Page 1 Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C.
____________________________________
)
Application of
)
)
)
SPACE EXPLORATION HOLDINGS, LLC
)
For Modification of Authorization for the )
SpaceX NGSO Satellite System
)
____________________________________)
Call Signs: S2983 and SIBFS File Nos. SAT-MOD-20181108-and SAT-MOD-20190830-
CONSOLIDATED OPPOSITION TO PETITIONS
OF SPACE EXPLORATION HOLDINGS, LLC
Space Exploration Holdings, LLC, a wholly owned subsidiary of Space Exploration
Technologies Corp. (collectively, “SpaceX”), hereby opposes the Petition to Defer filed by SES
Americom, Inc. and O3b Limited (“SES/O3b”) and the Petition for Reconsideration and Petitions
to Deny or Defer of Kepler Communications, Inc. (“Kepler”). 1 SpaceX proposes an incremental
modification of its non-geostationary orbit (“NGSO”) satellite system to adjust the orbital spacing
of its satellites as currently authorized 2 in order to accelerate its timetable for providing high speed,
low latency, competitively priced consumer broadband service throughout the United States.
Notably, SpaceX can accomplish this acceleration and reach U.S. consumers faster without
increasing the number of satellites, or changing their orbital altitude, their inclination, or their
operational characteristics. As discussed further below, SES/O3b and Kepler fail to present any
See Petition to Defer of SES Americom, Inc. and O3b Limited (“SES/O3b Petition”); Petitions of Kepler
Communications, Inc. (“Kepler Petition). Both filings were submitted on October 15, 2019. Both were filed in
IBFS File No. SAT-MOD-20190830-00087. The Kepler Petition also was filed in IBFS File Nos. SAT-MOD20181108-00083 and SAT-STA-20190924-00098; SpaceX will address Kepler’s STA arguments in a separate
filing.
See Space Exploration Holdings, LLC, 34 FCC Rcd. 2526 (IB 2019) (“SpaceX Modification”). Page 2 reason to deny or defer the modification application – or to reconsider the SpaceX Modification
order – and the Commission should grant it expeditiously. A prompt approval will allow SpaceX
to proceed with development and deployment of its NGSO system and extend the benefits of
broadband service to customers in rural and other areas of the U.S. currently underserved or
unserved by other alternatives.
BACKGROUND
A recent report found that 31 percent of U.S. households do not currently have a true
broadband connection (25 Mbps per second download speed or greater). 3 This equates to roughly
100 million consumers, totaling nearly one-third of the U.S. population. The vast majority of these
consumers are in rural markets. SpaceX has designed its satellite constellation to deliver high
speed, low latency, competitively priced broadband service to consumers anywhere in the United
States, including those who live in areas currently underserved or entirely unserved by terrestrial
broadband systems. SpaceX is continually looking for ways to optimize its constellation and
accelerate service deployment so that it can contribute its connectivity to heal this digital divide
more quickly.
The Commission authorized SpaceX in 2018 to construct, deploy, and operate an NGSO
constellation consisting of 4,425 satellites operating in 83 orbital planes at five different altitudes,
using Ku- and Ka-band spectrum. 4 The Commission granted SpaceX a modification of that
authorization in April 2019 to relocate 1,584 satellites previously authorized to operate at an
altitude of 1,150 km to an altitude of 550 km. In doing so, the Commission applied the established
See Press Release, The NPD Group, Inc., Thirty-One Percent of U.S. Households Lack a Broadband Connection
(July 25, 2019), https://www.npd.com/wps/portal/npd/us/news/press-releases/2019/thirty-one-percent-of-u-s-households-lack-a-broadbandconn
ection/?utm_source=
See Space Exploration Holdings, LLC, 33 FCC Rcd. 3391, ¶ 11 (2018). Page 3 standard for determining whether such a modification would serve the public interest: “If the
proposed modification does not present any significant interference problems and is otherwise
consistent with Commission policies, it is generally granted.”
After careful analysis, the
Commission concluded that SpaceX’s proposal did not present any significant interference issues. SpaceX moved quickly to deploy under its modified authorization by launching its first satellites. In addition, through extensive study of orbital formations and spacecraft performance,
SpaceX has identified a system deployment approach that will provide robust broadband service
to more Americans more quickly by populating three orbital planes with a single launch.
Accordingly, in its application, SpaceX proposed to reorganize its satellites at their already
authorized altitude so that it can place coverage and capacity more evenly and rapidly across more
of the U.S., accelerating broadband service to middle and southern states, as well as to Hawaii,
Puerto Rico, and the U.S. Virgin Islands. Only two parties – SES/O3b and Kepler – raised
concerns about this proposed modification, and neither provide any reason to deny or defer the
modification application – or to reconsider the SpaceX Modification order.
DISCUSSION
I.
PETITIONERS HAVE PROVIDED NO BASIS FOR DEFERRING ACTION ON SPACEX’S
MODIFICATION APPLICATION
SES/O3b and Kepler assert that the Commission should defer consideration of SpaceX’s
modification application for several reasons.
SES/O3b claims that SpaceX should provide
additional information so that interested parties can evaluate its compliance with applicable limits
on equivalent power flux-density (“EPFD”), and that in a limited number of scenarios SpaceX’s
Id. ¶ 11. Page 4 modified operations may result in slightly higher levels of interference to the O3b network. For
its part, Kepler asserts – without supporting precedent – that the Commission should not act on the
current modification until it has resolved the petition to reconsider the SpaceX Modification order,
and relies on conjecture rather than analysis to sketch out unsubstantiated concerns.
As discussed below, much of the information SES/O3b seeks is already publicly available,
and even though the remaining information typically would not be filed until after the application
is granted, SpaceX will provide it directly to SES/O3b with this Opposition. In addition, the
evidence SpaceX presented with its application demonstrates that there will be no significant
increase in interference to O3b. Nor does Kepler’s speculation provide any reason for the
Commission to delay consideration of the pending application. Accordingly, the Commission
should deny the petitions.
A. SES/O3b Will Continue to Have All Information Necessary to Conduct its Own
EPFD Analysis of SpaceX’s System
When the Commission granted the initial SpaceX Modification, it waived the requirement
that SpaceX receive a favorable or “qualified favorable” finding from the ITU with respect to its
compliance with applicable EPFD limits prior to commencing operations. 7 However, it retained
the requirement that SpaceX receive such a finding from the ITU at some point and adjust its
operations as necessary to satisfy ITU requirements, essentially allowing SpaceX to proceed only
at its own risk. 8 As a result, SpaceX remains highly motivated to ensure that its system will not
exceed applicable EPFD limits.
SpaceX Modification ¶ 37.
Id. ¶ 28. Because this is the operative condition applicable to SpaceX’s authorization, there was no need for
SpaceX to seek a waiver of the no-longer-applicable condition that it receive an ITU finding before commencing
operations. See SES/O3b Petition at 4. Page 5 SES/O3b complains that SpaceX’s “ever-evolving system design” could render ITU
evaluation of prior configurations moot and effectively preclude the ITU or any other interested
party from validating SpaceX’s ongoing compliance with EPFD limits. It cites a recent set of ITU
filings submitted by SpaceX and imagines that these submissions will result in a “years-long time
span” required for ITU processing. To address this concern, SES/O3b requests that SpaceX be
required to submit the necessary input files so that SES/O3b can undertake its own EPFD analysis. Kepler cites the same set of ITU filings and urges the Commission to consider them in the context
of the current modification application. 10 Several responses are in order.
First, the recent ITU filings identified by SES/O3b and Kepler in no way relate to the
current application. SpaceX does not propose to operate its modified system under those filings.
They are simply a red herring in this proceeding, and the Commission should not be distracted by
them.
Second, the pace of SpaceX’s filings is not unusual for an innovative service and NGSO
system. SpaceX has requested two modifications in the nearly 19 months since its original
authorization was granted. By comparison, O3b initially received access to the U.S. market in
2012 and then proposed changes to its system six times over the next five years. 11 Rather than
assuming that evolution in design or updates in capabilities are evidence of some scheme to evade
regulatory oversight, such developments should be viewed instead as the natural progression of
advanced satellite systems as time and experience present new opportunities for optimization.
While traditional satellite systems may have operated under longer time horizons with fewer
See SES/O3b Petition at 4-6.
See Kepler Petition at 14.
See IBFS File Nos. SES-LIC-20100723-00952, SES-MOD-20140814-00652, SAT-LOI-20141029-00118, SATAMD-20150115-00004,SAT-MOD-20160624-00060, SAT-AMD-20161115-00116, and SAT-AMD-2017110900154. Page 6 interim changes, the emerging generation of spacecraft and systems reflect a more flexible and
responsive design, manufacturing, and deployment structure that allows iteration and
improvement, as expressed in periodic modifications. SES/O3b’s baseless attempts to insinuate
any other motive here are designed to grab headlines and should be ignored.
Third, it is not at all unusual that such information does not accompany an application for
modification. The Commission traditionally includes a condition in NGSO satellite authorizations
issued to U.S. licensees requiring the submission of the information required for Advance
Publication, Coordination, and Notification of the frequency assignment(s) for the licensed
constellation. SpaceX’s authorization includes such a condition and it contemplates that such
information will be submitted after the license has been granted. 12 The ITU typically publishes
such information as it is received, meaning that any interested party – including SES/O3b – will
be able to download and analyze the data should it wish to do so. For example, all of the input
files submitted for the EPFD analysis of SpaceX’s last modification are available from the ITU’s
website. Nonetheless, as noted, in order to allay SES/O3b’s concern, SpaceX will provide SES/O3b
along with this Opposition the input data files used to produce the EPFD output graphs included
with its application. SES/O3b will then be able to conduct its own analysis. SpaceX is confident
that the results will be consistent with the analysis presented in its application and will confirm
that the proposed modification will comply with applicable EPFD limits.
See, e.g., SpaceX Modification ¶ 32a.
Those materials are available at
https://www.itu.int/ITU-R/space/asreceived/Publication/DisplayPublication/8953 (STEAM-1),
https://www.itu.int/ITU-R/space/asreceived/Publication/DisplayPublication/8956 (STEAM-2),
https://www.itu.int/ITU-R/space/asreceived/Publication/DisplayPublication/8958 (USASAT-NGSO-3A-R), and
https://www.itu.int/ITU-R/space/asreceived/Publication/DisplayPublication/8959 (USASAT-NGSO-3B-R). Page 7 B. The Proposed Modification Would Not Result in Any Significant Additional
Interference to the O3b Network or Affect Orbital Debris Mitigation
In its application, SpaceX provided detailed analyses of the potential effect of its proposed
modification on other NGSO systems, using the dynamic, time-varying radio-frequency
interference expressed as a cumulative distribution function of the interference-to-noise ratio, for
varying percentages of time. This was derived from a time-domain simulation of the two NGSO
systems over a long enough time to produce meaningful statistics. The analysis considered the
effect on two NGSO systems hypothetically operating in the Ku-band (OneWeb and Kepler) and
two in the Ka-band (Telesat and O3b). 14 The plots presented for O3b show that the interference
environment before and after the proposed modification are essentially indistinguishable.
Without citing to any specific aspect of a specific chart, SES/O3b offers its opinion that
the proposed modification would result in “slightly higher” levels of interference to O3b in some
scenarios and claims that O3b “is the proper entity to determine the acceptability of any increased
interference to the O3b network.” 15 To the contrary, the Commission is the proper party to make
that determination, and it applies an objective standard: does the proposed modification “present
any significant interference problems.” 16 Viewed objectively, the analysis presented by SpaceX
demonstrates that the proposed modification would not increase interference significantly. To the
extent there are variances, they most often indicate that there will be slightly less interference as a
result of the modification – especially after the full constellation has been deployed. These
decreases overwhelm what few very slight increases there may be in probabilities of individual
See Technical Attachment, IBFS File No. SAT-MOD-20190830-00087, at Annex 1 (filed Aug. 30, 2019).
SES/O3b Petition at 8.
SpaceX Modification ¶ 9 (emphasis added) (citing Teledesic LLC, 14 FCC Rcd. 2261 (IB 1999)). Page 8 I/N values and confirm that the overall interference environment will be no worse than it is at
present – and certainly not significantly worse.
SES/O3b also claims that SpaceX has failed to provide an analysis of the potential for
increased susceptibility of its modified system to interference from other NGSO networks.
SES/O3b provides no reason to suspect that simply redistributing satellites among orbital planes
without changing the number of satellites, their orbital altitude, their inclination, or their
operational characteristics would somehow make them more susceptible. SpaceX agrees with
SES/O3b that the appropriate approach for resolving the full range of spectrum sharing issues is
through coordination between the parties, 17 and is currently engaged in that process. But the
Commission should not unbalance the scales as O3b requests by imposing conditions only on
SpaceX due merely to SpaceX’s redistribution of satellites within orbital planes at its existing
authorized altitude.
Kepler asserts that the proposed modification could affect the orbital debris mitigation
characteristics of SpaceX’s system because it could increase the rate of intra-constellation
conjunctions. 18 This bald assertion is simply not true, which may be why Kepler supplies no
analysis to support its claim, nor any rationale why it believes this might occur. Such conjecture
seems designed simply to slow the Commission’s consideration of applications – and ultimately
service to consumers – and is no basis for deferring consideration of the pending application. The
Commission should reject Kepler’s unsubstantiated call for delay.
See SES/O3b Petition at 9.
See Kepler Petition at 14. Page 9 II.
KEPLER’S PETITION FOR RECONSIDERATION IS UNTIMELY AND UNPERSUASIVE
The Commission issued the SpaceX Modification order on April 26, 2019. Under Section
405(a) of the Communications Act, as implemented in Section 1.106(f) of the Commission’s rules,
any party that wished to request reconsideration of that order should have done so within 30 days
of the order’s release. 19 Kepler did not seek reconsideration within that time timeframe, but instead
filed over four months later, after SpaceX had already deployed dozens of satellites pursuant to
that order.
As the Commission has recognized, the D.C. Circuit “has consistently held that the
Commission is without authority to extend or waive the statutory thirty-day filing period for filing
petitions for reconsideration specified in Section 405(a) of the Communications Act, absent
compelling circumstances.”
Kepler has failed to present such compelling – or any –
circumstances. Without explanation for its delay, Kepler’s Petition attempts to rehash issues the
Commission already addressed in the SpaceX Modification. To the extent Kepler felt that the
Commission overlooked an argument or failed to address it adequately, it should have filed a
timely petition for reconsideration.
At this late date, Kepler’s only argument in favor of waiving the statutory 30-day deadline
is its assertion that the Commission should reconsider in light of the performance of SpaceX’s
satellites to date. 21 By this, it would appear that Kepler is referring to the fact that three of the
sixty first-generation satellites launched by SpaceX in the first tranche of its deployment initially
See Kepler Petition at 13. Page 10 communicated with the ground after orbital injection but are no longer in service. 22 Yet here again,
this is a matter the Commission considered and resolved in the SpaceX Modification. Specifically,
the Commission noted that SpaceX had submitted an analysis of the potential collision risk in the
event of a system failure that renders a satellite incapable of maneuvering immediately after launch
of the satellite, and found that it was “well within accepted boundaries for collision risk, even with
worst-case assumptions that go well beyond any realistic scenario.” 23 Kepler may disagree with
that conclusion, but such disagreement does not rise to the level at which “extraordinary
circumstances indicate that justice would thus be served” by allowing an untimely
reconsideration. Moreover, the Commission’s decision was well-grounded. SpaceX is following best
practices by operating its initial satellites at low altitudes to assess and confirm their operational
limits.
Deploying hundreds or thousands more satellites without first testing their actual
capabilities in space – as Kepler implicitly suggests – would be reckless and contrary to best
practices. In fact, Kepler likely would not be satisfied with the ramifications if the Commission
were to reconsider systems based performance in space. In that case, Kepler’s own market
authorization could be subject to review if any of its satellites fail to perform as initially described.
CONCLUSION
There is no basis for deferring or denying SpaceX’s Modification Application.
Accordingly, the Commission should grant the Modification Application so that SpaceX can
See Letter from William M. Wiltshire to Marlene H. Dortch, IBFS File No. SAT-LOA-20161115-00118, at (July 1, 2019). Kepler notes that four satellites are still in the orbit raising process. See Kepler Petition at 8.
However, contrary to Kepler’s conjecture, that is not an indication that these four satellites have experienced a
problem with maneuverability. Rather, it merely reflects a phased approach to orbital deployment.
SpaceX Modification ¶ 22.
See Gardner, 530 F.2d at 1091 (finding exception appropriate where Commission’s failure to follow its own
notice requirements had resulted in petitioner’s failure to file on time). Page 11 proceed with its plans for deployment of its NGSO constellation in a manner that will expedite
service to more Americans.
Respectfully submitted,
SPACE EXPLORATION HOLDINGS, LLC
William M. Wiltshire
Paul Caritj
HARRIS, WILTSHIRE & GRANNIS LLP
1919 M Street, N.W.
Suite Washington, DC 202-730-1300 tel
202-730-1301 fax
Counsel to SpaceX
By: _/s/ Patricia Cooper ________
Patricia Cooper
Vice President of Satellite Government
Affairs
David Goldman, Director, Satellite
Policy
SPACE EXPLORATION TECHNOLOGIES CORP.
1155 F Street, NW
Suite Washington, DC 202-649-2700 tel
202-649-2701 fax
October 30, Page 12 CERTIFICATE OF SERVICE
I hereby certify that, on this 30th day of October, 2019, a copy of the foregoing pleading
was served via First Class mail upon:
Nickolas Spina
Kepler Communications Inc.
196 Spadina Avenue
Suite Toronto, ON Canada M5T2CSuzanne Malloy
Petra A. Vorwig
Noah Cherry
SES Americom, Inc./O3b Limited
1129 20th Street, N.W.
Suite Washington, DC Karis A. Hastings
SatCom Law LLC
1317 F Street, N.W.
Suite Washington, DC
/s/ Samuel D. Sperling
Samuel D. Sperling
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PlainSite Cover Page
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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
____________________________________
)
Application of
)
)
)
SPACE EXPLORATION HOLDINGS, LLC
)
For Modification of Authorization for the )
SpaceX NGSO Satellite System
)
____________________________________)
Call Signs: S2983 and S3018
IBFS File Nos. SAT-MOD-20181108-00083
and SAT-MOD-20190830-00087
CONSOLIDATED OPPOSITION TO PETITIONS
OF SPACE EXPLORATION HOLDINGS, LLC
Space Exploration Holdings, LLC, a wholly owned subsidiary of Space Exploration
Technologies Corp. (collectively, “SpaceX”), hereby opposes the Petition to Defer filed by SES
Americom, Inc. and O3b Limited (“SES/O3b”) and the Petition for Reconsideration and Petitions
to Deny or Defer of Kepler Communications, Inc. (“Kepler”). 1 SpaceX proposes an incremental
modification of its non-geostationary orbit (“NGSO”) satellite system to adjust the orbital spacing
of its satellites as currently authorized 2 in order to accelerate its timetable for providing high speed,
low latency, competitively priced consumer broadband service throughout the United States.
Notably, SpaceX can accomplish this acceleration and reach U.S. consumers faster without
increasing the number of satellites, or changing their orbital altitude, their inclination, or their
operational characteristics. As discussed further below, SES/O3b and Kepler fail to present any
1
See Petition to Defer of SES Americom, Inc. and O3b Limited (“SES/O3b Petition”); Petitions of Kepler
Communications, Inc. (“Kepler Petition). Both filings were submitted on October 15, 2019. Both were filed in
IBFS File No. SAT-MOD-20190830-00087. The Kepler Petition also was filed in IBFS File Nos. SAT-MOD20181108-00083 and SAT-STA-20190924-00098; SpaceX will address Kepler’s STA arguments in a separate
filing.
2
See Space Exploration Holdings, LLC, 34 FCC Rcd. 2526 (IB 2019) (“SpaceX Modification”).
1
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reason to deny or defer the modification application – or to reconsider the SpaceX Modification
order – and the Commission should grant it expeditiously. A prompt approval will allow SpaceX
to proceed with development and deployment of its NGSO system and extend the benefits of
broadband service to customers in rural and other areas of the U.S. currently underserved or
unserved by other alternatives.
BACKGROUND
A recent report found that 31 percent of U.S. households do not currently have a true
broadband connection (25 Mbps per second download speed or greater). 3 This equates to roughly
100 million consumers, totaling nearly one-third of the U.S. population. The vast majority of these
consumers are in rural markets. SpaceX has designed its satellite constellation to deliver high
speed, low latency, competitively priced broadband service to consumers anywhere in the United
States, including those who live in areas currently underserved or entirely unserved by terrestrial
broadband systems. SpaceX is continually looking for ways to optimize its constellation and
accelerate service deployment so that it can contribute its connectivity to heal this digital divide
more quickly.
The Commission authorized SpaceX in 2018 to construct, deploy, and operate an NGSO
constellation consisting of 4,425 satellites operating in 83 orbital planes at five different altitudes,
using Ku- and Ka-band spectrum. 4 The Commission granted SpaceX a modification of that
authorization in April 2019 to relocate 1,584 satellites previously authorized to operate at an
altitude of 1,150 km to an altitude of 550 km. In doing so, the Commission applied the established
3
See Press Release, The NPD Group, Inc., Thirty-One Percent of U.S. Households Lack a Broadband Connection
(July 25, 2019), https://www.npd.com/wps/portal/npd/us/news/press-releases/2019/thirty-one-percent-of-u-s-households-lack-a-broadbandconnection/?utm_source=sendgrid&utm_medium=email&utm_campaign=Newsletters.
4
See Space Exploration Holdings, LLC, 33 FCC Rcd. 3391, ¶ 11 (2018).
2
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standard for determining whether such a modification would serve the public interest: “If the
proposed modification does not present any significant interference problems and is otherwise
consistent with Commission policies, it is generally granted.” 5
After careful analysis, the
Commission concluded that SpaceX’s proposal did not present any significant interference issues. 6
SpaceX moved quickly to deploy under its modified authorization by launching its first 60
satellites. In addition, through extensive study of orbital formations and spacecraft performance,
SpaceX has identified a system deployment approach that will provide robust broadband service
to more Americans more quickly by populating three orbital planes with a single launch.
Accordingly, in its application, SpaceX proposed to reorganize its satellites at their already
authorized altitude so that it can place coverage and capacity more evenly and rapidly across more
of the U.S., accelerating broadband service to middle and southern states, as well as to Hawaii,
Puerto Rico, and the U.S. Virgin Islands. Only two parties – SES/O3b and Kepler – raised
concerns about this proposed modification, and neither provide any reason to deny or defer the
modification application – or to reconsider the SpaceX Modification order.
DISCUSSION
I.
PETITIONERS HAVE PROVIDED NO BASIS FOR DEFERRING ACTION ON SPACEX’S
MODIFICATION APPLICATION
SES/O3b and Kepler assert that the Commission should defer consideration of SpaceX’s
modification application for several reasons.
SES/O3b claims that SpaceX should provide
additional information so that interested parties can evaluate its compliance with applicable limits
on equivalent power flux-density (“EPFD”), and that in a limited number of scenarios SpaceX’s
5
See SpaceX Modification, ¶ 9 (quoting Teledesic LLC, 14 FCC Rcd. 2261, ¶ 5 (IB 1999)).
6
Id. ¶ 11.
3
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modified operations may result in slightly higher levels of interference to the O3b network. For
its part, Kepler asserts – without supporting precedent – that the Commission should not act on the
current modification until it has resolved the petition to reconsider the SpaceX Modification order,
and relies on conjecture rather than analysis to sketch out unsubstantiated concerns.
As discussed below, much of the information SES/O3b seeks is already publicly available,
and even though the remaining information typically would not be filed until after the application
is granted, SpaceX will provide it directly to SES/O3b with this Opposition. In addition, the
evidence SpaceX presented with its application demonstrates that there will be no significant
increase in interference to O3b. Nor does Kepler’s speculation provide any reason for the
Commission to delay consideration of the pending application. Accordingly, the Commission
should deny the petitions.
A. SES/O3b Will Continue to Have All Information Necessary to Conduct its Own
EPFD Analysis of SpaceX’s System
When the Commission granted the initial SpaceX Modification, it waived the requirement
that SpaceX receive a favorable or “qualified favorable” finding from the ITU with respect to its
compliance with applicable EPFD limits prior to commencing operations. 7 However, it retained
the requirement that SpaceX receive such a finding from the ITU at some point and adjust its
operations as necessary to satisfy ITU requirements, essentially allowing SpaceX to proceed only
at its own risk. 8 As a result, SpaceX remains highly motivated to ensure that its system will not
exceed applicable EPFD limits.
7
SpaceX Modification ¶ 37.
8
Id. ¶ 28. Because this is the operative condition applicable to SpaceX’s authorization, there was no need for
SpaceX to seek a waiver of the no-longer-applicable condition that it receive an ITU finding before commencing
operations. See SES/O3b Petition at 4.
4
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SES/O3b complains that SpaceX’s “ever-evolving system design” could render ITU
evaluation of prior configurations moot and effectively preclude the ITU or any other interested
party from validating SpaceX’s ongoing compliance with EPFD limits. It cites a recent set of ITU
filings submitted by SpaceX and imagines that these submissions will result in a “years-long time
span” required for ITU processing. To address this concern, SES/O3b requests that SpaceX be
required to submit the necessary input files so that SES/O3b can undertake its own EPFD analysis. 9
Kepler cites the same set of ITU filings and urges the Commission to consider them in the context
of the current modification application. 10 Several responses are in order.
First, the recent ITU filings identified by SES/O3b and Kepler in no way relate to the
current application. SpaceX does not propose to operate its modified system under those filings.
They are simply a red herring in this proceeding, and the Commission should not be distracted by
them.
Second, the pace of SpaceX’s filings is not unusual for an innovative service and NGSO
system. SpaceX has requested two modifications in the nearly 19 months since its original
authorization was granted. By comparison, O3b initially received access to the U.S. market in
2012 and then proposed changes to its system six times over the next five years. 11 Rather than
assuming that evolution in design or updates in capabilities are evidence of some scheme to evade
regulatory oversight, such developments should be viewed instead as the natural progression of
advanced satellite systems as time and experience present new opportunities for optimization.
While traditional satellite systems may have operated under longer time horizons with fewer
9
See SES/O3b Petition at 4-6.
10
See Kepler Petition at 14.
11
See IBFS File Nos. SES-LIC-20100723-00952, SES-MOD-20140814-00652, SAT-LOI-20141029-00118, SATAMD-20150115-00004,SAT-MOD-20160624-00060, SAT-AMD-20161115-00116, and SAT-AMD-2017110900154.
5
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interim changes, the emerging generation of spacecraft and systems reflect a more flexible and
responsive design, manufacturing, and deployment structure that allows iteration and
improvement, as expressed in periodic modifications. SES/O3b’s baseless attempts to insinuate
any other motive here are designed to grab headlines and should be ignored.
Third, it is not at all unusual that such information does not accompany an application for
modification. The Commission traditionally includes a condition in NGSO satellite authorizations
issued to U.S. licensees requiring the submission of the information required for Advance
Publication, Coordination, and Notification of the frequency assignment(s) for the licensed
constellation. SpaceX’s authorization includes such a condition and it contemplates that such
information will be submitted after the license has been granted. 12 The ITU typically publishes
such information as it is received, meaning that any interested party – including SES/O3b – will
be able to download and analyze the data should it wish to do so. For example, all of the input
files submitted for the EPFD analysis of SpaceX’s last modification are available from the ITU’s
website. 13
Nonetheless, as noted, in order to allay SES/O3b’s concern, SpaceX will provide SES/O3b
along with this Opposition the input data files used to produce the EPFD output graphs included
with its application. SES/O3b will then be able to conduct its own analysis. SpaceX is confident
that the results will be consistent with the analysis presented in its application and will confirm
that the proposed modification will comply with applicable EPFD limits.
12
See, e.g., SpaceX Modification ¶ 32a.
13
Those materials are available at
https://www.itu.int/ITU-R/space/asreceived/Publication/DisplayPublication/8953 (STEAM-1),
https://www.itu.int/ITU-R/space/asreceived/Publication/DisplayPublication/8956 (STEAM-2),
https://www.itu.int/ITU-R/space/asreceived/Publication/DisplayPublication/8958 (USASAT-NGSO-3A-R), and
https://www.itu.int/ITU-R/space/asreceived/Publication/DisplayPublication/8959 (USASAT-NGSO-3B-R).
6
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B. The Proposed Modification Would Not Result in Any Significant Additional
Interference to the O3b Network or Affect Orbital Debris Mitigation
In its application, SpaceX provided detailed analyses of the potential effect of its proposed
modification on other NGSO systems, using the dynamic, time-varying radio-frequency
interference expressed as a cumulative distribution function of the interference-to-noise ratio, for
varying percentages of time. This was derived from a time-domain simulation of the two NGSO
systems over a long enough time to produce meaningful statistics. The analysis considered the
effect on two NGSO systems hypothetically operating in the Ku-band (OneWeb and Kepler) and
two in the Ka-band (Telesat and O3b). 14 The plots presented for O3b show that the interference
environment before and after the proposed modification are essentially indistinguishable.
Without citing to any specific aspect of a specific chart, SES/O3b offers its opinion that
the proposed modification would result in “slightly higher” levels of interference to O3b in some
scenarios and claims that O3b “is the proper entity to determine the acceptability of any increased
interference to the O3b network.” 15 To the contrary, the Commission is the proper party to make
that determination, and it applies an objective standard: does the proposed modification “present
any significant interference problems.” 16 Viewed objectively, the analysis presented by SpaceX
demonstrates that the proposed modification would not increase interference significantly. To the
extent there are variances, they most often indicate that there will be slightly less interference as a
result of the modification – especially after the full constellation has been deployed. These
decreases overwhelm what few very slight increases there may be in probabilities of individual
14
See Technical Attachment, IBFS File No. SAT-MOD-20190830-00087, at Annex 1 (filed Aug. 30, 2019).
15
SES/O3b Petition at 8.
16
SpaceX Modification ¶ 9 (emphasis added) (citing Teledesic LLC, 14 FCC Rcd. 2261 (IB 1999)).
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I/N values and confirm that the overall interference environment will be no worse than it is at
present – and certainly not significantly worse.
SES/O3b also claims that SpaceX has failed to provide an analysis of the potential for
increased susceptibility of its modified system to interference from other NGSO networks.
SES/O3b provides no reason to suspect that simply redistributing satellites among orbital planes
without changing the number of satellites, their orbital altitude, their inclination, or their
operational characteristics would somehow make them more susceptible. SpaceX agrees with
SES/O3b that the appropriate approach for resolving the full range of spectrum sharing issues is
through coordination between the parties, 17 and is currently engaged in that process. But the
Commission should not unbalance the scales as O3b requests by imposing conditions only on
SpaceX due merely to SpaceX’s redistribution of satellites within orbital planes at its existing
authorized altitude.
Kepler asserts that the proposed modification could affect the orbital debris mitigation
characteristics of SpaceX’s system because it could increase the rate of intra-constellation
conjunctions. 18 This bald assertion is simply not true, which may be why Kepler supplies no
analysis to support its claim, nor any rationale why it believes this might occur. Such conjecture
seems designed simply to slow the Commission’s consideration of applications – and ultimately
service to consumers – and is no basis for deferring consideration of the pending application. The
Commission should reject Kepler’s unsubstantiated call for delay.
17
See SES/O3b Petition at 9.
18
See Kepler Petition at 14.
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II.
KEPLER’S PETITION FOR RECONSIDERATION IS UNTIMELY AND UNPERSUASIVE
The Commission issued the SpaceX Modification order on April 26, 2019. Under Section
405(a) of the Communications Act, as implemented in Section 1.106(f) of the Commission’s rules,
any party that wished to request reconsideration of that order should have done so within 30 days
of the order’s release. 19 Kepler did not seek reconsideration within that time timeframe, but instead
filed over four months later, after SpaceX had already deployed dozens of satellites pursuant to
that order.
As the Commission has recognized, the D.C. Circuit “has consistently held that the
Commission is without authority to extend or waive the statutory thirty-day filing period for filing
petitions for reconsideration specified in Section 405(a) of the Communications Act, absent
compelling circumstances.” 20
Kepler has failed to present such compelling – or any –
circumstances. Without explanation for its delay, Kepler’s Petition attempts to rehash issues the
Commission already addressed in the SpaceX Modification. To the extent Kepler felt that the
Commission overlooked an argument or failed to address it adequately, it should have filed a
timely petition for reconsideration.
At this late date, Kepler’s only argument in favor of waiving the statutory 30-day deadline
is its assertion that the Commission should reconsider in light of the performance of SpaceX’s
satellites to date. 21 By this, it would appear that Kepler is referring to the fact that three of the
sixty first-generation satellites launched by SpaceX in the first tranche of its deployment initially
19
See 47 U.S.C. § 405(a); 47 C.F.R. § 1.106(f).
20
Convergent Communications & Entertainment, LLC, 28 FCC Rcd. 3022, ¶ 6 (MB 2013) (citing Reuters Ltd. v.
FCC, 781 F.2d 946, 951-52 (D.C. Cir. 1986); Gardner v. FCC, 530 F.2d 1086, 1091 (D.C. Cir. 1976)
(“Gardner”)).
21
See Kepler Petition at 13.
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communicated with the ground after orbital injection but are no longer in service. 22 Yet here again,
this is a matter the Commission considered and resolved in the SpaceX Modification. Specifically,
the Commission noted that SpaceX had submitted an analysis of the potential collision risk in the
event of a system failure that renders a satellite incapable of maneuvering immediately after launch
of the satellite, and found that it was “well within accepted boundaries for collision risk, even with
worst-case assumptions that go well beyond any realistic scenario.” 23 Kepler may disagree with
that conclusion, but such disagreement does not rise to the level at which “extraordinary
circumstances indicate that justice would thus be served” by allowing an untimely
reconsideration. 24
Moreover, the Commission’s decision was well-grounded. SpaceX is following best
practices by operating its initial satellites at low altitudes to assess and confirm their operational
limits.
Deploying hundreds or thousands more satellites without first testing their actual
capabilities in space – as Kepler implicitly suggests – would be reckless and contrary to best
practices. In fact, Kepler likely would not be satisfied with the ramifications if the Commission
were to reconsider systems based performance in space. In that case, Kepler’s own market
authorization could be subject to review if any of its satellites fail to perform as initially described.
CONCLUSION
There is no basis for deferring or denying SpaceX’s Modification Application.
Accordingly, the Commission should grant the Modification Application so that SpaceX can
22
See Letter from William M. Wiltshire to Marlene H. Dortch, IBFS File No. SAT-LOA-20161115-00118, at 1
(July 1, 2019). Kepler notes that four satellites are still in the orbit raising process. See Kepler Petition at 8.
However, contrary to Kepler’s conjecture, that is not an indication that these four satellites have experienced a
problem with maneuverability. Rather, it merely reflects a phased approach to orbital deployment.
23
SpaceX Modification ¶ 22.
24
See Gardner, 530 F.2d at 1091 (finding exception appropriate where Commission’s failure to follow its own
notice requirements had resulted in petitioner’s failure to file on time).
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proceed with its plans for deployment of its NGSO constellation in a manner that will expedite
service to more Americans.
Respectfully submitted,
SPACE EXPLORATION HOLDINGS, LLC
William M. Wiltshire
Paul Caritj
HARRIS, WILTSHIRE & GRANNIS LLP
1919 M Street, N.W.
Suite 800
Washington, DC 20036
202-730-1300 tel
202-730-1301 fax
Counsel to SpaceX
By: _/s/ Patricia Cooper ________
Patricia Cooper
Vice President of Satellite Government
Affairs
David Goldman, Director, Satellite
Policy
SPACE EXPLORATION TECHNOLOGIES CORP.
1155 F Street, NW
Suite 475
Washington, DC 20004
202-649-2700 tel
202-649-2701 fax
October 30, 2019
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CERTIFICATE OF SERVICE
I hereby certify that, on this 30th day of October, 2019, a copy of the foregoing pleading
was served via First Class mail upon:
Nickolas Spina
Kepler Communications Inc.
196 Spadina Avenue
Suite 400
Toronto, ON Canada M5T2C2
Suzanne Malloy
Petra A. Vorwig
Noah Cherry
SES Americom, Inc./O3b Limited
1129 20th Street, N.W.
Suite 1000
Washington, DC 20036
Karis A. Hastings
SatCom Law LLC
1317 F Street, N.W.
Suite 400
Washington, DC 20004
/s/ Samuel D. Sperling
Samuel D. Sperling
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