Eutelsat to continue fight as SES claims legal victory over 28.2/28.5° East

Eutelsat has said it will continue to defend its right to use disputed frequencies at the disputed 28.5° East orbital position that serves the UK market, despite SES claiming a legal victory that will allow it to operate additional spectrum at the 28.2/28.5° East position from October 4.

SES says it has been granted rights to use German Ku-band orbital frequencies at the 28.5° East orbital position effective from October 4, 2013 onwards pursuant to a 2005 agreement with German media service provider, Media Broadcast, as successor to T-Systems Business Services. The latter holds a licence for these frequencies issued by the Bundesnetzagentur, the German regulator, on the basis of German filings that SES says have priority under the rules of the International Telecommunication Union.

SES plans to  launch and operate new satellites Astra 2E and Astra 2G in the disputed orbital arc, along with the Astra 2F satellite which was launched last year, to replace SES’s existing fleet at 28.2 degrees East and to provide new capacity.

Eutelsat currently operates these frequencies on Eutelsat 28A under a 1999 agreement with Deutsche Telekom. An arbitration tribunal ruled on September 4 that the 1999 agreement did not bar SES from using the relevant frequency bands if and when Eutelsat no longer holds the regulatory right to operate in those bands under the German filing.

The tribunal declined to specify the date on which those rights end, on the basis that it only had jurisdiction to interpret the intersystem coordination agreement between SES and Eutelsat and not Eutelsat’s contractual agreement with Deutsche Telekom. However the Bonn regional court ruled that Eutelsat is prohibited, as of October 4, 2013, from using any of the frequencies in question, to the extent that this interferes with the use of these frequencies by the holder of the German rights or by the rightful user.

Eutelsat will appeal this preliminary decision and confirms it does not intend to create harmful interference.

A second phase of the arbitration with the ICC has yet to decide, amongst other issues, whether SES was entitled to sign an agreement in 2005 with Media Broadcast without breaching its obligations. Eutelsat said it will continue to vigorously defend its right to use the disputed frequencies from 4 October 2013 and to act in the best interests of clients. The satellite operator said it “firmly believes and can demonstrate it has the ‘regulatory’ right to operate in the disputed frequency bands.”

SES said it  “strongly disagrees with Eutelsat’s position on the remaining claims to be decided by the Arbitral Tribunal in the second phase of the arbitration proceedings and will continue to vigorously defend its right to use these frequencies from October 4, 2013.”