The Commission decides who may operate by issuing space station licenses (or equivalently, market access for non-US operators), and establishes sharing rules, notably the coordination requirement in 47 CFR 25.261, “Sharing among NGSO FSS space stations.” NGSO operators “must coordinate in good faith the use of commonly authorized frequencies”; this presupposes cooperation but doesn’t define the structures for doing so. Bilateral coordination doesn’t require new institutions, but the multi-lateral coordination likely in NGSO bands will.
A common pool resource (CPR) is defined by Wikipedia as “a type of good … whose size or characteristics makes it costly, but not impossible, to exclude potential beneficiaries from obtaining benefits from its use.” Just like the club goods discussed in my satellite license auctions post, common pool resources face problems of congestion or overuse.
Elinor Ostrom listed eight design principles illustrated by long-enduring CPR institutions in Governing the Commons: The evolution of institutions for collective action (1990). I will check through the list for ideas about how NGSO allocations could be managed as CPRs. (Let’s stipulate that these principles are valid. Whether they are valid for CPRs in general and NGSO in particular is – in part at least, though this becomes circular – and empirical question.) For earlier work, see the 2017 DySPAN paper by Weiss, Krishnamurty and Gomez, How Can Polycentric Governance of Spectrum Work?
The following definitions and quoted descriptions are from Ostrom (1990, Table 3.1).
1. Clearly defined boundaries. “Individuals or households who have rights to withdraw resource units from the CPR must be clearly defined, as must the boundaries of the CPR itself.”
Unlike unlicensed, where anyone using a certified device can transmit, NGSO “appropriators” are clearly defined: they are the named operators authorized by the regulator. The CPR can be defined as the band where operation in a given country is authorized, or as the combination of the band, the geographical region, and the operating rights. (For a discussion of how to define “spectrum” as a resource, see my blog post, and the SSRN paper with Jeff Westling.)
2. Congruence between appropriation and provision rules and local conditions. “Appropriation rules restricting time, place, technology, and/or quantity of resource units are related to local conditions and to provision rules requiring labor, material, and/or money.”
This principle seems more appropriate for natural resources like fisheries that vary from place to place than spectrum rights. However, local conditions are reflected to the extent that national regulator’s rules supersede ITU rules (which is the case for NGSO in the United States).
3. Collective-choice arrangements. “Most individuals affected by the operational rules can participate in modifying the operational rules.”
In the United States, all operators, and indeed any member of the public, can comment on operating rules under the terms of the Administrative Procedures Act. Similar commenting regimes apply in most countries, though details differ. However, operators are not the regulator, and do not have decision-making power.
If multi-stakeholder institutions are created to craft detailed operational rules – something which has not happened for NGSO – then operators would participate more directly in modifying operational rules. Operators participate in many forums where discussions can take place, such as ITU study groups and World Radio Conference preparatory groups. These bodies can create de facto operational rules, for example as ITU Recommendations. There is no bar to operator participation as far as I know, although typically only well-heeled players can afford to engage in depth.
The institutional challenge for NGSO operators is that most of the businesses are still embryonic; nobody knows which of them will launch, let alone thrive. It is tempting to delay multi-lateral conversations until it is known who the players will be. Unfortunately, this means that technical means that could have avoided conflict cannot be agreed up-front.
The satellite business contrasts starkly with unlicensed, another putative spectrum CPR, where there is a very well-developed multi-stakeholder process for developing and marketing industry standards, though IEEE 802.11 and the Wi-Fi Alliance, respectively.
4. Monitoring. “Monitors, who actively audit CPR conditions and appropriator behavior, are accountable to the appropriators or are the appropriators.”
This principle does not apply to NGSO operation, or spectrum regulation generally. Enforcement, such as it is (the ITU has no enforcement power), is done by national regulators which are severely budget constrained. There are private multi-stakeholder organizations that monitor some aspects of satellite operation such as the SDA (Space Data Association, currently limited to orbit monitoring) and the SatIRG (Satellite Interference Reduction Group).
One of the challenges for NGSO operators (and to a lesser extent, for all spectrum players) is knowing that there has been a violation of rules. Constantly changing weather and Earth-satellite alignments means that the signal to noise ration fluctuates even in baseline (see my TPRC 2018 paper with Susan Tonkin, NewSpace Spectrum Sharing: Assessing Interference Risk and Mitigations for New Satellite Constellations); determining that a degradation in data throughput is due to interference, rather than natural phenomena, is difficult.
5. Graduated sanctions. “Appropriators who violate operational rules are likely to be assessed graduated sanctions (depending on the seriousness and context of the offense) by other appropriators, by officials accountable to these appropriators, or by both.”
This principle is also problematic. It presumes monitoring by appropriators, which doesn’t currently exist. More seriously, though, neither appropriators nor their agents are empowered to assess sanctions; that is the preserve of regulators. However, it is possible that operators in a multi-stakeholder body could contract with each other to accept sanctions. (A nice research question: what are the precedents for multi-stakeholder bodies, especially in communications, committing a mutual sanction regime?)
6. Conflict-resolution mechanisms. “Appropriators and their officials have rapid access to low-cost local arenas to resolve conflicts among appropriators or between appropriators and officials.”
Low-cost venues do not currently exist for NGSO operators to resolve conflict – not least because very few constellations have deployed, and there is no pressing need (yet). Conflicts among appropriators (i.e., operators) could be resolved bilaterally, which would be comparatively low cost. Conflicts with officials (i.e., regulators) could be resolved informally, as they often are; however, if that fails, matters would escalate formal venues which are expensive.
Given the difficulty of recognizing when harmful interference has occurred, and the difficulty of predicting which operators will be in play, it may be advisable to defer the definition and implementation of conflict-resolution and conflict-avoidance mechanisms until degradation has actually been observed; see the appendix “Triggering coordination by observed degradation” in the 2017 FCC TAC white paper, A Risk Assessment Framework for NGSO-NGSO Interference. Given the complexity and uncertainty, we should strive for “designs that facilitate experimentation, learning, and change” to quote Dietz, Ostrom and Stern (The Struggle to Govern the Commons, 2003).
7. Minimal recognition of rights to organize. “The rights of appropriators to devise their own institutions are not challenged by external governmental authorities.”
I imagine that regulators like the FCC would not challenge operator-devised institutions. It is quite possible that regulators might encourage and even endorse such institutions.
8. Nested enterprises. This applies to CPRs that are parts of larger systems: “Appropriation, provision, monitoring, enforcement, conflict resolution, and governance activities are organized in multiple layers of nested enterprises.”
This does not seem to be applicable to NGSO operations, and not necessary, since the system is relatively small.
In summary, the principles that are least well satisfied are those associated with enforcement: monitoring (#5), graduated sanctions (#5), and conflict-resolution mechanisms (#6). The biggest gap seems to be the absence of operator-run institutions to manage conflict.