You will find more information about the items on the December meeting agenda after the break:

Improving Accessibility and Clarity of Emergency Alerts - The EAS NPRM would propose rules to improve the accessibility and clarity of visual messages distributed to the public through the EAS, which advises the public of emergency alerts issued by government entities. The EAS is comprised of a legacy broadcast system that can only relay audio messages and an internet-based Common Alerting Protocol (“CAP”) system that can relay audio, text and visual messages. Due to the fact that alert initiators using the legacy EAS have some discretion regarding the content of the alert message while EAS participants that use video (such as broadcast or cable television operators) must rely on codes embedded in alerts to create a visual message (usually text), the audio and visual messages associated with the alerts may not match. To improve the clarity of EAS test messages, the EAS NPRM would propose the use of the following script as the visual message for all legacy EAS nationwide tests: “This is a nationwide test of the Emergency Alert System issued by the Federal Emergency Management Agency covering the United States from [time] until [time]. This is only a test. No action is required by the public.” For EAS participants that receive an alert from the CAP system, the FCC would propose to change the nationwide EAS test event code that alert initiators include in the alerts so that the following language is displayed in all visual messages: “Nationwide Test of the Emergency Alert System.” The EAS NPRM would also seek comment on how the legacy EAS can be improved to enable alert originators to relay visual text that matches the audio message and how the EAS can be modified to support greater functionality and accessibility.

Facilitating Satellite Broadband Competition – The Satellite Spectrum Sharing NPRM would grant a petition for rulemaking from SpaceX requesting revisions to the spectrum sharing requirements among NGSO FSS systems. The FCC considers applications for NGSO FSS system licenses, which are used to provide broadband services, in groups based on filing date under a processing round procedure. All NGSO FSS system operators within a processing round that are granted a license must comply with the FCC’s spectrum sharing rules and coordinate with each other in good faith to use commonly authorized frequencies. If the NGSO FSS system operators in a processing round are unable to come to a coordination agreement, then a default spectrum-splitting procedure applies. The Satellite NPRM would propose that the spectrum sharing requirement only be applicable to NGSO FSS systems approved in the same processing round. The FCC would seek comment on a rule that would protect systems processed in an earlier round from being subjected to a certain level of interference from systems processed in a subsequent round and on whether interference protection should end after a period of time. To facilitate analysis of potential interference, earlier-round NGSO FSS system operators would be required to share data regarding their beam locations with later-round NGSO FSS system operators subject to confidentiality or non-disclosure agreements.

Promoting Fair and Open Competitive Bidding in the E-Rate Program – The E-Rate NPRM would propose changes to the E-Rate program rules to improve program integrity. The Schools and Libraries program, or E-Rate, funded by the Universal Service Fund, provides discounted telecommunications and broadband services and equipment to eligible schools and libraries (referenced as E-rate “applicants”). To obtain services and equipment through the E-rate program, an applicant must conduct a competitive bidding process among interested service providers that is commenced by submission of FCC Form 470 to USAC, which then posts the form to its website. Applicants consider bids received directly from interested service providers and then seek funding to pay their chosen service providers by filing an FCC Form 471 with USAC. The E-Rate NPRM would recommend the establishment of a bidding portal through which service providers would provide competitive bidding documentation. The FCC would seek comment on whether applicants also should be required to use the portal to submit other documentation, such as bid evaluation matrices, questions from bidders, and contract documents. In addition, the E-Rate NPRM would ask whether service providers should be required to wait a certain period of time before they could access service providers’ bids. Finally, the E-Rate NPRM would request comment on various issues related to the proposed portal, including how the E-rate’s existing portal could be leveraged to accept service providers’ bids, whether any procurement laws or technical issues would preclude or limit the use of a bidding portal and whether the portal should be used as a repository of documents for purposes of meeting recordkeeping requirements.

You will find more information about the items on the November meeting agenda after the break:

Enabling Text-to-988 - The Second Report and Order would adopt rules that require covered text providers to route text messages sent to 988 to the Lifeline. Covered text providers would include CMRS providers and providers of interconnected text messaging services that enable consumers to send and receive text messages (including through the use of installed or downloaded applications). The implementation date for text-to-988 would be set at July 16, 2022, which is the same deadline for voice providers (i.e., telecommunications carriers, interconnected Voice over Internet Protocol (“VoIP”) providers and one-way VoIP providers) to enable end users to dial 988 to reach the Lifeline. Initially, covered text providers would only be required to support the transmission of text messages to 988 using Short Message Service format because that is the only text format the Lifeline can receive at this time. However, there would be a process whereby the Wireline Competition Bureau could expand the types of text formats that covered text providers must support as the Lifeline becomes capable of handling additional formats.

Enhanced Competition Incentive Program for Wireless Radio Services – The FNPRM would continue the FCC’s efforts to close the digital divide by promoting diversity of spectrum licensees and the availability of wireless services in rural areas. The FNPRM would propose an Enhanced Competition Incentive Program (“ECIP”) that would be available to wireless licenses for which the FCC has auctioned exclusive spectrum rights in a defined geographic area. A wireless licensee would qualify for certain benefits under the ECIP if it entered into an agreement with an unaffiliated entity to assign or lease a portion of its licensed spectrum and (1) the agreement encompassed at least 50 percent of the licensed spectrum and at least 25 percent of the licensed market area, and (2) the agreement was with a small carrier or Tribal entity or the agreement focused on a rural area. Wireless licensees that participate in the ECIP would receive a five-year extension of the license’s term, a one-year extension of the construction deadline and a modified construction requirement in rural areas. The FNPRM would also seek comment on whether a licensee should be required to use Open Radio Access Networks (“RAN”) technologies to receive ECIP benefits, alternative construction options for licensees with certain flexible use licenses (i.e., license that can be used for a variety of applications), and incentives to promote spectrum sharing.

Updating FM Radio Directional Antenna Verification – The NPRM would propose rules to address the FCC’s tentative conclusion that requiring applicants for FM and LPFM broadcast radio licenses or for modifications to those licenses to provide physical measurements to verify directional antenna patterns is outdated. The FCC’s rules currently require FM applicants to either (1) test a full-scale model of an antenna, including the tower or pole on which it is to be mounted and structures that will be in proximity to the antenna, on a test range or (2) construct a smaller, scale model of the antenna, mounting structure, and nearby structures, and then measure the signal in an indoor anechoic chamber. The NPRM would seek comment on whether the use of computer modeling is a viable option for verifying FM radio directional antenna patterns, whether the FCC should require use of a specific computer program, whether antenna manufacturers or broadcast engineers generally prefer a certain computer model to accurately analyze FM radio directional antenna patterns, and whether the FCC’s policies are effective in resolving interference complaints or disputes pertaining to the directional FM antennas.

Knéis Low-Earth Orbit Satellites Market Access - The Order would grant a petition and waiver request by Knéis, a private satellite operator, to access the United States market using a network of 25 low-Earth orbit (“LEO”) satellites authorized by France and operating on frequencies in the non-voice, non-geostationary mobile-satellite service and earth exploration-satellite service. The Order would grant Kinéis permission to use the 399.9-400.05 MHz and 401-403 MHz bands for uplink and the 400.15-401 MHz band for downlink, subject to certain conditions. Knéis would rely on these frequencies to support connectivity for IoT devices used in the maritime, agricultural, logistics, outdoor sports, security, and scientific sectors. The Kinéis satellite system would be compatible with the Argos data collection system (a worldwide network of data collection satellites managed by France’s space agency, together with the National Aeronautics and Space Administration and the National Oceanic and Atmospheric Administration) and would facilitate implementation of the next generation of the Argos system. Five of the satellites would monitor maritime communications in the 156.7625-162.0375 MHz band thereby enhancing maritime domain awareness. The Order would also require Kinéis to obtain approval of its orbital debris mitigation plans prior to commencing service.

The 70/80/90 GHz Bands are allocated on a co-primary basis for Federal and non-Federal use, for terrestrial, satellite, radio astronomy and radiolocation uses. For nearly twenty years, there has been a non-exclusive “light” licensing and registration scheme in the 70/80/90 GHz Bands for high-capacity, ground-based point-to-point links that can be used for any non-broadcast purpose. In a June 2020 Notice of Proposed Rulemaking in WT Docket No. 20133, the Commission launched consideration of changes to the 70/80/90 GHz antenna standards and the link registration processes which proponents believed would increase the utility of the bands. But the record also affirmed that other stakeholders envisioned additional uses of the bands, which they claimed would be compatible with the ground-based point-to-point links such as using the 70/80/90 GHz Bands for point-to-point links to endpoints in motion to facilitate broadband service to ships and aircraft or for high-capacity links between points on the ground using stratospheric platforms.

Now, a year later, the Bureau is particularly “interested in the feasibility of permitting HAPS or other stratospheric-based platform services in these bands” and whether these services could be introduced compatibly with other services in the bands. Among other subjects, the Bureau asks how stratospheric platforms would be used in the bands (including information system operating parameters), what services the platforms can support (e.g., commercial, private, or governmental uses), and whether HAPS or other stratospheric platforms are commercially viable in light of several previous stratospheric platform advocates have indicated they are no longer actively pursuing their plans. The Bureau also asks whether, if it were to authorize stratospheric communications platforms to use 70/80/90 GHz Bands, the FCC should impose certain technical limitations or restrictions on the deployment of such services to protect incumbent operations, such as altitude restrictions, power limits, transmitter design considerations, directional constraints, additional emission limits, coordination, or other requirements. Much like a rulemaking notice, the Public Notice also inquires what licensing and service rules should apply to stratospheric-based communications services and whether they should be limited to services facilitated by nominally fixed stratospheric platforms, one of the defining characteristics of HAPS as described in international and FCC regulations.

The Public Notice also seeks comment on any international implications related to HAPS or other stratospheric-based platform services that might be authorized in the 70/80/90 GHz Bands. The Bureau noted that, at the 2019 World Radiocommunication Conference (“WRC”) of the International Telecommunications Union, additional spectrum bands were identified for HAPS globally at 31.0-31.3 and 38.0-39.5 GHz and in Region 2, the Americas, at 21.4-22.0 and 24.25-27.5 GHz. The Commission has not taken action to date to implement domestically these new international allocations, which supplement much more narrow allocations for HAPS at earlier WRCs in the 2, 6, 27/31, and 47/48 GHz bands.

Continuing the Public Notice’s theme of new means of potential connectivity for internet broadband access, the Bureau’s Public Notice also requests additional information regarding the potential use of the 70/80/90 GHz Bands to provide broadband Internet access to customers on airplanes and aboard ships. One of the subjects in the 70/80/90 GHz rulemaking proceeding initiated last year was consideration of a proposal by Aeronet Global Communications, Inc. to use these Bands for “Scheduled Dynamic Datalinks” (“SDDLs”) to aircraft and ships.

FCC regulatory will likely slow in the aftermath of the election and with an upcoming change in Administration. However, the Commission tees up two new rulemaking proceedings with the November agenda, signaling that the FCC may still be moving forward with policy initiatives going into a transition period. You will find more details on the most significant November meeting items after the break:

Reallocating the 5.9 GHz Band: The draft First Report and Order, Further Notice of Proposed Rulemaking, and Order of Proposed Modification (“FNPRM”) would adopt rules to repurpose the 5.9 GHz (5.850-5.925 GHz) band. The Order would repurpose 45 megahertz of spectrum in the 5.850-5.895 GHz portion of the band for unlicensed use and allow for immediate unlicensed indoor operations. It would designate the upper 30 megahertz of spectrum in the 5.895-5.925 GHz band for ITS service, and require ITS operations to cease operations in the lower portion of the band within one year of the Order’s effective date. The Commission would also require the transition of the ITS radio service standard from Dedicated Short-Range Communications (“DSRC”) technology to C-V2X technology. The FNPRM would propose technical rules for outdoor unlicensed operations in the 5.850-5.895 GHz band once ITS operations have transitioned out of this portion of the band, and would seek comment on the implementation timelines and technical parameters for transitioning all ITS operations in the revised ITS band to C-V2X-based technology.

Further Streamlining of Satellite Regulations: The draft Report and Order would streamline the Commission’s satellite licensing rules by creating an optional framework for authorizing space stations and blanket-licensed earth stations through a unified license. The unified license would be available to systems operating above 10 GHz, and would eliminate redundancies in the separate licensing process and accelerate new earth station deployment. The FCC would streamline application requirements by allowing applicants to certify compliance with satellite licenses and would eliminate certain reporting requirements. The Order would additionally align buildout periods for qualifying earth stations and the satellites with which they communicate to allow for increased coordination.

Facilitating Next Generation Satellite Services in the 17 GHz Band: The draft Notice of Proposed Rulemaking (“NPRM”) would propose to allow use of the 17.3-17.7 GHz band by geostationary satellite orbit (“GSO”) space stations in the FSS in the space-to Earth (downlink) direction on a co-primary basis with incumbent services, aimed at increasing use and efficiency of the 17 GHz band. The Commission would propose to permit limited GSO FSS use of the 17.7-17.8 GHz band on a non-protected basis for fixed service operations. The NPRM would additionally propose technical parameters for an extended Ka-band, and would propose to apply certain uplink power limits to GSO FSS uplink transmissions in the extended Ka-band to protect GSO FSS space stations from interference.

Expanding the Contribution Base for Accessible Communications Services: The draft NPRM would propose to amend the Commission’s rules to update the funding mechanism for the TRS Fund, and expand the contribution base for Internet-based TRS to Video Relay Service (“VRS”) and Internet Protocol (“IP”) Relay Service. The FCC would propose to expand the contribution base for these services to include intrastate revenues from telecommunications carriers and VoIP service providers. The NPRM would propose to calculate these TRS Fund payments to support VRS and IP Relay by applying a single contribution factor for all three Internet-based services to a contributor’s total end-user revenues, combining both intrastate and interstate revenues. The Commission would seek comment on its implementation proposals and on any alternative approaches for the contribution calculation.

Running the gamut from rural networks to outer space, the FCC’s April agenda will impact service providers across the industry. Consequently, stakeholders should closely examine the deployment and funding opportunities presented in the FCC’s proposals. You will find more information on the key April meeting items after the break:

Unlicensed Use of 6 GHz Band: The draft Report and Order and Further Notice of Proposed Rulemaking would authorize two types of unlicensed operations in the 6 GHz band. First, the FCC would permit unlicensed operations in the 5.925-6.425 GHz and 6.525-6.875 GHz sub-bands at standard power levels used in nearby bands (i.e., 23 dBm/MHz), provided such operations use an automated frequency control (AFC) system. The AFC would determine the frequencies available for use without causing harmful interference to incumbent operators and make only those frequencies available for unlicensed operations. Second, the FCC would permit unlicensed operations across the entire 1,200 megahertz of the 6 GHz band at a lower power (i.e., 5 dBm/MHz) without an AFC system, but restrict such operations to indoor uses. The FCC would seek comment on allowing a higher power level (i.e., up to 8 dBm/MHz) for indoor unlicensed operations. The agency also plans to ask whether it should permit very low power unlicensed operations without an AFC system both indoors and outdoors and, if so, what that power level should be.

5G Fund: The draft Notice of Proposed Rulemaking and Order would seek comment on establishing a 5G Fund to provide up to $9 billon to support the deployment of 5G mobile broadband and voice networks in rural and other hard-to-serve areas over ten years. The 5G Fund would support deployments in areas left uncovered by the recently-approved T-Mobile/Sprint merger, which included a commitment to serve 90% of rural Americans within six years. Under the FCC’s proposal, funding would be awarded through competitive bidding in two phases. Phase I would provide up to $8 billion in support, including $680 million in funding reserved for deployments on Tribal lands. The FCC would request input on two options for the Phase I timeframe. Under the first option, the FCC would initiate Phase I in 2021 using existing wireless deployment data to determine eligible areas and prioritize support for areas historically lacking 4G LTE (or even 3G) service. Under the second option, the FCC would hold off on Phase I until at least 2023 in order to use more granular deployment data developed through its upcoming Digital Opportunity Data Collection. Phase II would take place after the completion of Phase I, targeting especially hard-to-serve areas and reserving at least $1 billion to support networks used for precision agriculture. In addition, the FCC would seek comment on 5G Fund auction procedures as well as the appropriate eligibility, application, and performance requirements for auction participants.

Orbital Debris Mitigation: The draft Report and Order and Further Notice of Proposed Rulemaking would mark the FCC’s first major update to its orbital debris mitigation requirements in over 15 years and incorporate a number of recommendations developed by the agency with NASA, the Defense Department, and other federal agencies. The FCC would require all satellites to be able to perform collision avoidance maneuvers any time they are in orbit above the International Space Station (approximately 400 kilometers altitude). The FCC also would update its disclosure requirements to include new information related to satellite collision risk, protecting inhabitable spacecraft, maneuverability, and how operators plan to share information related to space situational awareness. In addition, the FCC would codify requirements for geostationary-orbit satellite license extensions and limit such extensions to five years. The FCC further plans to ask whether it should impose a bond requirement for geostationary and non-geostationary space stations contingent on successful post-mission station disposal.

For more information, register here for our April 2 C-Band Update webinar.

Clearing Deadlines for Satellite Service and Fixed Operations

Non-TT&C Operations in the 3700-4000 MHz Range

• Incumbent eligible space station operators have until December 5, 2025 to clear the 3700-4000 MHz band in the contiguous United States, unless they elect to receive Accelerated Relocation Payments.
• If Intelsat and SES elect Accelerated Relocation Payments, they and other eligible space station operators that make a similar election,
  • will have until December 5, 2021, to clear 3700-3820 MHz in 46 of the top 50 Principal Economic Areas (“PEAs”) and provide the associated earth station operators now operating in that range with passband filters in order to receive the Phase I accelerated payments (contingent on also meeting the Phase II deadlines), and
  • will have until December 5, 2023, to clear the entire 3700-4000 MHz range and provide filters to receive the Phase II accelerated payments and keep any Phase I payments received.

TT&C Stations within the 3700-4000 MHz Range to Receive Extended Protection

• Incumbent space station operators must identify four locations where TT&C functions in CONUS will be consolidated by June 12, 2020.
  • The consolidation must occur by December 5, 2021, with possible exceptions by waiver or agreement.
  • Until December 5, 2030, operation of TT&C functions at the four consolidated locations will be permitted and protected.
  • At other existing TT&C locations, operations (both TT&C functions and other earth station functions) on a secondary, unprotected basis will be permitted after December 5, 2021, for another nine years.)

Sunset Date for Incumbent Fixed Wireless Services in the Entire 3.7-4.2 GHz Band

• Incumbent Fixed Service point-to-point licenses through the entire 3.7-4.2 GHz Band will sunset as of December 5, 2023, limited to CONUS. Incumbent point-to-point fixed service links that transition to other bands will be entitled to reimbursement for “comparable facilities” in such other band, provided they relocate by December 5, 2023.

Reconsideration and Judicial Review Opportunities

• Reconsideration of the C-Band Order will be due within thirty (30) days of its publication in the Federal Register.
• Petitions for judicial review of the C-Band Order to a U.S. Court of Appeals will be due within sixty (60) days of the Federal Register publication.

Protest of Proposed C-Band License Modifications

• Any protests of the FCC’s proposed modification of licenses and authorizations of all 3.7-4.2 GHz FSS licensees and market access holders; all affected transmit-receive earth station licenses, and all Fixed Service licenses in the band will be due thirty (30) days after the Federal Register publication of the proposed modifications in the C-band Order.

Relocation Payment Clearinghouse Selection Committee Formation and Action

• The Relocation Payment Clearinghouse committee consisting of nine designated representatives of satellite operators, incumbent earth stations, and prospective flexible-use licensees, must convene within 60 days after publication of the C-Band Order in the Federal Register.
• The committee must notify the FCC of the selection criteria it will by June 1, 2020.
• By July 31, 2020, the committee must notify the Commission of a consensus choice for the Clearinghouse or it will be reformed and trimmed by the Commission, and the seven remaining members must choose a Clearinghouse by majority vote by August 14, 2020.

Effective Date of Rules

• Generally, the C-Band Order provides that the Commission’s new rules for the 3.7-4.2 GHz Band will be effective 60 days after publication in the Federal Register. But the rules that require Office Management and Budget (“OMB”) review under the Paperwork Reduction Act (“PRA”) will be effective only after OMB approval and a subsequent notice is published in the Federal Register by the Commission.
  • On March 26, 2020, the FCC sought comment on several rules for purposes of OMB review, setting a comment deadline of Monday, April 27, 2020, hoping to keep some near-term deadlines on track.

Comment on Competitive Bidding Procedures and Dates

• Comments and reply comments in response to the March 3, 2020, Public Notice, are due May 1 and May 15, 2020.

Qualifying for Accelerated Relocation Payments

• By May 12, 2020, the Wireless Telecommunications Bureau (“WTB”) is to prescribe the “precise form” of an Accelerated Relocation Election.
• A satellite operator’s Accelerate Relocation Election, if it chooses to make one, will be public and irrevocable and is due by May 29, 2020.
• By June 5, 2020, the WTB is to issue a Public Notice announcing whether sufficient elections have been made to trigger early relocation or not – i.e., did both Intelsat and SES elect to accelerate relocation.

Deadlines for All Space Station Operator Transition Plans and Comments

• Each space station operator, whether electing early relocation payments or not, must file by June 12, 2020, a Transition Plan describing necessary steps and estimated transition costs to clear 3700-4000 MHz Band by the applicable deadlines.
• Interested parties will have an opportunity to comment on the Transition Plans by July 13, 2020.

Relocation Coordinator Selection

• The search committee for the Relocation Coordinator must notify the Commission of its choice by July 31, 2020, after which the WTB will issue a Public Notice seeking comment on whether the committee’s choice meets the criteria for the Coordinator set out in the C-Band Order.

Space Station Operator and Relocation Coordinator Status Reports

• Beginning on December 31, 2020, and continuing until the transitions are complete, space station operators and the Relocation Coordinator must file quarterly reports on progress of the transition in a form to be established by the WTB.

Deadline for Earth Station Operators to Elect How They Will Be Reimbursed

• Earth station operators can accept reimbursement for the actual documented reasonable relocation costs of each earth station that maintains satellite reception and is relocated to the 4000-4200 MHz range, or they can accept a reimbursement for all of their incumbent earth stations based on a per station amount (i.e., lump sum) to be established by the WTB for various classes of earth stations. They will have to make that election within 30 days after release of the Bureau’s announcements.

Multi-Stakeholder Technical Group Formation and Completion of Work

• The Commission set no deadlines for the multi-stakeholder group consisting of incumbent earth station operators, incumbent space station operators, wireless network operators, network equipment manufacturers, and aeronautical radionavigation equipment manufacturers that will address coexistence issues in the 3.7-4.2 GHz Band and work towards technical solutions. The Office of Engineering and Technology is to inform the group as to time frames in which input would be helpful.

The August agenda items impact all corners of the telecommunications industry. You will find more details on some of the most significant August meeting items after the break:

RDOF Funding and Procedures: The draft Notice of Proposed Rulemaking (“NPRM”) seeks comment on the budget, auction procedures, application processes, and deployment obligations for the RDOF. The FCC plans to target $20.4 billion in support to areas that lack access to 25/3 Mbps broadband service, which represents the agency’s current benchmark for fixed advanced communications services and an increase over the 10/1 Mbps minimum performance tier under the CAF. The FCC would award RDOF support through an auction in two phases, with the first phase targeting wholly-unserved census blocks and the second phase focusing on partially-unserved census blocks. Like the CAF auction, the FCC anticipates weighing RDOF auction bids based on performance, with higher-speed, lower-latency services preferred. RDOF bidders would be subject to similar application procedures, deployment milestones, and reporting obligations as CAF auction participants.

RDOF Data Collection: The draft Report and Order and Further NPRM would require all fixed broadband providers to submit coverage polygons depicting the areas where they provide service as well as information on the speed and technology used in providing such service. Service provider coverage claims would be subject to challenge by government entities and the public, with the FCC seeking comment in the further NPRM on how it should gather and apply this “crowdsourced” information. For now, the RDOF data collection would be in addition to the deployment data already collected by the FCC from service providers through the Form 477. The new data collection would only apply to fixed broadband providers at first, but the FCC would seek comment on the parameters for incorporating mobile broadband coverage data into the RDOF in the future. In addition, the FCC would seek input on whether to require even more precise deployment data based on user location and who should bear the burden of such data collection.

Rural Health Care Program (“RHCP”) Reform: The draft Report and Order would adopt reforms to the FCC’s RHCP, which provides financial support to rural health care providers to obtain broadband and other communications offerings at discounted rates to facilitate telehealth services. The FCC plans to revamp the RHCP’s Telecom Program that subsidizes the difference between urban and rural service rates by, among other things, requiring the RHCP Administrator to create a database of rates that health care providers would use to determine the amount of support they can receive. The FCC would prioritize RHCP funding in the event support requests exceed the cap (which was $581 million in 2018) based on the rurality of the area and whether the area faces a shortage of medical personnel. The FCC would caution that it intends to enforce limits on RHCP spending consistent with its current review of overall universal service budgets. In addition, the FCC anticipates tightening up its RHCP competitive bidding and consultant rules following a number of high-profile enforcement actions.

Streamlining Smallsat Licensing: The draft Report and Order would revise the FCC’s current one-size-fits-all satellite licensing regime and create a tailor-made path for licensing smallsats. Smallsat applicants would be subject to lower application fees, easier application processes, and quicker agency reviews, including an exemption from the agency’s processing round procedure that often delays approvals as competing satellite systems file challenges. To qualify for streamlined processing, smallsat applications must meet certain requirements, including: (1) a maximum mass of 180 kg for any single satellite; (2) no more than 10 satellites under a single authorization; (3) total on-orbit satellite lifetime of five years or less; (4) propulsion capabilities or deployment below 400 km altitude; (5) ability to share frequencies with current operations without precluding future entrants; and (6) relatively low risk from orbital debris.

Toll-Free Number Auction: The draft Public Notice would establish procedures for the auction of over 17,000 toll-free numbers in the “833” code, with applications due by October 18, 2019 and bidding set to begin on December 17, 2019. The auction would be the first time the FCC has used competitive bidding to distribute numbering resources. The auction would be run by Somos, which currently is the designated administrator of the toll free database. Parties may apply to participate in the auction individually or through a Responsible Organization, which can bid on behalf of multiple parties as long as the parties do not want the same numbers. Parties would be subject to application, anti-collusion, and default provisions similar to those used in the FCC’s recent spectrum auctions. Winning bidders would be allowed to sell the toll-free numbers obtained through the auction on the secondary market and would report such secondary market transactions to Somos.

MLTS 911 Requirements: The draft Report and Order would implement recent legislation by prohibiting the manufacture, import, sale, or lease of an MLTS unless it is pre-configured so that a user may initiate an emergency call by dialing 911 without first having to dial “9” or take other action to access an outside line. Similarly, anyone installing, managing, or operating an MLTS would not be allowed to do so unless the MLTS is pre-configured to allow 911 direct dialing. If possible, MLTS managers also must configure the MLTS to provide a notification when a 911 call is made to a central location (e.g., front desk, security office) in order to facilitate emergency response efforts. The FCC plans to adopt an assumption that an MLTS manager is responsible for any failure to comply with the 911 direct dialing or notification rules. The new rules would apply to any MLTS manufactured, imported, sold, leased, or installed after February 16, 2020. In addition, the FCC would impose “dispatchable location” requirements on MLTS and other 911-capable services, which would require the transmission of a caller’s street address and additional information such as room number, floor number, or other data to help identify the caller’s location.

Anti-Spoofing Expansion: The draft Report and Order would expand the reach of FCC enforcement against the manipulation of caller ID information for malicious purposes (otherwise known as “spoofing”) under new authority granted by legislation adopted last year. Specifically, the FCC would extend its authority to punish spoofing violations for communications originating from foreign points to recipients within the United States. The FCC also would expand the scope of communications covered by its anti-spoofing rules to include some of the most widely-used forms of text messaging as well as alternative voice services, such as one-way VoIP services. The draft item follows in the wake of numerous enforcement actions imposing large fines for malicious spoofing in 2018.

Cable Franchise Fee Restrictions: The draft Report and Order would address concerns raised by a federal appeals court regarding the fees imposed by local franchising authorities (“LFAs”) on cable operators. The Communications Act places a five percent cap on such fees, but cable operators allege that LFAs frequently seek additional benefits as part of the franchise process. The draft item would treat most in-kind contributions required by LFAs from cable operators as fees subject to the five percent cap. Moreover, the FCC would prohibit LFAs from using their franchising authority to regulate most non-cable services, including broadband services offered over cable systems. LFAs also would be prohibited from requiring cable operators to secure additional franchises or other authorizations to provide non-cable services through their cable systems.

Unless exempt, licensed and registered FSS earth station operators in the Band, including operators of temporary-fixed or transportable earth stations (those remaining at a location less than 6 months), must provide a signed certification, in a form prescribed in the Public Notice, of the accuracy of all information reflected on their licenses or registrations in the International Bureau Filing System (“IBFS”). Filers may seek confidential treatment. Earth station operators are exempt from this filing requirement if they filed for new or modified licenses or registrations between April 19 and October 31, 2018, using the processes set up by the FCC as an exception to the licensing freeze the FCC issued on April 19, 2018.

The Commission’s requirement that these pre-existing licenses or registered earth station operators will allow the FCC to update its information on those who did not license or register after the April 19, 2018, date. Approximately 15,000 took advantage of that earlier opportunity.

The foregoing exemption does not apply to temporary-fixed or transportable earth station operators.

Such operators that are licensed or registered must provide the FCC with the following information regardless of when they were licensed or registered:

• Call sign (or IBFS file number if they filed a registration between April 19 and October 31, 2018, and the registration is pending);
• Address where the equipment is typically stored;
• Area within which the equipment is typically used;
• How often the equipment is used and the duration of such use;
• Number of transponders typically used in the 3.7-4.2 GHz band and extent of use on both the uplink and downlink; and
• Licensee/registrant and POC information.

The Commission also seeks information from satellite operators. Operators with existing FSS space station licenses or market entry grants that currently serve or are authorized to serve United States markets must provide the following information:

• Satellite call sign, name, and orbital location;
• Expected end-of-life for satellite;
• Each C-band satellite planned for launch to serve the United States market, with the approximate date of the launch anda note on whether the satellite is a replacement, whether or not the there is a currently pending application in IBFS;
• Center frequency and bandwidth of the Telemetry Tracking and Command (“TT&C”) beam(s); and
• Call sign and geographic location (using NAD83 coordinates) of each TT&C receive site.

• The frequency range of the transponder and the transponder number for the most recent month;
• The total capacity (megahertz) and in terms of the number of megahertz on each transponder that are currently under contract for the most recent month and for one month in 2016;
• For each day in March 2019, the average percentage of each transponder’s capacity (megahertz) utilized and the maximum percentage of capacity utilized on that day (parties may supplement this required daily data with historical trend data over recent months up to three years to show utilization variances, but they must also provide the date range for which the data was collected); and
• For all data reported regarding capacity under contract and capacity utilization, the percentage, if any, for customers outside of the United States for the most recent month.

As issues continue to play out in the FCC’s 3.7-4.2 GHz proceeding, how the Commission ultimately proposes to protect existing licensed and registered Earth stations and related satellites will be closely watched and lobbied intensely.

Wireless Infrastructure Deployment: The FCC issued a draft Declaratory Ruling and Order finding that state/local fees for accessing rights of way and other charges associated with deployments may prohibit the provision of wireless service in violation of the Communications Act. The FCC therefore plans to allow such fees and charges only to the extent they are nondiscriminatory and represent a “reasonable” approximation of the state/local governments’ costs related to the deployment. The draft item would further clarify that state/local consideration of aesthetic concerns with deployments are not necessarily unlawful, so long as any aesthetic requirements are: (1) reasonable; (2) no more burdensome than those applied to other deployments; and (3) published in advance. In addition, the FCC will establish two new shot clocks for small wireless facility deployments (60 days for collocation on preexisting structures and 90 days for new constructions) and codify existing shot clocks for larger wireless facility deployments.

911 Dialing and Location Accuracy: A draft Notice of Proposed Rulemaking seeks comment on requiring MLTS to enable users to dial 911 directly, without having to dial a prefix to reach an outside line (e.g., requiring callers to first dial 9). The FCC proposes requiring MLTS to provide a notification that a 911 call has been made to a front desk, security office, or other centralized location. The proposed rulemaking asks whether MLTS, VoIP, and other telecommunications service providers should be responsible for ensuring that “dispatchable location” information is transmitted with 911 calls, such as the calling party’s street address as well as room number, floor number, or similar data necessary to help first responders reach the called party quickly.

Auctioning Toll Free Numbers: The FCC plans to adopt a draft Report and Order that would enable it to auction off toll free numbers. Generally, the FCC has allocated toll free numbers on a first-come, first-served basis at no cost. The FCC claims this process leads to stockpiling and other inefficient uses of toll free numbers, while rewarding parties that “game” the system through computer-assisted number reservation tools. The FCC proposes that its first auction will cover 17,000 numbers recently made available in the 833 toll free code. Importantly, the FCC intends to eliminate the prohibition on secondary market sales of toll free numbers to allow successful auction participants to sell numbers to others, potentially creating a “gold rush” for prime toll free numbers.

ESIM Expansion: Under a draft Report and Order and Further Notice of Proposed Rulemaking, the FCC would consolidate the rules that apply to earth stations on aircraft, vessels, and vehicles, eliminating duplicative regulations and streamlining the application process. It would also expand the frequencies available for ESIMs to include conventional Ka-band spectrum. Operation of ESIMs is currently confined to the conventional C-band spectrum and parts of the Ku-band spectrum. The FCC argues that any potential interference issues involving incumbent satellite operators in the Ka-band can be resolved through prior coordination and industry best practices. The FCC seeks comment on whether ESIMs should be allowed to operate in additional spectrum bands, on both a protected and unprotected basis, to provide even more flexibility.

There will be plenty for interested parties to comment on, as we discussed in an earlier blog post providing an overview of the draft NPRM, which was largely retained in the document finally adopted. The FCC is considering myriad options to restructure that spectrum to introduce commercial flexible mobile use and fixed point-to-multipoint operations while protecting incumbent fixed satellite service uses and grandfathered point-to-point licenses. The 4 GHz Band is commonly recognized by the mobile industry, the FCC, and others, as a key mid-spectrum band for next-generation networks and applications, including 5G and the Internet of Things.

It’s worth keeping in mind several other related upcoming deadlines, one definite and the other not yet established. Operators of existing earth stations operating in the 4 GHz Band that are not yet licensed or registered – but which were constructed and operational by April 19, 2018 – have until October 17, 2018, to apply for the license or register. Already, it is reported that several thousand earth stations have taken advantage of the opportunity, but time will soon be running out for those earth station operators that have not taken advantage of the time-limited relief provided by the FCC from its temporary freeze on new registrations and license applications. (Applications for new space stations as well as new fixed point-to-point links are also temporarily frozen, but without exceptions.) For those operators of earth stations that are not yet registered or licensed that want to be considered for protection from interference under any new rules in the 4 GHz Band, this may well be your final opportunity to secure protection. The FCC has proposed making the freezes permanent. Remember that the FCC has waived the typical requirement for coordination reports with the registrations or license applications.

In addition, the date for complying with the certification and information collection requirements applicable to earth station and space station operators adopted in the Order accompanying the NPRM has not yet been set. Compliance with the information collection requirements may be critical to receiving whatever protections the FCC may afford existing fixed satellite service operations. On August 20, the Order was published in the Federal Register which requires: (1) certification by earth stations registered or licensed before April 19, 2018; (2) the submission of certain information by operators of temporary fixed and transportable earth stations; and (3) information applicable to licensed space stations. Earth stations licensed or renewed under the temporary filing window through October 17 will not be subject to the certification requirement. (In contrast with the draft NPRM, the final NPRM adopted by the FCC excluded the upfront collection requirements for operators of 4 GHz Band earth stations other than the temporary fixed or transportable variety, leaving potential collection requirements as something to be considered later in the rulemaking after a record of the need for such data is created and reviewed.) These information collection requirements are subject to the Paperwork Reduction Act and won’t become effective until approved by OMB and a subsequent notice is released setting the compliance date, a process which could take a couple of months or longer. For now, there is not a whole lot to do but wait for that process to play out, although it might be good idea to start gathering the information, particularly for entities that have a lot of earth stations subject to the requirements.

Many other countries are moving forward with plans to make these and/or nearby frequencies available for 5G this year or shortly thereafter, underscoring the FCC’s drive to move forward expeditiously. However, given the variety of views regarding the 4 GHz Band generated in the 2017 Mid-Band Notice of Inquiry (“Mid-Band NOI”), as well as in response to the recent FCC public notice seeking comment to help prepare the report to Congress on the 4 GHz Band required by the recently-passed RAY BAUM’S Act, there is every reason to expect that the precise outcomes of this proceeding will remain uncertain for some time despite the general move toward making more spectrum available for flexible use applications.

The agency’s most significant recent action was to release a public draft of a Notice of Proposed Rulemaking and Order (“Draft NPRM”) that it plans to vote on at its upcoming July 12 Open Meeting. As a general matter, the Draft NPRM makes plain the FCC has before it three primary objectives which, in both the near- and long-term, may be in tension:

• Add a primary mobile allocation to the band (except aeronautical mobile) and propose to clear at least part of the band for flexible mobile use “beginning at 3.7 GHz and moving higher up in the band as more spectrum is cleared.”
• Consider rule changes that “promote more spectrum efficient and intensive fixed use of the band on a shared basis starting in the top segment of the band [i.e., near and below 4.2 GHz] and moving down the band,” namely point-to-multipoint (“P2MP”) services.
• Protect incumbent operations – fixed point-to-point and fixed satellite service (“FSS”) – in the band.

As the FCC recognizes, key challenges will be “to protect existing earth station users while limiting uses that would hamper new intensive terrestrial use of the band” and what protection should be afforded existing fixed microwave links. The FCC will tackle the relative obligations and/or rights that each category of protected incumbents may have under each approach for more intense terrestrial use of the band and determine which, if any, categories of incumbents must new flexible use licensees relocate and under what standards, terms, or rules.

The challenge of protecting earth station users will require information the FCC does not yet have. The same day the FCC released the Draft NPRM, the International Bureau extended by 90 days the recently opened temporary filing window – from the original July 18 deadline to October 17, 2018 – for existing earth station operators to license or register earth stations in the 4 GHz Band that currently are not licensed or registered. When that window was open, the FCC froze all new FSS earth station and fixed microwave link applications and registrations, as applicable, in the 4 GHz Band. Further, the International Bureau, also on June 21, simultaneously issued a second public notice announcing a temporary freeze, effective immediately, on the filing of new space station license applications and new requests for U.S. market access through non-U.S.-licensed space stations to provide service in the 4 GHz Band.

The ostensible purpose of the earth station filing window afforded to operators is to allow the FCC to better understand the extent to which the band is used prior to making changes that could impact those uses. While almost 5,000 earth stations were licensed or registered as of the time of the freeze, many were not. Estimates are that there may be thousands of stations that are not in the database, but were constructed and operational, in use for a variety of non-governmental (e.g., video content) and governmental purposes (e.g., environmental and meteorological data and alerts).

The proof may be in the pudding, meaning the number of station operators that take advantage of the filing window. The Draft NPRM states the FCC’s tentative conclusion to not afford interference protection of any kind to earth station operators who do not both license or register existing operations by the October 17 deadline and also respond to an additional information request (and requirement for a certification of construction and operational status) that the Draft NPRM would direct the International Bureau, the Wireless Telecommunications Bureau, and the Office of Engineering and Technology to issue in a subsequent public notice. Indeed, the Draft NPRM seeks comment on making the freezes permanent (both for earth stations and space stations). The FCC appears to have concluded tentatively that limiting new earth stations in this manner would provide a stable spectral environment for more intensive terrestrial use, an issue to be resolved in the rulemaking based, in part, on the data collected. To complement the data collected as a result of filings made during the current limited window and in response to the forthcoming public notice contemplated by the Draft NPRM, the FCC intends to consult with the National Telecommunications and Information Administration and affected Federal agencies regarding the Federal entities, stations, and operations in the 4 GHz Band.

In addition to better understanding FSS use, the FCC concludes that co-channel sharing between incumbents and mobile services is not feasible, and seeks comment on different proposals to clear all or part of the band for flexible mobile use. Echoing some of the considerations that are in play in the contentious Ligado license modification proceedings, i.e., in the 1675-1680 MHz band where Ligado hopes to gain access to spectrum currently used for the downlinking of GOES-R weather data by transitioning satellite users to a terrestrial content delivery network, the Draft NPRM asks whether there are alternative technologies and means by which earth station operators can retrieve their information currently made available via 4 GHz Band FSS.

One last item of note: The Draft NPRM has its roots in the record developed in response to the FCC’s 2017 Mid-Band NOI, which sought to obtain information on existing and proposed uses of spectrum between 3.7 GHz and 24 GHz in the search for additional spectrum for flexible use. The Mid-Band NOI sought specific comment on the 4 GHz Band, as well as the “6 GHz Bands,” in particular 5.925- 6.425 GHz and 6.425-7.125 GHz. The Draft NPRM does not extend to the 6 GHz Bands, but foreshadows that the FCC “may address” these and other mid-band spectrum “in subsequent items.” Given the strong interest in the 6 GHz bands by advocates of unlicensed operations, and the FCC’s general goals of making unlicensed spectrum available along with licensed frequencies, those subsequent actions may be coming to an FCC Open Meeting soon.

If the proposals in the NPRM are eventually adopted, the FCC envisions that qualifying smallsat systems will be able to save significant time and money. In particular, qualifying smallsat systems would not have to go through the often time-consuming and paperwork-intensive processing rounds normally associated with the licensing or market entry approval of non-geostationary orbit (“NGSO”) satellite systems. Furthermore, qualifying smallsat systems would only have to pay the proposed satellite application fee of $30,000 (as opposed to the $454,705 satellite application fee under the standard Part 25 approval process). Last but not least, qualifying smallsat systems that deploy at least half of their satellites within one year and thirty days of FCC approval would be able to forego filing surety bonds with the Commission. That’s not a small alteration, as these bonds can cost anywhere from one to five million dollars per system.

Per the NPRM, to qualify for streamlined approval, smallsat systems are those that have:

• A maximum mass of 180 kg per satellite
  • NASA previously identified 180 kg as the maximum mass for small satellites. The FCC believes this upper mass limit is sufficient to include typical small satellite designs, while allowing for flexibility to accommodate evolving satellite designs. But the Commission solicits views that another maximum mass limit, such as 500 kg, may be appropriate or that some other criterion, rather than mass, such as a zero reentry casualty risk criterion, may be more appropriate. Parties that are considering larger smallsats can be expected to weigh in on this tentative upper limit. (There is a proposed lower size limit of 10 cm in each dimension.)

• Ten or fewer satellites per authorization
  • The FCC anticipates that many smallsat applicants only intend to launch one or a few total satellites. The NPRM states that the streamlined process is intended for a limited group of applicants whose operations are small enough in scope that it would not serve the public interest to apply standard Part 25 procedures. Accordingly, the FCC seeks comment on whether it should limit the number of smallsats under a single license and also whether to limit the total number of smallsat applications that can be filed by an individual operator under the streamlined process.

• Total on-orbit lifetime of five years or less
  • As is stated in the NPRM, the ITU has previously found that the typical operational lifetime of nanosatellites is anywhere between one and three years. The FCC requests comment on a longer lifespan of five years to qualify smallsats in recognition of the fact that (1) some satellites might be launched at different times under a license in order to factor in time for the satellites to deorbit, and (2) satellites should be left ample time to deorbit.

• Either orbital altitudes below 400 km or propulsion systems
  • Naturally, the FCC wants to prevent in-orbit collisions, an issue that increases as the number of satellite proliferates. Indeed, recently, the Commission has asked some NGSO-applicants with large constellations to coordinate with others on collision avoidance. The International Space Station (“ISS”) currently operates at an altitude of approximately 400 km. Hence, the Commission proposes either a certification that the satellites will operate in a sub-400 km orbit, or, where that is not the case, that the satellites have built-in collision avoidance capabilities such as propulsion systems. The NPRM seeks comment on these issues and any other factors parties believe the FCC should consider in specifying criteria related to smallsat orbits.

• A relatively low risk profile regarding orbital debris
  • Along similar lines, the Commission tentatively concludes that it will limit the streamlined process to satellites that release no operational debris in a planned manner during their mission lifetime. Per the NPRM proposal, applicants will have to certify that each satellite has a risk of collision with large objects that is less than 0.001 probability over its lifetime, which is consistent with technical guidance developed by NASA for its space missions.

• Zero risk of human casualties
  • The NPRM proposes that any smallsat applicant seeking streamlined approval must certify that it has conducted a casualty risk assessment using the NASA Debris Assessment Software (“DAS”) or another higher fidelity model, and that the assessment resulted in a human casualty risk of zero. The Commission plans to require zero risk (but seeks comment on this tentative conclusion) because any casualty risk could result in a future claim being presented to the U.S. for liability for damage caused by space objects pursuant to the UN’s Outer Space Treaty.

• Ability to cease transmissions on command
  • Both international radio regulations and FCC rules require that space stations be equipped with devices that are capable of immediately ceasing radio emissions. The NPRM tentatively concludes that applicants for smallsats must certify that each satellite has the ability to receive command signals and cease transmissions as a result of a command. As part of this approach, the FCC seeks comment on whether it should require that satellites employ a “passively safe” system (i.e., the satellite cannot transmit unless it is actively commanded to transmit via a command, and will cease transmission unless within view of a ground station).

• A unique telemetry marker
  • The FCC proposes to have applicants certify that the smallsats will include a unique telemetry marker allowing it to be readily distinguished from other satellites or space objects. The Commission believes such certifications would help ensure that satellite operators can assist entities that track space objects to identify and distinguish between the smallsats and other space objects. It seeks comment on any alternative methods to achieve the same purpose.

In the NPRM, the FCC identifies the 137-138, 148-150.05, and 1610.6-1613.8 MHz bands for consideration as potential bands for smallsat systems, reflecting what the Commission expects to be low data rate links for at least some smallsats. The FCC also proposes to allow smallsats to operate inter-satellite links in the 1615-1617.75, 1618.725-1626.5, and 2483.5-2495 MHz bands.

The NPRM proposes to apply the existing Part 25 technical rules to smallsat systems qualifying for streamlined approval, but seeks comment on what other frequency band-specific adjustments should be made to accommodate smallsats.

Comments will be due 45 days and reply comments will be due 75 days after publication of the NPRM in the Federal Register. Publication has not yet occurred.

Background

Last year, in its inaugural Spectrum Frontiers order (The “July 2016 Order”), the Commission designated the 27.5-28.35 GHz (“28 GHz band”), 37-38.6 GHz (“37 GHz band”), and 38.6-40 GHz (“39 GHz band”) bands for flexible mobile and fixed commercial use (i.e., the so-called Upper Microwave Flexible Use Service or “UMFUS”), and designated the 64-71 GHz band for unlicensed use (to supplement 57-64 GHz which had been designated for unlicensed use a few years earlier). The June 2016 Order also contained a Further Notice of Proposed Rulemaking (“First FNPRM”). Items raised in the First FNPRM, along with several petitions for reconsideration of last year’s action, are the subject of the recent trio of recently released orders.

This latest release included a Second Report and Order, a Memorandum Opinion and Order (“Memorandum Order”), and a Second Further Notice of Proposed Rulemaking (“Second FNPRM”), and the Commission also resolved a number of issues on reconsideration of the July 2016 Order in the Spectrum Frontiers docket in an Order on Reconsideration. This latest Spectrum Frontiers item also addressed a host of ancillary sharing, licensing, and technical issues in several different mmW bands. Parts of First Further Notice remain unresolved.

More Spectrum for UMFUS

While the FCC has yet to auction any of the UMFUS spectrum designated in 2016 (outside of the incumbent fixed licenses in the 28 and 39 GHz bands converted to UMFUS), it has now adopted an additional 1700 megahertz of mmW spectrum for licensed flexible commercial wireless fixed and mobile use in the 24.25-24.45, 24.75-25.25, and 47.2-48.2 GHz bands (the first two, the “24 GHz” bands, collectively, and the third, the “47 GHz” band, respectively). As a result, 24.25-24.45 GHz is now allocated for non-Federal fixed and mobile services on a co-primary basis, and 24.75-25.25 GHz for non-Federal fixed, mobile, and fixed-satellite (“FSS”) services on a co-primary basis. In the 24.25-24.45 GHz band, the Commission notes that international studies are being conducted to determine limits that might be needed to protect passive services in the nearby 23.6-24.0 GHz band; the Commission’s technical rules in the 24.25-24.45 GHz band for UMFUS are subject to potential change depending on the outcome of those studies. As with the 28 and 39 GHz bands, the Commission grandfathered existing fixed service licenses in the 24.25-24.45 and 24.75-25.25 GHz band, paving the way for those licenses to be converted to the UMFUS without the need for the licensees to compete at auction for geographic licensing on a Partial Economic Area (“PEA”) basis.

The 47 GHz band has existing allocations in the fixed and mobile services with no Federal allocations. The Commission found it well-suited for UMFUS operations licensed through auctions on a PEA geographic license area basis. The FCC also added the 47 GHz band to Section 25.136(d) of the rules, which allows sharing between terrestrial operations and FSS earth stations in uplink bands by permitting a limited number (three in each county, up to a maximum of fifteen in each PEA) of FSS earth station location deployments without having to protect UMFUS stations in a manner similar to the 28 GHz band, a subject area that was the subject of reconsideration of the July 2016 Order. Having adopted such rules, the Commission underscored its ongoing encouragement to both the mobile and the satellite industries to continue working cooperatively on coexistence in shared mmW bands.

Seeing insufficient reason to act in a measured pace, the FCC rejected a proposal that it hold off allocating more mmW spectrum for flexible fixed and mobile use until after more development occurs in existing UMFUS spectrum created in the July 2016 Order. In light of the demand for mobile and mmW spectrum, the agency explained, there is no reason for artificial delay of new allocations. The Commission also rejected calls to consider using a Spectrum Access System in the 24 and 47 GHz bands to make spectrum available to users dynamically á la the unproven system still being implemented in the 3.5 GHz band for the Citizens Broadband Radio Service (“CBRS”) in a three-tiered sharing scheme adopted in 2015. The FCC also declined to adopt Microsoft’s proposal to authorize unlicensed use in the 24 GHz band, noting that with the fourteen gigahertz recently made available for unlicensed use in the 57-71 GHz band, the case for more unlicensed mmW spectrum was unconvincing, a conclusion that rippled throughout the recently adopted orders.

Further, in what may be a temporary setback for satellite proponents, the Commission declined to modify changes to the rules for FSS earth station siting in the 24 GHz band, but seeks comment on the issue in the Second FNPRM as part of a proposal to allow wider FSS use of the band for earth stations. This means that, for now, the 24.75-25.25 GHz band will only be available for individually-licensed FSS earth stations that meet specific requirements applicable to earth stations in other bands shared with UMFUS (e.g., limitations on population covered, number of earth station locations in a PEA, and a prohibition on earth stations in places where they would preclude terrestrial service to people or equipment that are in transit or are present at mass gatherings).

mmW Band Performance Metrics (Buildout-Based v. Usage-Based)

In its recent Spectrum Frontiers orders and Second FNPRM, the Commission continued to struggle with what are the appropriate performance metrics in the mmW bands to best promote spectrum utilization and preclude warehousing, particularly in anticipation that the bands may be used for a variety of diverse applications, not easily fitting into a one-size-fits-all approach. In the 28 and 39 GHz bands, the Commission adopted link-and-population based network buildout requirements in the July 2016 Order. While the Commission declined to adopt usage-based metrics at this time out of concerns that it would be “premature to predict the uses of innovative, IoT-type services with sufficient specificity to calculate a meaningful usage-based metric,” the FCC also noted that a putative licensee providing IoT-type services involving a network of smart devices and sensors could purport to fulfill the buildout performance metric “for an entire multi-county license area (in 39 GHz) with a deployment spanning a single building, by counting each connection between the sensors as a fixed point-to-point link.” For this reason, the Commission refined the definition of a “fixed point-to-point link” based on power levels (transmitter powers exceeding +43 dBm) to prevent this single-building outcome by distinguishing “traditional” links from most sensor and device connections in IoT-based networks.

As the Second Report and Order explains, licensees using non-qualifying low-power connections will need to “rely on another part of their network to demonstrate buildout (e.g., mobile area coverage or higher-power fixed backhaul links)” or, barring that, convince the Commission in the Second FNPRM phase of the Spectrum Frontiers proceeding to convince the agency to include a more suitable performance metric alternative for “non-traditional” deployments of UMFUS spectrum.

Mobile Spectrum Aggregation Policies in the mmW Bands

While the Commission in its June 2016 Order adopted a 1250 megahertz aggregate spectrum limit for UMFUS licensees in any given location for spectrum in the 28, 37, and 39 GHz bands in combination, the Commission, taking a more market-based approach than its predecessor rejected requests by T-Mobile and other wireless carriers that it also adopt a generally applicable pre-auction spectrum holdings limit to apply in the 24 and 47 GHz bands. Rather than adopt a pre-auction limit for the new bands, the Commission noted that it would respond to specific competitive concerns attributable to spectrum holdings concentrations on a case-by-case basis if they arose, underscoring its desire to not inhibit licensee flexibility to participate fully in the auctions. The Second Report and Order reflects the Commission’s confidence that, because the spectrum in the 24 and 47 GHz bands would be available in a number of frequency block sizes, the results of the eventual auctions will be less likely to concentrate spectrum in a small number of winners.

While the Commission declined to adopt a pre-auction limit for the 24 and 47 GHz bands, it did resolve to include these two new bands as part of the previously-adopted mmW spectrum threshold (in the 28, 37, and 39 GHz bands) for reviewing proposed secondary market transactions. Specifically, the Commission adopted a secondary market mmW spectrum threshold of 1850 megahertz that will be used to identify those markets that may warrant further competitive analysis in anticipation of secondary market transactions involving licenses in one or more of the five UMFUS bands.

Opportunity for Unlicensed Aeronautical Operations in the 60 GHz Band

The Second Report and Order amended the Commission’s rules, subject to certain limits, to allow unlicensed operation aboard aircraft during flight in the 57-64 and 64-71 GHz bands (collectively, the “60 GHz band”). Until now, in Part 15 of the FCC’s Rules, there has been an across-the-board ban on unlicensed airborne and space operations in the 60 GHz band. The move for the first time to permit certain airborne operations was made to accommodate, but is not necessarily limited to, two applications -- broadband internet/entertainment access in closed networks on-board aircraft, and certain wireless avionics intra-communications (“WAIC”) applications, the latter of which connect two or more stations on a single aircraft and constitute exclusive closed on board networks required for the operation of the aircraft. Finding that use of the 60 GHz spectrum on board aircraft would not cause harmful interference to authorized services, including passive services used for weather forecasting data collection, the Commission determined to permit unlicensed use within the body/fuselage of most aircraft. However, the Commission specifically excluded unlicensed operation on aerostats, UAVs/UASs (unmanned aeronautical vehicles/unmanned aircraft systems, e.g., drones), toy and model aircraft, and other aircraft where there would not be natural shielding (i.e., from an encompassing fuselage). The FCC also explained that operation of 60 GHz transmitters, i.e., in WAIC applications, on the outside of an aircraft body/fuselage while airborne would continue to be banned. Addressing certain operational and technical details, the Commission declined to impose new strict out-of-band emissions (“OOBE”) limits at harmonic frequencies on the newly permitted airborne operations and found that the existing spurious emission limits in Section 15.255(c) of the Rules would be sufficient to protect passive services in the 60 GHz band.

Rejection of Proposals to Extend the E-Band Uses to Mobile and Unlicensed Operations

The FCC, in the Memorandum Order, preserved the existing fixed-link licensing and registration regime in the 71-76 and 81-86 GHz bands (collectively, the “E-Band”) and declined adopting flexible mobile use rules in the lower E-Band or allowing indoor-only unlicensed operations in either of these two bands. In the latter case, given the perceived risks of interference to existing fixed uses, the Commission opined that additional studies are warranted before considering indoor unlicensed use in the bands. As further justification, the November 2017 Orders concluded that the availability of fourteen continuous gigahertz immediately below the 71 GHz band reduces any urgency for unlicensed authorization in the E Band. The FCC also observed that no equipment in the nearby 95 GHz band had been authorized as of June 2017, suggesting it would be premature to extend the rules for the “yet-to-be successful [unlicensed] service” to the E-band, especially when it already supports “a thriving millimeter wave [fixed] service.”

Noting the suitability of fixed operations in the E-Band to support 5G and other uses, the Commission noted the existence of several rule modification proposals pending in its Wireless Backhaul proceeding (WT Docket No. 10-153). These include possible adjustments to relax the antenna standards in some cases, allow +/- 45 degree polarization, and establish a channel plan, among other possible modifications to the private operational fixed microwave rules (Part 101). The Memorandum Order also observed that several parties have suggested future high altitude uses for these bands which the Commission proposes to consider in the Wireless Backhaul proceeding.

Confirming Core Satellite Bands above 40 GHz

The Commission confirmed 40-42 and 48.2-50.2 GHz as core satellite bands, declining to propose or authorize, respectively, fixed and mobile use in the bands. The Commission acted in light of the perceived importance to satellite operators having adequate spectrum to freely deploy uplink user terminals (in the 48.2-50.2 GHz range nationwide) without having to coordinate with terrestrial users.

37/39 GHz Band Satellite Matters

The Memorandum Order resolved a few issues raised in the First FNPRM regarding satellite operations in the 37/39 GHz bands. For example, the Commission declined to find that space stations can operate at a higher power flux density (“PFD”) without risking frustrating UMFUS licensee flexibility to provide a wide variety of fixed and mobile technologies. Noting that existing PFD limits were designed to protect fixed (not mobile) systems, the Commission emphasized that its rules adopted in the July 2016 Order are designed to promote other terrestrial uses as well, such as diverse IoT applications. The FCC also declined to adopt equivalent PFD limits as an alternative (or in addition) because any such limit set now “based on a 3GPP-suggested antenna pattern” could endanger development of “antenna reception technology for known applications or for applications that have not even been conceived.”

Further, the Commission abstained from permitting satellite earth station facilities in the 37/39 GHz bands (space-to-Earth) to be deployed ubiquitously or to serve individual consumers because of concerns these actions would have “the potential to result in a negative customer experience for satellite broadband consumers.” As one concern, the FCC reasoned that the buildout of terrestrial systems could require FSS operators to relinquish their use of channels below 40 GHz to serve user equipment, causing customers to “experience a reduction in service quality.” Rather, the agency concluded that, under the other rules it has adopted, the “FSS can use the 37.5-40 GHz band for a limited number of individually licensed earth stations.”

Non-Federal Use-or-Share UMFUS Requirements

In the First FNPRM, the FCC sought comment on potential opportunistic use of portions of an UMFUS license area when not in actual use by the licensee (“Use-or-Share”) and whether any Use-or-Share regime should be in addition to traditional performance requirements, or a replacement. The Commission declined to adopt Use-or-Share for multiple reasons, but added that the decision “does not limit or prejudge any actions we may take concerning sharing mechanisms with Federal users in shared bands” such as the 37.0-37.6 GHz band where a Federal/Non-Federal sharing regime is being developed.

Digital Station Identifiers

The Commission declined to require mmW band licensees or operators to transmit digital identifiers due to a lack of record support especially because characteristics of the high frequency bands at issue in the July 2016 Order and recently adopted Orders make interference less likely. At the same time, the FCC acknowledged its important ongoing role to identify and locate devices that cause harmful interference.

Miscellaneous Technical Issues

The Memorandum Order tackled several technical issues raised in the First FNPRM, in many cases choosing not to modify existing regulations. One, the Commission declined to adopt antenna height limits for UMFUS licensees (consistent with other higher frequency bands) to avoid precluding uses that could require higher antenna heights. By allowing licensees the flexibility to determine network configurations and when antenna downtilt may be necessary, the FCC hopes to promote diverse systems, relying on adjacent channel licensee coordination to manage the risks of interference. Similarly, the Commission refused to adopt a graduated framework with corresponding power reductions for UMFUS operations at increasing antenna heights.

Two, the agency found there was no need to revise existing coordination criteria at market boundaries for point-to-point operations in the mmW bands under existing Part 30 and Part 101 rules.

Three, although the FCC acknowledged that power scaling could potentially help limit interference among UMFUS providers and other services using the mmW bands, it maintained current power limit rules for mobile and transportable licensee classes without scaling. Noting that other methods can contribute to limiting interference, e.g., power control, and that UMFUS licensees will act to reduce interference within their own network, the Commission found that the establishment of power scaling factors could have the undesirable result of thwarting new use cases and broad development of next generation devices.

Four, the Commission found no need for minimum bandwidth requirements, expressing concern that such requirements could preclude use of the mmW bands to facilitate data exchange for multitudinous devices with different bandwidth requirements serving diverse user applications.

Affirmation of Risk-Based Interference Assessments

The Commission reiterated its endorsement of risk-based sharing analyses. It chose not to adopt a standard sharing propagation model, opting to retain flexibility when analyzing sharing in the mmW bands depending on the particular operational environment, the technologies deployed, and interference paths. But, as a general matter, the Commission underscored a preference for “models and scenarios that consider a statistical probability of interference based on deployment, propagation, and usage scenarios as opposed to a worse case approach,”.

One related note is that the Commission underscored in the Second Report and Order that, under the rules, harmful interference is defined not to protect against isolated occurrences, but only against interference that “seriously degrades, obstructs, or repeatedly interrupts.” In other words, in managing the spectrum, the Commission will lean toward a risk-based interference analysis rather than a worst-case assessment. Existing and would-be users of the spectrum should keep this in mind as the Commission and the National Telecommunications and Information Administration (“NTIA”) increasingly look to implement spectrum sharing frameworks to meet the growing needs of a variety of industries, researchers, and federal agencies that rely on access to electromagnetic spectrum.

Reconsideration of the July 2016 Order

The Order on Reconsideration addressed the petitions for reconsideration of the July 2016 Order, the majority of which were brought by members of the satellite industry. By and large, the Commission affirmed its earlier actions, although it added some additional authority for earth station siting and removed the previous Commission’s security plan requirements.

• Security Plan Requirements for UMFUS Licensees: In a victory for the commercial mobile industry, the Commission vacated its regulations adopted in July 2016 that had obligated UMFUS licensees to submit security plans and related information to the FCC before commencing operation indicating how confidentiality, integrity, and availability principles are applied in their network security designs. While acknowledging the importance of network security, the Commission believed more flexibility should be explored as a next step without imposing the burden of premature regulation “which could slow the development of innovative 5G services.” As an alternative to regulation, the Commission will seek industry input and voluntary adoption of measures through the Communications Security, Reliability, and Interoperability Council (“CSRIC”) process. In particular, the Commission is looking for CSRIC to identify risks for 5G network reliability and security and develop best practices to mitigate them as a precursor to potential future action, if and as needed.
• Earth Station Siting: On the whole, the Commission denied requests of the satellite industry to expand the options for siting earth stations in the 28, 37, and 39 GHz bands. But it also modified the rules in certain circumstances to expand those opportunities.

· First, the FCC rejected the request to increase the 0.1 percent population limit for earth station locations to 0.2 percent in larger markets. But, in smaller markets, the Commission concluded that maintenance of the 0.1 percent limit could drive earth station siting towards more heavily populated places and centers of commercial activity. As a result the Commission adopted a modified version of a proposal made by SES/O3b to provide additional flexibility in second- and third-tier markets in both the 28 and 37/39 GHz bands based on population size while maintaining the primacy of UMFUS in the bands.

· Second, the Commission denied requests to relax the additional limits on earth station siting along major transport corridors, ports, and areas where there is high demand for terrestrial service using mmW bands, such as major event venues, residential areas, and business centers. At the same time, the FCC clarified the types of roads that earth station siting should avoid: interstate highways, other freeways and expressways, and other principal arterial roadways. The Order on Reconsideration also specified that “major event venues” include “any location where large numbers of people could gather on a regular basis in a setting where they would expect to use wireless service” without adopting a minimum size threshold and underscoring an expectation that UMFUS and satellite licenses will work cooperatively to identify and avoid conflicts at major event venues.

· Third, the July 2016 Order restricted the number of earth station locations that do not have to protect terrestrial services to three per county in the 28 GHz band and three per PEA in the 37/39 GHz bands. The Order on Reconsideration declined to eliminate this limit in the 28 GHz bands as the satellite industry had requested. But in the 37/39 GHz bands, where UMFUS is licensed on a PEA basis and the FSS allocation is space-to-Earth, the Commission reached a different conclusion. Based on new satellite-industry-participant analyses indicating that smaller zones are needed to protect FSS earth stations from UMFUS-sourced interference, the FCC increased the permissible number of earth station locations in the 37/39 GHz band to fifteen per PEA and three per county.

· Fourth, the Commission took the opportunity to clarify that its limits were based on earth station locations, not earth stations per se, allowing additional earth stations as long as they comply with applicable contours and other earth station siting limits in the rules.

• Status of FSS in the 28 GHz Band. The FCC maintained the secondary status of FSS in the 28 GHz band, denying the petition for reconsideration of the Satellite Industry Association (“SIA”)
• Aggregate Interference in the 28 GHz Band. In response to the renewed request of satellite system operators to have the Commission on reconsideration set an overall limit on aggregate interference to satellite receivers in the 28 GHz band, the FCC declined to act. The principal reason for doing so cited in the Order on Reconsideration was that limits would be “inconsistent with [the FCC’s] goal of providing UMFUS licensees with a flexible rules framework that could allow them to provide a variety of services” by avoiding rules that “would risk preventing licensees from developing new services to meet market demand.” The Commission also reiterated that the rules adopted in the July 2016 Order provide more protection to other countries’ satellites than is required by ITU rules.
• Base Station Power Limits. The Commission declined Boeing’s petition for reconsideration seeking tighter power limits applicable to UMFUS base station transmitters in large part because the FCC believes UMFUS facilities will have incentives to use the minimum power necessary and out of concern that tighter limits would frustrate the deployment of a wide variety of mmW technologies.
• Base Station Location Disclosure: The Order on Reconsideration declined the request of EchoStar/Inmarsat and SES/O3b to mandate a database of UMFUS facilities to facilitate FSS/UMFUS coordination because of anticipated burdens on UMFUS licensees were they required to maintain and update information on each deployment. The Commission observed that the rules require UMFUS licensees to specify technical details relevant to any objection to proposed earth station locations.
• Mobile Use of the 64-71 GHz Band: The Order on Reconsideration affirmed the 2016 decision to authorize unlicensed operations across the entire 64-71 GHz band and declined to adopt a policy of “gigahertz parity” between licensed mobile and unlicensed operations. The FCC rejected calls to make part of the 64-71 GHz band available for licensed mobile operations.
• Mobile In-Band Spectrum Holding Limits: The FCC denied CCA’s request for reconsideration to adopt in-band spectrum holdings limits within the 28 and 37/39 GHz bands.
• License Area Sizes in the 28 and 37/39 GHz Bands: Rejecting petitions for reconsideration, the Commission maintained the county-sized licensing areas in the 28 GHz band and the PEA-sized license areas in the 37/39 GHz bands.

• Performance Metrics for Incumbent UMFUS Licensees: In the July 2016 Order, the Commission ruled that existing licensees in the 28 GHz and 39 GHz bands that complied with performance requirements in the prior license term (under Part 101 of the Rules) were required to meet the new performance requirements applicable to UMFUS licensees under Part 30 by June 1, 2024. The Order on Reconsideration declined to grant additional relief to incumbent licensees for lack of new evidence and arguments and in part because the Commission found that its estimate that mmW equipment would become available in 2020 “may have been pessimistic.” Rather, based on recent developments, the FCC believes licensees will have sufficient time to meet the performance requirements by 2024.
• Splitting of the 28 GHz Band Licenses: The FCC retained the split of the A1 28 GHz band into two 425 megahertz licenses adopted in the July 2016 Order, rejecting Nextlink’s petition for reconsideration on this point. The Commission hoped smaller license blocks would “preserve competition.”

The Commission used the occasion to continue to dig deeper into the mmW regulatory framework by issuing a Second FNPRM. The Commission seeks comment on a number of issues to build on what it did in the July 2016 Order and the recently adopted trio of orders. Some of the principal areas where the Commission requests additional public input are as follows:

• FSS use of the 24 GHz Band: The FCC proposes to license FSS earth stations in 24.75-25.25 GHz band on a co-primary basis with UMFUS. Specifically the sub-band would become available for individually-licensed FSS earth stations meeting the same requirements applicable in other mmW bands shared with UMFUS, namely the limitations on population covered, restrictions on the number of earth station locations in a PEA, and a prohibition on locating earth stations that preclude UMFUS to people or equipment in transit or present at large events. The proposed changes would make this sub-band available for general FSS uplink operations without being limited to feeder links for 17/24 GHz broadcast satellite service (“BSS”) space stations. BSS feeder links under the proposal would not enjoy priority over other uses of FSS for earth stations in the U.S. or preclude other FSS stations from claiming protection from the BSS feeder link in the United States. The Second FNPRM also inquires about a number of other technical conforming changes to the rules concerning FSS and BSS in the sub-band.
• Aggregate Interference from UMFUS to FSS: The Second FNPRM recognizes that some parties may be concerned about potential for aggregate interference to space station receivers from UMFUS operations and asks whether any action is needed to address that potential.
• UMFUS Performance Requirements: Current metrics applicable to UMFUS are network-coverage oriented and predicated on limited options: fixed links, population-based area coverage, or some combination thereof. Acknowledging the difficulty of crafting an IoT-specific metric, as discussed above, the FCC seeks input “on whether to adopt a more traditional or other metric” to accommodate IoT-type applications in the mmW bands and encourage “innovative services.” The Second FNPRM suggests that a metric based on geographic coverage/presence could capture uses that offer meaningful service even if the deployment does not correspond to residential populations. The FCC specifically seeks comment on a metric based on “geographic area coverage of 25% of the license area” and an alternative metric based on “presence in 25% of subset units of the license area, such as census tracts, counties, or some other area.” The Commission selected the 25% level for consideration and comment in both cases “as an attempt to maintain parity between the requirements of this metric and the requirements of [the FCC’s] previously-established metric based on population coverage.” The Second FNPRM welcomes comment on the 25% level and invites views on other metrics that parties think might be more appropriate without raising artificial regulatory barriers, underscoring that any metric adopted to facilitate IoT deployment would be available to any UMFUS licensee regardless of the services provided. In other words, all metrics that would be available for use in the mmW bands would be non-service specific, so presumably the Commission would take into account whether any newly adopted metrics would lower the bar for services most likely to be deployed by licensee winners -- a difficult balancing act indeed.
• Aggregate Mobile Spectrum Holdings: The Commission proposes to eliminate the pre-auction limit of 1250 megahertz that July 2016 Order adopted for the 28, 37 and 39 GHz bands given that technological development in the mmW bands is “nascent” and more, “technically similar” mmW spectrum is being made available in the Spectrum Frontiers proceeding (i.e., in the 24 and 47 GHz bands). Commenters advocating retention of the pre-auction limit are asked to discuss “the likely effects of having two different policy frameworks applicable to mmW spectrum acquired at auction.” (As noted earlier, there is no pre-auction limit for the newly adopted 24 and 47 GHz UMFUS bands.) The Second FNPRM also inquires whether, without pre-auction limits, it is necessary to conduct a post-auction case-by-case review of applications for initial mmW licenses. Proponents are asked to discuss how and under what standards such a review should be conducted, as well as potential remedies if there are competitive concerns.
• Operability in the 24 GHz Band: In the July 2016 Order, the Commission required equipment operating in any part of the 28 GHz band to be capable of operating throughout the band. Similarly, for the 37 and 39 GHz bands taken as a whole. In the Second FNPRM, the Commission proposes to require equipment capable of operating anywhere within the 24 GHz band must be capable of operating in both of the UMFUS band segments.
• Additional mmW Bands for Flexible Terrestrial Use: The Second FNPRM observed that bands previously identified in the proceeding but not yet acted upon are still under consideration by the Commission, such as the 31.8-33.4, 42.0-42.5, and 50.4-52.6 GHz bands. The Commission invited additional comment on those bands and also on any “additional millimeter wave bands that the Commission should consider for flexible terrestrial wireless use, which have not been raised in the proceeding thus far.” Note that this request was made as part of a notice of proposed rulemaking and not part of a notice of inquiry, so presumably the Commission could, following the comment cycle, move straight to rules (at least as a theoretical matter), unlike the recent Mid-Band Spectrum Notice of Inquiry proceeding, where the bands under discussion will first require a later notice of proposed rulemaking before rules could be adopted. This request for comment is also noteworthy as it was not part of the public draft of the November 2017 Orders issued before the Commission’s November 16 Open Meeting.

The FCC order approving the Petition (the “OneWeb Approval Order”) characterizes the grant as “the first of its kind for a new generation of large… NGSO systems” which the Commission hopes will facilitate “high-speed, affordable broadband connectivity” nationwide. The FCC’s grant was conditioned on, among other things, ITU coordination, power limits, avoidance of in-line interference, orbital debris mitigation, the outcome of pending and future rulemakings, and satisfaction of bond and milestone requirements. The OneWeb grant remains subject to the outcomes of several other pending proceedings (as well as any future FCC rules) and the requirement that OneWeb will share spectrum with other NGSO systems the Commission approves in the same spectrum bands and other users of the spectrum. The OneWeb Approval Order makes clear that any earth station applications will be subject to a separate filing and review cycle.

Background

On July 15, 2016, the FCC accepted OneWeb’s Petition for U.S. market access for its proposed NGSO system in the 10.7-12.7 GHz, 14-14.5 GHz, 17.8-18.6 GHz, 18.8-19.3 GHz, 27.5-29.1 GHz, and 29.5-30 GHz frequency bands and initiated a processing round inviting other prospective operators of NGSO-like systems to file applications or, if licensed by another country, petitions for access to the aforementioned bands. In total, eleven companies set forth NGSO proposals in the OneWeb processing round. Those applications and petitions for declaratory ruling remain pending and were not affected by adoption of the OneWeb Approval Order. Ten of the eleven processing round applications and petitions were accepted for filing on May 26, 2017, triggering a cycle for comments and oppositions. A number of comments and petitions to deny these additional applications were filed this past Monday.

On November 1, 2016, the FCC initiated a similar processing round for NGSO-like systems in other bands when it accepted for filing Boeing’s application to launch and operate a 2,956 NGSO constellation in the 37.5-40.0 GHz, 40.0-42.0 GHz, 47.2-50.2 GHz, and 50.4-51.4 GHz bands. The Commission invited additional applications for NGSO-like systems in the bands sought by Boeing. Ultimately, six companies participated in the Boeing processing round. Most recently, on June 16, 2017, the FCC accepted for filing several NGSO-like applications for operations in the Q and V bands.

The Terms of OneWeb’s Grant

In the OneWeb Approval Order, the Commission found that granting OneWeb’s Petition is in the public interest, subject to various considerations discussed below.

The FCC granted OneWeb access to the 12.2-12.7 GHz band, but noted that OneWeb assumes the risk that the Commission could make changes affecting the status of its access. Of particular note, changes to OneWeb’s terms of access could follow future action on a pending petition for rulemaking filed by the Multichannel Video Distribution and Data Service (“MVDDS”) Coalition. The MVDDS Coalition has asked the Commission to liberalize MVDDS rules in the 12.2-12.7 GHz band to permit mobile operations in addition to fixed. In conjunction with that, the Coalition asked the FCC to modify or eliminate the present Fixed Satellite Service (“FSS”) co-primary designation in the band for NGSO systems.

The FCC granted OneWeb two waivers for operations on a secondary non-interference basis in portions of the 17.8-18.6 GHz range. Specifically, OneWeb can operate in the 17.8-18.3 GHz band on a secondary basis to primary terrestrial Fixed services subject to international power flux-density (“PFD”) limits, and in the 18.3-18.6 GHz band on a secondary basis to FSS geostationary satellite orbit (“GSO”) systems subject to internationally adopted equivalent power flux-density (“EPFD”) limits.

Additionally, the Commission waived a requirement that OneWeb split spectrum access with other NGSOs in the 17.8-18.6 GHz, 27.5-28.6 GHz, and 29.5-30 GHz bands. In other bands, the FCC allows NGSOs to share spectrum by coordinating through avoidance of in-line interference events. The FCC will allow OneWeb and other NGSOs to operate in the same frequencies in the 17.8-18.6 GHz, 27.5-28.6 GHz, and 29.5-30 GHz bands while taking advantage of directional antennas and other methods to avoid in-line interference events, which is already the rule in the 10.7-12.7 GHz, 14-14.5 GHz, and 18.8-19.3 GHz bands in which OneWeb received approval.

The Commission also clarified that OneWeb and/or its customers would have to separately apply for authority to operate earth stations in the United States. OneWeb is also subject to ITU coordination requirements across all bands it will operate in, and must adhere to radio astronomy coordination requirements in the 10.7-11.7 GHz and 14.47-14.5 GHz bands.

Finally, in the OneWeb Approval Order, the FCC declined to incorporate international EPFD limits into the Commission’s rules for the 27.5-28.6 GHz and 29.5-30 GHz bands. The agency noted that such a determination is before the Commission in the pending NGSO FSS rulemaking proceeding, and would be better addressed in that context.

Potential Impact

The approval of OneWeb’s NGSO Petition is an early important step in what appears to be a growing satellite industry push to offer broadband from low earth orbit (“LEO”) (and/or medium earth orbit (“MEO”). Proponents of such systems frequently claim that LEO NGSO systems will offer lower latency broadband services than GSO systems, since the former are much closer to earth’s surface. NGSO proponents also contend that these constellations will extend broadband coverage and access in rural and remote areas that they claim have not been covered by terrestrial service providers. However, proponents of terrestrial mobile broadband services have expressed doubts about the satellite advocates’ claims, indicating that commercial wireless systems will also seek to serve such areas and contending further that NGSO systems may not make use of spectrum with the same efficiency as terrestrial solutions.

While the NGSO applications make promises of enhanced connectivity, historically, satellite endeavors of this nature have proven daunting. Many prior attempts to implement broadband NGSO constellations in low earth orbit have been made and not infrequently have failed to meet objectives. Perhaps reflecting that history, Commissioner Michael O’Rielly took a guardedly optimistic view of NGSO prospects in his statement accompanying the one web approval order; “[w]ill some of these systems come to fruition? That seems likely. Will all of these systems be launched? That seems like a stretch.” Only time will tell whether the efforts of OneWeb and its contemporaries, to the extent they are given the green light by the Commission, will fare better. For now, it remains to be seen when and how the FCC will decide on the many other pending NGSO applications.

Commissioner O'Rielly’s comments also raised some concerns with the Commission’s approach to spectrum management as reflected by the OneWeb grant. He seems to welcome a more comprehensive decision-making approach to account for issues raised by and objectives of all stakeholders in a given band. He appeared frustrated with the Commission continuing to address additional regulatory frameworks of spectrum bands “on a piecemeal basis.” With the many open proceedings affecting the mmW bands, it remains to be seen whether such an approach might gain traction with other Commission members.

As discussed in prior posts, one outcome of the FCC’s comprehensive review and revision of the international circuit capacity and international traffic and revenue reporting requirements in 2013 was a revamp of the International Capacity Reporting requirements and filing manual. Entities holding FCC submarine cable landing licenses and common carriers holding capacity on the U.S. end of at least one international submarine cable were defined as “Capacity Holders” and were required to report available capacity they held on the U.S. end of each submarine cable between the U.S. and a foreign point. Capacity Holders can hold capacity by direct cable ownership, but also by an indefeasible right of use (“IRU”) or by an Inter-Carrier Lease (“ICL”) obtained from other Capacity Holders on the U.S. end of an international submarine cable.

The Bureau’s clarification last week to the 43.62 Manual directs filers to report data based on IRUs and ICLs obtained from “Similar Entities” in addition to the exiting requirement to report IRUs and ICLs obtained from other Capacity Holders. Similar Entities are defined as (i) foreign carriers holding capacity on the U.S. end of an international submarine cable but not having a submarine cable license or international 214 authorization and (ii) persons or entities licensed by a foreign government to operate or own capacity on the foreign end of a U.S. submarine cable or on a non-U.S. submarine cable.

Among other ministerial edits, the Bureau also revises the definition of IRU, limiting it to arrangements where an upfront payment has been made for the lease and deleting reference in the old definition to the IRU conferring the “vestiges of ownership.” While this revised definition may reflect actual real world business arrangements, filers should consider whether their IRUs or other capacity arrangement, even if not named “IRUs” are structured in a manner that falls within the definition in the revised 43.62 Manual before completing their reports.

Finally, as we noted previously, another outcome of the Commission’s modernization of the reporting process has been the establishment of an online filing portal and a mandatory online filing requirement. While the FCC’s rules, under both current rule 43.62 and prior rule 43.82, establish a March 31 filing deadline last year’s report deadline was extended to April 30, 2015 due to difficulties implementing the filing portal. We advised last year that we anticipated the filing date would return to its normal schedule this year and the FCC’s announcement confirms the reporting schedule has returned to normal.

"(1) any facilities based common carrier with active satellite or terrestrial circuits between the United States and a foreign point; (2) any non-common carrier satellite licensee with active circuits between the United States and a foreign point; (3) any licensee of a submarine cable between the United States and a foreign point; or (4) any common carrier with capacity on a submarine cable between the United States and a foreign point."

Filers, thus, are now required to submit the Annual International Reports in accordance with the processes and specifications of rule 43.62 and the 43.62 filing manual. The reporting changes include creation of an online filing portal. However, it is not certain that the online filing system will be ready in time for the March 31, 2015 annual circuit capacity report filing. Indeed, the Public Notice suggests that the filing date has been suspended for now. The FCC will issue another Public Notice announcing the implementation of the online filing system and the due date for the annual circuit capacity report.

International providers of telecommunications, including interconnected VoIP providers, should review the new filing manual and take time to become familiar with the new reporting obligations in advance of the announcement of the Circuit Capacity report filing deadline for 2015. We have every reason to believe that the annual Traffic and Revenue Report deadline will remain the same, July 31. But the January 2013 Order modified the requirements for this second report as well. So, again, we recommend that providers ascertain whether, under the revised 43.62 and the new filing manual, they must file. If so, then the new requirements concerning Traffic and Revenue Report should be reviewed as well.

Because the Regulatory Fee Order for FY 2014 came out later than in years past, the FCC indicated the decision would become effective upon publication in the Federal Register, rather than thirty days thereafter. The FY 2014 regulatory fees are due September 23 (by 11:59 PM, Eastern Daylight Time), and Fee Filer, the Commission’s automated filing and payment system for FY 2014 regulatory fees, is now open. In the Commission’s June 13, 2014, notice of proposed rulemaking regarding FY 2014 (“NPRM”) regulatory fees, it had sought comment on approximately a dozen issues, including whether to reapportion the fee allocations between International Bureau regulatees, i.e., submarine cable landing (“SCL”) licensees and satellite and earth stations licensees/operators. In the Regulatory Fees Order, the FCC recognized that SCL licensees are subject to minimal regulation, enforcement, and oversight after the initial licensing of a submarine cable system, points underscored by comments from the submarine cable industry. In a decision which should make SCL licensees glad, the Commission amended the allocation percentage between Submarine Cable and Bearer Circuit issues and Satellite and Earth Station issues from 41 to 59 percent of International regulatory fees, respectively, to 35.72 and 64.28 percent, respectively. (Within the Satellite and Earth Station category, the Commission determined to raise fees for affected earth station regulatees by 7.5% compared to last year, collecting the remainder of the relative increase in the category from satellite regulatees.) This change contributed to a considerable drop in the fees submarine cable systems will be assessed this year. For example, the largest systems, with capacity of 20 Gbps or greater, will pay $163,900 this year compared to $217,675 in 2013 (for FY 2013), a drop of nearly 25%. Notably, the Commission explained that it would revisit the matter of allocations among these International Bureau licensees in future regulatory fee proceedings to ascertain whether additional adjustment is warranted.

In the NPRM, the Commission had also proposed to combine wireline and wireless voice services into one category. But, after examining the record, the Regulatory Fees Order concluded that combining the ITSP and CMRS categories would be complex and require a totally new methodology, something that could not be accomplished for FY 2014 in the time provided. Consequently, ITSP fee changes FY 2014 are relatively flat, declining approximately one percent from FY 2013 to $0.00343 per assessable interstate and international end user telecommunications revenues dollar. Nonetheless, the Commission indicated that the issue may be revisited in future years to determine if this particular combination of fee categories has merit and could be implemented.

The Regulatory Fees Order also added toll free numbers as a new regulatory fee category to help recover Wireline Competition Bureau FTEs. The new fees will be assessed on RespOrgs, beginning with FY 2015, for each toll free number accessible in the United States that RespOrgs manage. The Commission noted that it must first submit this change to Congress, under the applicable provision of the Communications Act of 1934, as amended, at least 90 days before it takes effect. As a result, the change will not create a liability for RespOrgs until next year. In a Second Further NPRM accompanying the Regulatory Fees Order, the Commission sought comment on what procedures it should use to enforce the RespOrgs’ obligations to pay fees beginning next fiscal year, including potentially reclamation of numbers or decertification. The Regulatory Fees Order reflects a number of other decisions as well, including:

• A commitment to update the FTE (full-time equivalent number of employees performing regulatory activities) counts within the agency annually to reflect the changing work of Commission FTEs.
• A commitment to revise allocations of FTEs among the agency’s constituent bureaus and offices every two years. (The Commission, which made a series of reallocations for FY 2013, declined to adopt any further FTE reallocations in the Regulatory Fees Order for FY 2014, but found that additional evaluation and information is required. In the NPRM, the FCC had sought comment on reallocating certain Enforcement Bureau, the Consumer & Governmental Affairs Bureau, and the Office of Engineering and Technology FTEs directly to certain other bureaus.)
• A determination not to adopt a per unit cap on increases at 7.5 % (or higher) for any fee category resulting from FTE reallocations or reform measures.
• Effective October 1, 2014, for FY 2015, an increase to the de minimis threshold for regulatory fee obligations to $500, the minimum amount a regulated entity must owe from the sum total of all of its liabilities for different fee categories for the fiscal year before it must contribute.
• Elimination of 218-219 MHz licensees, broadcast auxiliaries, and satellite television construction permits from the regulatory fee schedule and a commitment to reevaluate in the future whether other categories considered in the rulemaking, but not eliminated at this time for lack of sufficient support, should be subject to elimination.
• Removal of the exemption for broadcast licensees in the AM expanded band for FY 2014.
• Declining to include regulatory fees paid by Direct Broadcast Satellite (“DBS”) providers in the cable television and IPTV category on a per subscriber basis, but seeking further comment in the Second Further NPRM whether to adopt a new DBS fee category.
• A decision to no longer mail out initial assessment letters to CMRS providers beginning with FY 2014 but to post telephone numbers (subscriber counts) on the Fee Filer. The Regulatory Fees Order outlines the process by which CMRS carriers can seek to revise its subscriber counts.

The February 12, 2014, Federal Register publication does serve the purpose, however, of starting the clock for petitions for reconsideration by interested parties of any aspects of the new rules. Reconsideration petitions, if any, must be filed by March 14, 2014, 30 days after publication.

Once OMB approval is complete, the Commission will publish a notice in the Federal Register establishing the effective date of all of the rule changes and additions. That day is widely anticipated, as the revised rules streamline filing requirements and are designed to promote more rapid deployment of satellite services, better reflect evolving technology, more accurately assess interference potential, and afford operators more flexibility.