01-14141. Policies and Service Rules for the Non-Geostationary Satellite Orbit, Fixed Satellite Service in the Ku-Band

AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

The Federal Communications Commission (FCC) proposes to decide the means for sharing among multiple satellite network licensees in spectrum recently designated for the non-geostationary satellite orbit, fixed-satellite service (NGSO FSS) in the 17.7-20.2 GHz and 27.5-31.3 GHz frequency bands (the Ku-band). The FCC's Notice of Proposed Rulemaking (NPRM) seeks comment on four possible sharing options, and also seeks comment on proposed blanket earth station licensing for NGSO FSS in the Ku-band, and seeks comment on proposed service rules. The Commission's goals in opening this satellite service in the Ku-band are to promote competition through opportunities for new entrants, to expedite the authorization process, and to provide incentives for prompt commencement of service to the public using state-of-the-art technology.

DATES:

Comments may be filed on or before July 6, 2001. Reply comments may be filed on or before August 6, 2001. Comments on the proposed information collections may be filed on or before August 6, 2001.

ADDRESSES:

Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by paper copies. See SUPPLEMENTARY INFORMATION for filing instructions, formats and other information regarding electronic filing; send paper copies to Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. Comments regarding the request for approval of the information collection should be submitted to Judy Boley at 445 12th Street, SW., Rm. 1-C804, Washington, DC 20554 or via internet at [e-mail]; phone [phone].

FOR FURTHER INFORMATION CONTACT:

For more information regarding the Notice of Proposed Rulemaking contact: J. Mark Young at [phone], internet: [e-mail], International Bureau, Federal Communications Commission, Washington, DC 20554. For more information regarding the information collections and to submit comments, contact Judy Boley at 202-418-0214; 445 12th Street SW., Rm. 1-C804, Washington, DC 20554 or via internet at [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's NPRM in IB Docket No. 01-96; FCC 00-134, adopted April 19, 2001 and released on May 3, 2001. The complete text of this NPRM is available for inspection and copying during normal business hours in the FCC Reference Center (Room), 445 12th Street, SW., Washington, DC 20554, and also may be purchased from the Commission's copy contractor, International Transcription Service, Inc. (ITS, Inc.), 1231 20th Street, NW., Washington, DC 20036, [phone].

Summary of Notice of Proposed Rulemaking

The NPRM describes the technical criteria for the NGSO FSS, and the radiofrequency spectrum allocated by the FCC late last year to the NGSO FSS in ET Docket No. 98-206, 66 FR 10601 (February 16, 2001). The NPRM proposes four spectrum sharing options. The first is “flexible band segmentation,” which would divide the available spectrum into equal blocks to be assigned to particular licensees. The second option is “dynamic band segmentation,” under which the available spectrum is divided equally by the number of satellite systems transmitting and receiving signals in their intended orbit. The third sharing option, “avoidance of in-line interference events,” allows all systems to operate in the entire available spectrum, so long as they avoid interfering with each others' systems, by means of calculating those occasions when their satellites and earth stations are aligned so as to create interference. Under the fourth sharing option, “homogeneous constellations,” the FCC would adopt one or more unifying constellation designs to accommodate all licensees. The NPRM also asks commenters to suggest variations or alternatives to the four options proposed.

In addition, the NPRM proposes to allow blanket licensing of NGSO FSS earth stations, but only in specified frequency bands. The NPRM also requires NGSO FSS applicants to demonstrate compliance with power limitations adopted by the Commission when it allocated spectrum to the NGSO FSS in December 2000.

Finally, the NPRM reviews and seeks comment on each proposed service rule for the NGSO FSS in the Ku-band frequencies. The proposed service rules include coverage area requirements, system license and license terms, FCC regulatory classification as common carrier or non-common carrier, system implementation milestones, regulatory reporting requirements, international coordination, and a prohibition on the sale of a bare license for a profit. The NPRM also proposes to require that NGSO FSS applicants disclose their plans to mitigate orbital debris.

Initial Regulatory Flexibility Certification

The Regulatory Flexibility Act (RFA),^[1] requires that a regulatory flexibility analysis be prepared for notice and comment rulemaking proceedings unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” ^[2] The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” ^[3] In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.^[4] A small business concern is one which: (a) is independently owned and operated; (b) is not dominant in its field of operation; and (c) satisfies any additional criteria established by the Small Business Administration (SBA).^[5]

This Notice of Proposed Rulemaking (NPRM) seeks comment on various proposals for creating a spectrum assignment approach that would accommodate all proposed non-geostationary satellite orbit fixed satellite service (NGSO FSS) systems and provide service to consumers as quickly as possible. This NPRM also seeks comment on proposals for service rules to apply to NGSO FSS systems.^[6] These actions are necessary for the Commission to evaluate these proposals and seek comment from the public on any other alternatives. The objective of this proceeding is to assign the NGSO FSS spectrum in an efficient manner and create rules to ensure systems implement their proposals in a manner that serves the public interest. We believe that adoption of the proposed rules will reduce regulatory burdens and, with minimal disruption to existing FCC permittees and licensees, result in the continued development of NGSO FSS and other satellite services to the public. If commenters believe that the proposed rules discussed in the NPRM require additional RFA analysis, they should include a discussion of this in their comments.

The Commission has not developed a definition of small entities applicable to geostationary or non-geostationary satellite orbit fixed-satellite or mobile satellite service operators. Therefore, the applicable definition of small entity is the definition under the SBA rules applicable to Communications Services “Not Elsewhere Classified.” This definition provides that a small entity is one with $11.0 million or less in annual receipts.^[7] This Census Bureau category is very broad, and commercial satellite services constitute only a subset of the total number of entities included in the category.

The rules proposed in this NPRM apply only to entities providing NGSO FSS. Small businesses will not have the financial ability to become NGSO FSS system operators because of the high implementation costs associated with satellite systems and services. Since there is limited spectrum and orbital resources available for assignment, we estimate that only seven applicant entities, whose applications are pending, will be authorized by the Commission to provide these services.^[8] None of the seven applicants is a small business because each has revenues in excess of $11 million annually or has parent companies or investors that have revenues in excess of $11 million annually.

We therefore certify that the rules proposed in this NPRM will not apply to any small entities. The Commission's Office of Public Affairs, Reference Operations Division, will send a copy of this NPRM, including this certification, to the Chief Counsel for Advocacy of the Small Business Administration. A copy will also be published in the Federal Register.

Procedural Information

Ex Parte Presentation. This is a permit-but-disclose rulemaking proceeding. Ex parte presentations are permitted, provided they are disclosed as provided in Commission Rules. See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).

Authority. This action is taken pursuant to sections 4(i), 7(a), 303(c), 303(f), 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 303(c), 303(f), 303(g), and 303(r).

Comment. Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before June 18, 2001, and reply comments on or before July 19, 2001. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (May 1, 1998).

Comments filed through the ECFS can be sent as an electronic file via the Internet to <http://www.fcc.gov/​e-file/​ecfs.html>. Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to [e-mail], and should include the following words in the body of the message, “get form <your e-mail address.” A sample form and directions will be sent in reply.

Parties who choose to file by paper must file an original and four copies of each filing. All filings must be sent to the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, The Portals, 445 Twelfth Street, SW., Room TW-A325, Washington, DC 20554.

Parties who choose to file by paper should also submit their comments on diskette. These diskettes should be submitted to: Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, The Portals, 445 Twelfth Street, SW., Room TW-A325, Washington, DC 20554. Such a submission should be on a 3.5 inch diskette formatted in an IBM compatible format using Microsoft Word for Windows or compatible software. The diskette should be accompanied by a cover letter and should be submitted in “read only” mode. The diskette should be clearly labeled with the commenter's name, IB Docket No. 01-96, type of pleading (comment or reply comment), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase “Disk Copy—Not an Original.” Each diskette should contain only one party's pleading, preferably in a single electronic file. In addition, commenters must send diskette copies to the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW., Washington, DC 20037.

Ordering Clauses

Pursuant to Sections 4(i), 7(a), 303(c), 303(f), 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 303(c), 303(f), 303(g), and 303(r), this Notice of Proposed Rulemaking is hereby adopted.

The Commission's Consumer Information Bureau, Reference Information Center, SHALL SEND a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis to the Chief Counsel for Advocacy of the Small Business Administration.

Paperwork Reduction Act

The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

OMB Approval Number: New (3060-XXXX).

Title: NGSO FSS Satellite Service.

Form No.: NA.

Type of Collection: New Collection.

Respondents: Business or other for-profit.

Number of Respondents: 107.

Estimated Time for Response: 3 hours.

Total Annual Burden: 321 hours.

Needs and Uses: The information will be used by the Federal Communications Commission (FCC) and interested members of the public to ensure compliance with the rules adopted for the NGSO FSS satellite service. Specifically, the rules require space station applicants to submit certifications of compliance with specific technical operating requirements adopted for this service. The rules require space station licensees to file annual reports indicating progress of system implementation and identifying any system failures, delays or difficulties. In addition, entities granted blanket earth station licenses are required to report the number stations brought into use each year. These rules will allow the Commission to grant licenses in compliance with the technical rules of this service and to ensure continued compliance by licensees. Without such information, the FCC could not determine whether satellite licenses are operating in conformance with its rules.

List of Subjects in 47 CFR Part 25

• Satellites

Federal Communications Commission.

William F. Caton,

Deputy Secretary.

Rule Changes

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 25 as follows:

PART 25—SATELLITE COMMUNICATIONS

1. The authority citation for part 25 continues to read as follows:

Authority: 47 U.S.C. 701-744. Interprets or applies Section 4, 301, 302, 303, 307, 309 and 332 of the Communications Act, as amended, 47 U.S.C. 154, 301, 302, 303, 307, 309 and 332, unless otherwise noted.

2. Section 25.115 is amended by adding a new paragraph (f) to read as follows:

§ 25.115

Application for earth station authorizations.

* * * * *

(f) User transceivers in the non-geostationary satellite orbit fixed-satellite service (NGSO FSS) service in the 11.7-12.2 GHz, 12.2-12.7 GHz and 14.0-14.5 GHz bands need not be individually licensed. Service vendors may file blanket applications for transceiver units using FCC Form 312, Main Form and Schedule B, and shall specify the number of terminals to be covered by the blanket license. Each application for a blanket license under this section shall include the information described in § 25.146.

3. Section 25.146 is amended by adding paragraphs (g) through (p) to read as follows:

§ 25.146

Licensing and operating authorization provisions for the non-geostationary satellite orbit fixed-satellite service (NGSO FSS) in the bands 10.7 GHz to 14.5 GHz.

* * * * *

(g) System license. Applicants authorized to construct and launch a system of technically identical non-geostationary satellite orbit fixed satellite service satellites will be awarded a single “blanket” license covering a specified number of space stations to operate in a specified number of orbital planes.

(h) In addition to providing the information specified in § 25.114 above, each NGSO FSS applicant shall provide the following:

(1) A demonstration that the proposed system is capable of providing fixed-satellite services on a continuous basis throughout the fifty states, Puerto Rico and the U.S. Virgin Islands, U.S.; and

(2) A demonstration that the proposed system be capable of providing fixed-satellite services to all locations as far north as 70 deg. latitude and as far south as 55 deg. latitude for at least 75% of every 24-hour period; and

(3) Sufficient information on the NGSO FSS system characteristics to properly model the system in computer sharing simulations, including, at a minimum, NGSO hand-over and satellite switching strategies, NGSO satellite beam patterns, NGSO satellite antenna patterns and NGSO earth station antenna patterns. In particular, each NGSO FSS applicant must explain the switching protocols it uses to avoid transmitting while passing through the geostationary satellite orbit arc, or provide an explanation as to how the power-flux density limits in § 25.208 are met without using geostationary satellite orbit arc avoidance. In addition, each NGSO FSS applicant must provide the orbital parameters contained in Section A.3 of Annex 1 to Resolution 46. Further, each NGSO FSS applicant must provide a sufficient technical showing to demonstrate that the proposed non-geostationary satellite orbit system meets the power-flux density limits contained in § 25.208, as applicable; and

(4) A description of the design and operational strategies that it will use, if any, to mitigate orbital debris. Each applicant must submit a casualty risk assessment if planned post-mission disposal involves atmospheric re-entry of the spacecraft.

(i) Considerations involving transfer or assignment applications. (1) “Trafficking” in bare licenses issued pursuant to paragraph (g) of this section is prohibited.

(2) The Commission will review a proposed transaction to determine if the circumstances indicate trafficking in licenses whenever applications (except those involving pro forma assignment or transfer of control) for consent to assignment of a license, or for transfer of control of a licensee, involve facilities licensed pursuant to paragraph (g) of this section. At its discretion, the Commission may require the submission of an affirmative, factual showing (supported by affidavits of a person or persons with personal knowledge thereof) to demonstrate that no trafficking has occurred.

(j) Prohibition of certain agreements. No license shall be granted to any applicant for a NGSO system in the fixed-satellite service operating in the 10.7-12.7 GHz, 12.75-13.25 GHz and 13.75-14.5 GHz frequency bands if that applicant, or any persons or companies controlling or controlled by the applicant, shall acquire or enjoy any right, for the purpose of handling traffic to or from the United States, its territories or possession, to construct or operate space segment or earth stations, or to interchange traffic, which is denied to any other United States company by reason of any concession, contract, understanding, or working arrangement to which the Licensee or any persons or companies controlling or controlled by the Licensee are parties.

(k) Implementation milestone schedule. Each NGSO FSS licensee in the 10.7-12.7 GHz, 12.75-13.25 GHz and 13.75-14.5 GHz frequency bands will be required to enter into a non-contingent satellite manufacturing contract for the system within one year of authorization, to complete critical design review within two years of authorization, to begin physical construction of all satellites in the system within two and a half years of authorization, to complete construction and launch of the first two satellites within three and a half years of grant, and to launch and operate its entire authorized system within six years of authorization.

(l) Reporting requirements. All NGSO FSS licensees in the 10.7-12.7 GHz, 12.75-13.25 GHz and 13.75-14.5 GHz frequency bands shall, on June 30 of each year, file a report with the International Bureau and the Commission's Laurel, Maryland field office containing the following information:

(1) Status of space station construction and anticipated launch date, including any major problems or delay encountered;

(2) Identification of any space station(s) not available for service or otherwise not performing to specifications, the cause(s) of these difficulties, and the date any space station was taken out of service or the malfunction identified.

(m) Financial requirements. Each NGSO FSS applicant must demonstrate, on the basis of the documentation contained in its application, that it is financially qualified to meet the estimated costs of the construction and launch of all proposed space stations in its system and the estimated operating expenses for one year after the launch of the initial system. Financial qualifications must be demonstrated in the form specified in § 25.140(c) and (d). In addition, applicants relying on current assets or operating income must submit evidence that those assets are separate and apart from any funding necessary to construct or operate any other licensed satellite system. Failure to make such a showing will result in the dismissal of the application.

(n) Replacement of space stations within the system license term. Licensees of NGSO FSS systems in the 10.7-12.7 GHz, 12.75-13.25 GHz and 13.75-14.5 GHz frequency bands authorized through a blanket license pursuant to paragraph (g) of this section need not file separate applications to launch and operate technically identical replacement satellites within the term of the system authorization. However, the licensee shall certify to the Commission, at least thirty days prior to launch of such replacement(s) that:

(1) The licensee intends to launch a space station into the previously-authorized orbit that is technically identical to those authorized in its system authorization and

(2) Launch of this space station will not cause the licensee to exceed the total number of operating space stations authorized by the Commission.

(o) In-orbit spares. Licensees need not file separate applications to operate technically identical in-orbit spares authorized as part of the blanket license pursuant to paragraph (g) of this section. However, the licensee shall certify to the Commission, within 10 days of bringing the in-orbit spare into operation, that operation of this space station did not cause the licensee to exceed the total number of operating space stations authorized by the Commission.

(p) Earth station reporting. Licensees shall submit to the Commission a yearly report indicating the number of earth stations actually brought into service under its blanket licensing authority. The annual report is due to the Commission no later than the first day of April of each year and shall indicate the deployment figures for the preceding calendar year.

Footnotes

1.  The RFA, 5 U.S.C. 601 et seq., has been amended by the Contract With America Advancement Act of 1996, Public Law No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).

2.  5 U.S.C 605(b).

3.  Id. at § 601(6).

4.  Id. at § 601(3) (incorporating by reference the definition of “small business concern” in Small Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.”

5.  Small Business Act, 15 U.S.C. 632.

6.  See paragraphs 50-69, supra.

7.  13 CFR 121.201, North American Industry Classification System (NAICS) Code 51334.

8.  See paragraph 9, supra.