Last week, the Federal Communications Commission (“FCC”) issued new guidance and adopted new rules intended to expedite the processing of satellite and earth station license applications.  In a corresponding move, the agency adopted a Further Notice of Proposed Rulemaking (“FNPRM”) seeking comment on additional policy changes concerning satellite and earth station licensing.  These actions, which are part of the FCC’s new Space Innovation agenda, highlight the agency’s ongoing commitment to increasing its role in the regulation of a growing commercial space economy. This latest space-related FCC action consists of two parts: (1) a Report and Order (“R&O”) issuing new guidance and adopting new rules concerning the Space Bureau’s processing of satellite and earth station license applications, and (2) an FNPRM proposing further policy changes. 

This latest space-related FCC action consists of two parts: (1) a Report and Order (“R&O”) issuing new guidance and adopting new rules concerning the Space Bureau’s processing of satellite and earth station license applications, and (2) an FNPRM proposing further policy changes. 

R&O – New Guidance and Rules for the Processing of Satellite and Earth Station Applications

The FCC’s policy and rule changes governing the processing of satellite and earth station license applications generally focus on providing further guidance to applicants, increasing the transparency of the agency’s licensing process, and expediting the processing of various applications.  These changes, which would take effect 30 days from the publication of the R&O in the Federal Register (date to be determined), include the following notable developments:

New Timelines for Placing of Applications on Public Notice

A threshold step for the Space Bureau’s processing of a satellite or earth station license application is a Bureau determination that the application is “acceptable for filing,” which generally means that the Bureau has not identified any issues, errors, or omissions in the application itself.  Currently, there is no established timeline defining when the Bureau will make this initial determination.  Under the new policies adopted in the R&O, the Space Bureau will adhere to the following timelines moving forward: (1) for all geostationary orbit (“GSO”) satellite and earth station applications, placement on “Accepted for Filing” public notice within 30 days from filing; and (2) for all non-geostationary orbit (“NGSO”) satellite applications, placement on “Accepted for Filing” public notice within 60 days from filing.  

Notably, these timelines will apply to all categories of applications, including amendments to existing licenses and applications seeking FCC consent to the transfer of control or assignment of satellite and earth station licenses.  However, these timelines will not be “shot clocks” codified in the FCC’s rules – i.e., requirements that the Bureau take action on an application by a date certain.  Rather, they are general guidelines intended to standardize the Bureau’s initial processing of satellite and earth station applications.

No “Shot Clock” for Bureau Action on Merits of Satellite and Earth Station Applications

The FCC initially sought comment on establishing set deadlines by which the Space Bureau would have to take action on (i.e., approve or dismiss) satellite and earth station applications, but the R&O ultimately defers on adopting such “shot clocks.”  Accordingly, although the new policy adopted by the FCC directs the Bureau to place satellite and earth station applications on “Accepted for Filing” public notice within 30 or 60 days of filing (depending on the application), this does not require that the Bureau take action on any such application following the conclusion of the public notice period.  However, the FCC does seek further comment on this issue (discussed below).

35-Day “Deemed Granted” Approval Timeline for Earth Station Applications Seeking to Add New Satellites as Points of Communication

The lone exception to the FCC’s deferral on shot clocks for the processing of applications is a new rule under which applications to add satellites as new points of communication to existing earth station licenses will be deemed granted 35 days after being placed on public notice, subject to certain conditions.  Specifically, this streamlined approval timeline will apply only if: (1) no objections are filed during the 30-day public notice period; (2) the application is limited to the addition of new satellites as points of communication, not part of a larger set of modifications; (3) the addition of the new satellite point(s) of communication will not cause earth station transmissions to exceed the highest equivalent isotropically radiated power (“EIRP”), EIRP density, and bandwidth previously authorized; (4) the change will not result in the repointing of the earth station’s antenna(s) beyond any coordinated range; and (5) the frequency bands at issue are not shared with federal or terrestrial wireless users.  Provided these conditions apply, an earth station application seeking to add new satellite points of communication would be approved within 65 days of filing, reflecting the FCC’s new 30-day timeline for the placing of such applications on public notice and the 35-day “deemed granted” timeline for this category of modification.

Elimination of “Unbuilt Systems Rule” 

Under the FCC’s current satellite licensing rules, if a party seeking to operate a non-geostationary orbit satellite system already has an application for an NGSO-like satellite license on file or has a licensed, but not yet built, NGSO satellite system, that party may not apply for an additional NGSO-satellite license seeking authority to operate in the same frequency band.  Colloquially referred to as the “Unbuilt Systems Rule,” this prohibition originally intended to bar speculative applications, avoid the inefficient use of spectrum, and incentivize parties to surrender licenses they would not use.  

Citing the rapid development of NGSO satellite systems, the FCC’s new rules eliminate the “Unbuilt Systems” prohibition, which will allow parties to file additional applications for NGSO-like systems seeking to use the same frequencies already subject to a pending application or authorized for a licensed-but-unbuilt system.  However, the FCC’s revised rules retain a key prohibition; under the new rules, satellite operators are still barred from filing multiple applications for authority to operate in the same frequency band when these applications are subject to NGSO-like processing round rules.  These processing round rules generally require the equitable division of available spectrum among interested licensees when there is insufficient spectrum in the requested band or the proposed uses would result in harmful interference between multiple NGSO fixed satellite service (“FSS”) licensees.

FNPRM – Public Comment Sought on Additional Satellite and Earth Station Licensing Issues

The item adopted last week also includes an FNPRM seeking comment on various additional issues related to the FCC’s processing of satellite and earth station applications.  Among these issues are the following notable proposals, comments on which will be due 30 days from the publication of the FNPRM in the Federal Register:

Allowing Additional Minor Modifications without Prior Authorization

The FNPRM seeks comment on whether the FCC should expand the list of satellite and earth station license modifications considered “minor” such that they do not require prior approval from the FCC.  For example, the FNPRM asks whether earth station operators should be permitted to remove satellites as points of communication and modify antenna identification parameters without filing for prior approval.  The FNPRM also seeks comment on whether licensees seeking to implement any new “minor” modifications should have to make any particular certifications as part of the required post-modification notifications to the FCC.  (Under the FCC’s current rules, licensees may make minor modifications without prior approval provided they notify the FCC within 30 days of the changes.) 

In addition, the FNPRM seeks comment on a proposal to revise the rule limiting operations of GSO satellites to tracking, telemetry, and command (“TT&C”) functions during the relocation of these satellites to a different orbital position.  Currently, GSO satellites can resume normal operations only once their drift to a new orbital position is complete.  The FCC seeks comment on whether these satellites should be allowed to continue normal authorized operations during the relocation process, provided that the relevant satellite operator certifies that any transmissions during relocation have been coordinated with other potentially affected satellite systems.

Market Access and Request for Special Temporary Authority

The FCC also seeks comment on whether it should amend its rules to allow satellite systems operating pursuant to a U.S. market access grant (i.e., authority granted to a non-U.S.-licensed satellite that enables transmissions to U.S. points of contact) to seek special temporary authority (“STA”).  Currently, earth station licensees may seek an STA for changes to their communications with non-U.S.-licensed satellites, but there is no such process for non-U.S.-licensed satellites to seek temporary authority directly.  To address this gap, the FCC seeks comment on whether it could amend its rules to provide for an equivalent process for non-U.S.-licensed satellites operating pursuant to a grant of U.S. market access to seek an STA to communicate with U.S.-licensed satellite earth stations.

Additional Issues for Public Comment

The FCC seeks public comment on many additional issues related to satellite and earth station licensing, including:

• “Shot Clocks” for Space Bureau Action on Applications.  As noted above, the FCC’s Report and Order deferred on adopting set deadlines by which the Space Bureau must act on the merits of a satellite or earth station license application.  However, the FCC seeks further comment on whether these applications should be subject to shot clocks, particularly in light of the complicated statutory, inter-agency, and international considerations related to such applications.  Among the related issues on which the FCC seeks comment are:  (1) whether the relevant shot clock should run during the required public notice period for a given application, and (2) whether applications subject to shot clocks should be “deemed granted” after the running of the relevant time period.

• Earth Station Applications Adding a Satellite Point of Communication.  The FCC seeks comment on how it could expand the number of operators that could access the newly announced 35-day “deemed granted” timeline.  For example, the FCC asks whether earth station licenses sharing bands with federal users should be able to use this approach when adding a new satellite point of communication that already has been coordinated with the relevant federal users.

• Expanding Timeframes for Filing License Renewal Applications.  Currently, earth station licensees have a 60-day license renewal window that runs between 90 and 30 days prior to the expiration date.  The FCC seeks comment on whether it should expand this window by allowing licensees to seek renewal no earlier than 180 days, and by no later than 30 days, prior to expiration.  The FCC asks whether it should apply this extended window to renewals of NGSO satellite system licenses, as well.

• Earth Station Licensing without an Identified Satellite Point of Communication.  The FCC’s current rules require that applicants for an earth station license identify specific satellites as points of communication for the earth station.  In response to comments asking that the FCC loosen this requirement, the FNPRM asks whether it should allow applicants to seek an earth station license without identifying specific satellites as points of contact (such as would be the case for ground stations as a service (“GSaaS”) operations).

• Permitted list for NGSO Satellite Systems.  The FCC currently allows earth station operators to specify as points of communication a “Permitted List” that includes many GSO satellite systems (and non-U.S.-licensed GSO satellite systems granted U.S. market access) providing FSS in certain frequency bands in which these operations have primary status.  The FCC seeks comment on a proposal that would allow earth operators to specify a similar Permitted List for NGSO satellite systems.