On June 22, 2017, the Federal Communications Commission (“FCC” or “Commission”) conditionally granted OneWeb’s proposed 720 Non-Geostationary Satellite Orbit (“NGSO”) constellation access to the U.S. market in select frequency bands. OneWeb filed a Petition for Declaratory Ruling with the FCC or U.S. market access rather than an application because it states that its space system license application will be acted upon by the United Kingdom.

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.