MB holds a licence for these frequencies issued by the Bundesnetzagentur, the German regulator, on the basis of German filings that have priority under the rules of the International Telecommunication Union. This press release provides an update of developments concerning the dispute with Eutelsat.
The agreement will give SES the right to use, on its fleet, 500MHz of bandwidth at this orbital position adjacent to SES’s 28.2 degrees East in the frequency bands 11.45 to 11.70GHz and 12.50 – 12.75GHz in downlink and 14.00 to 14.50GHz in uplink. SES has procured and will launch and operate new satellites (ASTRA 2E and ASTRA 2G, where launch is currently scheduled for 2013 and 2014, respectively) at the 28.2/28.5 degrees East 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. The new satellites in this neighborhood will use the additional frequency spectrum as of October 2013 for DTH satellite television services in the U.K. and Ireland and for other services inside and outside of Europe.
Eutelsat is currently operating these frequencies on the Eurobird-1 satellite (also known as Eutelsat 28A) under a 1999 agreement with Deutsche Telekom AG (“DTAG”), the former licence holder of these rights, before it transferred in 2002 its satellite activity to MB (via a subsidiary of DTAG called T-Systems Business Services).
In October 2012, Eutelsat had commenced arbitral proceedings against SES in relation to the 28.5 degrees East orbital position under the rules of the International Chamber of Commerce (ICC) in Paris. In these arbitral proceedings against SES, Eutelsat has made a number of claims, including seeking a declaration that SES cannot use such frequency bands either from 28.5 degrees East or nearby orbital positions without breaching a 1999 intersystem coordination agreement between Eutelsat and SES.
In a first phase of the proceedings, the Arbitral Tribunal dismissed that specific claim for a declaration on its merits, as requested by SES. In its Partial Award dated September 4, 2013, the Arbitral Tribunal held 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 could not pronounce upon any contractual arrangement between Eutelsat and DTAG or MB.
However, this issue of the expiry date has been addressed by the Regional Court of Bonn, Germany, in a judgment rendered on August 30, 2013, which was obtained at the request of MB in preliminary injunction proceedings. In accordance with the terms of that judgment, 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 (MB) or by the rightful user (SES).
SES 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. Consequently, SES holds any associated claims for damages and costs to be unfounded and completely without merit or basis.