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I NTERNATIONAL L AW AND R EGULATION OF A ERONAUTICAL P UBLIC

C ORRESPONDENCE BY S ATELLITE

Law Series: Tare Brisibe, Aeronautical Public Correspondence by Satellite isbn-10 90-77596-10-0, isbn-13 90-77596-10-4, © Eleven International Publishing This edition is available from Eleven International Publishing

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INTERNATIONAL LAW AND REGULATION OF AERONAUTICAL

PUBLIC CORRESPONDENCE BY SATELLITE

Proefschrift ter verkrijging van

de graad van Doctor aan de Universiteit Leiden, op gezag van de Rector Magnifi cus Dhr Prof.dr. D.D. Breimer, hoogleraar in de faculteit der Wiskunde en Natuurwetenschappen

en die der Geneeskunde,

volgens besluit van het College van Promoties te verdedigen op donderdag 28 November 2006

te klokke 13.45 uur

door

Tare Charles Brisibe

geboren te Benin, Nigeria in 1968

Promotores: Prof. Dr. P. P. C. Haanappel Dr. F. G. von der Dunk

Referent: Prof. Dr. F. Lyall (University of Aberdeen)

Overige leden:Prof. Dr. E. Back-Impallomeni (University of Padua)

Judge G. Guillaume (Former President, International Court of Justice) Prof. Dr. A. H. J. Schmidt

Prof. Dr. G. J. Zwenne Dr. P. M. J. Mendes de Leon

Dr. O. M. Ribbelink (Asser Instituut)

Prof. Dr. H. A. Wassenbergh (Emeritus Prof. University of Leiden) Prof. Dr. I. H. Ph. Diederiks-Verschoor (Emeritus Prof. University of

Utrecht)

Table of Contents

Acknowledgments ix

List of Abbreviations xi

Chapter One

Introduction 1

Chapter Two

The Operational Environment 5

1. A ERONAUTICAL S ATELLITE C OMMUNICATIONS – A N O VERVIEW 5 2. A ERONAUTICAL C OMMUNICATIONS AND T ERRESTRIAL I NFRASTRUCTURE 8

2.1. The Origins of Satellite-Based Aeronautical Public

Correspondence 13 2.2. ICAO Aviation Review Committee Recommendations 16 2.3. Communications Aspects of the ICAO CNS/ATM System 19 2.4. Aeronautical Public Correspondence and the Aeronautical

Telecommunication Network 21

3. S ATELLITE A ERONAUTICAL P UBLIC C ORRESPONDENCE AND M ARKET

O PPORTUNITIES 21

4. N ETWORKS , I NFRASTRUCTURE , S ERVICE AND C ONTENT P ROVISION 22

4.1. Inmarsat 26

4.2. Connexion-By-Boeing 31

4.3. Other Systems 34

5. E VOLVING TOWARDS B ROADBAND AND W IRELESS S-APC 35

5.1. High Speed Data Services 35

5.2. Wireless Access to Broadband Satellite Aeronautical Public

Correspondence Services 38

Chapter Three

Institutional Authorities, Legal and Regulatory Frameworks 41 1. O VERVIEW OF THE L EGAL AND R EGULATORY F RAMEWORKS 41

1.1. International Law 41

1.2. Municipal Law 43

1.3. The Regulation of Telecommunications, Aviation, Trade in Services, Copyrights and the Protection of Programme Content 44 1.4. Technical Standards and Operational Procedures/Guidelines for

Civil Aviation 49

2. I NTERNATIONAL S PACE L AW 51

3. R ULES OF I NTERNATIONAL S ATELLITE T ELECOMMUNICATIONS 56 3.1. International Telecommunication Union – Structure and

Jurisdiction 56 3.2. Satellite Aeronautical Public Correspondence – Frequency

Allocation, Assignment and the Radio Regulations 59 3.3. Satellite Aeronautical Public Correspondence Services –

Frequency Use and Regulation 61

4. R ULES OF I NTERNATIONAL A VIATION 66

4.1. The Chicago Convention of 1944 66

4.2. The Future Air Navigation Systems Committees 68 4.3. The ICAO Air Navigation Commission and the Aeronautical

Communications Panel 69

4.4. Article 30 of the Chicago Convention Revisited 71 4.5. The 29

ICAO Assembly Resolution A29-19/1 75 5. R ULES OF I NTERNATIONAL T RADE IN S ERVICES 78 6. I NTERNATIONAL C OPYRIGHT AND P ROTECTION OF P ROGRAMME C ONTENT 80

6.1. Berne Convention for the Protection of Literary and Artistic Works 81

6.2. WIPO Copyright Treaty 82

6.3. Concluding Remarks on Copyrights and Programme Content Protection 87 7. O PERATIONAL R EGULATIONS AND T ECHNICAL S TANDARDS 88

7.1. Telecommunications Standards, Recommendations and Non-

binding Rules 88

Chapter Four

State Sovereignty 91

1. A IRSPACE AND T ERRITORIAL W ATERS 91 1.1. Sovereignty, Territoriality and Airspace 96

1.2. Nationality of Aircraft 104

2. S TATE J URISDICTION IN THE A IRSPACE OVER H IGH S EAS AND P OLAR

R EGIONS 105

2.1. Airspace above the High Seas 105

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2.2. Airspace over the Arctic Region 112

2.3. Antarctic Airspace 117

3. R IGHT OF S TATES TO C ONTROL T ERRITORIAL C OMMUNICATIONS 120 3.1. Case Studies on the Concept of Sovereignty in International

Telecommunications 120

4. I NTERNATIONAL T RADE L AW A SPECTS OF I NTERNATIONAL E CONOMIC

L AW 123

5. O UTER S PACE 128

6. C ONCLUDING R EMARKS 129

Chapter Five

Current International Legal and Regulatory Regime 133 1. I NTERNATIONAL T ELECOMMUNICATION U NION R EGULATIONS AND

R ECOMMENDATIONS IN F ORCE 133

1.1. International Telecommunications World Radio Conference

2003 133

1.2. International Telecommunication Union Recommendation

D-94 136

1.3. The GMPCS MoU and Arrangements 139

2. ICAO SARPS AND S TANDARDS OF O THER T ECHNICAL O RGANIZATIONS 140 3. N ATIONAL P ROCEDURES ON THE U SE OF P ORTABLE E LECTRONIC D EVICES

O N - BOARD A IRCRAFT 146

3.1. Title 14 of the United States Code of Federal Regulations (14

CFR) part 91, Section 91.21 148

3.2. Joint Aviation Authorities Regulations JAR-OPS 1.110 and Temporary Guidance Leafl et JAR-OPS No 29 151 3.3. Australia – Civil Aviation Amendment Regulations 2002

(No.) 10 and Advisory Circular AC 91-050(0) 153 3.4. Canada – Air Carrier Advisory Circular ACAC 0106R

(2001.07.04) 156 4. G ENERAL R EMARKS ON R EGULATING THE U SE OF P ORTABLE E LECTRONIC

D EVICES O N -B OARD A IRCRAFT 158

Chapter Six

Liability 161

1. G ENERAL R EMARKS 161

2. P ORTABLE E LECTRONIC D EVICE R ELATED I NCIDENTS O N -B OARD

A IRCRAFT 162

3. C RIMINAL L IABILITY AND P ENAL A IR L AW 165 4. P ASSENGERS AND THE L IABILITY OF THE A IR C ARRIER – F ROM W ARSAW

TO M ONTREAL 172

5. C OLLISIONS , S URFACE D AMAGE AND L IABILITY 181 6. S OME C ONSIDERATIONS ON S TATE R ESPONSIBILITY AND L IABILITY 183

Chapter Seven

Institutions, State Practice and Regulation in the 21

Century 193 1. M OVING I NTO THE 21

C ENTURY 193 2. I NTERNATIONAL I NSTRUMENTS , I NSTITUTIONS , G EO -P OLITICS AND

I NDUSTRY 199

2.1. Relevant Legal and Regulatory Instruments 199 2.2. Applying the Regimen – A Bird’s Eye View 200 2.3. Re-inventing Pertinent Aspects of the Regimen 204 2.4. The CNS/ATM Institutional and Legal Framework – The

Long Road to Utopia 208

3. C ONCLUDING R EMARKS AND M OVING T OWARDS U NIFORMITY 210 3.1. Drawing Upon the Lessons From the Past 212

Conclusions and Summary 215

Draft Agreement 217

Appendices 225

Bibliography 245

T REATIES

C ASES

B OOKS

A RTICLES

D OCUMENTS

Acknowledgments

I am grateful to Professor Dr. P. P. C. Haanappel, Professor of Air & Space Law at the International Institute of Air and Space Law, Leiden University; and Dr.

Frans G. von der Dunk, Director of Space Law Studies at the International Institute of Air and Space Law, Leiden University, for the supervision provided during the course of writing this book. I am equally indebted to Professor Francis Lyall of the University of Aberdeen and Professor Dr. Ludwig Weber, (former Director, Legal Bureau, ICAO) Institute of Air & Space Law, McGill University, for their critical comments, suggestions and clarifi cation.

I also wish to thank the following who have been of assistance with various matters: Professor Robert Ajayi Boroffi ce, Director General, Nigerian National Space Research and Development Agency; Ms. Mirjam van der Heide, Eleven International Publishing, Utrecht; Dr. Boakye Donkwa Kofi Henaku, Consultant, London; Mr. Terence Jeacock, of the former United Kingdom Radiocommunications Agency; Mr. Eyal Trachmann, Inmarsat Limited London; Ms. Paula van der Wulp, International Institute of Air and Space Law, Leiden University; staff of the libraries of both the International Institute of Air and Space Law, Leiden University, and of the Institute of Advanced Legal Studies, University of London.

Tare Charles Brisibe Abuja, September 2006

List of Abbreviations

AAC Aeronautical Administrative Communications AC Advisory Circular (Australia)

ACP Aeronautical Communications Panel

ACARS Aircraft Communications Addressing and Reporting System AEEC Airlines Electronic Engineering Committee

AES Aircraft Earth Stations

ADIZ Air Defence Identifi cation Zone AJIL American Journal of International Law AMC Aeronautical Mobile Communications AMCP Aeronautical Mobile Communications Panel AMS (OR) S Aeronautical Mobile-Satellite Off-Route Service AMS (R) S Aeronautical Mobile-Satellite Route Service AMSS Aeronautical Mobile Satellite service ANC Air Navigation Commission

AOC Aeronautical Operational Control APC Aeronautical Public Correspondence APU Auxiliary Power Unit

ARC Aviation Review Committee ARINC Aeronautical Radio Inc.

ASRS Aviation Safety Reporting System

ASTRA Application of Space Technology Relating to Aviation ATN Aeronautical Telecommunications Network

ATS Air Traffi c Services

BATS Bilateral Air Transport Agreements BGAN Broadband Global Area Network BTA Basic Telecommunications Agreement BYIL British Yearbook of International Law CAA Civil Aviation Authority

CAG Customer Advise Group (Inmarsat) CAR Canadian Aviation Regulation

CASA Australian Civil Aviation Safety Authority

CASR Australian Civil Aviation Safety Regulation

CASS Commercial Air Service Standards

CBAAC Commercial and Business Aviation Advisory Circular CCIR International Radio Consultative Committee

CENPAC Central Pacifi c

CEPT Conference Européenne des Administrations Postes et Télécommunications

CIS Commonwealth of Independent States (of the former USSR) CNS/ATM Communication, Navigation, Surveillance / Air Traffi c

Management

DBS Direct Broadcast Services DSB Dispute Settlement Body (WTO) EASA European Aviation & Safety Agency

EC European Community

ECAC European Civil Aviation Conference EEZ Exclusive Economic Zone

EJIL European Journal of International Law

ELDO European Launcher Development Organization EMI ElectroMagnetic Interference

ERC European Radiocommunications Committee

ESA European Space Agency

ESRO European Space Research Organisation

ETSI European Telecommunications Standards Institute EUROCAE European Organization for Civil Aviation Equipment FAA Federal Aviation Administration

FANS Future Air Navigation Systems FAR Federal Aviation Regulations

FCC Federal Communications Commission FDMA Frequency Division Multiplexing Access

FS Fixed Service

FSS Fixed Satellite Service

GATS General Agreement on Trade in Services GATT General Agreement on Tarrifs and Trade GES Ground Earth Station

GMPCS Global Mobile Personal Communications by Satellite GNSS Global Navigation Satellite System

GSM Global System for Mobile Communications

GSMA GSM Association

HSD High Speed Date

IATA International Air Transport Association ICAO International Civil Aviation Organization ICE Information Communications and Entertainment ICJ International Court of Justice

ICLQ International and Comparative Law Quarterly

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ICT Information and Communications Technology IFE In-Flight Entertainment

IISL International Institute of Space Law ILC International Law Commission IMO International Maritime Organization

INMARSAT International Maritime Satellite Organization ISDN Integrated Services Digital Network

ISP Internet Service Provider

ITU International Telecommunication Union

IWP Interim Working Party

JAA Joint Aviation Authorities

JALC Journal of Air Law and Commerce JAR Joint Aviation Regulations

JCAB Japanese Civil Aviation Bureau

LAN Local Area Network

LES Land Earth Station MES Mobile Earth station MFN Most Favoured Nation

MoU Memorandum of Understanding MPDS Mobile Packet Data Service MMSS Maritime Mobile-Satellite Service MSS Mobile Satellite Service

MTSAT Multi-functional Transport Satellite

NASA National Aeronautics and Space Administration NCS Network Coordination Station

NOPAC North Pacifi c

NTRA National Telecommunications Regulatory Authority PANS Procedures for Air Navigation Services

PDA Personal Digital Assistant PED Portable Electronic Device

PCIJ Permanent Court of International Justice PCS Personal Communication Systems PIC Pilot-in-Command

PSA Point of Service Activation

PSTN Public Switched Telephone Networks

RF Radio Frequency

RIAA United Nations Reports of International Arbitral Awards RTCA Radio Technical Communication Association

S-APC Satellite Aeronautical Public Correspondence SARP Standards and Recommended Practices SDM System Defi nition Manual

SDR Special Drawing Right

SI Service Integrator

SITA Société Internationale de Télécommunications Aéronautiques

SUPPS Regional Supplementary Procedures

TAPC Terrestrial-based Aeronautical Public Correspondence TCP/IP Transmission Control Protocol/Internet Protocol TDMA Time Division Multiple Access

TFA Table of Frequency Allocations

TFTS Terrestrial Flight Telecommunication System

TRIPS Agreement on Trade Related Aspects of Intellectual Property Rights

TSB Telecommunications Standardization Bureau UHF Ultra High Frequency

UMTS Universal Mobile Telecommunication Service

UN United Nations

UNCLOS United Nations Convention on the Law of the Sea

UNESCO United Nations Economic Social and Cultural Organization USSR Union of Soviet and Socialist Republics

VHF Very High Frequency VoIP Voice over Internet Protocol VPN Virtual Private Network

WARC World Administrative Radio Conferences

WARC-MOB World Administrative Conference for the Mobile Services WIPO World Intellectual Property Organization

WLAN Wireless Local Area Network

WP Working Party

WRC World Radiocommunications Conference WSC World Standardisation Conference

WTDC World Telecommunications Development Conference

WTO World Trade Organization

1

C HAPTER O NE

Introduction

On 16 October 1909, Count Ferdinand von Zeppelin formed Delag (Die Deutsche Luftschiffahrt Aktiengesellschaft), the world’s fi rst commercial airline company. Between 1910 and 1913 the company carried 34,000 passengers. Barely two years later, on 21 January 1911, Lieutenant Paul W. Beck sent the fi rst wireless-telephonic message from on-board a Wright biplane over Selfridge Field in Michigan.

These seemingly unrelated events underscore the statement that the airplane is a unique vehicle. No land or sea going vehicle is so dependent on the use of radiocommunications for safe, effi cient and economical operation. Simply, because radio frequency devices provide the means by which most airplanes navigate, are kept separated from each other, are advised of conditions affecting their operation and are operationally controlled. It is of note that Sir Charles Chaplin stated in 1940 that “[t]he aeroplane and the radio have brought us closer together. The very nature of these things cries out for the goodness in man; cries out for universal brotherhood; for the unity of us all.”

With the passage of time, infrastructural and technological developments in the fi elds of aviation and telecommunications have been enormous.

Whilst the provision of communications to aviation traditionally ensured the safe, effi cient, and regular conduct of fl ight, by the 1980s, aeronautical communications began to include non-safety aspects. In other words, that form of communications which enables the passenger or crew to enjoy communications facilities as they would on the ground. Driven by three factors, in this new millennium, aeronautical communications for non-safety purposes is poised to expand signifi cantly. These factors include fi rstly, the

1

The Royal Air Force Museum, London.

2

Dialogue from “The Great Dictator”, a fi lm directed by and starring Charlie Chaplin. First

released on 15 October 1940.

growth in international travel by air. Secondly, the dominant role and inherent advantage of satellites over ground based communications infrastructure, as the most appropriate means for global communications coverage. Thirdly, the run-away growth in consumer demand for communications services.

That said, the combination of international fl ight with international communications comes with challenges arising in law, policy and regulation.

These challenges constitute the subject matter of this work. In addressing these challenges one is immediately faced with the perennial question as to whether international law, policy and regulation ought to respond to immediate problems or attempt to prevent problems from occurring. Put another way, is it appropriate to be content with the law as it is, rather than make recommendations relating to what the law as it is ought to be if the rules were changed to accord with good policy? This work is dedicated to dealing with the latter. This comprehensive study provides a detailed analysis of the past, current and future perspectives of international law and regulation applicable to non-safety aeronautical mobile-satellite communications. Concluding with what the law ought to be if the current rules were changed to accord with good policy, the book covers the following issues: the history and development of satellite based aeronautical public correspondence; the institutional authorities and relevant regulations developed thereto; the effects of State sovereignty;

the regimen in force; and questions on liability.

Commencing with a comparative chronology of the evolution in both terrestrial and satellite based aeronautical public correspondence, the technologies currently deployed (or planned) offering the broad range of aeronautical mobile-satellite communications services are discussed. The scope of relevant international legal and regulatory instruments is then examined and activities of pertinent international institutional authorities such as the International Civil Aviation Organization (ICAO), the International Telecommunication Union (ITU), the World Trade Organization (WTO), and the World Intellectual Property Organization (WIPO), are detailed.

The pivotal nature of the State sovereignty principle within the scheme of this work justifi es the thorough impact analysis of the said principle on telecommunications, air transport, and trade in services, being simultaneously undertaken in the airspaces of national territories, the North Pole, Antarctica and the high seas. As far as the current state of the international laws and regulations in force is concerned, albeit acknowledging their technical orientation, particular attention is given to the International Telecommunication Union Radio Regulations and Sector Recommendations, International Civil Aviation Organization Council Resolutions, international copyright laws, and national operational procedures and statutes.

The incidence and scope of liability as well as its private and public

international legal ramifi cations are considered in-depth, alongside judicial

precedents and provisions of the most recently formulated international

I

3

instruments in force. Drawing upon preceding parts of the study, forward looking recommendations are offered, proposing an appropriate legal and regulatory framework, designed to govern a mobile-satellite communications industry sector, now considered to be the next growth area.

In so doing, the operational character of the present environment is thoroughly investigated, the raison d’être, structure and functioning of the combined and currently applicable international laws, regulations and policies are analysed critically, based upon which an alternative body of primarily legal norms is proposed. A recurring theme in this work is the reference to the relevant technologies, communications and business models, without which a legal issue cannot be adequately addressed.

In chapter two the evolution of satellite based aeronautical public correspondence is traced and the operational environment in which related services are currently being offered is described. Setting the stage for the legal and regulatory analysis provided in chapters four, fi ve, six and seven, chapter three presents an overview of legal and regulatory frameworks, developed through a number of international institutions such as the ICAO, ITU, WTO and WIPO.

Common to international civil aviation and international telecommunications is the fact that they both originate in one country and terminate in another.

However, it must also be noted that while telecommunications signals may traverse outer space over satellites, aircraft traditionally traverses the airspace of States. The entry and exit of both services in the territories of States would normally be subject to the national regulations issued by that entity capable of enjoying supreme political authority otherwise known as the sovereign.

Whilst the effectiveness and concept of absolute sovereignty, even in the present time continue to attract debate, they remain central to the legal and regulatory framework laid out in chapter three. For this reason, chapter four is devoted to set forth the effect of the State sovereignty concept within the various jurisdictions where non-safety aeronautical communications services can be provided.

Chapters fi ve and six deal with the current state of applicable international

law and regulation. It is acknowledged that the underlying factors are driving

non-safety aeronautical communications in a state of fl ux. Moreover, some

of the perceived problems, such as liability for damage caused by incidents

related to the provision of such services, for which this works seeks to provide

solutions, are examined in a hypothetical context. As this work is dedicated

to making recommendations relating to what the law as it is, ought to be if

the rules were changed to accord with good policy, a diligent process through

which recommendations can be reached as well as a set of reasoned proposals

constitute the thrust of chapter seven.

5

C HAPTER T WO

The Operational Environment

This chapter traces the evolution of satellite based aeronautical public correspondence and the operational environment in which related services are currently being offered. An in-depth description is provided of the technologies currently deployed (or proposed), offering a broad range of satellite aeronautical public correspondence services within the context of communications satellite network architectures. Attention is given to the evolved range of commercially oriented high-speed data, broadband and proposed wireless services. This rapidly developing sector of the mobile-satellite industry is examined against the backdrop of increased privatisation and competition, characterised by a shift from government owned/operated airlines and satellite systems, such as the former International Maritime satellite organization (INMARSAT), to one with increased private sector participation.

1. Aeronautical Satellite Communications – An Overview

Within the broad scope of satellite communications to and from aircraft, four types of aeronautical communications as stated by ICAO could be identifi ed.

These include: Air Traffi c Service (ATS); Aeronautical Operational Control (AOC); Aeronautical Administrative Communications (AAC); and Aeronautical Public Correspondence (APC). These acronyms, defi ned by the ICAO Future Air Navigation Committee (discussed hereinafter in Section 4.2.), of are summarized below.

1

W. Guldimann & S. Kaiser, Future Air Navigation Systems – Legal and Institutional aspects

154 (1993). For statutory defi nitions of the four types of aeronautical communications, see

Annex 10 to the 1944 Convention on International Civil Aviation, Volume III July 1995, at 4.

Air Traffi c Services – a generic term meaning variously fl ight information service, alerting service, air traffi c advisory service, air traffi c control service, area control service, approach control service or aerodrome control service. Air Traffi c Services (hereinafter referred to as ATS) requires a mix of high priority, safety critical but short exchanges between controllers and pilots and lower priority, higher volume information fl ows between centres.

Aeronautical Operational Control – communications required for the exercise of authority over the initiation, continuation, diversion or termination of a fl ight in the interest of the safety of the aircraft and the regularity and effi ciency of fl ight. Aeronautical Operational Control (hereinafter referred to as AOC) supports the safe and effi cient management of fl ight operations. More precisely, it allows the cockpit crew to benefi t from continued support provided by the Ground Dispatch and Flight Operations departments of an airline, and to interface as needed with other departments of the airline, including Engineering, Maintenance, Scheduling and Commercial departments. Use of AOC varies between airlines. Further, the on-board systems may be highly customised by the equipment manufacturer to meet an airline’s requirements. Typical AOC applications include the transmission of weather requests/updates, fuel status, fl ight status, crew and aircraft schedule, fl ight plans, etc.

Aeronautical Administrative Communications – communications used by aeronautical operating agencies related to the business aspects of operating their fl ights and transport services. These communications are used for a variety of purposes, such as fl ight and ground transportation bookings, deployment of crew and aircraft, and scheduling and seat reservation. Aeronautical Administrative Communications (hereinafter referred to as AAC) is allowed by ICAO to be provided over the same communication systems as ATS and AOC, but are related neither to fl ight safety nor effi ciency. AAC is given a lower priority than ATS and AOC in all the systems where ATS, AOC and AAC share capacities (e.g. the Inmarsat system which is discussed hereinafter in greater detail). AAC encompass all communications with the commercial crew of an aircraft (working in the cabin) or with cabin systems, to exchange of information for several purposes such as: passenger care, passenger management (passenger list, passenger complaints) and cabin management (defect reports, cleaning requests etc.).

Aeronautical Public Correspondence – constituting the focus of this work and considered as being the most recent development in aeronautical communication, Aeronautical Public Correspondence (hereinafter referred to as APC) consists primarily of connections of on-board facilities with existing fi xed networks, e.g. domestic telephone

•

•

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networks, in addition to permitting the switching of connections to other aeronautical passenger facilities (via a ground station), thus enabling personal communications by/for passengers and crew. Quite like AAC, APC is related neither to fl ight safety nor effi ciency.

The four user groups identifi ed above, within which aeronautical communications is offered, are collectively referred to as the Aeronautical Mobile Satellite Service (AMSS) when considered in the context of satellite infrastructure. In turn, these groups are defi ned by the ITU Radio Regulations as

“a mobile-satellite service in which mobile earth stations are located on board aircraft”

bearing in mind the fact that a “mobile earth station” (MES) is “an earth station in the mobile-satellite service intended to be used while in motion or during halts at unspecifi ed points.”

AMSS can be further sub-divided into Aeronautical Mobile-Satellite (R)

service, i.e., “an AMSS service reserved for communications relating to safety and regularity of fl ights, primarily along national or international civil air routes”

or Aeronautical Mobile- Satellite (OR)

service, i.e., “an AMSS service intended for communications, including those relating to fl ight coordination, primarily outside national and international civil air routes.”

The Radio Regulations themselves, being a set of international instruments have the force of a treaty, as we shall come to see later in this work. Whilst the four user groups (ATS, AOC, AAC, APC) are collectively referred to as the Aeronautical Mobile Satellite service (AMSS), the primary distinction between Aeronautical Mobile-Satellite (R) and Aeronautical Mobile-Satellite (OR) lies in whether the communications takes place in en-route airspace or off-route airspace, falling within the different classes of airspace. The scope and nature of different classes of airspace is, however, outside the scope of this work.

Although the defi nition of AMSS is also stated to include “survival craft stations” and “emergency position-indicating radio beacon stations”, due to the non-safety and commercially oriented scope of this work, our studies and investigation shall be restricted to the use of those MESs which are located on- board aircraft. At the outset, it is necessary that the reader is able to distinguish between MESs located on board aircraft as opposed to MESs which may be located on other non-stationary platforms, such as maritime vessels or land based craft. This distinction is clearly set out under the ITU’s Radio Regulations

2

Article 1 para. 35, 2001 International Telecommunication Union, Radio Regulations, adopted by the WRC-1995 (Geneva), revised and adopted by WRC-1997 (Geneva), WRC-2000 (Istanbul), WRC-2003 (Geneva), (hereinafter Radio Regulations).

3

Article 1 para. 66, Radio Regulations.

4

(R): Route.

5

Article 1 para. 35A, Radio Regulations.

6

(OR): Off-route.

7

Article 1 para. 35B, Radio Regulations.

which defi nes MESs located on aircraft as, “Aircraft Earth Stations” (AESs) i.e., “ a mobile earth station in the aeronautical mobile-satellite service located on board an aircraft.”

The AMSS provides digital voice and data services using geostationary satellites and operates in the mobile satellite service radio frequency bands 1,545-1,555 MHz and 1,646.5-1,656.5 MHz. To ensure adequate protection for safety and regularity of fl ight messages, provisions are included in the ICAO Standards and Recommended Practices (discussed in chapter 5) to ensure that these messages have priority and pre-emption over other non-safety aeronautical users. The AMSS itself is designed to be a sub-network of the Aeronautical Telecommunications Network, and it can also support Aircraft Communications Addressing and Reporting System (ACARS) messages. For instance, in the South Pacifi c area, where AMSS is used to support ATS, the requirements are for a mean transfer delay for data messages of typically less than 30 seconds while 95 per cent of all messages are delivered within 60 seconds. In the North Atlantic, AMSS is enabled to support about 30 per cent of fl ights that use the Automatic Dependent Surveillance – Communications waypoint reporting service. The digital voice component of the AMSS is designed to interface with terrestrial public switched telephone networks (PSTN)

and with dedicated ATS voice networks, as well as to provide high quality telephone service both for APC, ATS and AOC. Several ATS communication service providers have published telephone numbers that may be accessed using the AMSS for emergency and non-routine communications.

It is contended that approximately 3,000 aircraft have been equipped with satellite communications systems. The majority being confi gured for APC, though a large number is also capable of ATS and AOC satellite voice communications.

2. Aeronautical Communications and Terrestrial Infrastructure ¹¹

In as much as the scope of this work dwells on the non-safety aspects and commercially oriented satellite-based communications to and from aircraft, some time needs to be spent highlighting other forms of infrastructure through which APC can be performed. An important point to note because communications services to aircraft have traditionally been provided through

8

Article 1 para. 79, Radio Regulations.

9

PSTN refers to the local, long distance and international phone system.

10

ICAO Doc. AN-Conf/11-IP/1.

11

See Business Requirements for Aeronautical High Speed Mobile Satellite Services (BRAHMSS) project (European Space Agency contract n°14444/00/NL/DS). Ref: 00-251/CG/

CR, Rev.:2.1 (hereinafter Brahmss Study).

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ground-based (i.e., terrestrial rather than satellite) technologies involving the use of High Frequency (HF) radio waves i.e., 2-23 MHz, or Ultra High Frequency (UHF) also known as Very High Frequency (VHF) radio waves, i.e., 118-137 MHz, although certain other radio frequencies may be used by national administrations for communications to military aircraft.

The HF system is used for long distance communications between aircraft in fl ight and ground stations. Prior to 1930, oceanic fl ights were rare and air- to-ground communications was not a priority.

At present and because HF signals propagate terrestrially over long distances, HF radio provides most communications with aircraft over ocean routes and in some developing countries. Traditional long range and some medium range aircraft are equipped with a dual HF system including an antenna common to both transmitters, while short range aircraft may or may not be equipped with a single UHF system (including an antenna). A typical dual HF system comprises: two transceivers, two antenna couplers, and an antenna located on the edge of the aircraft’s fi n. Frequency selection is done with one of the three radio management panels, which are the common frequency selection means for all aircraft radio equipment. HF communication systems are currently employed to offer voice services for ATSC and AOC. It is also anticipated that they will be used for data link communications in the future. Note that even if HF systems were to allow for the exchange of data, the characteristics of HF make it a low speed service at a maximum of 2.4 kbps, 600 bps on average.

The use of the VHF part of the electromagnetic spectrum on the other hand arrived in the 1940s and is defi ned as the range of frequencies between 30 and 300 MHz.

Within these frequencies, as stated earlier, the band from 118 to 137 MHz is dedicated to aeronautical mobile communications applications. There are two operational services that currently exist in the aeronautical VHF band.

Firstly, VHF radio/telephony voice communications, which are an essential component of ATS and are also used by airlines for AOC and AAC purposes.

Secondly, data communications based upon the ACARS standards. ACARS is commonly used for AOC applications even though it is now increasingly being used to provide ATS.

As far as the provision of terrestrial-based APC (TAPC) is concerned there have been various activities in both Europe and the US, albeit with varying degrees of success. In Europe, following the 1987 World Administrative Conference for the Mobile Services (WARC MOB-87), spectrum was designated for both satellite and terrestrial APC. Limitations in the use of this spectrum, both in the bandwidth available and incompatibility with

12

L. Norrish, Satellite Communications Have Evolved to Support a Wide Range of Safety Services, 57 (3) ICAO Journal, at 11 (2002).

13

Bits may be calculated as kilobits (one thousand bits per second); megabits (one million bits per second) or gigabits (one billion bits per second) etc.

14

Norrish, supra note 12.

the existing services, prevented the introduction of operational systems.

Recognizing what was perceived as an urgent requirement for APC and the diffi culties associated with the spectrum allocated by WARC MOB-87, the European Radiocommunications Committee (ERC) undertook a study to identify a suitable alternative spectrum as part of its preparations for the World Administrative Conference 1992 (WARC 92). In advance of the outcome of WARC 92, the ERC adopted Recommendation T/R 42-01 E which designated frequency bands for Terrestrial Flight Telecommunications System (TFTS), which would include 1,670-1,675 MHz (ground to air), 1,800-1,805 MHz (air to ground). It was anticipated that the spectrum would be made available for TFTS in a phased way i.e., 2 x 1 MHz in 1993, 2 x 3 MHz in 1994 and the complete band in 1998, in accordance with market demands.

This would serve as what was hoped to be the forerunner to a standard for TAPC in Europe. A standard that would be produced by the European Telecommunications Standards Institute (ETSI) in association with the European Aeronautical Electronics Committee and the Airlines Electronic Engineering Committee. The said frequency bands were then incorporated in the ERC European Common Proposal (No. 5) for WARC 92 and were indeed adopted by the WARC 92 as an additional footnote in the ITU Radio Regulations (No 740A). ERC Decisions giving effect to these developments were formally adopted.

Although TFTS networks were licensed in many countries, the poor growth in subscriber numbers revealed them not to have been an economic success in Europe. In a “survey carried out by the ERO the vast majority of CEPT administrations indicated that there is no further interest in TFTS in the bands 1,670-1,675 MHz / 1,800-1,805 MHz.”

Thus, in order to allow for new applications in those bands which were reserved for TFTS, the existing ERC Decisions were abrogated and withdrawn in 2002 and 2003 respectively.

In contrast to developments in Europe, the story emerging from the US has been a remarkable one of success and growth. Verizon Airfone, a US based company and subsidiary of Verizon Communications Inc., began offering TAPC services in 1984 with the introduction of the fi rst cordless air-to-ground telephone system.

The company installed the fi rst seatback telephone in 1987 and then deployed a nationwide, end-to-end digital system starting in 1993.

15

ERC/DEC/(92)01, ERC Decision of October 1992 on frequency bands to be designated for the coordinated introduction of the Terrestrial Flight Telecommunication System and ERC/

DEC/(97)08, ERC Decision of 30 June 1997 on Management of Schierer plan for the Terrestrial Flight Telecomunications system. See also R. Bekkers & J. Smits, Mobile Telecommunications:

Standards, Regulation, and Applications 339-340 (1999).

16

ECC/DEC/(03)03. ECC Decision of 17 October 2003 on the withdrawal of ERC Decision (97)08 “Decision on Management of the Schiever plan for Terrestrial Flight Telecomunications system”, at 2.

17

Id.

18

See http://www22.verizon.com/airfone/fi les/FactSheet.pdf (last accessed on 26th July 2006)

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In 2002, the fi rst messaging and content service on commercial airlines in the US was installed. Verizon Airfone’s service offerings include “JetConnect”

and “Airfone”. JetConnect offers passengers in-fl ight messaging, news, and entertainment services. For US$ 15.98 per fl ight, passengers with laptop computers can send and receive e-mail. Data in excess of 5kb per message and attachments incur a cost of US$ 0.10 per kB. JetConnect is currently available on all Continental Airlines and United Airlines domestic aircraft, over 700 planes in all, with more added daily. In addition, for US$ 5.99 per fl ight, passengers can send and receive instant messages, send text messages, get the latest news, stocks, sports, and weather information, play games and view city guides for their destination. The Airfone telephony service on the other hand, enables travellers to place and receive calls, conduct conference and three-way calls and send faxes for a US$ 3.99 connection fee and US$

3.99 per minute in the US The system’s technology allows a passenger to be called from the ground, and even supports call forwarding. Airfone audio service enables travellers to check e-mail and listen to news.

It is claimed that more than 2,000 commercial aircraft are equipped with Airfones. Airline customers include Continental Airlines, Delta Air Lines, Midwest Express Airlines, United Airlines, and US Airways. Verizon Airfone has not always been the sole provider of TAPC services in the US As a matter of fact, in 1991, the US Federal Communications Commission (FCC) invited applications for and subsequently awarded new licences to operate digital TAPC services in the US Verizon Airfone (previously GTE Airfone), AT&T Wireless Services (previously Claircom Communications), and InFlight Phone Inc. were awarded licenses. These three US service providers, through their respective TAPC networks ensured coverage of the major part of North America and accounted for over 3,000 aircraft equipped to access either one of the currently operational systems. With the passage of time, both AT&T Wireless Services and InFlight Phone Inc. withdrew their service offerings.

The success of TAPC in the US has no doubt encouraged the most recent decision, contained in a news release

dated 15 December 2004, by the FCC to adopt what has been regarded as a fl exible approach for licensing the 4 MHz of spectrum in the 800 MHz band currently dedicated to TAPC services in the US In this regard, the FCC decided to auction new licenses for this spectrum in three possible band plan confi gurations and proposed auction rules. The ultimate band confi guration will be determined based on the results of the auction. However, in order to further competition and ensure maximum use of the frequency band for TAPC, the FCC imposed an eligibility limitation to prevent a single entity from holding new licenses for all 4 MHz of air-ground

and http://www22.verizon.com/airfone/fi les/CorporateProfi le.pdf (last accessed on 26th July 2006).

19

FCC Paves the Way for New Broadband Services in the Air, FCC NEWS, 15 December 2004,

available at http://www.broadbandwirelessreports.com (last visited on 26 September 2006).

spectrum. It is believed that the FCC’s action will help bring broadband services to the traveling public on-board aircraft and lead to greater technical, economic, and marketplace effi ciency for this spectrum. Under the licensing approach adopted by the FCC, the fi nal band confi guration will be determined by the winning bidders at auction. New licenses will be awarded to high bidders for the two licenses comprising the confi guration that receives the highest aggregate gross bid, subject to review of post-auction license applications.

Bidders will have three options, which are based on proposals submitted to the FCC, described as follows:

Band Plan 1 – two overlapping, cross-polarized 3 MHz licenses (licenses “A” and “B”)

Band Plan 2 – an exclusive 3 MHz license and an exclusive 1 MHz license (licenses “C” and “D”)

Band Plan 3 – an exclusive 1 MHz license and an exclusive 3 MHz license (licenses “E” and “F”), with the blocks at opposite ends of the band from Band Plan 2

Under the eligibility limitation, no more than 3 MHz of spectrum (either shared or exclusive) under the new rules could be acquired at auction or post-auction by a single entity. It is anticipated that the new TAPC services to be provided in US airspace, using the newly allotted spectrum, may be of any type (e.g., voice, data, broadband internet, etc.) and may be provided to any or all aviation markets (e.g., commercial, military, and general). To ensure protection to adjacent public safety operations in the 800 MHz band, the same interference rules and other specifi c protections adopted earlier in 2004 pertaining to the 800 MHz public safety proceeding were applied. In particular, ground stations in the air-ground 800 MHz service will be subject to the same interference abatement obligation rules adopted for cellular services in the 800 MHz public safety order (an issue we shall return to later in some detail).

In the same news release of 15 December 2004 it was reported that Verizon Airfone has been granted a non-renewable 5-year license, subject to existing narrowband technical limits. Noting that the provision of high-speed broadband services to consumers onboard aircraft by one or more new licensees will require at least 3 MHz of the 4 MHz band, it was decided that following the grant of the new license, Verizon Airfone must limit operations of the existing narrowband Airfone system under the 5 year non-renewable license to the remaining 1 MHz of spectrum. It is hoped that the reduced spectrum for the incumbent system would be suffi cient to maintain current service levels because the narrowband plan was originally intended to accommodate up to 6 licensees, and as stated earlier, only the Verizon Airfone system is in operation in the US at the time of writing this work.

A somewhat different but closely related development pertaining to TAPC service offerings in US airspace pertains to the provision of airborne cellular

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services in the 800 MHz band. In this respect, and as we shall read later in this work, FCC rules currently require that cellular handsets be turned off over US airspace once an aircraft leaves the ground to avoid interfering with terrestrial cellular systems. In addition, the US Federal Aviation Administration (FAA) regulations restrict the use of mobile telephones and other portable electronic devices on aircraft to ensure against interference to on-board communications and navigation equipment. However, in a news release

dated 15 December 2004, it is stated that the FCC proposed to permit the airborne operation of “off the shelf” wireless handsets and other devices so long as the device operates at its lowest power setting under control of a “pico cell” located on the aircraft, and the operation does not allow unwanted radio frequency emissions to interfere with terrestrial cellular systems. The FCC has asked for public comment on whether the proposal should apply only to devices operating in 800 MHz cellular spectrum, or whether devices operating in other spectrum bands, such as the PCS band or Advanced Wireless Services bands, should be included. Public comment is also being sought on ways that the 800 MHz cellular spectrum could be used to provide a communications “pipe”

between airborne aircraft and the ground. This could include the replacement of the current FCC restriction by an industry-developed standard that would guard against harmful interference to both airborne and terrestrial systems through appropriate technical and operational limitations. A call was also made for comments on whether to allow cellular carriers to provide services on a secondary basis to airborne devices subject to technical limitations aimed at preventing harmful interference. Ultimately this would allow consumers to use their own wireless devices during fl ight. The developments chronicled above can only serve to fuel the growth of a rapidly expanding TAPC market in US airspace.

2.1. The Origins of Satellite-Based Aeronautical Public Correspondence

Having looked briefl y at the terrestrial aspects of APC, we now turn to the satellite-based context which constitutes the focus of this work, and is referred to hereinafter as S-APC. At HF and VHF, the amount of bandwidth available is very limited thus causing the use of these frequencies to deliver very low data rates. These frequencies are also severely impacted by the ionosphere, which can twist, bend, attenuate, and refl ect these wavelengths. Communications systems using VHF/UHF must allow for signifi cant fading and other disruption of the transmission, often on a random basis. This situation is more

20

FCC to Examine Ban on Using Cellular Telephones on Airborne Aircraft, FCC NEWS,

15 December 2004, available at http://www.broadbandwirelessreports.com (last visited 26

September 2006).

pronounced in the tropics around the geomagnetic equator, particularly during the spring and fall equinoxes.

Technical constraints arising from the use of HF and UHF/VHF frequencies catalysed the evolution towards the use of other microwave applications involving communications between AESs mounted on aircraft frames and satellites, in radio frequencies (RF) above 1 GHz. This can be attributed to the fact that signals in the range above 1 GHz are capable of travelling nearly by line-of-sight propagation and are less hampered by the ionosphere. Furthermore, these frequencies have greater bandwidth and more stable propagation under most conditions than frequencies below 1 GHz.

It has been contended that the earliest attempts to provide satellite based communications services to aircraft dates back to the early 1960s when the US National Aeronautics and Space Administration (NASA) and Pan American Airlines conducted experiments to demonstrate the feasibility of satellite communications to aircraft.

On a related note and in 1965, at its 15

Session, the ICAO Assembly adopted Resolution A15-1. This ICAO Resolution has been continuously reviewed over the years, and in its current form, it is set forth in ICAO Assembly Resolution A29-11 which states inter alia:

1. That ICAO continue to be responsible for:

a) stating the position of international civil aviation on all related outer space matters; and

b) monitoring and co-ordinating the work performed by States on regional and global planning on these matters in order that the introduction of the future ICAO CNS/ATM systems takes place in an orderly and effi cient manner globally and in a balanced way taking due account of safety as well as economic considerations;

2. Requests the Council to continue its work to determine the operational, technical, fi nancial, managerial and legal institutional requirements for global satellite systems for civil aviation purposes, taking due account of the provisions of Resolution A27-10, Appendix J, regarding the co-ordination of aeronautical systems and sub-systems;

3. Urges that Contracting States continue keeping the Organization informed regarding the programmes and the progress achieved in the exploration and use of outer space that are of interest to international civil aviation;

4. Requests the Secretary General to ensure that the international civil aviation positions and requirements are made known to all organizations dealing with relevant space activities and to continue to arrange for the Organization to be represented at appropriate conferences and meetings connected with or affecting the particular interests of international civil aviation in this fi eld.

21

B. R. Elbert, Introduction to Satellite Communication 29-30 (1999).

22

Id.

23

W. D. Von Noorden, Space Communications to Aircraft: A New Development in International

Space Law, 15/1 Journal of Space Law 25 (1987), at 30; W. Park, Satellite Application for

Aviation Requirements, XIV(1) Air Law 17 (1989); B. D. K. Henaku, The Law on Global Air

Navigation by Satellite: An Analysis of Legal Aspects of the ICAO CNS/ATM System 65-70

(1998).

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The relevance of ICAO Resolution A29-II adopted in the context of the future Communication, Navigation, Surveillance / Air Traffi c Management (CNS/

ATM) System, to S-APC is discussed further in Section 2.3 of this chapter.

Furthermore, it is on record that efforts were also made in 1966 by the ICAO Communications Divisional Meeting which led to the formation of the Application of Space Technology Relating to Aviation (ASTRA) Panel by the ICAO Air Navigation Commission in 1968. Investigations were conducted by the ASTRA Panel and meetings convened between 1970 and 1972. The objectives were to inter alia:

identify those applications of space techniques which offer improvements in the safety, regularity and effi ciency of international air operations more economically than can be realised by non-space techniques, and the dates by which the techniques concerned would be suffi ciently developed for practical application together with a statement of the related desired system characteristics.

Although the ASTRA Panel was dissolved in 1972, at the 7

Air Navigation Conference of ICAO held in the same year, its work was reviewed and the application of satellite techniques to civil aviation was discussed leading to the recommendation that Contracting States in a position to do so should proceed with the launch and evaluation of a fi rst experimental system. In 1974, responding to this recommendation, the governments of the United States, Canada, and ten European countries in concert via the medium of the European Space Research Organization (ESRO) established a joint programme for the launch and pre-operational evaluation of a multiple satellite system which would provide improved long range air-ground communications and surveillance. We will recall that the foundation of what is known today as the European Space Agency (ESA) was laid with the formation of the ESRO in 1962 and of the European Launcher Development Organization (ELDO) in 1964. ESRO consisted of ten European countries and Australia, which placed its Woomera rocket-fi ring range at the organization’s disposal. Thus the AEROSAT programme was conceived and formalised in a Memorandum of Understanding in respect of the provision of a “space segment” and of a co-ordinated programme dealing with the test, aeronautical and evaluation elements. It was controlled by an AEROSAT council, comprised of representatives of the participating countries and of ESA, together with observers from Australia, Japan and the International Air Transport Association (IATA). Due to the sharp increase in the cost of oil in 1975, the consequent recession in the air transport industry and a number of additional reasons, the programme collapsed in 1977 from lack of funding.

24

United Nations, Space Activities and Resources, UN Review, UN Doc. A/AC.105/193 (1977), at 107.

25

ICAO Doc. AN-WP/5380, Use of Space Technology in the Field of Air Navigation (Review

2.2. ICAO Aviation Review Committee Recommendations

In spite of the collapse of the AEROSAT programme, the partners of the project retained the AEROSAT Council and embarked on a re-appraisal of the potential of satellites in the changed circumstances of the 1980s and beyond.

Thus the defunct AEROSAT Council re-emerged in the form of an Aviation Review Committee (ARC) albeit with a different mandate, composition and working procedure.

In particular, the report prepared by the ARC and submitted to the Air Navigation Commission on 25 and 28 June 1982, made a number of pertinent recommendations, as part of a future work programme, based upon which the 106

ICAO Council agreed inter alia:

that ICAO should avail itself of the opportunity to provide input to the design of the second generation INMARSAT space segment, with a view to providing for the possible future use by civil aviation of sharing options utilizing satellites;

that ICAO should avail itself of the opportunity to participate in the experimental evaluation programmes being undertaken by several states (utilizing a MARECS space segment), being provided by INMARSAT.

However, it is important to note that the International Maritime Organization (IMO) had decided to start work on the establishment of a new maritime satellite communications system in 1973. The IMO Assembly adopted two resolutions which were to form the basis of the organization’s future work in this area – one authorizing its Maritime Safety Committee to develop a distress system, and the other calling a conference to establish a maritime satellite organization. The conference fi rst met in 1975 and held three sessions, the last of which, in 1976, resulted in the adoption of the Convention on the Establishment of the International Maritime Satellite Organization (INMARSAT).

The INMARSAT Convention entered into force in 1979 and, the organization became operational in February 1982, when it took over the system operated by the MARISAT Joint Venture. MARISAT itself being an American company which had pioneered the use of satellites for merchant shipping. Note, however, that in 1999 INMARSAT was privatized and the whole INMARSAT satellite system, including its business, headquarters and staff, were transferred to a UK based wholly owned operating company called Inmarsat Limited, in which the former signatories held ordinary shares.

Therefore, the original purpose of INMARSAT was:

of Technical Aspects of Aerosat Council Recommendations) 13 September 1982; Aviation Review Committee, Final Report, Volume I, 31 January 1982, at S-1.

26

Id. at S-1 to S-4.

27

Final Acts of International Conference on the Establishment of an International Maritime Satellite System, Inter Governmental Maritime Consultative Organization, London, 1976.

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On the other hand and with regards to aeronautical services, the developments leading up to the provision of aeronautical services (including S-APC) began in the 1960s under the auspices of the ASTRA Panel instituted by ICAO. More particularly the involvement of INMARSAT in the provision of aeronautical services was only made for the fi rst time following recommendations made in 1976

and the 1980s.

In order to give effect to these recommendations substantial amendments to the INMARSAT Convention and Operating Agreement were required. The said amendments were approved at the Fourth Session of the INMARSAT Assembly convened in October 1985 and read as follows:

to make provision for the space segment necessary for improving maritime communications and, as practicable, aeronautical communications, thereby assisting in improving communications for distress and safety of life, communications for air traffi c services, the effi ciency and management of ships and aircraft, maritime and aeronautical public correspondence services and radiodetermination capabilities.

As far as the distinction and effect between maritime and aeronautical services was concerned, the following contention has been put forward by Von Noorden.

As regards maritime services, INMARSAT had a limited degree of protection from competition under Article 8 of the Convention.

That article provided that a Party is to notify the Organization in the event that it or any person within its jurisdiction intends to make provision for, or initiate the use of, separate space segment facilities to meet any or all of the purposes of the INMARSAT space segment. The stated object is “… to

28

Art. 3(1) of the Convention on the International Maritime Satellite Organization (INMARSAT), adopted 3 September 1976 and amended on 16 October 1985, January 1989 and December 1994, 1143 (UNTS) 10S and 213; (1976) UKTS No. 94 (md. 7722); 3UST 1 and 135, TIAS 9605; (1976) 15 ILM 10S1-7S. See also Von Noorden, supra note 23, Part II, at 147.

29

The Final Act of the International Conference on the Establishment of a Maritime Satellite System recommended that

arrangements should be made to undertake at an early date the study, without prejudice to programmes in planning, of the institutional, fi nancial, technical and operating consequences of the use by INMARSAT of multi-purpose satellites providing both maritime mobile and aeronautical mobile capacity. In connection therewith, the advice participation and cooperation of the appropriate aeronautical authorities should be sought.

30

Upon the recommendation of the AEROSAT programme, which concluded that civil aviation might be able to share satellite systems operated for other purposes. In this respect the INMARSAT system was proposed as suitable for such a sharing arrangement.

31

Article 3(1) of the INMARSAT Convention as amended.

32

Supra note 23, at 151.

ensure technical compatibility and to avoid signifi cant economic harm to the INMARSAT system.”

Article 8 had its origins in a concern that the market for maritime satellite communications might be modest in relation to the cost of providing the necessary space segment and that INMARSAT might not be viable fi nancially if unrestrained competition were allowed.

With regards to aeronautical services, however, it was never envisaged that INMARSAT should enjoy such protection from competition. The international civil aviation community had made no commitment whatsoever to use INMARSAT services, and ICAO had expressly disclaimed any such commitment by itself, its Member States or users.

This may well be the reason why the sphere of application of the International Agreement on the Use of INMARSAT Ship Earth Stations within the Territorial Sea and Ports of 1985

(attached herewith as Appendix A) is restricted to the use of INMARSAT Ship Earth Stations as opposed to Aircraft Earth Stations (AESs). Accordingly, at the Fourth Session of the INMARSAT Assembly, held in October 1985, various amendments were adopted to the INMARSAT Convention and Operating Agreement. We will recall that the entity currently known as Inmarsat Ltd was formed in 1979 as an intergovernmental cooperative to provide mobile satellite services to the maritime community. INMARSAT evolved into a full service global mobile satellite service provider. That organization had 84 member countries. Following its privatization, as of February 2005, Inmarsat Ltd operates a fl eet of geostationary satellites providing worldwide coverage.

Prior to its privatization, INMARSAT had been funded by member countries and/or its signatories in accordance with their usage of the INMARSAT system of satellites.

It is contended that in order to remain viable in the increasingly competitive market for mobile satellite services, the INMARSAT Assembly endorsed a plan to restructure INMARSAT as a commercial corporation. Specifi cally, in September 1998 the INMARSAT Assembly agreed to proceed with a rapid privatization plan for INMARSAT that resulted in the privatization of the organization at the beginning of the second quarter of 1999.

33

See Art. 8(1) of the INMARSAT Convention as amended.

34

ICAO Doc. C-WP/8126, attachment 1, para 2.

35

The Inmarsat Agreement of 1985 entered into force on 12 September 1993 after its 25

Member State became a party to it.

36

For discussions on the history and evolution of the entity now known as Inmarsat Limited, see B. Gallagher (Ed.), On the Air in Never Beyond Reach – The World of Mobile Satellite Communications (1989); S. Doyle, INMARSAT: The International Maritime Satellite Organization – Origins and Structure, 5 Journal of Space Law 45 (1977); N. Jasentuliyana The International Maritime Satellite System, in N. Jasentuliyana & R. Lee (Eds.), Manual on Space Law 439 (1979); F. Lyall, Law and Space Telecommunications 209-243 (1989); D.

Sagar, Inmarsat Goes Private, 1999 (18) ECSL News 2; A. Auckenthaler, Recent Developments

at Inmarsat, 38 Coll. L. Outer Space 149 (1995); D. Sagar, The Privatisation of Inmarsat, 41

Coll. L. Outer Space (1998); L. J. Milton, Developments in the Privatisation of Inmarsat, IBA

Section on Business Law, 2 Outer Space Newsletter 12 (1999).

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The effect of the 1985 amendments to the INMARSAT Convention mentioned above was to confer on INMARSAT the competence to provide aeronautical satellite communications on a global basis. More importantly and as far this work is concerned, this competence was also applicable to S-APC as can be seen in the provisions of the said amendments which included the words “aeronautical public correspondence services.”

The new competencies were a substantial addition to the original remit of INMARSAT which had been mandated:

to make provision for the space segment necessary for improving distress and safety of life at sea communications, effi ciency and management of ships, maritime public correspondence services and radiodetermination capabilities.

The cumulative effect of these amendments and new competencies vested upon INMARSAT in 1985 can be said to constitute the point marking the creation of the fi rst international institutional framework for aeronautical satellite communications.

2.3. Communications Aspects of the ICAO CNS/ATM System

At the 10

Air Navigation Conference held in Montreal on 5-20 September 1991, the conference considered Agenda Item 2 – Consideration of the future air navigation systems (FANS) concept for the future air navigation system, and its capability of correcting the shortcomings of the present communications, navigation, and surveillance (CNS) system. The conference was presented with an overview of the FANS concept for the future air navigation system.

In this respect the shortcomings of the prevailing air navigation system was discussed consequent upon which a communication, navigation, and surveillance and traffi c management (ATM) concept for FANS was proposed.

The shortcomings which had been identifi ed by the FANS Committee (see further chapter three) were stated in Appendix A to the report on Agenda Item 2 as being:

a) the propagation limitations of current line-of-sight systems and/or accuracy and reliability limitations imposed by variability of propagation characteristics of other systems;

b) the diffi culty, caused by a variety of reasons, to implement present CNS systems, and operate them in a consistent manner in large parts of the world;

c) the limitations of voice communications and the lack of digital air-ground data interchange systems in the air and on the ground.

37

INMARSAT Convention, Art. 3(1). See also Von Noorden, supra note 23, Part II, at 147- 160.

Van Noorden, supra note 23, Part I.

39

Guldimann & Kaiser, supra note 1, at 78.