Officials fear precedent set as Egypt wins ITU satellite approval pleading ‘force majeure’

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PARIS— Global satellite regulators, in a decision some fear could undermine coordinated management of satellite orbital slots, have granted Egypt three additional years to launch a civil/military telecommunications satellite whose launch deadline was next May.

The decision, made Feb. 5 by the International Telecommunication Union’s Radio Regulation Board (RRB), followed an unusual last-minute appeal by Egyptian authorities, who pleaded that the country’s political and financial strains in recent years constitute a “force majeure” preventing it from ordering the satellite in the allotted time.

One immediate consequence of the decision is that officials from Europe’s two biggest satellite prime contractors, Airbus Defence and Space and Thales Alenia Space, are now beating a path to Cairo on the assumption that Egyptian authorities will sign a satellite construction contract before the end of this month.

“We’re rowing as fast as we can on this one,” one French satellite industry official said.

Government and industry officials said it was subtle French government pressure that tipped the RRB’s scales in favor of ruling now on a subject for which there was no apparent urgency.

There are no Frenchmen on the 12-member RRB. Any French government influence on behalf of Egypt – a recent buyer of French fighter jets, a contract highly appreciated by the French government – could not be confirmed.

French manufacturers’ interest in building a satellite notwithstanding, a pro-Egypt position by France might be difficult to maintain given the other French interests involved.

The Egyptian satellite, called Navisat-12A and intended to operate L-, C-, X- and Ka-band beams from 35.5 degrees east, could cause interference problems for one of two French assets: Paris-based Eutelsat’s commercial satellites less than one-half a degree away, or the French-Italian Athena-Fidus military broadband satellite 2.3 degrees distant.

Eutelsat has Ka-band ambitions from its 35.9-degree position. Depending on whether the Egyptians elect to deploy civil or military Ka-band on Navisat-12A — their intentions are not clear from the documents submitted to the RRB – it could be Eutelsat or the French and Italian militaries that would face interference threats.

The Egyptian request, made by the National Telecommunications Regulatory Authority, was unusual from the start.

In a submission dated Jan. 11, already late for a Feb. 1-5 RRB meeting, Egypt requested a three-year extension for six satellite networks, all of which have sat idle on the ITU’s books for years and are scheduled to expire next May 5.

For reasons that remain unclear, Egypt elected to bypass the World Radiocommunication Conference, a month-long quadrennial meeting at which nations the world over meet to discuss radio frequency allocations.

WRC conferences routinely hear individual nations ask for deadline extensions, whether because of a launch failure – as was the case with Mexico recently – or because of some relatively minor contract hiccup.

In its RRB filing, Egypt said it did not make its case to WRC-15, which ended Nov. 27, because it thought it had negotiated the lease of an in-orbit satellite that would have secured their orbital slots. How a single satellite could be used to lay claim to six orbital positions is unclear.

Egypt argued that the nation’s “struggles and revolutions” between 2011 and 2013, and the government’s degraded financial condition, should be considered “force majeure” by the RRB and justify a three-year extension of the deadlines.

One telecommunications lawyer unassociated with the Egyptian issue said Egypt’s attempt to define a cash-flow issue and internal politics as force-majeure conditions “is highly unusual.”

“The RRB should be concerned about the precedent this sets,” said the legal expert. “Force majeure is usually applied when you have a launch vehicle failure that makes it impossible to bring your satellite into use by the deadline. The Egyptian argument comes down to the fact that they didn’t have the money. Many other nations will be paying attention to this.”

Apparently concluding that a request for a deadline waiver for six satellites might be too much, Egypt subsequently reduced its request to three slots.

On Feb. 2 – a day after the RRB meeting started – the government further reduced its demand, to a single position, at 35.5 degrees east. Egypt further said a satellite construction contract would be “signed by the end of February.”

The Egyptian filing said “significant coordination” of the Navisat-12A frequencies had been concluded.

Jean-Francois Bureau, director of institutional affairs at Eutelsat, said Feb. 9 that Eutelsat has no idea whether the Egyptian satellite will cause problems for Eutelsat’s plans at 35.9 degrees east. He said no real attempt at coordination has been done, and that the larger question is whether “force majeure” will now be used by governments to bypass ITU rules.

“The real risk here is to the regulatory framework as a whole,” Bureau said.

SpaceNews attempted to contact the 12 RRB members, several of whom responded informally.

One said the RRB acted correctly in applying the force majeure exception to Egypt, citing a September 2012 opinion by the ITU’s legal counsel defining force majeure as “an irresistible force or an unforeseen external event beyond the control of the State.”

“If you look at the RRB decision you will see it does not free Egypt from having to coordinate its frequencies with its neighbors,” this official said. “It also cites specific elements that other nations will not be able to use. We were very conscious of this in making our decision. This will not set a precedent.”

Another RRB official, who urged rejection of the Egyptian demand, said the RRB decision would inevitably tempt other nations to seek similar treatment. “This was obviously not force majeure,” said this official, adding that Iran requested force-majeure treatment several years ago, saying international sanctions made it unable for Iran to purchase a satellite. The RRB rejected the Iranian request.

“Iran’s case was stronger than Egypt’s but it too was not force majeure,” this official said. “What may happen now is that Egypt will be unable to coordinate a four-band satellite. It is quite possible the project will collapse because of that.”