FCC Next Steps With Unauthorized Satellite Constellation Up in Air

With the FCC facing one apparent unauthorized satellite constellation put into orbit, it's unclear whether others follow. Satellite experts we talked to were split on whether the agency will need a strong response or if the launches by Swarm Technologies are clearly a mistake unlikely to be replicated. Satellite IoT connectivity startup Swarm had the first unauthorized commercial satellite launch, and there are likely few if any amateur radio service or research satellites that have gone up without authorization, said telecom tech regulatory lawyer Mitchell Lazarus of Fletcher Heald. He said it's unlikely other satellite operators will follow: "Nobody does this on purpose."

Lawyers with satellite clients and an industry official said the FCC needs to take action against Swarm to dissuade other operators from following and opting to ask forgiveness rather than permission. One lawyer cited Section 1.80 of FCC rules, on forfeiture for not complying with the Communications Act, saying Swarm's actions possibly could fall under the language specifying penalties of up to $10,000 per violation or $30,000 day for a continuing violation, up to $1.025 million. The FCC said it's still deciding what next steps with Swarm might be. The Satellite Industry Association didn't comment.

Office of Engineering and Technology Experimental Licensing Branch Chief Anthony Serafini, in an email dated March 7, told the company an experimental license grant effective March 14 had been set aside and now was in a pending status for further review while the International Bureau assesses "the impact of the applicant’s apparent unauthorized launch and operation of four satellites, and related statements and representations, on its qualifications to be a Commission licensee." Swarm didn't comment. A separate OET application March 5 on earth stations said its four satellites had been slated for an April launch.

Likely nothing will come of Swarm's unauthorized launch unless a competitor complains, emailed Roger Rusch, president of satellite consulting firm TelAstra. The FCC could demand that all radio emissions from the satellites cease immediately, he said. He said every satellite he's aware of has an off-switch on the appropriate equipment, "but these [nontraditional] new systems might not abide by conventional practices." There also could be "considerable pressure" through litigation if there are interference issues. It's possible, though highly unlikely, a nation could shoot down the satellites if faced with interference issues, he said. "There could certainly be an international incident if illegal transmissions do not cease," he said.

It's not unusual for a company to get last-minute license approval. In this case, it's possible Swarm -- going up as a secondary payload -- opted to launch despite not getting such approval, though the appropriate step would have been to yank the satellites from the launch, an industry official said.

The real penalty comes from angering the IB, which reviews future applications, a communications lawyer with satellite expertise said. Swarm's admitting fault and being apologetic could mitigate the damage, otherwise future applications surely will be held up, the lawyer said.

Swarm almost certainly will be under far more FCC scrutiny in the future, said a lawyer with satellite clients. The smallsat NPRM expected to come later this year (see 1801160030) likely was already going to address issues of making sure small operators or individuals are aware of the regulatory steps they need to take, and now Swarm will be the poster child for that discussion, the lawyer said. Meanwhile, there perhaps needs to be a bifurcated approval process that isn't as costly for small startup companies, the lawyer said.

Swarm had OET problems before. A 2017 application was dismissed without prejudice in December due to the smallsats at the time being too small and below the size threshold for detection by the Space Surveillance Network. The FCC hasn't been authorizing anything smaller than a cubesat, and until the satellite industry and government agree on tracking of such microsats, there won't be any authorizations, Lazarus said.

There hasn't been big satellite industry demand for microsatellite licensing, but the smallsat NPRM likely will tackle issues like tracking, said a satellite industry official. Such an issue also could cross over into the orbital debris proceeding expected sometime this year, since microsatellites that can't be tracked could be considered debris, the official said.