The British High Court has ruled in favour of UK communications regulator Ofcom in its legal battle with mobile satellite services operator ICO Global.
ICO initiated the judicial review proceeding in 2009 after Ofcom announced its intent to request that…
The British High Court has ruled in favour of UK communications regulator Ofcom in its legal battle with mobile satellite services operator ICO Global.
ICO initiated the judicial review proceeding in 2009 after Ofcom announced its intent to request that the International Telecommunications Union (ITU) remove the ICO-P global medium earth orbit (MEO) satellite system from the Master International Frequency Register (MIFR).
Due to it being registered in the Cayman Islands, ICO originally applied to the ITU in 2001 through a filing with Ofcom to operate a 10 satellite 2GHz S-band MEO constellation. While ICO F2 was successfully launched in 2001 and continues to be operational, the other satellites remain partially completed and were placed in storage in 2004 when construction was suspended as a result of ICO pursuing its legal battle with Boeing over the construction and launch contract for the constellation.
With no further launches on the horizon, Ofcom subsequently conducted a three-year review of the status of the deployment of the ICO-P system and in March 2009 decided to write to the ITU to instruct it to cancel the ICO-P assignments, prompting ICO to launch its legal challenge.
In response to the High Court ruling, the UK communications regulator stated: “Ofcom welcomes today’s judgement by the High Court. We believe that spectrum and orbital positions should be used efficiently to foster competition, innovation and growth in communications services.”
ICO, however, has not ruled out the possibility of an appeal and continues to consider its options. Indeed, Ofcom’s request is not binding on the ITU and while ICO admits that it could increase the likelihood that the ITU will initiate proceedings to cancel the company’s MIFR assignments, it is somewhat unchartered territory.
Christopher Doherty, ICO’s VP of Investor Relations and Communications, told SatelliteFinance: “It is unprecedented for a request for an operating system to be removed from the MIFR. We don’t have any visibility into the process the ITU will use to evaluate any request they may receive from Ofcom.”
Ben Wolff, ICO chairman and chief executive, remarked: “(The) decision, if it stands, is not binding on the ITU. However, with this decision, it is incumbent on us to analyze the merits of continuing to provide funding for the operating expenses associated with our MEO assets, including our F2 satellite.”
ICO had argued that the ICO-P assignments gave it a legacy claim to European S-band spectrum and when this was dismissed by the European Commission which decided to award it in two blocks of 30 Mhz under a single selection process for the whole of Europe. That auction was won by Solaris, the joint venture of Eutelsat and SES, Inmarsat in 2009. However, ICO challenged the process by launching legal proceedings in the European Court of First Instance in September 2008 calling for an annulment to the S-Band licence selection. Doherty said that this challenge is still pending.
Doherty also said that the High Court verdict will not have any impact on the ongoing lawsuit with Boeing. In October 2008, the Los Angeles Superior Court ruled in favour of ICO and awarded it approximately US$603m in damages. The case is now in the appeals process with reply briefs from Boeing due on August 13. ICO will then need to respond by November 1. Doherty said that after that, oral arguments will take place before a three judge Court of Appeals panel.
“We expect the appeals process to be concluded sometime in mid-to-late 2011, depending on the timing of the Court,” he added.
Meanwhile, ICO’s North American assets are inching closer to coming out of Chapter 11 bankruptcy protection. The bankruptcy court has already approved the reorganisation plan for DBSD North America, the name of the ATC-licence owning entity, and the final step in the process is approval by the FCC of the transfer of control of DBSD, the timing of which is undetermined.
