Spacecom Policy 2020: What Is New And What Remains Normal?

Spacecom Policy 2020: What Is New and What Remains Normal?

Background

The principle criticisms of the earlier SATCOM Policy and SATCOM norms centred around the lack of clarity in timelines for adjudicating applications seeking authorisations to launch space objects and for failing to achieve the slated objective of having a single window system for clearing applications for launches through a multi-ministerial committee. Independent of the said policy and the norms, specific instances, namely the Antrix-Devas contract termination dispute and the government aggregating transponder capacity demand and supply through tri-partite contracts raised concerns about fair and non arbitrary treatment and freedom of commerce for the industry.

The industry therefore had raised expectations for a new policy concerning satellite communications which would rationalise barriers of entry for players of all sizes, aggregate and consolidate the powers and functions of stakeholder ministries into a single body that would authorise all applications for deploying and operating SATCOM assets and provide assurances for a fair, non arbitrary, predictable and time abound adjudication and disposal of applications seeking authorisations to launch and operate SATCOM assets. With the government now announcing the new Spacecom Policy, 2020 and the Norms, Guidelines and Procedures for Implementation of Space Based Communication Policy of India- 2020 ("SPACECOM NORMS"), how much of the industry's expectations have been met?

What is New: Reviewing The Architecture of the New Policy and Norms

The objective of the policy is, to quote, "at meeting the growing demands on satellite communication requirements, promotion of space based communication activities by industry, advancements in the relevant indigenous technologies for self-sustenance and protection of space assets needed for the country"¹. The norms classify upstream SATCOM activities viz., launch and operation of Satellite communication satellites and systems into two categories for the purposes of regulation, one involving usage of Geostationary Orbits and the other involving usage of Non-Geo Stationary Orbits.

Furthermore, potential applicants are classified into Indian Applicants employing Indian Orbital Resources (IOR) (Orbital Slot, Frequency and Coverage) or Indian Applicants employing Non-Indian Orbital Resources (NIOR). Non-Indian entities do not seem to have an option to directly apply under the new policy and norms for launching and operating SATCOM assets and can avail the benefits of the policy only through an Indian entity.

For those Indian applicants seeking to use Indian orbital resources, the norms do not clarify on what basis Indian orbital resources will be allotted. One could speculate that such allocation could either be through the process of auction considering it's a resource of the country or it could be through any other mechanism that conforms to the general principles of transparency in public allocation of national natural resources. Either ways the allocation of Indian orbital resources would have to be undertaken in a reasonable and non-arbitrary manner and in compliance of the principles of exercise of administrative discretion as formulated by the jurisprudence under Article 14, 19 and 21 of the Constitution of India.

For Indian Applicants seeking to use Geo-Stationary NIOR for the proposed SATCOM mission, the policy requires that the Indian Applicant will be required to make arrangements with the allottee of the NIOR to bring the NIOR under Indian administrative control by filing appropriate applications before the International Telecommunication Union. In other words, if a foreign satellite service provider sets up an Indian entity and applies for permission to beam its signals for commercial use in India through the Indian entity, the Indian entity will be required to bring the orbital resource of its affiliate company abroad under Indian administrative control as a condition for the grant of such permission. This requirement, though clearly intended to maximise India's access to and control of geo-stationary orbital slots and corresponding frequencies, is likely to be a significant deterrent for foreign satellite service providers looking to commercialise their services in India².

Every applicant has to disclose the nature of the satellite mission, the timelines within which the satellite missions are to be operationalised and provide either financial guarantees or insurance details as part of the application process. Beyond these requirements, the policy and the norms do not specify the specific parameters based on which applications for authorisations will be adjudicated. Ideally, the requirements to be satisfied by prospective applicants for security considerations should have been stipulated within the document in order to achieve the objective of clarity and predictability of the policy and norms.

The onerous requirement of bringing Geo Stationary NIOR under Indian administrative control seems to have not been extended to similar arrangements between Indian applicants and foreign satellite service providers employing LEO NIOR. However, the process of adjudication involving LEO NIOR or IOR requires a consideration of cyber security concerns, interference and monitoring capabilities, etc. Thus, one can anticipate that the security concerns that govern existing policies and norms involving SATCOM operations are likely to continue even under the proposed SPACECOM Policy and Norms³. Additionally, setting up earth stations for Telemetry, Tracking and Command (TT&C) or as Satellite Command Centre (SCC) is specifically regulated under the new policy and norms. In particular, unlike operations in the sky, earth stations do not impose too many qualifying criterion and there is no mention of security concerns as a framework of consideration. This should prove to be appealing for LEO satellite operators looking to set up TT&C stations in India⁴.

What hasn't changed?

While the new policy and the norms have significant clarity compared to the earlier SATCOM Policy and norms, there never the less remains areas of concern. Firstly, the availability and allotment of orbital resources namely orbital slot, frequency and coverage have not been deliberated in the new policy. Under the current scheme of things, the wireless planning and co-ordination wing of the Ministry of Communications has been the official body to liaise with the ITU on behalf of India for securing these resources. The process of allocation of spectrum is undertaken through the National Frequency Allocation Plan, 2018 and under the Indian Telegraph Act, which itself has been a fairly turbulent experience⁵. The new policy and norms require the operational licenses to be secured from the ministry of communications or broadcasting, as the case maybe.

Therefore, unless appropriate changes are made to the statutes and regulations governing telecommunications and broadcasting, more specifically the Indian Telegraph Act, 1885 and the rules, guidelines, policies thereunder, potential applicants will find the process of securing orbital resources and operational clearances an uncertain experience. The new policy thus falls short of achieving a single window clearance system for potential applications seeking authorisations for launching and operating SATCOM assets. In addition, the new policy and norms neither define the composition of IN-SPACe, the regulatory body for commercial space activities nor define the extent of the powers of regulation⁶. Under Sections 8.3 and 8.4 of the Norms, the Department of Space as well as IN-SPACe have been given powers of formulating policy guidelines/additional regulations and guidelines for submission of applications, processing and grant of authorisations, respectively without laying down the limits of the powers of each body. Whether or not the discretion granted to these regulators are accompanied by sufficient policy framework so as to satisfy the requirements of delegated powers/legislation remains to be seen.

Even from the point of view of national interests, the policy ought to have ideally identified considerations of orbital debris, de-orbiting measures, measures for mitigating interference and responsible behaviour in space as some of the parameters based on which applicants and applications for authorisation will be adjudicated. However, by singularly focusing on liability concerns without prescribing expectations for applicants on the subjects of orbital debris avoidance, sustainable use of space and for avoiding interference and collision in space and such other areas relevant to space situational awareness, the policy stops short of promoting responsible behaviour in space without sacrificing the objective of ensuring better ease of doing business for the space industry. If the Spacecom policy and norms remain silent on regulations concerning space situational awareness (SSA), even if prospective applications are rejected on the grounds of SSA based considerations, it could raise the possibility of applications seeking judicial review on the grounds of such rejection exceeding the mandate of the new policy and norms.

Conclusion

The intent of the new norms and policies remain laudable, but the potential for achieving ease of doing business metrics for the satellite communications industry remains unrealised even through the new norms and policy. While the requirements of applicants having to be Indian entities are not misplaced given the background for these reforms, never the less, excluding foreign entities altogether from the scheme of the new policy and norms raises concerns about whether or not the new policy and norms complies with international obligations under the provisions of relevant Bilateral Investment Treaties and which are corollary to India's membership in the World Trade Organisation. Additionally the requirement of bringing Non Geostationary NIOR under Indian administrative control, constrains the ability of Indian entities to collaborate with foreign satellite service providers to act as aggregators and distributors of their capabilities in India. It's useful to reflect on whether the objective of self-reliance must be realised at the expense of facilitating international partnerships.

If the new policies and norms are to achieve the stated objective of promoting commercial space, it must firstly involve the joint and consolidated efforts of Ministry of Information and Broadcasting, Ministry of Communications, Ministry of Defence, Ministry of Home Affairs along with the Department of Space to formulate a new and revised policy that aggregates and consolidates the mandates of the provisions of the Indian Telegraph Act (together with all policies, guidelines, rules, regulations, etc.) along with security considerations into a single window system for receiving and processing applications for authorisations of space activities. Operational clearances and authorisation for launching satellites cannot be two independent regulatory streams as it will only lead to uncertainties on timelines and outcomes.

Footnotes

1 See Section 1.5 of the Draft Norms, Guidelines and Procedures for Implementation of Space Based Communication Policy of India- 2020

2 See 4.1 B (c) of the SPACECOM Norms.

3 See 4.1 D (b), (c) and (d)

4 See 4.1 E (a), (b) and (d).

5 See the judgement of the Hon'ble Supreme Court cancelling the 2G spectrum licenses in the case of Dr. Subramaniam Swamy &Ors. V. Union Of India,

6 See Section 8.3 of the SPACECOM Norms.

Originally published by , November Factum Law, 2020

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