NGSO FSS Protection Sunset Not Seen Facing Legal Challenge

While satellite operators heavily lobbied the FCC regarding a proposed sunset of interference protections of non-geostationary orbit fixed satellite service systems (see 2304120023), the commission's decision to go that route isn't likely to end up challenged in court, we are told. The order and accompanying Further NPRM, approved 4-0 at the agency's April meeting (see 2304200039), was released Friday. A lawyer representing a company involved in the NGSO FSS sharing proceeding said satellite operators opposed to the 10-year sunset recognize there's a low likelihood of success in a court challenge, as the U.S. Court of Appeals for the D.C. Circuit is highly deferential to the agency on spectrum management issues. The court also has held that the agency can alter the rules regulating a licensee's license, the lawyer said. He said the agency generally has made clear a lot of its licensing decisions are conditioned on future rule-making. He said it's more likely that satellite operators could petition the FCC to reconsider, as the stakes are lower. Per our side-by-side comparison, the approved order axes several sentences from the draft laying out how a degraded throughput methodology analysis should be done to demonstrate a later-round system won't interfere with an earlier-round system. Instead, the approved order says that while the agency is adopting a degraded throughput methodology, it "recognize[s] that certain details of its implementation may benefit from further comment." The Further NPRM seeks comment on various technical details, and much of that language that was in the draft order -- such as laying out three steps for a degraded throughput analysis -- are now in the FNPRM, with the agency seeking comment on the proposed process. When discussing information sharing during good-faith coordination, the approved order adds a sentence stating that if earlier round systems don't share some non-public information "later round systems may have to make assumptions regarding the operations of earlier round systems in order to plan operations and submit a compatibility showing." The accompanying Further NPRM adds a paragraph of questions regarding post-sunset criteria, such as whether spectrum splitting should be the default procedure between systems after the sunsetting of interference protection in order to facilitate coordination. The agency said it also seeks comment on how well a default spectrum splitting process fits in the post-sunset environment. "What does co-equal mean when there are established operators on a co-equal basis with newer entrants?," it asks. The questions were prompted by OneWeb, the FCC said.