07/01/2008



Licensing of GSM Onboard Aircraft – The Norwegian
Experience

1.      Background

The Norwegian Post and Tel...
When determining the level of exclusivity, it is relevant to consider “upwards” exclusivity for
the use of frequencies abo...
Since the establishing of exclusive rights to use the spectrum in national airspace probably
does not promote the efficien...
When the aircraft is in Norwegian airspace the requirement for a right of use follows from
the territorial principle as de...
5.2    Aircraft in Norwegian airspace

The right to use frequencies is valid only when the aircraft is in cruising altitud...
Key elements in a possible system could be:

       1. A licence obtained by the aircraft in question in the flag state in...
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Microsoft Word - Dokument1

  1. 1. 07/01/2008 Licensing of GSM Onboard Aircraft – The Norwegian Experience 1. Background The Norwegian Post and Telecommunications Authority (NPT) agreed, in the autumn of 2005, that it was beneficial and important to the citizens of Norway to have access to GSM services while travelling by air between countries. Applicants for radio frequency licences in this respect were, inter alia, granted the right to use GSM 1800 channels (i) onboard any aircrafts in Norwegian airspace, (ii) onboard Norwegian aircrafts when in flight over the high seas, (iii) onboard Norwegian aircrafts when in flight in the airspace of foreign states, subject to the requirements of the law in the states in question. This document explains the reasoning for granting such a licence. 2. Norwegian Licensing Considerations 2.1 Terrestrial GSM Licence Exclusivity In Norway, various licences for the GSM 900 and GSM 1800 frequency bands have been granted in the period between 1991 and 2005. An important part in the assessment of GSM onboard aircraft has been the level of protection that can be claimed by existing licensees and the level of exclusivity offered in the existing licences. The concept of exclusivity requires clarification. The licence holder is not the only party legally emitting radio energy which affects the electromagnetic field in the exclusive frequency band, at the geographical location, and within the period of time in question. The NPT considers the GSM licences assigned as exclusive in the sense that the licensee is the only party which may emit radio waves of certain intensity on Norwegian territory. The licensee is also protected from interference from other spectrum users to a certain degree. Before considering the possibilities of granting authorisation, the NPT had to assess the level of interference protection and the geographical scope of exclusive rights assigned. Besøksadresse | Office address Postadresse | Postal address +47 22 82 46 00 Fax: +47 22 82 46 40 Nygård 1 Lillesand Postboks 93, 4791 Lillesand firmapost@npt.no Org.nr: NO 974 446871
  2. 2. When determining the level of exclusivity, it is relevant to consider “upwards” exclusivity for the use of frequencies above ground and whether or not the terms of the exclusivity are explicitly stated or not. Similarly, it is relevant to consider “outward” exclusivity for the use of frequencies at sea when the regulatory authority is considering the use of GSM frequencies onboard vessels. 2.2 Explicit “upward” limitation of exclusivity in Norway The NPT does not consider that the existing GSM licences assign exclusive rights to use frequencies above Norwegian territory. The question of whether the licences establish exclusive rights comprising Norwegian air-space are not explicitly addressed in previously assigned licences. Neither was the question of whether such exclusive rights should be part of the licence considered. Later licences (from 2001 and onwards) state explicitly that exclusivity is limited to terrestrial services on Norwegian territory. 2.3 Exclusivity interpretations Generally, no exclusive rights of use that are not explicitly mentioned in the licence can be deemed to have been assigned unless other “rules” of interpretation clearly supports such a claim. In short, the “rules” of interpretation that were considered are: - the intent of the government when granting the licences, - the purpose of spectrum management, - whether legitimate expectations of such exclusivity existed on the part of the licensees. It is important to remember that the purpose of assigning exclusive rights is to ensure the efficient use of resources. It is virtually uncontested that the assignment of exclusive rights is appropriate in bands suited for terrestrial mobile networks. There are, however, several reasons why exclusive rights to use frequencies in the airspace should not be established. The exclusivity right discussed relates to a location in airspace in Norwegian territory. The aircraft’s cabin is not considered a “location” in this respect. In flight it moves through locations, in some of which exclusive rights to use the spectrum may have been established, e.g. on or near the ground. 1. Aeroplanes in flight should never be at the same location simultaneously. Hence, as long as the strict field strength limits are observed, no negative externalities (exceeding the levels GSM licensees anyway must accept) should result from abstaining to establish exclusive rights in the airspace. 2. Profit maximising licensees with no interest in GSM onboard aircrafts may have incentives to obstruct the realisation of a valuable service, since in-flight GSM communication is not viable unless all (theoretical) licensees holding exclusive licenses agree to accept such use of the spectrum. It might be impossible to reach such an agreement in a realistic timeframe. 3. Finally, we do not foresee any service that requires the establishing of exclusive rights to use spectrum in the airspace. 2
  3. 3. Since the establishing of exclusive rights to use the spectrum in national airspace probably does not promote the efficient use of resources, it can hardly be argued that, in the absence of other arguments, the assignment of such rights was the government’s intent when assigning the spectrum. Neither could the existence of legitimate expectations of exclusive rights comprising airspace at the time of the assignment be established. However, the NPT consider that the licensees are entitled to protection from interference from radio signals emitted from aeroplanes flying through Norwegian air space in the same manner and to the same degree that they are protected from interference from radio stations established in an adjacent geographic area. 3. An Alternative Approach To Licensing – Efficient Use Of Spectrum GSM onboard aircrafts could be licensed in Norway because the terrestrial licences did not explicitly cover airspace and because NPT did not believe that the relevant authorities at the time had the intention of including the airspace in the original licences. Some countries have GSM licences that include airspace to a specific or “imaginary” level of altitude. When considering the use of GSM onboard aircrafts and the further development of pan-European or global services, it is relevant to look into the purpose of spectrum management. The purpose of assigning exclusive rights is to ensure the efficient use of resources. The least onerous authorisation system possible should be used to allow the provision of networks and services to allow operators and consumers to benefit from these. It is undisputed that terrestrial mobile networks require exclusive licences, but NPT believes that general authorisations are suitable for GSM onboard aircraft. 4. Legislation Pursuant to Article 6 of the Constitution of the International Telecommunications Union, the Member States are bound to take the necessary steps to impose the observance of the provisions of the Constitution, the Convention and the Administrative Regulations upon operating agencies authorized by them which operate stations capable of causing harmful interference to the radio services of other countries. An operating agency is any individual, company, corporation or governmental agency which operates a telecommunication installation intended for an international telecommunication service or capable of causing harmful interference with such a service. Pursuant to Section 6-2, cf. Section 1-3 of the Norwegian Electronic Communications Act, the use of radio frequencies on and above Norwegian territory and on a Norwegian aircraft is subject to the grant of a right of use by the NPT. The nationality of aircraft is based on registration, cf. The Convention on International Civil Aviation Art. 17. 3
  4. 4. When the aircraft is in Norwegian airspace the requirement for a right of use follows from the territorial principle as defined in general international law. When the aircraft is over the high seas or in the airspace of a foreign state, the requirements of the law apply according to the nationality principle. When the aircraft enters foreign airspace, a case of concurrent jurisdiction arises, since both the registering state and the local sovereign may exercise jurisdiction in respect of activities associated with the aircraft for breaches of their respective laws. Thus, Norwegian licences does not preclude that the use of a radio station located onboard aircrafts may be subject to the grant of a right of use by the administrations of other states in addition to the Norwegian licence, when entering the airspace of other states, cf. The Convention on International Civil Aviation Art. 30 (a). The Norwegian licence specifies the radio channels that may be used when the aircraft is in Norwegian airspace and over the high seas. When the aircraft enters foreign airspace, the radio channels that can be used (if any) may be subject to the requirement of the laws of the foreign state. The onboard radio equipment must be certified in accordance with the relevant regulatory requirements for such equipment. 5. Licence Conditions – Technical and Operational The licensee is responsible for ensuring that the use of frequencies does not significantly reduce the quality of, disturb, or repeatedly interrupt, other radio services operated in accordance with statutes, regulations, and licences issued by the telecommunications authorities. The licensee must take into account that this will also apply when using frequencies that are assigned on ground. In particular the licensee must not cause interference to existing or future licensed stations on ground and must yield to new stations on ground, where interference occurs. 5.1 Network Control Unit (NCU) In order to avoid interference with terrestrial networks and to control the radio frequency emissions of all mobile stations onboard the aircraft, a network control unit (NCU) must be implemented. The NCU shall prevent the mobile stations within the cabin from accessing terrestrial networks and ensure that the mobile stations do not transmit any signal without being controlled by the onboard GSM system. The NCU shall be in accordance with forthcoming relevant harmonised standards. It has been claimed that a NCU might be regarded as a “jammer” or a “noise emitter” and hence must be regarded as an illegal device. The NPT regards the NCU as a device that prevents interference between different systems and is intended to facilitate mobile communications. The NCU is therefore “not a jammer as the function of a jammer is to achieve the exact opposite1”. 1 Similar to the conclusions of the European Commission TCAM 19 (05) 86 on the subject. 4
  5. 5. 5.2 Aircraft in Norwegian airspace The right to use frequencies is valid only when the aircraft is in cruising altitude and at least 6000 meters above ground. When the aircraft is in Norwegian airspace and at least 6000 meters above ground, all channels in the GSM 1800 band may be used for the traffic between an airborne GSM handset and the base transceiver station (BTS) of the pico-cell. In addition, radio frequencies used for publicly available mobile electronic communication networks and services may be used by the required NCU, when the aircraft is in Norwegian airspace and at least 6000 meters above ground insofar such use is necessary for the GSM equipment onboard the aircraft to operate as intended. 5.3 Aircraft above the high seas When the Norwegian aircraft is above the high seas and at least 6000 meters above ground, all channels in the GSM 1800 band may be used. In addition, radio frequencies used for publicly available mobile electronic communication networks and services may be used by the required NCU, when the aircraft is at least 6000 meters above ground insofar such use is necessary for the GSM equipment onboard the aircraft to operate as intended. 5.4 Aircraft in foreign airspace When the Norwegian aircraft is in foreign airspace and at least 6000 meters above ground, all channels in the GSM 1800 band may be used. In addition, radio frequencies used for publicly available mobile electronic communication networks and services may be used by the required NCU insofar such use is necessary for the GSM equipment onboard the aircraft to operate as intended. The right to use radio channels onboard Norwegian aircrafts when in the airspace of foreign states may be subject to an additional frequency licence from the state in question. This right of use is subject to the condition that any licence required by such foreign states is obtained. Such a licence may be awarded individually or under a general authorisation depending on the licensing regime of the state in question. 6. A Possible Solution for Long-term International Harmonisation of the Use of GSM Onboard Aircrafts It is a desirable target to enable operators to provide pan-European, other regional or global GSM services to passengers travelling by air between countries. The NPT envisages that such a system could be introduced reciprocally between states, subject to national conditions, while ensuring compliance with international regulations with the lightest authorisation regime possible. Possibly, a system similar to the licensing systems already in place in the aeronautical and maritime sector could be established. 5
  6. 6. Key elements in a possible system could be: 1. A licence obtained by the aircraft in question in the flag state in which the aircraft is registered. (Under a general authorisation or subject to individual decision). 2. Principally harmonized general authorisations defining to what extent foreign aircrafts can use frequencies while in the airspace of the states issuing such authorisations. The system could work in the following way: An airplane has obtained the necessary licences for operating a “GSM zone” inside the aircraft from the registering state. This is sufficient while in the registering state’s airspace or over the high seas. When the aircraft enters Norwegian airspace, a Norwegian authorisation to use frequencies is required. One proposal is then to let the general authorisation assign the necessary rights to use frequencies under the condition that the level of protection enjoyed by Norwegian licensees is respected. When landing and taxing, the “GSM zone” is shut down. 7. Conclusion There is an increased demand for mobile communications continuity for people on the move. Some of this demand can be met by roaming agreements between operators. However, there are two markets remaining to ensure the mobile service continuity for people: the “market in the air” (use of mobile communications onboard aircrafts) and the “market at sea” (use of mobile communications onboard vessels). GSM on board aircraft provides the missing link for both passengers and terrestrial GSM operators. It is possible to provide this service on a non-exclusive, non-protection basis, and on the condition of non-interference with any terrestrial systems. For further information please contact: John-Eivind Velure Espen Slette E-mail: john.velure@npt.no E-mail: espen.slette@npt.no Telephone: +47 22 82 48 27 Telephone: +47 22 82 47 03 6

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