Ofcom has written to the International Telecommunications Union asking it to rescind the spectrum allocation to ICO Satellite after the company's 32-month campaign failed.
ICO had appealed against the courts' refusal to grant a judicial review of Ofcom's original decision to write the letter, which the regulator wanted to send in February 2009 having decided ICO wasn't making sufficient use of the 2GHz spectrum it had been allocated. ICO fought that decision every step of the way, but is now out of options and the request to the ITU is in the post.
Assuming the ITU agrees to remove the allocation then the next applicant in line will get access, though who that will be we don't know as the ITU will have to consider who could make best use of the band - which is reserved internationally for satellite communications.
Ofcom originally requested the band on behalf of ICO, which wanted some frequencies in which to run its ICO-P satellite-broadband service. ICO did manage to get one bird in the air before it ran out of cash and entered into an ongoing dispute with Boeing over the remaining birds. That dispute has left the company's satellites grounded and largely unfinished while litigation continues.
Around 2006 Ofcom started talking to ICO about its options for using the spectrum, and by 2009 it was clear that ICO was going to have a hard time getting any more satellites flying so Ofcom decided to complete the paperwork to release the spectrum.
That would leave ICO, which has spent more than £2bn on the project, with no frequencies in which to operate in Europe (the company also has a US operation, which was bought up by Dish Networks earlier this year), but that argument fell on deaf ears at the appeal as financial loss isn't Ofcom's problem.
The judges in the case also rejected ICO's suggestion that as there was no one waiting to use the spectrum there was no reason to de-allocate it. The problem with that argument is that around the world there are lots of companies hoping for satellite spectrum, many of whom won't break cover until there is a band available.
ICO's only remaining argument - that it wasn't their fault and Boeing was to blame - was also considered irreverent, despite being sad.
The end of the appeal means the letter can be sent, and that has now happened. It's possible the ITU could decide not to delist the spectrum, but this is really unlikely, which is probably why in June ICO renamed itself Pendrell and acquired Ovidian - "a leading partner in providing corporate IP and litigation", with a view to "establish a new ‘gold standard’ in IP for the world’s leading technology companies". ®