FCC Advances Its Space and Satellite Agenda

In a recent speech to the Satellite Industry Association, FCC Chairwoman Jessica Rosenworcel noted that there are 10,000 satellites in orbit, with applications for another 50,000 pending, and she pledged that, under her administration, the FCC will take a leading role in the space-based economy and national security matters.

Current and potential space and satellite licensees, investors and equipment manufacturers should expect the FCC to continue to adopt new rules to meet the needs of the burgeoning space industry.

Supplemental Coverage from Space Order
On March 14, 2024, the FCC adopted a Report and Order and Further Notice of Proposed Rulemaking (Order) adopting new rules governing “supplemental coverage from space,” or “SCS.” The FCC intends that the new SCS regulatory framework will facilitate a “single network future,” fostering collaboration between satellite operators and terrestrial service providers to provide coverage to consumers who otherwise would not receive it through terrestrial networks alone.

In the Order, the FCC expressed several public interest goals for the SCS framework, including expanding “the reach of communications services, particularly emergency services,” into more rural areas, positioning the United States as a global leader in space-based technology, and continuing to “promote the innovative and efficient use” of the spectrum. The Order also reallocates certain spectrum reserved for terrestrial services for use by satellite communications but limited this to “spectrum bands where there are no primary, non-flexible-use legacy incumbent operations, federal or non-federal.” The FCC adopted the following bands as eligible for SCS:

• 600 MHz: 614-652 MHz and 663-698 MHz;
• 700 MHz: 698-769 MHz, 775 MHz-799 MHz, and 805-806 MHz;
• 800 MHz: 824-849 MHz and 869-894 MHz;
• Broadband PCS: 1850-1915 MHz and 1930-1995 MHz; and
• AWS-H Block: 1915-1920 MHz and 1995-2000 MHz

The Commission declined to authorize SCS in the Wireless Communications Service (WCS) Band, citing risks of “harmful interference to existing operations.” The FCC emphasized that “just because a band is available for SCS operations pursuant to our framework, it does not guarantee that the Commission will automatically authorize an SCS collaboration in the requested band.” To establish a framework that can accommodate the complexities of blending satellite and terrestrial operations, the FCC elected to continue considering filings for waiver or special temporary authority for SCS on a case-by-case basis. The FCC clarified that its framework will “expand to include additional bands” as the SCS marketplace evolves. The Order also expanded the United States Table of Frequency Allocations (U.S. Table) to permit secondary mobile-satellite service (MSS) operations in the SCS bands. However, as secondary services, these bidirectional MSS operations (space-to-Earth and Earth-to-space) may not cause harmful interference to a primary service in the band, nor are secondary services entitled to interference protection.

Recognizing the complicated task of balancing SCS deployment with the need to minimize the risk of harmful interference, the FCC requires that “a single terrestrial licensee holds all co-channel licenses in the relevant band throughout a geographically independent area (GIA) and the partnering non-geostationary orbit (NGSO) satellite operator holds an existing part 25 license or grant of market access.” SCS authorizations are limited to the following GIAs: (1) the contiguous United States (CONUS); (2) Alaska; (3) Hawaii; (4) American Samoa; (5) Puerto Rico/U.S. Virgin Islands; and (6) Guam/Northern Mariana Islands. In addition to authorizing space stations, the FCC must also authorize terrestrial devices that will be communicating with space stations. Under the FCC’s rules, any station located on Earth that communicates with a space station is considered an earth station, which requires authorization. To authorize earth stations, the FCC has elected a “license by rule” approach in the SCS context.

The Order authorizes SCS based on lease arrangements between terrestrial licensees and satellite operators. Terrestrial licensees may lease access to their frequencies in a particular geographic license area to a satellite operator, which then allows the satellite operator to provide supplemental coverage to close gaps in the terrestrial licensee’s coverage area. The Order also adopts interim 911 text and call routing requirements for terrestrial providers that elect to use SCS to fill the gaps in their service areas. Terrestrial providers must transmit “all SCS 911 voice calls and texts to a Public Safety Answering Point ... using either an emergency call center or location-based routing” and must transmit location information and the user’s phone number.

SCS Further Notice of Proposed Rulemaking
The FCC also adopted a Further Notice of Proposed Rulemaking (FNPRM) in the SCS proceeding. The FNPRM focuses on ensuring public safety communications using SCS are properly addressed and how best to balance the protection of radio astronomy and space sciences.

The FCC seeks comment on how it should handle 911 calls and texts that are routed through SCS. Later this year, nationwide wireless service providers will be required to move away from tower-based routing and employ more precise location-based routing of 911 calls, enabling those calls (and, later, texts) to reach the appropriate public safety answering point. The FCC wants to know if and how this use of location-based routing will impact using SCS for emergency communications. In the interim, the Order gives wireless providers the flexibility to route emergency SCS calls using either location-based routing or an emergency call center. The FCC also asks whether the accuracy and timeliness of location information are the appropriate threshold requirements to assess SCS emergency call routing effectiveness or whether the FCC should consider other metrics.

Finally, the FCC encourages commenters to weigh in on how it should encourage and improve the coexistence of radio astronomy and SCS, including what rule changes would be necessary to accomplish its goals. Comments and reply comments on these and other issues raised in the FNPRM are due within 30 days and 60 days, respectively, of publication in the Federal Register.

In-Space Servicing, Assembly and Manufacturing (ISAM)
On February 15, 2024, the FCC adopted a Notice of Proposed Rulemaking (NPRM) in its “Facilitating Capabilities for In-space Servicing, Assembly and Manufacturing” proceeding in which it proposed a new licensing framework for ISAM space stations. Comments on the NPRM are due April 29, 2024, and reply comments are due May 29, 2024.

ISAM refers to a set of capabilities used on-orbit, on the surface of space objects and celestial bodies, and in transit between the two. The “servicing” component of ISAM includes activities such as the in-space inspection, life extension, repair, refueling or alteration of a spacecraft after its initial launch. “Servicing” also includes the transportation of a spacecraft from one orbit to another, as well as debris collection and removal. “Assembly” refers to the construction of space systems using pre-manufactured components. “Manufacturing” is the transformation of raw or recycled materials into components, products or infrastructure in space.

Licensing Framework for ISAM Space Stations. The NPRM proposes rule modifications to create a new licensing framework within Part 25 of the Rules for licensing commercial space stations. An “ISAM space station” would be defined as “a space station that has the primary purpose of conducting in-space servicing, assembly, and/or manufacturing activities used on-orbit, on the surface of celestial bodies, and/or in transit between these regimes.”

The NPRM declines to specify under which circumstances a space station will need to obtain a license modification, instead leaving this to a case-by-case basis. Space stations outside of the United States will be required to provide International Telecommunication Union (ITU) file numbers and United Nations registration information. Although commenters argued that undergoing the ITU coordination process is onerous, the FCC explained that ITU Radio Regulations are a treaty by which the United States is bound.

The FCC tentatively concluded to maintain the same debris mitigation requirements for ISAM operators as for other space station operators. The FCC proposes that ISAM operators will either need to comply with orbital debris requirements under the regular Part 25 licensing process or under the small satellite or small spacecraft processes. The FCC believes that ISAM activities can play a role in orbital debris remediation and space sustainability. As such, the FCC proposes that operators engaging in active debris removal (ADR) and similar orbital debris remediation activities could seek authorization through the same process for ISAM space stations. The NPRM seeks comment on whether the FCC should impose additional requirements on applicants for ISAM space stations conducting ADR and other orbital debris remediation activities.

Radiofrequency Spectrum to Support ISAM. The FCC proposes to review ISAM operators’ requests for frequency use on a case-by-case basis. Recognizing that ISAM space stations may be more capable of spectrum sharing than other commercial space stations, the FCC concluded that ISAM-related communications licensing would not require a first-come-first-served queue for geostationary orbit (GSO) space stations or processing rounds for NGSO operators if applicants can demonstrate that the proposed operations are technically able to share spectrum and not materially hinder future use of the band. The NPRM does not propose frequency “piggybacking” (e.g., space stations receiving frequency authorization consistent with a client’s authorization) as an overall solution for ISAM-related frequency authorization, but the FCC notes that this option has been authorized under its existing rules in the past without requiring a change to the rules.

Other issues. Despite requests, the FCC chose not to eliminate fees for space stations that adopt ISAM-compatible technology, explaining that it is required to collect application filing fees and regulatory fees. The FCC does seek additional comment on suggestions for developing or supporting ISAM technology dedicated to public interest efforts; spectrum sharing schemes that pool spectrum for Small Disadvantaged Businesses; and ways the FCC can continue to incentivize the growth of the ISAM industry.

Orbital Debris Mitigation Order on Reconsideration
On January 25, 2024, the FCC unanimously adopted an Order on Reconsideration (Recon Order) in its “Mitigation of Orbital Debris in the New Space Age” proceeding. The Recon Order responds to petitions for reconsideration filed in response to the 2020 Orbital Debris Mitigation Report and Order (2020 Order). The 2020 Order was the first comprehensive update of the FCC’s orbital debris mitigation rules since those rules were adopted in 2004. If not properly mitigated, orbital debris can pose a risk to satellites and spacecraft and, if the debris falls to earth, potentially harm people and property.

The 2020 Order. The 2020 Order updated the rules for mitigating orbital debris, in an attempt to lessen the current and future threat such debris poses to spacecraft, people and property. Among other things, the 2020 Order:

-  Required that satellite applicants assign numerical values to collision risk, disclose the probability of successful post-mission disposal and disclose the casualty risk for satellites that will re-enter earth’s atmosphere;

-  Placed new disclosure requirements on satellite applicants for protecting inhabitable spacecraft, maneuverability, use of deployment devices, release of persistent liquids, proximity operations, trackability and identification, and information sharing for situational awareness; and

-  Updated the process for geostationary orbit satellite license term extension requests.

The Recon Order. The Joint Petition (1) raised concerns about the consistency of the FCC’s orbital debris rules with policies and guidelines developed by other federal agencies (namely the U.S. Government Orbital Debris Mitigation Standard Practices (ODMSP) and the Space Policy Directive-3 (SPD-3)); (2) alleged that the orbital debris disclosure rules related to planned space station maneuverability, large system disposal reliability, separate or “free-flying” deployment devices and release of persistent liquids “[diverge] substantially from the recommendations of other expert federal agencies”; and (3) raised concerns about the FCC’s case-by-case review of disclosed information and the burdens placed on applicants from making required disclosures. The FCC declined to change its rules in response to the Joint Petition.

The Recon Order notes that, to the extent the ODMSP and SPD-3 are less specific than the FCC’s rules, this is a feature of the ODMSP and SPD-3, which encourage additional standards and best practices. Further, the ODMSP “applies, by its terms, only to government missions that are procured and operated by government agencies for governmental purposes … rather than in the context of regulatory review.”

As for the Joint Petitioners’ argument that the rules for station maneuverability, large system disposal reliability, separate deployment devices and persistent liquids release diverge from non-FCC federal guidance, the FCC: (1) declined to “adopt an approach that could maintain an assumption of zero or near zero risk even in the face of evidence suggesting that such an assumption is not warranted because collision avoidance capabilities are minimal”; (2) reiterated that, contrary to petitioners’ concerns, it will review applications on a case-by-case basis and that it may authorize satellite systems with individual satellite disposal reliability at end of life with a proposed successful disposal probability less than 0.99; (3) declined to modify its rules around requiring in an application a statement that the operator has limited the planned debris release during normal operations to require a mitigation disclosure covering separate deployment devices distinct from the launch vehicle; and (4) confirmed its “expectation that the orbital debris mitigation plan for any system using persistent liquids should address the measures taken, including design and testing, to eliminate the risk of release of liquids and to minimize risk from any unplanned release of liquids in droplet form.”

In response to a petition that argued the FCC should not allow non-U.S.-licensed space systems to rely on the debris mitigation requirements of another country to satisfy the FCC’s requirements, the FCC disagreed that such a situation creates a loophole, explaining that an applicant that made a successful orbital debris showing to another space licensing authority before gaining access to the U.S. market would still have had its plan subject to rigorous safety review.

Taken together, the FCC’s rejection of petitioners’ arguments points to its experience since 2020 and belief that a case-by-case review of applications is generally appropriate, with spacecraft and systems with varying characteristics, and its disagreement that case-by-case review will lead to subjective or discretionary application of its rules.

To discuss space and satellite issues in greater detail or to learn more about Pillsbury’s capabilities, contact a member of the firm’s Communications Practice.