HWG LLP Client Advisory

By: Paul J. Caritj, Amy C. Robinson, and Mohammad (Muji) Ali.

On Tuesday, October 28th, the Federal Communications Commission (“FCC” or “Commission”) voted to seek public comment on its sweeping Space Modernization Notice of Proposed Rulemaking (“NPRM”). The proposal would fundamentally rewrite the space and earth station licensing rules by replacing the existing Part 25 of the Code of Federal Regulations with a new Part 100. The new rules would include major changes to the application and licensing process, processing rounds, milestone and surety bond requirements, and data sharing obligations. Comments are due 45 days after publication of the item in the Federal Register. Below, we summarize key proposed changes, with a focus on non-geostationary orbit (“NGSO”) systems.

New & Revised Satellite System License Types

NGSO Satellite Systems. The FCC proposes to define an “NGSO satellite system” as a “system of one or more non-geostationary orbit satellites operating together under one space station call sign.” This is significant because the FCC currently assesses annual regulatory fees based on the number of space stations within a system. Therefore, a narrow interpretation of a system could result in higher fees.

Small Satellites. The FCC proposes to either eliminate this category or relax the criteria for inclusion (by increasing the mass requirement, for example). Because the FCC plans to significantly streamline all satellite application processing, the NPRM asks whether separate or special streamlining rules for small satellites will still be necessary.

New License Types. The FCC proposes to create two new license types: (1) Variable Trajectory Space System (“VTSS”) and (2) Multi-Orbit Satellite Systems (“MOSS”). VTSS is designed to accommodate emerging space operations that do not follow predictable trajectories, such as in-space assembly and manufacturing (“ISAM”), lunar, and missions to other celestial bodies. MOSS is intended to capture satellite systems that consist of multiple types of satellite systems (i.e., GSO, NGSO, and/or VTSS satellite systems).

Modular Applications with “Presumed Acceptable” Criteria

Modular Applications. The FCC seeks to implement more modular forms to reduce the reliance on non-standardized narratives. As part of these efforts, the FCC proposes to replace the existing Schedule S for space station applicants with a new Schedule O for Orbital Requirements and a new Schedule F for Frequency Elements. The FCC proposes to retain the Form 312 and the required general public interest statement for all applications.

Presumed Acceptable Criteria. In addition, the FCC proposes to set bright-line performance measures and system characteristics which it will generally “presume[] to be acceptable.” Applications meeting those requirements would be processed on an expedited basis. Applicants that do not meet the bright-line performance measures must submit additional information and may be subject to a longer review period.

Amendments. To prevent abuses of the amendment system, the FCC proposes to expand the scope of amendments that qualify as “major.” Under the FCC’s proposal, a “major amendment” is one that would: result in an application being excepted from expedited processing; add frequencies; increase power, power density, or out-of-band-emissions beyond FCC rule limits; modify the antenna pattern; require re-coordination with federal agencies; or increase the risk of radiofrequency exposure to humans. An amendment would also qualify as “major” if it would otherwise be determined substantial under Section 309 of the Communications Act (the “Act”). Major amendments would only be permitted for 45 days after the initial filing date, or by Commission order.

Modifications. Under the proposed approach, the FCC would have three categories of modifications: (1) modifications that can be made without notice; (2) minor modifications that require notice; and (3) major modifications, which would require prior approval. To decrease the need for Special Temporary Authorizations (“STAs”), the FCC proposes to permit a wider range of license modifications without prior approval. For instance, the FCC proposes that modifications to merge call signs or combine multiple licenses could occur simply through notice. Furthermore, the FCC proposes permitting operators to perform orbit-raising/lowering maneuvers—and communicate for those purposes in frequencies authorized for telemetry, tracking, and command (“TT&C”)—without prior FCC approval.

Application Fees. The FCC proposes to eliminate the 14-day window for application fees and instead require applicants to pay upon filing.

Licensing Assembly Line and Streamlined Processing

Licensing Timeline. The FCC proposes a new “licensing assembly line” to standardize the application processing timeline and improve predictability for applicants. However, the proposal would exclude many applications from expedited processing, such as applications involving frequency bands subject to federal coordination. The FCC proposes the following timeline for expedited and non-expedited applications:

  • Within 30 days of filing, the FCC must either put an application on public notice or ask for additional information if the application is incomplete.
  • Expedited Processing. If an applicant qualifies for expedited processing, then the FCC must put the application on a seven-day public notice. An application is eligible for expedited processing if it meets all “presumed acceptable” bright-line criteria, does not request a waiver, and is not subject to any of the exceptions to expedited processing.
    • Exceptions to expedited processing include applications with any negative certifications, any waiver requests, reportable foreign ownership, spectral constraints, federal coordination requirements, market access requests, or applications that are subject to processing round requests.
  • Regular Processing. The FCC must put applications not eligible for expedited processing on a 15-day public notice (so long as they do not fall under Section 309(b) of the Act, which requires a 30-day public notice).

Conditional Grants. The FCC proposes to expand and standardize conditional grant of authority for certain types of applications. Applications eligible for expedited processing that receive no objections or comments during the seven-day public notice period would be conditionally granted, authorizing operations on an unprotected, non-interference basis. The FCC notes that such expedited conditional grants could decrease the need for STAs while license modifications are pending. In addition, the FCC proposes conditional grants for applicants who need additional time to submit orbital debris mitigation plans as well as applicants who must coordinate with other operators in specific frequency bands, including frequency bands subject to federal coordination.

Processing Rounds. Under the current rules, the Commission considers applications for NGSO systems in groups based on filing dates. The FCC proposes to pre-determine specific frequency bands eligible for applications; once identified, a processing round would automatically open on January 1 and close on October 31 of the same year. The FCC would then base priority status on the system’s grant date rather than filing date. However, the FCC proposes to exempt from the processing round requirement any NGSO application for a system: (1) not in frequency bands pre-designated for a processing round; or (2) with fewer than 200 satellites. Applicants not required to participate in a processing round could opt in to the processing-round framework to obtain priority status so long as they comply with the surety bond requirements.

First-Come, First-Served Procedure. For NGSO licensees operating in bands outside of a processing round, the FCC proposes that NGSO systems must be “compatible with existing operations in the authorized frequency band(s) and must not materially constrain future space station entrants from using the authorized frequency band(s).”
Surety Bonds. For NGSO operators, the FCC proposes to limit the requirement to post a surety bond for systems with 200 or more satellites (excluding replacements), as well as to licensees within a processing round.

License Term. The FCC proposes to extend the NGSO license term to 20 years. Even though most NGSO satellites have a shorter useful life than 20 years, operators can use replacement space stations during the rest of the license term without filing a modification.

Transition to Part 100. The FCC proposes to retain the “license terms, bonds, milestones, processing round status, and traceability attached to individual licenses and grants of market access at the time of authorization” and to preserve any license-specific conditions imposed before the new Part 100’s effective date. In addition, the FCC seeks comment on what type of events would “convert” a Part 25 license to a Part 100 license and suggests that it would seek to convert licenses to the Part 100 rules “to the greatest extent possible” at the time of renewals, transfers of control, and major modifications.

Reporting and Data Sharing Requirements

Contact Information. The FCC proposes to eliminate the annual point of contact reporting requirement and instead require operators to submit updates to contact information within 48 hours of the change.

Ephemeris Data. The FCC proposes to require all space station operators to file ephemeris data via space-track, the 18th Space Control Squadron, or with another space situational awareness (“SSA”) operator identified by the Space Bureau through public notice.

Space System Safety Reports. The FCC proposes to require NGSO space station licensees to file a semi-annual report (on January 1st and July 1st) that details various metrics, such as the number of events resulting in maneuver or coordination with other operators and the number of satellites that re-entered the atmosphere.