Proposals for satellite and space operations call for new commingling of spectrum operations.

This Notice of Proposed Rulemaking (NPRM) looks to alter the way in which certain spectrum is to be shared between the government and private users.  At first glance it is about as tedious and picky as anything coming out of the FCC. But it may signal the beginning of the end of a basic tenet of U.S. spectrum management.

Radio spectrum is allocated separately for federal and non-federal use. Take a look at the official Table of Frequency Allocations (or type a frequency into this unofficial but easier-to-use version). Notice the separate federal and non-federal entries. Federal spectrum is regulated by the National Telecommunications and Information Administration (NTIA) through its Office of Spectrum Management. Non-federal spectrum, also called “private” or “commercial,” comes under the jurisdiction of the FCC. To be sure, some spectrum is allocated jointly for federal and private use, regulated by the two agencies acting cooperatively. But even then, NTIA manages federal users operating federal equipment, while the FCC oversees private users working with private equipment.

The federal-private distinction, basic to the statutory scheme of U.S. communications law, has worked successfully for decades. Now, though, it is starting to come unglued.

We might have expected the fault lines to emerge in connection with very new technologies. Surprisingly, they are appearing instead in the well-established field of communications with satellites and spacecraft.

The federal-private split extends to the frequencies used for satellite communications, and also to the earth stations and to the satellites themselves. Ordinarily, federal agencies operate federal earth stations, using federal spectrum to communicate with federal satellites, while private users rely on private earth stations using private spectrum to communicate with private satellites. Still, the regulatory membrane separating the two has never been completely airtight. In particular, federal earth stations have long been allowed to operate with private satellites, so long as they do so on a non-interference basis, giving priority to private earth stations.

Back in 2006, NTIA asked the FCC to change these rules, so that federal earth stations communicating with private satellites would be “co-primary” with private earth stations in certain bands. That would put federal and private users on an equal footing by requiring each to protect the other’s operations in those affected bands.

The frequencies at issue are 3.6-4.2, 5.85-6.725, 10.7-12.2, 12.7-13.25, 13.75-14.5, 18.3-19.3, 19.7-20.2, 27.5-30, 37.5-39.5, and 47.2-50.2 GHz. Most of the operations in question are fixed satellite; some are mobile satellite. Complicating matters, several of the bands are shared in part with private terrestrial fixed microwave users.

The private satellite and fixed microwave industries responded to the NTIA request, back in 2006, with cautious support. Private satellite interests wanted to be sure that the federal earth stations would be subject to the same technical and enforcement rules as private earth stations, and particularly, that applications for private earth stations would not be delayed for coordination with NTIA. Private fixed microwave interests wanted assurance that federal earth stations would conduct advance frequency coordination under the same procedures as do private earth stations. That industry likewise was concerned about delays, and mentioned ongoing problems in coordinating with federal fixed service users in the shared 23 GHz band.

The FCC now proposes to grant NTIA’s request, subject to four objectives:

  • parity between federal and private earth stations;
  • continuing FCC oversight of the private satellite network, even though NTIA would authorize federal earth stations;
  • no delay to the FCC’s rulemaking or licensing, or to frequency coordination; and
  • procedures to ensure that both federal and private earth stations comply with applicable FCC rules.

In a different world, the FCC could just wave its wand and adopt the appropriate rules. But the current regulatory scheme makes a simple solution impossible, because the NTIA request rips right through the federal-private partition. Efforts to accomplish the desired result, while still respecting the underlying statutes, have taxed the best legal minds at the FCC. The NPRM ties itself in knots, page after closely-analyzed page, struggling to work within a system that may have suddenly become obsolete. Much of the discussion, for example, concerns whether to add a new allocation to the table of allocations, or instead to add a footnote to an existing allocation – just the sort of hairsplitting that gives lawyers a bad name. But the rigidities built into the existing structure leave the FCC no choice.

The job would simpler if Congress were to step in and adjust the FCC’s and NTIA’s respective jurisdictional limits. That, however, presupposes a functioning Congress, one willing to put aside partisan bickering long enough to work through the details of technically complex legislation. We doubt that will happen soon.

In a second portion of the NPRM, the FCC proposes to modify an allocation footnote to allow federal satellites in the tiny 399.9-400.05 MHz band. (Tiny indeed; a single FM broadcast station takes up more spectrum.) Although allocated for shared federal and private use, the band has no private users. The footnote in question now limits federal use to earth stations operating with private satellites. The government wants to use the band for a new federal satellite system to supplement Argos, used for ocean monitoring, tracking wildlife, relaying information by humanitarian agencies from remote areas, monitoring water resources, and tracking ships, among other things. The footnote would have to be changed accordingly.

A third issue arises from the privatization of space operations. Not long ago, the federal government conducted all launch operations, even of private satellites, and did it using federal spectrum. Now commercial launch operators like SpaceX and Orbital Sciences want to use the same frequencies. In fact they have been using those frequencies, under special temporary authorities. The FCC proposes to add private allocations to three hitherto federal bands: 420-430 MHz, used to send self-destruct signals to spacecraft when something goes badly wrong; 2200-2290 MHz, for launch telemetry; and 5650-5925 MHz, for radar to track the progress of a launch.

Finally, the FCC has appended a Notice of Inquiry that invites interested parties to comment on future spectrum requirements of the commercial launch industry and possible commercial space stations.

Private and federal spectrum users all know that spectrum shortages will require more sharing of frequencies. This NPRM is an early sign that sharing will also have to extend between the federal and private domains – if the FCC and NTIA lawyers can work out the details without violating outdated laws.

The deadlines for comments in response to the NPRM have not yet been announced. Check back here for updates.