Tailor-Made: FCC Recognizes Need for Bespoke Rules for Smallsats

On April 17, 2018 the Federal Communications Commission adopted a notice of proposed rulemaking (“NPRM”) that seeks to streamline and otherwise tailor the agency’s current one-size-fits-all satellite regulations for small satellite systems (commonly referred to as “smallsats”). The NPRM sets forth proposals to expedite smallsat approvals and identifies certain frequency bands for potential use by smallsats.

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.

Smallsat systems, under the proposed regulations, that do not meet the above criteria would have to go through the conventional approval process under the Commission’s Part 25 rules.

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.