Satellite Industry Aims for End to Non-Conforming Prohibition

Section 25.112(a)(3) is squarely in the sights of the satellite industry and allies, with numerous calls for its elimination Monday in docket 22-411. Multiple commenters opposed dismissing applications that contain curable errors or omissions. The satellite licensing streamlining NPRM was adopted 4-0 in December (see 2212210054).

Under the rule, the FCC won't consider applications to operate in a frequency band not allocated internationally by the ITU. Intelsat called the rule "unnecessary" and said it should be amended to allow consideration of waiver requests.

Section 25.112 "is a clear example of a rule that stifles innovative services to the public," T-Mobile said. Its aim is to prevent requests to use spectrum that could be re-characterized for satellite use well before it would be possible to provide service, but that argument doesn't always hold up, it said. T-Mobile said it expects the PCS G-block spectrum it's leasing to SpaceX will remain designated solely for terrestrial operations, with a limited waiver to permit SpaceX’s use. Both the Satellite Industry Association (SIA) and Boeing argued the policy ends up encouraging applicants to seek licenses from other administrations instead of taking the chance of getting a waiver from the commission. The Commercial Smallsat Spectrum Management Association said it backs considering applications that request a waiver for nonconformance with the allocations table on their merits. It said accepting such applications "is a small, but powerful, step [toward] ensure[ing] that the licensing process is clearer for operators and supportive of technological innovation."

Other filers were more cautious about the rule's demise. The National Academy of Sciences' Committee on Radio Frequencies said it generally opposes grants inconsistent with ITU allocations, but if waivers are to be allowed in or around bands used for scientific services, the application should have to show "practical and effective protection" of those neighboring bands. Proposed non-confirming use should have to demonstrate their ability to operate without harming conforming services, Iridium said.

The FCC needs to ensure it's doing "sufficient scrutiny" of applications proposing non-conforming use, Hughes/EchoStar said. "It is critical that any application that effectively proposes to allocate new spectrum for use in the satellite services be evaluated in the broader context of its impact on frequency allocation generally" and such applications should be put on public notice and receive comments, it said.

Allowing consideration of satellite applications and petitions that request waivers to operate in bands allocated to non-satellite services -- even where satellite use of the band wouldn't conform with the International Table of Frequency Allocations -- must come with an acknowledgment that approving them "would have significant implications" for incumbents in the bands, said Verizon and AT&T. They said the agency needs to ensure the waiver request meets minimum criteria safeguarding those incumbents. Those criteria should include the satellite applicant and spectrum licensee certifying they have an agreement such as a lease that specifies the conditions under which the satellite applicant can operate, they said.

Being more aggressive about dismissing applications that have curable errors or omissions in the name of speeding up the application review process won't expedite things, Boeing said, saying determining if an informational inquiry needs to be sent is arguably quicker than the deliberation needed to determine if an application should be dismissed as defective. Applicants already have an incentive to submit complete and consistent applications in order to avoid regulatory burdens, Blue Origin said. "Dismissing applications for procedural missteps simply penalizes the applicants unnecessarily," it said. SIA said such a dismissal "imposes a substantial and excessive hardship on any party with an application subject to processing rounds or first-come-first-served licensing processes."

Multiple satellite operators embraced deadlines and shot clocks. A one-year shot clock for earth station applications "would provide the Commission with ample time for public comment and consideration, while providing satellite operators certainty in the planning of their terrestrial networks." said Amazon's Kuiper. OneWeb backed shot clocks for applications to go to public notice but not for final action on the applications themselves.

Viasat pushed to keep the existing limits on unbuilt non-geostationary orbit systems and the “substantially complete” standard for accepting applications for filing. Shot clocks and specific deadlines "would risk undermining the quality of the Commission’s decision-making process by forcing it to rush to judgment," Viasat said.

Aside from backing shot clocks, SpaceX submitted a list of suggested changes, including updated guidance on specific information required in applications, such as orbital debris mitigation data, and ending the practice of requiring data that the rules don't specifically mandate; standard forms and templates for common applications; and elimination of narratives. It also suggested a shared database to streamline coordination between operators, bureaus and agencies millimeter wave bands and allowing submission of a single modification application to apply a common change across multiple earth station licenses.

Multiple commenters pushed for allowing ground station operators to notify the agency about additional points of communication rather than go through a license modification process. Microsoft said letting earth station operators license a new earth station without an active point of communication -- something the agency requires now -- would let new ground station as a service operators enter the market. Amazon Web Services asked the FCC to issue specific guidance to earth station applicants on the information and file format, such as an Excel spreadsheet attachment, needed to facilitate coordination with NTIA in bands shared with federal users.

Calling the current FCC regulatory system "antiquated, analog, and antithetical to the concept of a frictionless regulatory system," TechFreedom urged the agency to overhaul it rather than make improvements. That overhaul would potentially include processing domestic applications and U.S. market access applications the same. It also urged the FCC to strictly follow its timelines set for filing informal complaints to tamp down on the use of such complaints to delay competitors.

The FCC should end restrictions that prevent applying for a new non-geostationary orbit system by someone who already has licenses for unbuilt systems or has surrendered satellite licenses, Hughes/EchoStar said. It also pushed for allowing applications' use of certifications rather than detailed showings of critical technical issues.

If the FCC ditches limiting operators to one unbuilt NGSO system, it should specify that each applicant in a processing round can maintain only a single application per round as of the round’s filing cutoff date, SES/O3b said. Otherwise, operators could pursue a variety of constellation proposals, allowing them to preserve their own optionality "at the expense of other applicants’ ability to reasonably assess the expected operating environment," they said.