I'm sure Elon Musk knows more right now about the inner
workings of electric cars than I could hope to learn in a decade – even if I
applied myself. And he may have been forced to learn more than I have thus far about
the rules and regulations of the Securities and Exchange Commission – or what
he has referred to in a tweet
as the "Shortseller Enrichment Commission." And this only days
after he settled fraud charges the agency had lodged against him!
And given Musk's involvement with his SpaceX project, among
all his other projects, he almost certainly knows more than I do about the
technical and operational aspects of the constellation of low-orbit non-geostationary
satellites that SpaceX is seeking the Federal Communications Commission's
permission to launch.
But, having been involved in communications law and policy
for forty years, including having served as Associate General Counsel of the
FCC, I do know a considerable amount about FCC procedure and practice. So, it
caught my eye when I read recently in the trade
press that SpaceX is asking the FCC to grant it "special temporary
authority" (an "STA") to initiate communications between its
Ku−band gateway earth stations and the first tranche of non-geostationary
low-orbit satellites that SpaceX proclaims it now plans to launch in May. The
problem is, SpaceX's proposed low-orbit satellite system is presently the
subject of a contested license "modification" application that remains
pending before the Commission.
Based on the Commission's rules, and my own experience,
grants of STAs are by no means routine. Indeed, on the contrary, the showing
required to obtain one is high. Were it otherwise, this would have the effect
of eviscerating the Commission's underlying licensing rules which, after all,
were adopted in the first place to ensure license applicants comply with particular
substantive requirements that the agency deems important.
The standard
for granting "special temporary authority" is high not only because
it is common sense for it to be so, but because the Communications Act requires
it. Section 30(f) of the Communications Act provides that the FCC cannot grant
an STA request unless it "finds that
there are extraordinary circumstances requiring temporary operations in the
public interest and that delay in the institution of such temporary operations
would seriously prejudice the public interest." The Commission's rules, 47
C.F.R. § 25.120, of course, essentially mirror the high bar for an STA set
forth in the Communications Act.
I understand that Elon Musk
is a man perpetually in a hurry and that he is likely unsympathetic to
government process inconsistent with his "hurriedness." This is not
always a bad thing. But with regard to the SpaceX STA request, in light of the
high bar in the Communications Act and the agency's own rules, there appear to
be good reasons for the Commission to be skeptical. SpaceX's license "modification"
application is subject to opposition on the basis that the SpaceX license
proposal creates interference to other communications systems and raises other
technical/operational questions. I have no idea at all about the merits of
these concerns and offer no opinion on them. But it does appear, as WorldVu
Satellite's "OneWeb" charges in an opposition
to the STA, that SpaceX may be seeking
to abuse, or at least misuse, the STA process by creating an artificial
"deadline" that is entirely of its own making.
In other words, so far as it
appears, no "extraordinary circumstances" unrelated to SpaceX's own
wishes exist that require grant of the STA. And, so far as it appears, there
has been no showing the public interest will be seriously prejudiced by
allowing the Commission to first resolve concerns raised in connection with the
pending modification application. It would be odd if the "extraordinary
circumstances" standard could be met by the applicant simply advising the
Commission that it plans to launch at a time of its own choosing. And the fact
that satellites, once launched, aren't likely to be subject to a Commission
"recall to Earth" order is an additional reason for Commission
skepticism regarding the STA.
None of this is to say that SpaceX's
proposal – or other similar ambitious proposals for low-orbit non-geostationary
satellite systems – ultimately will not be found to be meritorious. They
propose to offer new alternatives for delivering broadband services to America,
including rural America, and around the world. Surely, additional broadband
services offered on different technological platforms are to be desired if the
proposals are feasible from a technical, operational, and economic perspective.
But the larger point – and
the reason the SpaceX proposal caught my attention – is that, at the end of the
day, adherence to the Communications Act's requirements and the Commission's
own rules matters. This is especially true, of course, when it comes to procedural
vehicles such as rule "waivers" or grants of "special temporary
authority." The Commission must take care in considering requests like these
that it does not act in a way that establishes precedents that have the effect
of eviscerating its underlying rules or of diminishing the integrity of its
processes.
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