Processing Applications in the Digital Broadcast Satellite Service

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this Report and Order, the Federal Communications Commission (FCC) amends its rules to establish a licensing and regulatory framework for space stations in the Digital Broadcast Satellite Service in the 12.2-12.7 GHz and 17.3-17.8 GHz frequency bands that harmonizes the rules regulating DBS with those regulating geostationary-satellite orbit Fixed-Satellite Service systems.

DATES:

Effective October 4, 2021, except for instructions 3 (47 CFR 25.108(c)(5) and (6)), 5 (47 CFR 25.114(a)(3)) and 7 (47 CFR 25.140(b)(6)). The FCC will publish a document in the Federal Register announcing the effective date for those sections.

The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of October 4, 2021, except for the material referenced in 47 CFR 25.140. The FCC will publish a document in the Federal Register announcing the approval date of the material in that section.

FOR FURTHER INFORMATION CONTACT:

Sean O'More, International Bureau, Satellite Division, 202-418-2453, sean.omore@fcc.gov.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Report and Order, FCC 19-93, adopted September 26, 2019, and released September 27, 2019. The full text of the Report and Order is available at https://apps.fcc.gov/edocs_public/attachmatch/FCC-19-93A1.pdf. To request materials in accessible formats for people with disabilities, send an email to FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

Paperwork Reduction Act

This document contains new and modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invited the general public and the Office of Management and Budget to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, we sought specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

Congressional Review Act

The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget concurs, that these rules are “non-major under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this Report & Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

Synopsis

In this Order, the Commission establishes a licensing and regulatory framework for DBS satellite systems analogous to that which currently exists for geostationary (GSO) Fixed-Satellite Service (FSS) systems. First, the Commission will process requests for new DBS service on the same “first-come, first-served” basis—including an optional, two-step application process—that governs GSO FSS licensing. Second, the Commission applies the milestone and bond requirements for the geostationary Fixed-Satellite Service to DBS. Third, the Commission extends the license terms of non-broadcast DBS space stations from 10 to 15 years. Fourth, the Commission lifts the “freeze” on new DBS applications that has been in place since 2006, when the Commission last proposed changes to the DBS licensing regime in a 2006 Notice of Proposed Rulemaking (2006 Notice). Finally, the Commission clarifies that requests for new DBS at orbital locations less than nine degrees apart will be accepted, but that any new DBS systems at such reduced-spacing orbital locations must not increase interference to DBS systems at the internationally-planned nine-degree orbital locations.

While the Commission currently has no DBS license applications before it, clarification of the rules and harmonization of those rules with the recently-updated rules governing the licensing of GSO FSS will facilitate the licensing of new DBS systems and may encourage interest in new DBS systems.

License Application Processing Procedures. The Commission adopts rules for processing requests to provide new DBS service to U.S. consumers. These rules apply to any future request to provide DBS service to the United States using the 12.2-12.7 GHz band (space-to-Earth) and associated feeder links in the 17.3-17.8 GHz band (Earth-to-space), including channels not currently licensed at orbit locations assigned to the United States under the International Telecommunication Union (ITU) Region 2 BSS and feeder-link Plans (Region 2 Plan), as well as DBS service from space stations located at orbital locations not assigned to the United States in the ITU Region 2 BSS and feeder-link Plans.

The Commission will treat requests to provide DBS using a “first-come, first-served” licensing approach used for GSO-like FSS and to eliminate DBS competitive bidding procedures. Based on the court holding in Northpoint and the record in response to the 2006 Notice, the Commission concludes that DBS licenses cannot be auctioned at this time.

DBS is similar to GSO FSS, except for certain technical features required to protect DBS consumers from interference while using small receive-only antennas, and therefore DBS is well suited to using the same processing procedure as used for GSO FSS. Comments received in response to the Second NPRM in this proceeding supported use of “first-come, first-served” procedures for DBS.

Application Processing Framework. The Commission applies the streamlined procedures we recently adopted for FSS space stations in the Part 25 Streamlining Order.

Applications for authority to construct, deploy and operate a space station to provide DBS service, or requests for U.S. market access to provide DBS service to earth stations in the United States using a non-U.S. licensed space station under section 25.137 of the Commission's rules, must provide the technical information required by section 25.114 of the Commission's rules. Of particular applicability to DBS service, the following technical information must be provided under section 25.114: (1) Whether the space station is to be operated on a broadcast or non-broadcast basis; and (2) information and analyses in the event that the technical characteristics of the proposed system differ from those in the Appendix 30 BSS Plans, the Appendix 30A feeder link Plans, Annex 5 to Appendix 30 or Annex 3 to Appendix 30A of the ITU Radio Regulations.

Milestone and Bond. The Commission will apply sections 25.164 (Milestones) and 25.165 (Surety Bonds) to authorizations and grants of U.S. market access to provide DBS service. The Commission's milestone and bond requirements are intended to deter warehousing by satellite operators before a proposed space station has been launched and begun operations. In this instance, warehousing refers to the retention of preemptive rights to use spectrum and orbital resources by an entity that does not intend to bear the cost and risk of constructing, launching, and operating an authorized space station, is not fully committed to doing so, or finds out after accepting the license that it is unable to fulfill the associated obligations. Such milestone requirements extend not only to U.S. licensees, but also to operators of non-U.S. licensed space stations that have been granted access to the U.S. market.

In 2015, the Commission substantially streamlined the milestone and bond provisions contained in sections 25.164 and 25.165 of the Commission rules. Specifically, the Commission eliminated all of the space station construction milestones, except the requirements to bring a space station into operation at the assigned location within a specified period of time. Also, in order to provide better incentives against spectrum warehousing, the Commission modified the space station bond requirement to increase liability over time.

License Term. The Commission extends the license term for DBS space stations not licensed as broadcast facilities to 15 years from the current term of 10 years. Currently, licenses for DBS space stations licensed as broadcast facilities are issued for a period of 8 years, and licenses for DBS space stations not licensed as broadcast facilities are issued for 10 years. The 8-year term for broadcast stations is established by the Communications Act. Because all current DBS licensees offer subscription services, all existing DBS operators are classified as non-broadcast licensees and their license terms were extended to 10 years. Subsequently, the Telecommunications Act of 1996 granted the Commission authority to establish license terms longer than 10 years for non-broadcast stations.

The Commission concludes that issuing non-broadcast DBS space station licenses for 15 years would better reflect the useful life of new DBS satellites, as our extension of the license term for such DBS space stations from 5 to 10 years did in 1995. There are no technical or engineering considerations that render the operating life of a DBS satellite shorter than the operating life of a non-DBS satellite, such as those used to provide GSO FSS, and DBS satellites generally are able to provide service beyond their initial 10-year license terms. It would also make DBS space station license terms consistent with the terms of most other space stations.

Optional Two-Step FCC/ITU License Application Process. The Commission adopted an optional two-step application process for GSO FSS applicants in 2015. Under that two-step application process, an applicant for a GSO FSS license using frequencies in “unplanned” bands must submit a draft Coordination Request filing to the Commission using a simplified application form—Form 312 (Main Form)—pay the full license application fee and post a $500,000 bond in order to establish and perfect a queue position. This first-step application submission establishes a place in the space station application processing queue as of the time of filing of the simplified Form 312 with the Commission. As a second step, the prospective licensee must file a complete license application within two years of submission of the Coordination Request materials or forfeit the value of the bond and lose the queue status gained by the prior Coordination Request filing. This two-step application process is completely optional, and, as an alternative, applicants may file a full application without first submitting a draft Coordination Request or posting the corresponding $500,000 bond. The Commission adopted a similar two-step application process for GSO FSS operation in “planned” frequency bands subject to Appendix 30B of the ITU Radio Regulations. The Commission extends the two-step process for GSO FSS operations in unplanned bands to DBS operations in planned bands, and, in this respect, will treat ITU filings to modify an existing frequency assignment in the Region 2 Plan, to include a new frequency assignment in the Region 2 Plan, or to include a new or modified frequency assignment in the List of the Regions 1 and 3 Plan in the same manner as a Coordination Request filing for GSO FSS operation in non-planned bands.

Unlike Coordination Requests in non-planned bands, however, the Commission will review a proposed filing under Appendices 30 and 30A prior to forwarding the filing to the ITU to ensure that it is compatible with other U.S. filings. This review is necessary to protect the rights of existing U.S. filings from being unduly eroded under the relevant ITU protection criteria by another U.S. filing. Accordingly, the party requesting a planned-band filing must either submit the results of an analysis demonstrating that the proposed operation will not “affect” any other U.S. filing under the relevant ITU criteria or, if another filing would be deemed affected, submit a letter signed by the affected operator (which may be the same as the operator requesting the new filing) that it consents to the new filing. This review is consistent with our conclusions above regarding the processing of all requests for DBS service. The Commission likewise requires applicants for DBS licenses using the two-step procedure to submit the application filing fee and a bond of $500,000 with their applications and ITU filings. As noted above, in the FSS licensing framework, an applicant submission with the Commission under the first step of the optional two-step procedure must be accompanied by the application fee and a $500,000 bond. The purpose of the application-stage bond is to deter speculation during the two-year period of queue priority before the applicant must submit a completed application. The Commission finds that these considerations also apply to DBS licensees.

Non-U.S. Licensed Systems. With the exception of the two-step processing procedure discussed above, the Commission also applies procedures and requirements proposed for DBS service license applications to requests to access the United States market by non-U.S. licensed space stations under our DISCO II framework. The Commission notes that the Commission decided in the DISCO II proceeding that entities wishing to serve the United States with a non-U.S. satellite, including DBS satellites, must file the same information as applicants for a U.S. space station license, whether or not that satellite is already licensed by another administration. Consequently, operators of non-U.S. licensed DBS space station seeking U.S. market access and entities filing earth station applications to access non-U.S. licensed DBS space stations must file the same information required under section 25.114 of the Commission's rules.

The Commission further notes that the United States took an exemption from the World Trade Organization's Basic Telecommunication Agreement for “one-way satellite transmission of DTH and DBS television services and digital audio services.” Thus, in order to serve the United States, foreign-licensed DBS systems must be found acceptable under the Effective Competitive Opportunities analysis the Commission adopted in our DISCO II proceeding in 1997 (ECO-Sat). The Commission does not intend to revisit any of these considerations. Foreign DBS systems requesting market access to serve the United States will be considered on the same first-come, first-served basis as applications for authority to provide DBS services.

Reduced Spacing for DBS Space Stations. The Commission concludes that the public interest would be served by granting requests for new DBS service via space stations at orbital locations less than nine degrees apart, but that the public interest would not be served by adopting specific rules, different from those contained in Appendices 30 and 30A of the ITU Radio Regulations, for accommodating requests for new DBS systems at reduced-spacing orbital locations. Instead, such requests can be processed using the “first-come, first-served” procedures for DBS service.

The Commission concludes that the potential benefits of adopting additional rules requiring existing DBS service providers to accommodate operations at reduced orbital spacing are outweighed by the potential harms to existing subscribers to DBS service. As an initial matter, it is not clear that access to additional DBS orbital locations is needed to introduce new video programming services since DBS subscribership is dropping in the United States as the marketplace for the distribution of video programming over the internet continues to grow and other opportunities exist to provide new video programming services in the United States in several frequency bands already allocated for satellite services. These include the 17/24 GHz BSS “reverse” band, which is specifically allocated for the provision of video programming, as well as frequency bands allocated for Ka-band GSO FSS. Furthermore, the proposals made by proponents for additional rules may require changes to the equipment currently used to provide DBS services to subscribers—such as requiring larger customer receive antennas and changes to space station designs—or would require existing DBS providers and their subscribers to accept more interference and service unavailability than is the case today.

However, the record does show that it is possible to accommodate the provision of new DBS services at reduced orbital spacings under existing rules. Specifically, our rules already allow us to consider requests for new DBS service at reduced orbital spacings if entities making such a request can coordinate their proposed operations with other U.S. DBS operators and secure agreements with other operators already having assignments in the ITU Region 2 Plans (or with prior requests for Plan modifications). The Commission will address such requests under these existing rules rather than adopt new rules.

This approach protects current DBS consumers from interference and degradation of their video reception, while at the same time allowing potential new DBS operators to demonstrate—through careful system design, advancing technology, and coordination with existing DBS systems—that new DBS systems can operate at orbital spacings of less than nine degrees without causing harmful interference to existing systems and their customers. It will also ensure that operations at reduced orbital separations will lead to the same levels of interference observed between two DBS systems operating nine degrees apart, with co-frequency, co-coverage operation, and nominal Appendix 30 power density levels. The Commission recognizes that this will require mitigation measures by future operators at reduced orbital spacings, such as reduced power density levels or non-fully overlapping coverages, but concludes that such measures are more easily and appropriately implemented by future entrants than retroactively imposed on existing DBS operators and their subscribers.

The Commission notes that the ITU Appendix 30 and 30A ITU rules do not govern the relationship between two DBS systems operating under U.S. ITU filings, but will use the same ITU criteria be used to determine compatibility between a new DBS application with respect to a DBS system already in the processing queue or previously authorized, even when both systems are or will be operating under U.S. ITU filings. If any of the frequency assignments of the system already in the queue or previously authorized is affected, according to the ITU criteria, the new DBS application can still be considered compatible with this system by submission of a letter signed by the affected operator indicating that it consents to the new application.

DBS Licensing “Freeze”. The Commission imposed a “freeze” on requests for new DBS systems in 2005. Having resolved the issues that caused the Commission to impose that freeze, we lift the freeze and will begin accepting new applications for DBS licenses after the effective date of rules adopted in this Report and Order. New applications or requests for U.S. market access will be accepted only after a date specified in a public notice, which the International Bureau will release after the rules have become effective.

Final Regulatory Flexibility Analysis

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Second Notice of Proposed Rulemaking (Second Notice) released in November 2018 in this proceeding. The Commission sought written public comment on the proposals in the Second Notice, including comments on the IRFA. No comments were filed addressing the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

A. Need for, and Objectives of, the Proposed Rules

The Report and Order modifies the Commission's rules and policies for licensing space stations in the Digital Broadcasting Satellite (DBS) Service. These changes, among other things, provide a licensing system under which new licenses for DBS satellites in reduced spacing orbital slots would be processed according to the Commission's rules for geostationary orbit space stations in the Fixed-Satellite Service.

B. Legal Basis

The action is authorized under sections 4(i), 303, and 309 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303, 309.

C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules May Apply

The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by adoption of proposed rules. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). Below, we describe and estimate the number of small entity licensees that may be affected by adoption of the proposed rules.

Satellite Telecommunications and All Other Telecommunications

The rules adopted in this Report and Order affect some providers of satellite telecommunications services. Satellite telecommunications service providers include satellite and earth station operators. Since 2007, the SBA has recognized two census categories for satellite telecommunications firms: “Satellite Telecommunications” and “Other Telecommunications.” Under both categories, a business is considered small if it had $32.5 million or less in annual receipts.

The first category of Satellite Telecommunications “comprises establishments primarily engaged in providing point-to-point telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” For this category, Census Bureau data for 2007 show that there were a total of 512 satellite communications firms that operated for the entire year. Of this total, 482 firms had annual receipts of under $25 million.

The second category of Other Telecommunications is comprised of entities “primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or voice over internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry.” For this category, Census Bureau data for 2007 show that there were a total of 2,383 firms that operated for the entire year. Of this total, 2,346 firms had annual receipts of under $25 million. We anticipate that some of these “Other Telecommunications firms,” which are small entities, are earth station applicants/licensees that might be affected if our proposed rule changes are adopted.

We anticipate that our rule changes may have an impact on earth station and space station applicants and licensees. Space station applicants and licensees, however, rarely qualify under the definition of a small entity. Generally, space stations cost hundreds of millions of dollars to construct, launch, and operate. Consequently, we do not anticipate that any space station operators are small entities that would be affected by our proposed actions.

D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities

The Report and Order makes several rule changes that would affect compliance requirements for earth station and space station operators. Most proposed changes, however, are directed at space station applicants and licensees. As noted above, these parties rarely qualify as small entities.

For example, we allow additional use of certain frequencies within the 17.2-17.7 GHz band, subject to compliance with technical limits designed to protect other users of the bands.

We adopt modified rules for satellite system implementation to provide additional flexibility to operators. In total, the rules adopted in the Report and Order are designed to achieve the Commission's mandate to regulate in the public interest while imposing the lowest necessary burden on all affected parties, including small entities.

E. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rules for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

The NPRM proposing the rules adopted in the Report and Order sought comment from all interested parties. Specifically, small entities were encouraged to bring to the Commission's attention any specific concerns they may have with the proposals outlined in the NPRM. No commenter addressed the impact of the rules proposed in the NPRM and adopted in the Report and Order.

In this NPRM, the Commission sought comment on means to minimize negative economic impacts on applicants and licensees, including small entities, by permitting DBS space stations in orbital locations between the currently authorized orbital locations. No commenter addressed means to minimize negative impacts on applicants and license, including small entities.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

None.

Incorporation by Reference

This final rule incorporates by reference two elements of the ITU Radio Regulations, Edition of 2012, into part 25 for specific purposes:

(1) ITU Radio Regulations, Volume 2: Appendices, Appendix 30, “Provisions for all services and associated Plans and List for the broadcasting-satellite service in the frequency bands 11.7-12.2 GHz (in Region 3), 11.7-12.5 GHz (in Region 1) and 12.2-12.7 GHz (in Region 2),” Edition of 2012, http://www.itu.int/pub/R-REG-RR-2012. This Appendix establishes an international plan defining frequency assignments to space stations for each country operating in the broadcasting-satellite service in the 11.7-12.5 GHz (Region 1), 12.2-12.7 GHz (Region 2), and 11.7-12.2 GHz bands, including procedures to modify the plan to introduce new frequency assignments.

(2) ITU Radio Regulations, Volume 2: Appendices, Appendix 30A, “Provisions and associated Plans and List for feeder links for the broadcasting-satellite service (11.7-12.5 GHz in Region 1, 12.2-12.7 GHz in Region 2 and 11.7-12.2 GHz in Region 3) in the frequency bands 14.5-14.8 GHz and 17.3-18.1 GHz in Regions 1 and 3, and 17.3-17.8 GHz in Region 2,” Edition of 2012, http://www.itu.int/pub/R-REG-RR-2012. This Appendix establishes an international plan defining frequency assignments for feeder links to space stations for each country operating in the fixed-satellite service in 14.5-14.8 GHz and 17.3-18.1 GHz in Regions 1 and 3, and 17.3-17.8 GHz in Region 2 bands, including procedures to modify the plan to introduce new frequency assignments.

(3) The materials above are available for free download at http://www.itu.int/pub/R-REG-RR-2012. In addition, copies of all of the materials are available for purchase from the ITU through the contact information provided in revised § 25.108, and are available for public inspection at the Commission address noted in the rule as well.

List of Subjects in 47 CFR Part 25

• Administrative practice and procedure
• Earth stations
• Incorporation by reference
• Satellites

The Federal Communications Commission amends 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. 154, 302, 303, 307,309, 310, 319, 332,605, and 721 unless otherwise noted.

2. In § 25.108:

a. In paragraph (a),

i. Remove the words “this paragraph (a)” and add, in their place, “this section”; and

ii. Remove the phrase “call 202-741-6030” and add, in its place, “email fr.inspection@nara.gov; and

b. At the end of paragraph (c)(5), remove the phrase “§§ 25.117(h) and 25.118(e)” and add, in its place, “§§ 25.110(b), 25.117(h), and 25.118(e)”.

3. Delayed indefinitely, in § 25.108, at the end of paragraphs (c)(5) and (6), remove the phrase “25.117(h), and 25.118(e)” and add, in its place, “25.117(h), 25.118(e), and 25.140(b)”.

4. Amend § 25.110 by revising paragraphs (b)(3) introductory text and (b)(3)(iii) and adding paragraph (b)(3)(iv) to read as follows:

5. Delayed indefinitely, amend § 25.114 by revising paragraph (a)(3) to read as follows:

6. Amend § 25.121 by revising paragraph (a)(1) to read as follows:

7. Delayed indefinitely, amend § 25.140 by revising the section heading and adding paragraph(b)(6) to read as follows:

8. Amend § 25.148 by removing and reserving paragraphs (b), (d), and (e).

9. Amend § 25.164 by revising paragraph (a) to read as follows:

10. Amend § 25.165 by revising paragraph (a)introductory text to read as follows: