CommLaw Monitor

Clock Winding Down on August 31 Lump Sum Election Date for C-Band Earth Stations

Chip Yorkgitis — Mon, 10 Aug 2020 22:05:52 -0400

Owners and operators with incumbent earth stations operating in the 3700-4000 MHz range have three weeks to choose between the two options created by the Federal Communications Commission (“FCC” or “Commission”) in its so-called C-Band proceeding, which requires transition of those earth stations out of the 300 MHz range. The two options each owner/operator has are either to elect to receive lump sum amounts the FCC announced in a Public Notice on July 30, 2020, for all of an owner/operator’s earth stations operating in the band, or to have the associated space station operators undertake the transition of the earth stations on a turn-key basis in accordance with the space station operators’ transition plans. Those plans will only be finalized on August 14, 2020. The lump sum elections, which are irrevocable if made, must be declared in on-line filings with the Commission on or before August 31, 2020, as explained at the end of the July 30 Public Notice.

In the lump sum Public Notice, the FCC declared amounts that earth station owners/operators are entitled to receive on a per antenna basis, among a number of antenna types, from Receive-Only Earth Station Single-feed (single polarization ) Antennas ($8,948/antenna) on the low side to Large Multi-beam (receiving 5+ beams from multiple satellites) Earth Station Antennas ($51,840/antenna) on the high side. Lump sum amounts were also adopted for Gateway Earth Station Antennas (bi-directional) ($20,854/antenna) and Temporary Fixed Earth Stations, such as mobile Electronic News Gathering trucks. For MVPD (i.e., cable system) earth stations affected by technology upgrades to be implemented as part of the transition, there is a Technology Upgrade Installation Lump Sum Payment available of $47,598 per registered earth station site (not per antenna).

Those stations that qualify as incumbent earth stations, and therefore to make the selection between the two options above, were identified in the Commission’s final list of incumbent C-Band earth stations issued by the FCC’s International Bureau on August 3, 2020. (An Excel spreadsheet of the list can be found at https://docs.fcc.gov/public/attachments/DA-20-823A2.xls.)

For those owners/operators taking into account the lump sum, after considering what it would take to transition their earth stations, what it would cost, the information they might have received from their associated satellite providers as well as the to-be-released final transition plans of the satellite providers, and other factors (this is complex stuff!), a few additional things should be kept in mind, including:

One cannot elect the lump sum for only a subset of one’s earth stations – it is an all-or-none choice – in addition, an earth station owner/operator and all of its affiliated entities must, together, make a single election between the two choices given by the FCC;
The lump sum can only be selected for registered earth stations that appear on the FCC’s final list accompanying the Public Notice of August 3;
An earth station owner/operator electing the lump sum becomes responsible (rather than the space station operators) for the transition of its earth stations from the 3700-4000 MHz range and is not entitled to further reimbursement in excess of the lump sum amount in the event that the costs of their transition for any antenna or site exceeds the lump sum amount;
On the other hand, an owner/operator electing the lump sum need not document its transition expenses or how it uses the lump sum amounts;
If more than one site is included in an earth station registration, the MVPD technology upgrade installation lump sum will be available for each site within that registration;
The Cost Catalog that accompanied the lump sum Public Notice provides a non-exhaustive list of the categories of expenses that may be reimbursable if a space station operator undertakes the transition (because the earth station owner/operator does not elect the lump sum) and a range of prices for those expenses that will be presumed reasonable, but the allowed reimbursement for any category in any given situation may be less than the maximum amount in the Cost Catalog (provided the Clearinghouse first agrees the expense was necessary for a timely transition in that situation);
Having said that, the Clearinghouse has the ability to reimburse costs that may exceed the values in the Cost Catalog should it find them reasonable and necessary for a timely transition of an earth station in particular circumstances;
The technology upgrade lump sum amounts for MVPD incumbent earth stations include the average, estimated costs associated with installing, but not purchasing, any necessary compression-related technology upgrades at an MVPD earth station site (including necessary equipment for installation, such as line cards, equipment racks, cables, and related hardware) – the Commission made clear that satellite operators, in cooperation with programmers, are responsible for selecting, purchasing, and delivering the necessary compression equipment to respective earth stations that elect the lump sum; and
By the same token, satellite operators will also be responsible for installing the equipment for incumbent earth stations where the lump sum is not elected and technology upgrades are needed.

Earth station owners and operators should weigh their options (and possibly seek expert advice to make a decision in accordance with their particular circumstances) and maintain good communications with satellite operators no matter which option they choose. If they elect the lump sum, they will need to transition their earth stations in coordination with the space station operators’ own plans and time tables. If they decline the lump sum payments, earth station owners and operators will want to monitor the work of the space station operators and their contractors to ensure they are receiving substantially similar service during and after the transition, as the Commission’s order adopting the transition framework requires.

C-Band Earth Stations: The FCC Made the List; It’s Worth Checking It Twice

Chip Yorkgitis — Tue, 07 Jul 2020 21:24:56 -0400

Incumbent earth stations operating in the 3700-4000 MHz range are entitled to have eligible space station operators provide a turnkey solution to transition them out of the band to the upper 200 megahertz of the 3.7-4.2 GHz Band. All of an earth station’s actual, reasonable, and necessary transition costs, for such transitions are reimbursable. As an alternative to having the space station operator conduct the transition, earth station operators may choose to accept a pre-determined per-earth station lump sum – still being worked on by the Federal Communications Commission’s (“FCC’s”) Wireless Telecommunications Bureau – for all their earth stations as sole compensation for moving out of the band themselves regardless of what solution is pursued after the transition, including moving to another band or off the radiofrequency spectrum altogether. (Previously, we covered the Commission’s schedule for the C-Band transition in detail.) The trick, however, is that, to qualify for reimbursement or the lump sum option, the earth stations must be “incumbent.” On Monday, July 6, 2020, the International Bureau (“Bureau”) issued a preliminary list of incumbent earth stations that would qualify for reimbursement or the lump sum. The Bureau, in the accompanying Public Notice, provided ten (10) days for interested persons to comment on the list, until Thursday, July 16.

The Bureau intends for the list to be complete. Earth station owners and operators will want to check that list closely to ensure their qualifying earth stations are listed, and all the details are accurate. Otherwise, they may miss compensation to which they are entitled. To reprise, incumbent earth stations must meet the following criteria:

Be operational as of the Commission’s April 18, 2018, filing freeze and remain operational today.
Be registered (receive-only) or licensed (transmit/receive) in the 3700-4200 MHz band (for those stations not registered or licensed prior to April 18, 2018, registration or license applications must have been filed by November 7, 2018).
For those stations registered or licensed prior to April 18, 2018, the registrant or licensee must have done one of the following:

a. Certified the accuracy of the registration/license information in the International Bureau Filing System (“IBFS”) by May 28, 2019;

b. Filed a modification/update to the registration or license in IBFS during the April 19 to November 7, 2018 filing window; or

c. Filed a timely renewal application by May 28, 2019.

It is worth noting that the Bureau continues to process some earth station registration and license applications that were timely filed over two years ago before the earth station freeze. The Bureau’s list should include earth stations that are the subject of those pending applications, and those stations’ status as “incumbent” is conditioned upon an ultimate grant of the pending applications. Stations not meeting the criteria for incumbent status, according to the Bureau, are not listed, including earth stations whose dismissal is not yet final.

If earth station operators or owners review the list (which comes with instructions) and find errors or omissions, comments seeking to correct the list should be filed in GN Docket No. 20-205 (see the Public Notice for more guidance) reference the existing file number(s) in IBFS. If everything in the list for a given earth station is correct and complete, an earth station registrant or licensee need not file anything with the Commission at this time.

The Public Notice reminds interested parties that they may not submit new filings in IBFS in order to attempt to qualify an earth station for incumbent status. If the above criteria for incumbent earth stations are not already satisfied for a given station, that cannot be rectified now, unfortunately. Similarly, the FCC clarifies that current licensees and registrants cannot at this time make filings to add existing antennas to a registration or license or change an earth station location, although minor corrections (for example, fixing the site address and/or GPS coordinates of an existing earth station location) are permissible.

In parallel with reviewing the Bureau’s list, earth station operators and owners may want to review the eligible space station operators’ draft transition plans which were filed in the FCC’s GN Docket No. 20-173 on June 19, 2020. Comments on those plans from the public are being formally accepted by the Commission through July 13, 2020. The space station operators need to finalize those plans by August 14, 2020.

Pai Offers Highlights of His 3.7-4.2 GHz Band Proposal; Particulars Presently Forthcoming

Chip Yorkgitis — Fri, 07 Feb 2020 10:33:09 -0500

On Thursday, February 6, in a speech at the Information Technology and Innovation Foundation, Federal Communications Chairman Ajit Pai outlined his proposal for the realignment of 3.7-4.2 GHz, the so-called C-Band. Later in the day, the FCC website posted a summary of the Chairman’s proposals, and Republican Commissioners Carr and O’Rielly released statements in support of the initiative. A draft order is expected sometime today, February 7, which will fill in a lot of gaps missing from the broad brushstrokes the Chairman outlined.

While many details were lacking, the Chairman confirmed his previously shared intentions that the FCC adopt rules to move existing satellite operators and earth stations outside of the 3700-4000 MHz range to make way for a public auction of the lower 280 megahertz of spectrum in that range, beginning as early as December 8, 2020. The top 200 megahertz of the C-Band (4000-4200 MHz) would be available for repacking the earth station operators currently in the lower 300 megahertz.

The Chairman’s remarks and summary also proposes what he calls “accelerated relocation payments” designed to create incentives for an early migration from the lower portion of the band. His proposal would entitle satellite operators to receive these payments if they clear the lower 100 megahertz of the C-band in 46 of the top fifty Partial Economic Areas by September 2021 and the remaining 180 megahertz of the C-band by September 2023. Apart from the general statements about timing, the exact mechanics and conditions for satellite operators’ receipt of the payments were not spelled out except that there would be accelerated relocation payments from the winning bidders outside of winning bid payments to the FCC/US Treasury and there would be no pro-rated accelerated relocation payments. He also explained that satellite operators may be entitled to total accelerated relocation payments of up to $9.7 billion. Because of questions about the Commission’s authority to do so, without Congressional action, the Chairman explained that satellite operators would not receive a percentage of auction revenues.

Chairman Pai recommitted to a framework by which winning bidders would also reimburse satellite operators for “every single reasonable cost” of relocation, noting that “[a]mong other things, new satellites will need to be launched, and filters will need to be placed on earth stations,” estimating total relocation costs of $3-5 billion.

The Chairman also explained why he is not waiting for Congressional action before moving to adopt rules, despite continued calls from Capitol Hill that the Commission do so. First and foremost, in order to maintain what Chairman Pai called the U.S. leadership in 5G, he believes the time to move and make available significant mid-band spectrum for advanced flexible use applications is now. He also expressed a confidence that there are no legal impediments to his proposed rules. He explained his view that, under the Communications Act, “we have the authority to modify the licenses of C-band incumbents, which would still be able to provide the same level of service to their customers that they do today,” noting the Commission’s general auction and rulemaking authority, and hearkening to the FCC’s court-tested Emerging Technologies Framework precedents by which the Commission has required winning auction bidders to pay for the relocation of affected incumbents. While dismissing arguments that the Commission should wait for Congress before acting, Chairman Pai welcomed Congressional action that would direct some of the auction proceeds to address national priorities like rural broadband, closing the “digital divide,” and Next-Generation 911.

Commissioner Carr’s statement expressed “strong support” for the Chairman and what he termed the “right decision.” Commissioner O’Rielly was “incredibly excited” to see the C-Band draft circulated and the item moving forward at the February meeting, noting that he “still need[ed] to review the particulars.” No comments were posted by the two Democratic Commissioners.

The Chairman’s preview was silent on the technical details regarding protection of incumbents and other services, such those in adjacent bands, e.g., radio altimeters in the 4200-4400 MHz band, and the matter of whether the upper 200 megahertz of the C-band would be made available for point-to-multipoint, or P2MP, operations, as advanced by several tech companies and public interest groups. The draft report and order likely to be issued today will merit a close review from all interested stakeholders, and the Commission will continue to take ex parte meetings and receive submissions until the Sunshine Notice for the February 28 Open Meeting is issued, which is expected on February 21.