Open skies

Exploring the legal complexities associated with MENA satellite TV.
Al Jazeera Sport, ART, CNN, ERTU, France TV, Middle East satellite television, Satelite regulation, Signal blocking, Analysis, Broadcast Business
Sonya Shaykhoun
Sonya Shaykhoun
The International Telecommunications Union can control spectrum issues to a degree, however, activities such as signal jamming are harder to regulate.
The International Telecommunications Union can control spectrum issues to a degree, however, activities such as signal jamming are harder to regulate.
A number of international and regional organisations provide a mix of optional guidelines and enforced laws. The result can be a confusing combination
A number of international and regional organisations provide a mix of optional guidelines and enforced laws. The result can be a confusing combination

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Satellite broadcasting can deliver clear, uniform signals across the entire Middle East region. However, the laws and regulations guiding the industry can be unclear and their boundaries blurred, writes Sonya Shaykhoun.

The MENA satellite TV industry owes its success in part to the Gulf War, which began on January 1991, a time when a spate of MENA-oriented satellite TV channels and, indeed, TV platforms appeared.

For example, the Egyptian-government owned Egyptian Radio and Television Union (ERTU) bought space capacity on a previously unused transponder to broadcast programs on a channel that would become the Egyptian Space Channel. Orbit, (now Orbit Showtime Network), launched from Rome in 1994 and the Middle East Broadcasting Centre (MBC) launched in London in 1991.

Now there are reportedly more than 400 channels transmitting in the MENA region via satellite, including a slew of Western channels such as CNN and France TV, a significant increase from the 13 channels that were in operation in 1993.

Satellite TV broadcasting regulation did not develop at the same pace as the commercial industry in MENA and as such, satellite channels and platforms, many of which are privately owned, escaped blanket censorship to a large extent and a new era of more open political discussion and debate in Arab broadcasting was born. Notwithstanding the lack of formal censorship of satellite TV, the Saudi-owned channels of MBC and ART all engaged in self-censorship, although there are exceptions, such as the notoriously uncensored Al Jazeera.

Not all satellite channels have escaped censorship. “Jamming”, typically a deliberate action affecting the immediate geographical area of the transmitter’s range, is a term that describes the transmission of radio or TV signals disrupting the signal to prevent reception on the ground.

Deliberate jamming breaches international law, although inadvertent signal interference (as a result of a badly tuned or unduly powerful transmitter for example) is quite ordinary. Jamming is often a political act, practiced by many administrations around the world: the United States is known to have recently jammed legal Cuban radio and TV news broadcasts; Indonesia jammed Tongan satellite signals in 1997; Cuba, Libya, Syria and Egypt have all reportedly jammed foreign satellite signals for ostensibly political motivations.

The most notable recent example of jamming in the MENA region involved the ostensibly deliberate jamming of foreign TV stations in Iran during the June 2009 presidential elections, which impacted the transmission of BBC Persian programming and Farsi-language satellite broadcasts of the Voice of America. Press freedom group Reporters Without Borders noted that the Internet and mobile network became slow and that sites like YouTube, Facebook and several pro-reform sites were difficult or impossible to access.

Iran could be described as a chronic offender, having jammed foreign language news shows, Radio Farda and VOA English during the 2005 presidential elections. Ironically, in 2003, then-President Khatamei and Parliament Speaker Mehdi Karroubi demanded that a certain military organisation within Iran stop transmitting disruptive signals over Tehran from military bases and mobile vehicular stations. Such signals were known to be jamming satellites. In addition the Health Ministry and Department of the Environment became involved as the signals have a deleterious effect on citizens and the environment.

Politics and satellite TV often clash in the MENA region, as proven by the unceremonious ejection of various TV channels from Media Cities in the region. However, political interference can work in a positive manner. For example, in December 2009 when the Egyptian President successfully stopped state-owned Media Production City from taking Orbit, which broadcasts a popular current affairs programme entitled Al Qahera Al Youm (Cairo Today), off air.

The clash between politics and the satellite broadcasting industry begs the question of what legal recourse satellite TV channels and platforms have against jamming and/or forced closure. This article examines the legality of closing down satellite channels and blocking signals in the MENA region in the context of international and regional law and what satellite operators and/or satellite TV channels can do in the event they are subjected to jamming or forced closure.

The commercial satellite industry is governed by international treaties and international customary law applied at an international, regional and national level. However, there is a constant tension between international space law and the concept of national sovereignty.

The United Nations (UN) sponsored treaties and principles form an international legal framework for international space law on the basis that space should be open to all mankind without discrimination and to establish a global principle ensuring that the benefits of space exploration and use should be extended to all mankind without reference to wealth or might. Article 1 of the Outer Space Treaty, adopted by the General Assembly in its resolution 1962 (XVIII) of 13 December 1963, expresses this concept which is echoed in the current regulation of satellite communications regarding the use of radio spectrum and orbital positions.

The International Telecommunications Union (ITU), headquartered in Geneva, is the UN agency for information and communication technology issues and the global focal point for governments and the private sector in developing networks and services. The ITU, however, is scant on enforcement capabilities should one of the Member States offend the international order. The French National Frequencies Agency (ANF) recently appealed to the ITU over a period of seven months to stop Iran from blocking satellite signals from the BBC World Service’s Persian language broadcasts into Iran. A result is still pending.

With the proliferation of satellite channels in the MENA region, satellite television broadcasting regulation is a hot topic. Organisations that provide guidance and regulation in this regard are: the ITU’s Arab Regional Office (ARO) in Egypt, established in 1991, which presents Arab telecommunications policies and regulatory issues to the ITU; the Arab Satellite Communications Organisation (Arabsat), an intergovernmental organisation established in 1976 whose shares are owned by the Arab member states in different portions; the Arab States Broadcasting Union (ASBU); and, the Arab League of States, founded in 1945.

Membership of Arabsat, ASBU and the Arab League gives rights and imposes responsibilities with regard to satellite broadcasting akin to regulation. For example, when, in 1997, France Telecom made a technical error that resulted in ten minutes of sexually explicit programming on GCC televisions Arabsat confiscated its orbital slot, despite unsuccessful diplomatic efforts to rectify the situation.

ASBU is a not-for-profit professional organisation promoting initiatives including “the spirit of Arab brotherhood”, inter-Arab and international cooperation, representing member-organisations, and coordinating and defending the positions and interests of Arab states in the international arena.

ASBU focuses on engineering, radio, sports and television broadcasting and cooperates with the Arab League’s specialised agencies and monitors the progress of joint projects, implementing resolutions and recommendations issued by the Arab Information Ministers Council and the Arab Information Standing Committee. ASBU’s Satellite Channels Coordinating Committee participated in the development of a code of conduct for transnational broadcasters that makes compliance a precondition of membership. When Al Jazeera failed to conform to the unwritten Arab media standards, the Committee rejected its membership application.

The Arab League of States is a voluntary organisation comprised of independent, primarily Arabic-speaking, countries that aims to “build ties among the member states, coordinate their policies and promote their common interests.” The Arab League participates in programs of a political, economic, cultural and social nature of interest to its members. Its remit, however, recently extended to satellite TV broadcasting and regulatory issues.

The Arab League Satellite Broadcasting Charter, promulgated by the Arab League in February 2008, provides guidelines for the proliferation of free-to-air and encrypted satellite channels broadcasting in MENA. With the exception of Qatar and Lebanon (Arab League decisions are only mandatory for signatories) all Arab League states signed the Charter. The Charter aims to provide “the frameworks and principles required for organising broadcasting and audio visual satellite reception in the Arab world”. Despite its broad principles, including the right to “express opinions, preserve Arab culture and promote cultural dialogue through satellite broadcasting” (Article 1) and the requirement to adhere to the “religious and ethical values of Arab society” (Article 6), it does not just pay lip-service to regulation and non-compliance can be punished with license retraction in its home country. Dissenters complained that the Charter infringes on public freedoms since the broadness of the principles lends itself to wide interpretation. For example, Egypt closed down three satellite TV channels and confiscated satellite transmission equipment thus preventing the broadcast of forty channels, including Al Jazeera, Dubai TV and France TV, within two months of signature.

In January 2010, Arab information ministers convened in Cairo to review the Egyptian-Saudi-sponsored proposal for a regional satellite TV supervisory office, the Office for Arab Satellite Television.

This is seen as a partial response to the American House of Representative’s recent bill that may cause satellite operators being identified as “terrorist entities.” Furthermore, Reporters Without Borders expressed concern that such an office may abuse its powers, shutting down channels that offend governments, either directly or indirectly, and infringing on privately owned satellite TV platforms. Al Jazeera, Hamas’s Al-Aqsa TV and Hezbollah’s Al-Manar are said to be the primary target of the Office.

Satellite broadcasting regulation is inherently political, underlining the tension between the public’s international legal rights, national sovereignty and private commercial interests.

Determining who is right or wrong is always a delicate balance, especially in the MENA region.

International law stipulates that each nation shall have equitable access to spectrum and orbital resources while simultaneously respecting states’ national sovereignty. MENA regional organisations demand cultural, religious and political fidelity. National regulatory bodies can be heavily monitored and in some cases controlled by governments and their information ministers. Countries are bound to international space law voluntarily and the ITU’s enforcement powers are weak.

Unfortunately, satellite TV channels will sometimes be scapegoats if the balance of power tips against them.

This article was written by Sonya Shaykhoun, New York qualified Attorney at Charles Russell LLP in Bahrain.

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