NASA Technical Reports Server (NTRS) 19940018277: Use of negotiated rulemaking in developing technical rules for low-Earth orbit mobile satellite systems

6 Pages·0.45 MB·English

by  NASA Technical Reports Server (NTRS)

N94- 22750
Use of Negotiated Rulemaking in Developing Technical Rules
for Low-Earth Orbit Mobile Satellite Systems
Leslie A. Taylor
Leslie Taylor Associates
6800 Carlynn Court
Bethesda, MD 20817-4302
301 229 9341
fax [phone]
ABSTRACT qualified applications. With regard to the
VHF/UHF systems, the Advisory Committee
Technical innovations have converged submitted a consensus report to the FCC.
with the exploding market demand for The process for the systems operating in the
mobile telecommunications to create the bands above 1 GHz involved more parties
impetus for low-earth orbit (LEO) and more issues but still provided the FCC
communications satellite systems. The so- useful technical information to guide the
called "Little LEOs" propose use of VHF adoption of rules for the new mobile
and UHF spectrum to provide position - satellite service.
location and data messaging services. The
INTRODUCrION
so-called "Big LEOs" propose to utilize the
RDSS bands to provide voice and data
services. In the United States, several Miniaturization has enabled the space
applications have been filed with the U.S. industry to build smaller satellites with more
Federal Communications Commission efficient power. The shrinking of satellites is
(FCC) to construct and operate these accompanied by a decrease in costs, both for
mobile satellite systems. To enable the building the satellite and launching it. This
prompt introduction of such new technology has brought about a revolution in designing
services, the FCC is using innovative communications satellite systems, and has
approaches to process the applications. enabled entrepreneurs to consider deploying
Traditionally, when the FCC is faced with satellite systems to deliver mobile voice
"mutually exclusive" applications, _ a and/or data communications. Nine
grant of one would preclude a grant of the companies have applied to the FCC for
others, it uses selection mechanisms such as authority to construct and operate
comparative hearings or lotteries. In the constellations of non-geostationary satellite
case of the LEO systems, the FCC has systems to provide mobile voice, data and
sought to avoid these time-consuming position-location services.
approaches by using negotiated rulemakings. The FCC instituted a new regulatory
The FCC's objective is to enable the procedure to enable these systems to be
multiple applicants and other interested licensed and placed into service promptly.
parties to agree on technical and service This procedure is called Negotiated
rules which will enable the grant of all Rulemaking.
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BELOW 1 GHz APPLICATIONS: THE development of technical and service rules,
LITTLE LEOS and application processing.
The applicants petitioned for
In February 1990, ORBCOMM, a subsidiary frequencies used primarily in the United
of Orbital Sciences Corporation, filed an States by the Department of Defense and
application to build, launch and operate a for various fixed and mobile services around
constellation of small satellites in low earth the world. After gaining the support of the
orbit to provide low cost, position United States government, the applicants,
determination and messaging services to particularly ORBCOMM, marshalled
millions of consumers in the United States support for the new mobile satellite service
and abroad. It represented the first private, from countries throughout the world, and
global satellite system designed to provide gained the needed spectrum allocations at
direct access to the satellite for the user. the 1992 World Administrative Radio
Orbcomm's 24 satellites are projected to Conference. The bands allocated are 137-
weigh just 330 pounds, with a per satellite 138 MHz, 148-150.05 MHz, 400.15-401 MHz
cost of $8.6 million. To keep costs down, and 399.9-400.05 MHz.
Orbcomm proposed the use of UHF and
VHF frequencies to enable terminals to be ABOVE 1 GHz APPLICATIONS: THE BIG
built with currently available radio LEOS
components.
Motorola Satellite Corp., in June, 1990,
announced its plans to launch and operate a
LEOs below 1 GHz LEO satellite network to provide mobile
voice communications to virtually any point
ORBCOMM on earth. The Iridium TM system is essentially
STARSYS a cellular network with the microwave
VITA repeating towers, consisting originally of 77
satellites, orbiting 413 nautical miles above
the ground. Motorola has since reduced the
number of satellites to 66.
Other applications for "Little LEO" Ellipsat Corp., a small entrepreneurial
service were filed by STARSYS, Inc., an firm (Fairchild is now an investor), in
affiliate of North American CLS, Inc., November 1990, filed an FCC application to
Volunteers in Technical Assistance VITA), launch six small satellites into elliptical orbit,
and Leosat Corporation. North American to provide voice as well as position location
CLS provides services and equipment to service. In addition to being the first U.S.
North American users of the French/U.S. commercial system to propose use of
Argos satellite system. VITA sought elliptical orbits, Ellipsat was the first of the
authorization to use three small satellites for LEO applicants to request the RDSS
a packet-switched network, for its non-profit frequencies for its system.
disaster and medical relief service in The RDSS frequencies -- 1610-1626.5
developing countries. Leosat proposed MHz (Earth-to-space) and 2483.5-2500 MHz
serving the automotive market primarily. (space-to-Earth)-- had been allocated for
The FCC consolidated these proposals, and position location services at the 1987 World
their associated rulemaking petitions, for Administrative Radio Conference on Mobile
purposes of spectrum allocation, Services.
In December 1990,Motorola filed for its bands and noted the need for a separate
systemwith the FCC, alsoproposingto use proceeding to address MSS service rules and
the RDSSfrequenciesfor the Iridium licensing, as well as the possibility of
TM
system. The FCC then established a "cut-off adopting a limitation on the type of access
method to be used to maximize sharing
date," requiring comments on the Motorola
and Ellipsat application, as well as any other possibilities.
applications proposing to use the RDSS The NPRM highlighted the many
technical issues that would have to be
frequencies, to be filed by June 3, 1991.
Four entities filed applications on June 3, addressed, if not resolved, before the
1991: (1) including Loral Qualcomm Commission could proceed to process the
Satellite Services (LOSS) for its 48 satellite pending applications. Not the least of these
Globalstar TM system; (2) TRW Inc. for a was Motorola's proposed bidirectional
medium earth orbit, 12 satellite system, operation, which vastly complicates, if not
Odyssey_m; (3) Constellation precludes sharing spectrum with any other
Communications, for a 48 satellite system, communications system, including other
Aries; and (4) the American Mobile Satellite MSS systems. Another thorny issue
concerns the extent to which compatible
Corp., AMSC, for use of the 1616.5-1626.5
MHz band for its geosynchronous mobile operations could be attained by the four
satellite system. CDMA systems, as well as compatibility with
the FDD-TDD system proposed by
Motorola.
LEOs above 1 GHz
FCC PROCESSING METHODS FOR
MUTUALLY EXCLUSIVE APPLICATIONS
Motorola
Loral Qualcomm
TRW In the case of applications for the same
Constellation spectrum which are "mutually exclusive,"
that is, the grant of one would result in a d_.ge
Ellipsat
facto denial of the other, Section 309 of the
Communications Act requires a hearing.
This right was affirmed by the U.S. Supreme
The United States, with the support of Court in the case of Ashbacker v. United
these entities, was able to obtain a primary State.__...A32s,6 U.S. 327 (1945) which states
allocation in the 1610-1626.5 MHz and that, %vhere two bona fide applications are
2483.5-2500 MHz band, and a secondary mutually exclusive the grant of one without
allocation in the 1613.8-1626.5 MHz (space- a hearing to both" is improper." Hearings
for radio licenses have been used
to-Earth) to accommodate Motorola's desire
to operate bidirectionally in the upper part extensively, although they are expensive and
of the L-band. time-consuming. In some cases, radio
The FCC, in August, 1992, proposed license hearings have taken up to 10 years.
adopting the spectrum allocations in the Wherever possible, the FCC has sought
United States. In its Notice of Proposed to use various mechanisms to avoid the
Rulemaking (NPRM), ET Docket No. 92-28, hearing requirement of the Communications
FCC 92-358, the Commission sought Act. The FCC has obtained authority from
comment on numerous technical aspects the Congress to conduct lotteries and has
regarding operation of systems in these used this mechanism, in place of hearings, to
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grant licensesfor suchservicesascellular,
While noble in intent, the Pioneer's
pagingandmultipoint distribution service.
Preference is based on the subjective
In the caseof the domestic-fixedsatellite
judgment of the FCC as to what is
service,the Commissionhasestablished
"innovative." As the financial stakes are
thresholdfinancial qualificationswhich have
high in numerous new communications
enabledit to eliminate sufficient applicants
services, such as PCS, disappointed
for orbital locationsto avoid comparative
applicants have already taken the
hearings. The useof so-calledthreshold Commission to Court. This author believes
qualificationshavebeen permitted by the
that ultimately, the use of the Pioneer's
Courts.
Preference will be determined inconsistent
with rights of applicants to comparative
consideration.
FCC Processing Methods The next approach to expediting the
processing of applications for new
• Comparative Hearings communications services is likely to be the
• Lotteries auctioning of spectrum. The Congress, in
• Pioneer's Preference making available spectrum currently
allocated for use by the U.S. government, is
expected to establish an auction mechanism
for commercial use to expedite the use of
Most recently, the Commission has the spectrum as well as to provide revenue
developed a "Pioneer's Preference," which it for the federal government. There is a
is attempting to utilize as a threshold possibility that the Congress may also
qualification to aid in the processing of authorize the FCC to use auctions for
multiple applications. Se___gPe,ioneer's spectrum other than that which will be made
Preference Order, 6 FCC Rcd 3488 (1991), available from spectrum allocated to the
recon, granted in part_ denied in part, 7 government. In particular, the Congress is
FCC Rcd 1808 (1992), further recon., FCC considering the applicability of auctions to
93-116, released March 8, 1993. The aware licenses for the provision of Personal
Pioneer's Preference allows an applicant Communications Services (PCS).
that demonstrates that it "has developed an In the meantime, the FCC is attempting
innovative proposal that leads to the to use new alternative dispute resolution
establishment of a service not currently mechanisms to develop technical rules for
provided or an enhancement of an existing new services which will enable it to grant all
service" will be placed on a pioneer's qualified applications. This approach will
preference track, and will not be subject to allow the marketplace, rather than the
competing applications. Thus, if otherwise government, to determine which systems will
qualified, the applicants will receive a succeed, and which will fail.
license. Other applicants will compete for
the remaining licenses on a separate track. NEGOTIATED RULEMAKING
The Commission has stated that a PROCEEDINGS
preference will not be granted unless there
is sufficient spectrum "to permit at least one The FCC's authority to use a negotiating
additional license to be granted for the same committee mechanism is contained in the
geographic area." Further Reconsideration, Federal Advisory Committee Act (FACA), 5
Footnote 4.
U.S.C. App. 2, and the Negotiated
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Rulemaking Act of 1990(NRA), Public Law a pioneer's preference award to VITA.
101-648, November 28, 1990. By law, the Leosat's application was dismissed as
committee consists of representatives of the improperly filed.
Prior to the commencement of the
parties whose interests will be significantly
affected by the outcome of the rules. NRM, Orbcomm, Starsys and VITA met
The goal of the Committee is to reach and agreed on a proposed set of rules,
consensus on the language and substance of which were submitted to the FCC. The
appropriate rules. If a consensus is reached, joint comments stated that all three systems
it is used as the basis of the FCC's could operate compatibly in the spectrum
proposals. If a consensus is not reached, available. In addition, rules were agreed to
majority and minority input can still be used concerning application requirements, license
by the FCC in developing regulations. The qualifications and technical conditions.
With this favorable environment, the
Commission can use a negotiated
rulemaking (NRM) process if it determines NRM was convened, consisting of the
that there is a "reasonable likelihood" that applicants, existing users of the frequencies,
the committee can be adequately staffed potential band users and adjacent band
with interested persons able to negotiate in users. The parties met for approximately six
good faith, and that there is a reasonable weeks and issued a report on September 16,
possibility of consensus. 1992, reflecting the unanimous agreement of
In setting up an advisory committee, the all the parties. This report formed the basis
FCC can identifies specific issues it wishes for the Notice of Proposed Rulemaking
addressed, suggests limits as to the number issued by the FCC in February 1993.
of participants, and nominates a facilitator By all accounts, this first FCC negotiated
to serve as chair of the committee. The rulemaking procedure worked to the
facilitator is a neutral party, without direct advantage of the applicants, the FCC and
interest in the rules being discussed, helps the public interest. The affected parties
the meetings proceed and manages the quickly reached agreement, expediting FCC
action on the service and technical rules and
record and minute keeping.
While consensus is the goal, the FCC enabling the Commission to move forward
recognizes that such will not always be on the processing of the applications.
possible. Accommodation is made for such
USE OF NEGOTIATED RULEMAKING
an eventuality, with the FCC leaving up to
the committee the definition of consensus. FOR LEOS ABOVE 1 GHz
If necessary, majority and minority reports
can be submitted. Records of the meetings The "Big LEO" regulatory situation is
are placed in the public record and meetings more complex than that of the "Little
are open to the public. LEOS." This is in part due to the number
of parties (five "Big LEO" applicants plus
USE OF NEGOTIATED RULEMAKING AMSC in contrast to two commercial "Little
FOR LEOS BELOW 1 GHz LEO" applicants and one non-profit
applicant).
In October 1991, the FCC issued a In addition, in the Big LEO proceeding,
Notice of Proposed Rule Making, proposing Motorola has repeatedly emphasized its
allocation of the requested UHFNHF requirement for sole use of the spectrum it
frequencies to the "little LEOs." In seeks (1616-1626.5 MHz on a bidirectional
February 1992, the FCC tentatively awarded basis) as well as its unwillingness to revise
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anyaspectof its system design. back in the lap of the FCC.
Having already tentatively concluded not Despite the inability of the negotiation
to award a Pioneer's Preference to any of to unanimously resolve the most difficult
the Big LEO applicants, in August 1992, the issues, consensus as to methods of sharing
FCC proposed the establishment of a with radioastronomy, GLONASS and other
negotiated rulemaking to settle the services appears likely. These parts of the
outstanding technical and operational rules report, as well as the tremendous amount of
for the Big LEO systems. Most importantly, technical material and analysis presented,
the Commission was seeking a mechanism constitute valuable inputs to the Commission
by which it could grant all of the as well as the participants. This input will
applications and would not have to make ease the Commission's enormous task of
the hard choices between the Motorola
resolving this complex, but extremely
proposal to band segment, which would important proceeding.
leave virtually unusable spectrum in the
lower L-band to the other applicants, and
the full band sharing approach which would
Negotiated Rulemakin2
require major system changes by Motorola.
The FCC identified two primary issues • less adversarial
to be addressed by the NRM: (a) what • technical focus
technical rules should be adopted for the
• consensus input to FCC
service "to maximize the sharing of the
• speeds process
spectrum and the capacity for multiple
entry;" and (b) what technical rules should
be adopted in order for the service to co-
exist with other services.
The participants had the opportunity to
The NRM began its work on January 13, work together on complex interference and
1993 and concluded on April 5, 1993. The sharing issues. This experience should
Committee consisted of the applicants, reduce the controversy over proposed rules
including AMSC, potential future applicant that the FCC issues, provide a useful
Celsat, various federal agencies such as foundation for actual system coordinations,
NASA, DOD and the FAA, and and provide a basis for revising system
representatives of the aviation industry, technical characteristics to enable the MSS
including ARINC and manufacturers of systems to operate compatibly with other
GLONASS and GPS receivers. users of the spectrum.
The main issues addressed by the
committee, in addition to the fundamental CONCLUSION
question of sharing the available spectrum,
were sharing with radioastronomy, The FCC has now concluded two
GLONASS and other primary users of the negotiated rulemakings. Both involved the
band.
development of rules for new mobile
As this paper was being written, it satellite systems. While a complete
appeared that a majority report -- consensus was not achieved in both cases,
supporting total band sharing -- and a the process appears to have reduced costs,
minority report proposing band and expedited FCC rulemaking and licensing
segmentation, is the most likely outcome. actions with resultant benefit to the users of
This result would place the toughest decision these new communications services.
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