[Federal Register Volume 66, Number 109 (Wednesday, June 6, 2001)]
[Proposed Rules]
[Pages 30361-30365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14141]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 25

[IB Docket 01-96; FCC 01-134]


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

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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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

[[Page 30362]]

internet at [email protected]; phone 202-418-0214.

FOR FURTHER INFORMATION CONTACT: For more information regarding the 
Notice of Proposed Rulemaking contact: J. Mark Young at (202) 418-0762, 
internet: [email protected], 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 [email protected].

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, (202) 857-3800.

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\
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    \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 Sec. 601(6).
    \4\ Id. at Sec. 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.
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    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.
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    \6\ See paragraphs 50-69, supra.
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    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.
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    \7\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) Code 51334.
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    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.
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    \8\ See paragraph 9, supra.
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    We therefore certify that the rules proposed in this NPRM will not 
apply to any small entities. The Commission's

[[Page 30363]]

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 [email protected], 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.


[[Page 30364]]


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


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


Sec. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 30365]]

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.

[FR Doc. 01-14141 Filed 6-5-01; 8:45 am]
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