Interference with satellite transmissions is a real and growing problem (particularly in the Middle East), with industry experts quoting figures of up to 10% of some operators' signals being affected. While the ITU mechanisms for dealing with interference problems offer a forum for discussion, they take time to follow and are not backed up by effective legal remedies. The growing issue of interference can mean significant losses for a broadcaster, and those losses generally lie where they fall. The questions therefore arise: how should we deal with liability for losses caused by interference? and does the growing technical and business significance of interference lead to a drive towards a fresh solution?
It is unlikely that satellite operators will want to take on liability for interference, as they will typically expect this to be classed as a force majeure type event under the capacity contract (i.e., outside their 'reasonable control'). However, as technology or processes to avoid or mitigate interference become more available, to what extent will such strategies remain outside the operator's reasonable control for contractual purposes? Interference may be caused by human error, technical malfunction, or negligence (whether of the operator or a contractor) or it may be unintentional; so customers may start to ask whether it is appropriate for them to take on all of the risk. Customers may therefore be more inclined to request a contractually defined series of measures to be taken in the event of interference, even if the core liabilities are not rebalanced.
Longer term, as technology advances satellite operators may look more closely at the advantages of building solutions to interference into their platforms. Where these need to be part of the satellite payload specifications, they will depend on looking forward to combating the likely interference in some years' time, once the satellite is in orbit. In all cases, the cost of the upgraded specification will need to be justified. It remains to be seen whether broadcasters will expect more commercial or contractual comfort around the range and timing of remedial measures – for example, alternative satellites through which signals can be rerouted. The key question is, of course, how far broadcasters will be willing to pay a premium for a service which includes countermeasures to address interference. And if so, what contractual service commitments the operators will offer to support them.
Chris Eastham and John Worthy