum in Kazakhstan and the regulation of orbit slots of satellites is under the sole authority of the state.24 Control of foreign communications satellites is carried on using various tools of the authorization system with respect to fixed communications satellite stations in Kazakhstan. Such tools include licensing, the requirement to obtain permits, registration, and certification.25
24. RK Law On Communications, Article 6.
25. See RK Law On Communications, and Decree of the RK Government of November 25, 1996, On Approval of the Statute on the Procedure for Licensing Entrepreneurial Activities in the area of Postal Communications and Telecommunications, and the Use of the Radio Frequency Spectrum in the Republic of Kazakhstan.
Under the basic rule of Kazakhstan law, activities associated with providing communications services are to be performed on the basis of licenses.26 The licensing of the providing of services for satellite communications, the technical operation of satellite communications systems, and the use of the radio frequency spectrum associated with activities in the area of telecommunications is stipulated. The procedure for obtaining licenses (including licenses for providing telecommunications services by satellite communications systems and the technical operation of satellite communications systems) is regulated by Statute on the Procedure for Licensing Entrepreneurial Activities in the area of Postal Communications and Telecommunications, and the Use of the Radio Frequency Spectrum in the Republic of Kazakhstan. The Statute provides that a license to operate satellite communications systems is required for a foreign satellite company only in case of its independent use of satellite communications equipment in the Republic. At the same time, the operation of a space-based communications station does not require obtaining a license.
26. RK Law On Communications, Article 11.
According to the Statute on the Licensing Procedure, a necessary condition for the issuance of a license is the provision by the applicant of an explanatory note containing technical proposals compiled pursuant to the qualification requirements for the types of activities that are to be licensed. The Statute establishes the requirement for the applicant to provide information not only regarding tactical and technical data of fixed stations, but also the purpose, location, and ownership of artificial earth satellites being used, their type and position, and the servicing zone.27 Moreover, the qualification requirements establish that an applicant should provide information regarding the capacity of the artificial earth satellites to be created by the system, regarding the increase of capacity by development stages, the frequency range, the modulation types for compression and inter-station access, the types of fixed stations in the communications system, the energy parameters of the system, and interface with fixed communications lines.28 Access of the state is guaranteed to information on the features of a foreign satellite whose capacities will be used for transmitting messages in Kazakhstan.
27. RK Government Decree On Approval of the Statute on the Procedure for Licensing Entrepreneurial Activities in the area of Postal Communications and Telecommunications, and the Use of the Radio Frequency Spectrum in the Republic of Kazakhstan, Annex 2, Clause 7.
In addition to a license for providing telecommunications services using satellite systems, it is necessary to obtain a permission to use the radio frequency spectrum.29 Permission to use the radio frequency spectrum certifies the right of the holder to use the frequency allocations assigned to it using technical resources.30 As for licenses, at present permissions are being issued by the Committee for Communication and Information Policy of the Ministry for Transport and Communications.31
29. RK Law On Communications, Article 12.5
30. RK Government Decree On Approval of the Statute on the Procedure for Licensing Entrepreneurial Activities in the Area of Postal Communications and Telecommunications, and the Use of the Radio Frequency Spectrum in the Republic of Kazakhstan, Clauses 9-10.
31. Id., Clause 2.
Legislation regulates in detail communications means and technical resources that are sources of electromagnetic radiation. Firstly, to import a radio-electronic communications facility and (or) high frequency device into Kazakhstan, a permit for the import of such must be obtained.32 Secondly, obtaining permission is also necessary for acquiring (selling), designing, or building (installing) the aforementioned devices and (or) communications facilities.33 Thirdly, such communications facilities and devices should be registered.34 And lastly, to start operation in Kazakhstan, it is necessary to obtain permission for use of such communication facilities.35 All technical resources, radio-electronic communications resources and high-frequency devices are subject to compulsory certification to conformity with established standards and technical conditions.36
32. Rules for Preparing Authorization Documents in the area of Communications and Registration of Radio-Electronic Facilities and High Frequency Devices, as approved by order of the Chairman of the Committee on Communications and Information Policy of the Ministry for Transport and Communications of the RK of March 11, 2003, Clause 32.
33. Id., Clause 23.
34. RK Law, On Communications, Article 6.5.
35. Rules for Preparing Authorization Documents in the area of Communications and Registration of Radio-Electronic Facilities and High Frequency Devices, as approved by order of the Chairman of the Committee on Communications and Information Policy of the Ministry for Transport and Communications, Clause 15.
36. RK Law On Communications, Article 10.
Based on the above, we can conclude that recently the use in the Republic of Kazakhstan of capacities of foreign communications satellites by Kazakhstan users is regulated by the law to a sufficient degree. The main emphasis of lawmakers has been made on regulating fixed communications facilities.
Control of the use of radio frequencies is performed through a control system of the fixed satellite communications stations by using the existing licensing system, the issuance of permits, and registration and certification. Owners of communications satellites may grant access to satellite capacities without any special permission of the state, on conditions agreed to between the foreign company and the Kazakhstan communications operator / user. Under such a scheme, the state, through Kazakhstan satellite communications operators using capacities of foreign satellites, obtain access to information regarding the technical features of such satellites necessary to ensure control of the use of the radio frequency spectrum and to ensure state security.
The existing approach to regulating the providing of services by foreign satellites in Kazakhstan whereby control is exercised directly by regulating the activities of fixed communications stations is more correct and corresponds to international law and the practice of other countries. Therefore, whereas at present amendments to telecommunications law are being prepared,37 we hope that those amendments will not entail additional obligations for owners of foreign communications satellites, but instead will be intended to limit the regulatory burden. Only by doing so may favorable conditions be created for developing competition in the area of satellite communications and, as a result, increase the quality and variety of services provided in the Republic of Kazakhstan.
37. See RK Government Decree of February 3, 2003, On Legislative Work of the Government of the Republic of Kazakhstan for 2003.
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