STA Requests Opposit

OPPOSITION submitted by WorldVu Satellites Limited

STA Requests Opposition

2019-04-18

This document pretains to SES-STA-20190410-00516 for Special Temporal Authority on a Satellite Earth Station filing.


                                                                    Sheppard, Mullin, Richter & Hampton LLP
                                                                    2099 Pennsylvania Avenue, NW, Suite 100
                                                                    Washington, D.C. 20006-6801
                                                                    202.747.1900 main
                                                                    202.747.1901 fax
                                                                    www.sheppardmullin.com



                                                                    Brian D. Weimer
                                                                    202.747.1930 direct
                                                                    bweimer@sheppardmullin.com
April 18, 2019

VIA IBFS

Marlene H. Dortch
Secretary
Federal Communications Commission
445 12th Street SW
Washington DC 20554


Re:    Space Exploration Holdings, LLC, IBFS File No. SAT-STA-20190405-00023
       SpaceX Services, Inc., IBFS File Nos. SES-STA-INTR2019-01012, SES-STA-
       INTR2019-01013, SES-STA-INTR2019-01014, SES-STA-INTR2019-01015, SES-
       STA-INTR2019-01016, SES-STA-INTR2019-01017, SES-STA-INTR2019-01018

Dear Ms. Dortch:

        WorldVu Satellites Limited (“OneWeb”) hereby submits this letter to oppose the above-
referenced requests for special temporary authority (the “STA Requests”) filed by Space
Exploration Holdings, LLC and SpaceX Services, Inc. (collectively “SpaceX”). The STA
Requests fail to satisfy the standard set forth in the Communications Act (the “Act”) and the
Commission’s rules for granting the extraordinary remedy of an STA. The STA Requests
constitute a transparent attempt by SpaceX to sidestep the ongoing proceeding involving its
pending space station Modification Application, 1 a proceeding in which many substantive issues
remain unaddressed. SpaceX’s convenience—not any exigent circumstances—are the only
identifiable basis for the STA Requests and as such the STA Requests should be denied.

I.     THE STA REQUESTS FAIL TO MEET THE STANDARD REQUIRED FOR
       GRANT OF AN STA

        Section 309(f) of the Act mandates that the Commission cannot grant an STA request
unless “there are extraordinary circumstances requiring temporary operations in the public
interest and that delay in the institution of such temporary operations would seriously prejudice

1
 See Application for Modification of Authorization for the SpaceX NGSO Satellite System,
IBFS File No. SAT-MOD-20181108-00083 (filed Nov. 8, 2018) (“Modification Application”);
Petition to Deny or Defer of WorldVu Satellites Limited, IBFS File No. SAT-MOD-20181108-
00083 (filed Feb. 8, 2019) (“Petition to Deny”); Reply of WorldVu Satellites Limited, IBFS File
No. SAT-MOD-20181108-00083 (filed Mar. 5, 2019).


Marlene H. Dortch
April 18, 2019
Page 2


the public interest.” 2 The STA Requests contain no statement that SpaceX requires special
temporary authority (“STA”) to resolve a technical anomaly, address a gap in service, or relocate
in-orbit spacecraft, actions that are commonly the subject of and the purpose for STA
applications. Instead, the STA Requests simply announce that SpaceX “intends to launch its first
tranche of satellites in early May 2019, and seeks authority for operations during the orbit-raising
phase.” 3 This entirely artificial and self-created launch deadline does not come close to
satisfying the high bar required for grant of an STA request. Commission rules dictate STAs can
be granted “only upon a finding that there are extraordinary circumstances requiring temporary
operations.” 4 The STA Requests do not present a scintilla of evidence for the required
“extraordinary” circumstances and therefore should be denied.

        The Commission should also deny the STA Requests because the only rationale for an
STA presented by SpaceX—a self-imposed launch deadline—represents nothing more than a
request that the Commission adjust its review process to provide greater convenience to SpaceX.
Commission rules and precedent are clear that “[c]onvenience to the applicant, such as marketing
considerations or meeting scheduled customer in-service dates, will not be deemed sufficient”
for grant of STA. 5 In 2005, the Commission denied a request for special temporary authority
from EchoStar on the grounds that permitting EchoStar to “more quickly” relocate a satellite to
provide service did not constitute extraordinary circumstances, but instead was for the
convenience of EchoStar. 6 Here, not only can SpaceX not point to marketing considerations or
the need to relocate a satellite in the STA Requests—circumstances under which the

2
    47 U.S.C. § 309(f).
3
 See Space Exploration Holdings, LLC, Request for Special Temporary Authority, IBFS File
No. SAT-STA-20190405-00023 at 1 (filed Apr. 5, 2019) (“STA Narrative”).
4
    47 C.F.R. § 25.120(b).
5
  Id.; See Letter from Thomas S. Tycz, Chief, Satellite Division, to David K. Moscowitz,
Executive Vice President & General Counsel, EchoStar Satellite L.L.C., IBFS File Nos. SAT-
MOD-20050421-00087, SAT-STA-20050421-00088 (May 19, 2005) (“EchoStar Denial”).
When the Commission codified its policies regarding the grant of special temporary authority in
1991, it stated the policies reflected the view that “unless an applicant can demonstrate that an
STA is necessary due to circumstances beyond its control, the request will be denied…the fact
that an applicant wishes to begin services before its application can be processed does not
constitute extraordinary circumstances.” Amendment of Part 25 of the Commission’s Rules and
Regulations to Reduce Alien Carrier Interference Between Fixed-Satellites at Reduced Orbital
Spacings and to Revise Application Processing Procedures for Satellite Communications
Services, First Report and Order, 6 FCC Rcd 2806 at ¶ 26 (1991) (emphasis added).
6
    EchoStar Denial at 3.


Marlene H. Dortch
April 18, 2019
Page 3


Commission has denied the grant of STA—it cannot even point to a single external circumstance
necessitating the filing of the STA Requests.

         Therefore, the circumstances driving the STA Requests are entirely of SpaceX’s own
creation. Given the status of its pending space and earth station applications with the
Commission, SpaceX could have prudently and responsibly declined to schedule a launch of its
NGSO satellites until it obtained Commission approval of those applications. 7 Instead of
launching a constellation consistent with its existing space station license authorizing a 4,425
satellite NGSO constellation, SpaceX chose to modify its constellation and then attempt to
artificially create the need for an STA because its Modification Application remains pending
before the Commission after only five months. Notably, the STA Requests do not even attempt
to meet the extraordinary circumstances standard: instead, SpaceX merely offers conclusory and
wholly unsupported statements that the Commission has “good cause” to grant the requests, that
grant would “yield a number of public interest benefits,” and that grant would “serve the public
interest.” 8 Nowhere does SpaceX address the “extraordinary circumstances” standard it must
meet to justify grant of the STA Requests, because such an assertion is unsupportable. SpaceX’s
rationale for the STA Requests is clearly based on nothing more than “convenience to the
applicant,” magnified by the fact that this entire situation exists only because SpaceX has made it
so. Simply put, grant of the STA Requests is not in the public interest and the Commission
should reject the STA Requests, in accordance with the Act, the Commission’s rules, and
relevant precedent.

II.      SPACEX’S STA REQUESTS ARE AN ATTEMPT TO SHORTCUT THE
         COMMISSION’S REVIEW PROCESS

       As noted above, SpaceX currently has a Modification Application and seven earth station
applications pending before the Commission. The Modification Application was filed on
November 8, 2018, and the earliest gateway earth station applications were filed a mere three
weeks ago on March 28, 2019. SpaceX’s Modification Application remains under review at the
Commission for good reason: it has encountered widespread opposition on issues ranging from
increased radiofrequency interference to troublesome orbital debris and casualty risk profiles. 9
Instead of successfully resolving the concerns raised in the record, SpaceX has evidently pivoted

7
 See Modification Application; SpaceX Services, Inc., Application for Gateway Earth Station,
IBFS File Nos. SES-LIC-20190402-00425 through -00427, -00450-00451; IBFS File Nos. SES-
LIC-20190405-00453 through -00454 (filed Mar. 28, 2019 & Apr. 3, 2019).
8
    STA Narrative at 1.
9
 See, e.g., Petition to Deny; Comments and Conditional Petition to Deny of Kepler
Communications, Inc., IBFS File No. SAT-MOD-20181108-00083 (filed Jan. 29, 2019); Planet
Labs, Inc., Petition to Defer, IBFS File No. SAT-MOD-20181108-00083 (filed Jan. 29, 2019).


Marlene H. Dortch
April 18, 2019
Page 4


to a new strategy, as evidenced by the STA Requests: attempting to circumvent the
Commission’s satellite licensing process by creating a need to meet self-imposed launch
deadlines.

        The STA Requests seek to force the Commission’s hand in granting the Modification
Application. By arbitrarily locking itself into a launch deadline, SpaceX has attempted to create,
as detailed above, its own set of “extraordinary circumstances” justifying grant of temporary
authority. SpaceX’s self-imposed launch “commitments” and corresponding STA Requests try
to force the Commission to bypass its own processes by creating an artificial scenario which
SpaceX claims can only be resolved through the grant of an STA by the Commission.

         This coercive approach runs through every aspect of the STA Requests. For example,
SpaceX surprisingly attempts to use the danger SpaceX itself may pose to the orbital environment
as justification for grant of the STA Requests. In its own words, SpaceX claims the
“Commission has good cause to approve this request to enhance the safety of space” because
“the requested STA would cover TT&C functions that are essential to commanding the
spacecraft.” 10 Conveniently, SpaceX fails to acknowledge that “the safety of space” would need
no protection from an uncontrolled SpaceX spacecraft if SpaceX had simply waited for
Commission action on its pending applications before scheduling launch. Instead, SpaceX
actively wields the potential dangers of its uncontrolled spacecraft as a cudgel to attempt to force
the Commission to grant the STA Requests.

        The Commission should reject SpaceX’s cynical approach. By announcing its intention
to launch its NGSO constellation without a grant of the Modification Application, SpaceX has
displayed a lack of respect for the integrity of the Commission’s review procedures. 11 The
Commission should not allow the STA Requests to serve as a beachhead that will make later
approval of the Modification Application a mere fait accompli, as SpaceX intends. Instead, the
Commission should reject the STA Requests and evaluate the pending SpaceX applications on
their own merits and based on the substantial record generated to date, without influence from
externally-created pressure and artificial deadlines from SpaceX.


10
     STA Narrative at 1.
11
  In its haste, SpaceX may be unaware that its planned May launch runs directly counter to a
recent Commission Enforcement Advisory that cautioned satellite operators who are seeking but
have not been granted a Commission license that the “existence of a pending application does
not guarantee that a satellite will ultimately be authorized by the Commission.” FCC
Enforcement Advisory: Compliance with Satellite Communications Licensing Requirements is
Mandatory and Failure to Comply can Result in Enforcement Action, Public Notice, 33 FCC Rcd
3592, 3593 (EB, IB, OET, WTB Apr. 12, 2018).


Marlene H. Dortch
April 18, 2019
Page 5




III.       THE SPACEX STA REQUESTS WERE INCOMPLETE AS FILED

       The STA Requests filed by SpaceX do not satisfy the Commission standard for
completeness. Pursuant to relevant Part 25 rules, a request for special temporary authority “must
contain the full particulars of the proposed operation including all facts sufficient to justify the
temporary authority sought and the public interest therein.” 12 The STA Requests are deficient
and simply do not contain the information required by the Commission’s rules.

        As an initial matter, the STA Requests do not even specify the number of satellites
SpaceX seeks to launch, nor the altitude at which these satellites will operate. Instead, the
Commission and other stakeholders are merely informed that a “first tranche” will be launched,
and that these satellites will spend weeks “obit [sic] raising to ensure proper functioning.” 13
While the Commission and other stakeholders are left guessing at many of the critical
operational specifics, the STA Requests also fail to contain the full particulars of the proposed
operation within the requests themselves. The STA Requests make reference to the Modification
Application and SpaceX’s initial license grant and assert that those documents “contain all
relevant operational characteristics and are hereby incorporated herein to the extent necessary.” 14
However, the Modification Application represents a significant departure in many operational
characteristics from those in SpaceX’s original license grant. Without any further indication of
specific operational characteristics, SpaceX’s attempt to incorporate previous grants and pending
applications into the STA Requests does not satisfy the completeness requirement of 25.120(a)
and therefore should be dismissed.

IV.        CONCLUSION

        For the foregoing reasons, SpaceX has not justified the need for an STA based on the
clear statutory standard and the Commission’s rules, and any grant of the STA Requests would
be inconsistent with applicable precedent and undercut the Commission’s own review process.
OneWeb respectfully submits that the STA Requests should be denied.

Please do not hesitate to contact the undersigned with any questions.




12
     47 C.F.R. 25.120(a); EchoStar Denial at 2.
13
     STA Narrative at 1.
14
     Id. at n. 1.


Marlene H. Dortch
April 18, 2019
Page 6


Very truly yours,

/s/ Brian D. Weimer

Brian D. Weimer
for SHEPPARD, MULLIN, RICHTER & HAMPTON LLP



cc:     William M. Wiltshire, Counsel to SpaceX
        Tom Sullivan (FCC)
        Jose Albuquerque (FCC)
        Karl Kensinger (FCC)
        Stephen Duall (FCC)


                                                                        Sheppard, Mullin, Richter & Hampton LLP
                                                                        2099 Pennsylvania Avenue, NW, Suite 100
                                                                        Washington, D.C. 20006-6801
                                                                        202.747.1900 main
                                                                        202.747.1901 fax
                                                                        www.sheppardmullin.com



                                  CERTIFICATE OF SERVICE

I, Samuel Swoyer, hereby certify that on this 18th day of April 2019, a copy of the foregoing

letter is being sent via first class, U.S. Mail, postage paid, to the following:


Patricia Cooper
Vice President, Satellite Government Affairs
SPACE EXPLORATION TECHNOLOGIES CORP. &
SPACEX SERVICES, INC.
1155 F Street, N.W.
Suite 475
Washington, DC 20004

William M. Wiltshire
HARRIS, WILTSHIRE & GRANNIS LLP
1919 M Street, N.W.
Suite 800
Washington, DC 20036
Counsel to Space Exploration Holdings, LLC &
SpaceX Services, Inc.



/s/ Samuel Swoyer______________________
Samuel Swoyer



Document Created: 2019-04-18 12:51:17
Document Modified: 2019-04-18 12:51:17

© 2019 FCC.report
This site is not affiliated with or endorsed by the FCC