The answer to the question is: the Federal Communications Commission (FCC), stupid! Which technically is correct except to say that the FCC tries to act according to a set of rules, key to which is its ‘priority’ system.
The rules are straightforward enough. If a satellite operator gets its craft to a position where it has an FCC approved operating licence and “brings into use” the allocated frequencies then those frequencies belong to the operator in perpetuity.
However, even with these clear rules there are occasionally disputes. For example, there’s currently an argument running between Arabsat and Avanti over rights to the 30.5/31 degrees East orbital position.
But what happens in the world of ‘mega-constellations’ when thousands of satellites are orbiting in Low Earth orbit. Currently, there are three contenders arguing that they have first dibs on Ku-band frequencies.
Elon Musk’s SpaceX (12,000 potential satellites), SoftBank-backed OneWeb (1972+2000) and a Canadian start-up Kepler Communications (140 satellites) are each claiming they were first to operate their high-speed internet orbital satellites in the Ku-band.
The FCC rules and US law (The Electronic Code of Federal Regulations, ‘Sharing among Non-GSO Space Stations’ December 2017) says that operators “must coordinate in good faith the use of commonly authorized frequencies” and that whoever is first in space wins the right of first choice of back-up spectrum should there be any interference from a rival operator.
The IEEE’s Spectrum publication, in a timely article by Mark Harris, says a very great deal is now riding on how the FCC arbitrates its own rules. Back when there were only two contenders for LEO spectrum (Teledesic and Skybridge) the FCC simply ruled both players could use the whole of the available spectrum, but that the first operator to launch would get to choose which half of the available spectrum it wanted. The FCC at the time wrote: “This first choice, a kind of coordination priority, has little significance.” And because both operators went bust prior to launching a single satellite the decision was of little importance!
Now it is different. As Tim Farrar of TMF Associates states in the IEEE article, “The rules were made for two systems and for just a few hundred satellites. If you’ve got thousands going around, you’ll have conjunctions happening almost all the time, and then you’re effectively splitting the band in two almost everywhere.”
OneWeb wrote to the FCC in February claiming it was first past the post, and saying: “OneWeb hereby notifies the Commission that the first space station in the OneWeb System has met the requirement to be launched and capable of operating…. [Therefore] OneWeb hereby claims first priority in home spectrum selection in the Ku-band.”
A few weeks later Canada’s Kepler jumped into the ring stating that it had priority given that it had launched its first satellite in January 2018, and told the FCC “As far as Kepler is aware, this launch represented the first deployment of a Ku-band satellite within the Processing Round, and as such it should have first priority in any selection of home spectrum within Ku-band. Needless to say, it is disappointing to see OneWeb try and undercut Kepler’s position.”
Which, as sure as night follows day, duly saw SpaceX make its argument by saying that even though its first satellite was lofted after Kepler and OneWeb, it nevertheless gained priority because: “The scope of this [FCC] rule makes clear that to be considered ‘capable of operating,’ an operator must not only launch satellites but must also communicate with a US-licensed earth station in the specific frequency band.”
Tim Farrar says that the FCC is likely to take 6-12 months to make a ruling, and that meanwhile the skies will be populated by hundreds of satellites. Farrar doesn’t say how many lawyers are likely to be rubbing their hands in anticipation of the legal fall-out.