January 27, 1967, was a momentous day in Washington, London, and Moscow. Just ten years after the first-ever satellite, the Sputnik spacecraft, was launched into orbit, delegates from the United States, the United Kingdom, and the Soviet Union met together and signed the first-ever treaty establishing norms in space—the Outer Space Treaty.

Instead of pursuing space developments to develop asymmetric military capabilities during the Cold War-era Space Race, nations that signed and ratified the Outer Space Treaty would drive a substantial shift in the space paradigm, favoring the expansion of scientific frontiers over military frontlines. Shortly thereafter, the treaty was signed by the representatives of 57 other nations, and the list of signatories has since grown to include over 100 countries.[1]

The Outer Space Treaty (OST), formally the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, has codified the underlying standards for human behavior beyond Earth’s atmosphere. In serving as the modern baseline to space law, the OST upholds the principles that “the exploration of outer space shall be carried out for the benefit and in the interests of all countries,” … “outer space is not subject to national appropriation,” … “[outer space] shall be used exclusively for peaceful purposes,” … and that “states shall be responsible for national space activities whether carried out by government or non-governmental entities.”[2]

More than 50 years after the original signing of the Outer Space Treaty, the standards that have long stood as commonplace in the domain are now being tested in new ways. With the rise of private entities such as SpaceX, Blue Origin, and Iridium, among others, which all seek to utilize space for commercial purposes, it has become increasingly apparent that space no longer falls under the purview of purely governmental space agencies. Players in the new space economy are increasingly focused on creating large satellite megaconstellations—SpaceX’s Starlink, Blue Origin’s (or Amazon’s) Kuiper, and Iridium’s NEXT serving as just a few prime examples—with the promise of providing global internet access, especially in rural or otherwise underserved regions. But by launching dozens, hundreds, or even thousands of satellites, these companies have raised technical and regulatory questions regarding broadband congestion, debris generation, and sustainability, many of which remain unanswered. Indeed, where satellite networks operated by different American companies often have conflicting priorities and interests, it almost appears that the OST is struggling to keep up with the awe-inspiring pace of private developments in the domain.

Despite the current rapid and unregulated pace of satellite launches, a viable path forward remains for establishing effective rules and adjudicating band claims in the future. Whereby the OST requires that states ensure compliance with these norms, it appears that in the United States, the Federal Communications Commission (FCC) has taken the helm on the regulation of satellite activities, serving as the key enforcer of the OST in furtherance of achieving global broadband internet services through its newly established Space Bureau. The Space Bureau—recently founded in April 2023—authorizes satellite systems to provide space-based services, foster “the efficient use of scarce spectrum” available for these services, and coordinate with other agencies and international governments on satellite and space policy matters.[3]

However, the FCC has seemingly applied existing regulations in unpredictable ways on a case-by-case basis, prompting it, in a recent case between Dish and SpaceX, to consider a new rulemaking process to determine operating criteria for multiple satellite operators leveraging the same telecommunications band for their internet services.[4] The evolving role of the FCC and the Space Bureau as it works towards standardizing its adjudications, therefore, raises the question of what rulemaking procedures ought to exist for band allocation and for resolving disputes between satellite-based internet providers.

To explore this question in greater detail, this article aims first to provide historical perspective on telecommunications law as it pertains to satellite developments (Sections 1&2), second study existing cases the FCC has adjudicated in recent years between burgeoning mega constellation-based satellite providers and their competitors (Sections 3,4,5), and third, provide a framework for analysis for future rulemaking (Section 6).

Section 1: Outline and Timeline of the Law

Telecommunications law has a long and storied history—adjudication on telecommunications matters stems from the moment that telegraph and radio first entered the communication and entertainment arenas, and has since expanded to include disputes involving television, wire, cable, and satellite services.” In the United States, the Communications Act of 1934 provides the cornerstone for contemporary U.S. telecommunications policy.[5]

Signed into law by President Franklin D. Roosevelt on June 19, 1934, the Communications Act of 1934 (Ch. 5, Title 47 – 47 U.S.C. § 151) established the Federal Communications Commission (the FCC) as an independent agency with the purview to regulate interstate and foreign communications. The centralization of communication technology regulations under one agency allowed the government to regulate matters pertaining to broadband access swiftly, fair competition in the industry, and national security.

For all that the Communications Act of 1934 accomplished, it was in fact not the first to provide the federal government with purview over such communications technologies. In truth, the 1934 Act provided a more permanent set of legal guidelines structuring the rapid growth of the radio industry, as first spearheaded by the Radio Act of 1927, which aimed to stabilize the unruly, bustling radio industry of the mid-1920s.[6]

Drawing parallels to the recent advancements in satellite-based communications in the 2020s, the radio boom of the 1920s prompted the creation of the Radio Act of 1927. At the beginning of the radio era in 1922, there were around five radio stations on the air, but just a year later, in 1923, there were 556—the unprecedented and unregulated rise in radio meant that oftentimes, broadcasters would “change frequencies, raise operating power, or move their facilities”, leading to the formulation of powerful radio stations that had more resources to squash their competitors or quite literally force them out of their bandwidth.[7]

With this in mind, the Radio Act of 1927 solidified itself as the first key legislation to treat radio as an industry, one that ought to be regulated by a centralized commission rather than extemporaneously operated by hundreds of individual radio station entities. The Radio Act of 1927 was able to achieve great success by establishing a five-member Federal Radio Commission (FRC)—akin to the modern-day FCC—and giving it discretionary authority to interpret the law and regulate the industry in the “public interest [of] convenience and necessity” (PICN).

Under their authority, the FRC could renew the licenses of broadcasters who served the public interest, revoke such licenses, impose fines or prison sentences, assign frequencies, determine transmitter power, and create regulations to prevent interference.

The Communications Act of 1934 rolled over the PICN standard to the then-established Federal Communications Commission. The FCC, through the act, was vested with broader regulatory authority than its predecessor, the FRC, and was endowed with a newfound purview over the radio, television, interstate telegraph, interstate telephone, wire, and wireless common carriers.

Despite these sweeping changes, few could have predicted what was coming next in the realm of telecommunications: satellite technology.[8] Upon the launch of the first-ever telecommunications satellite, AT&T’s Telstar 1, in July 1962, the vision of geostationary satellites serving as communication relays transitioned from science fiction into reality.[9]

In response, Congress demonstrated a relatively more proactive approach to regulation, beginning by explicating rule-making processes and policies such as the Communications Satellite Act (CSA) of 1962.[10] As signed into law on August 31, 1962, by President John F. Kennedy, the CSA amended the Communications Act of 1934 in order to address and regulate the pressing issue of the commercialization of space communications.[11] The CSA, per subpart A, rule § 25.102, confers the FCC the authority to issue three types of licenses for amateur, experimental, and commercial “Part 25” satellite operations, such that requesting a license from the FCC requires the “submission of information concerning radiofrequency and orbital technical parameters, an orbital debris mitigation plan, and draft International Telecommunication Union (ITU) filing materials.”[12] In coordination with international bodies such as the International Telecommunications Union (ITU), the FCC exercises the greatest authority over most satellites launched by American companies today.

Section 2: Enter SpaceX

At the time of the signing of the Communications Satellite Act (CSA) of 1962, some 22 active satellites existed in Earth’s orbit.[13] By 2016, that number rose to around 1,500 active satellites, and by 2023, that number shot up to over 9,000.[14] Without a doubt, the state of today’s satellite telecommunications network is unprecedented, compelling regulators to swiftly update policies to keep pace with the new space economy.

Of relevance, in recent years, most of those satellites were launched and operated by the Space Exploration Technologies Corp, or SpaceX. SpaceX’s mission—to make life interplanetary—is funded by operations of their international telecommunications network, Starlink, which currently provides coverage to over 100 countries and territories.[15] To achieve this mission, some 6,000 satellites belonging to their satellite megaconstellation Starlink are currently active in orbit.[16]

In the company’s original filing with the FCC for their satellite network in November 2016, the company indicated its goal of launching a non-geostationary orbit (NGSO) satellite system of some 4,425 satellites (plus in-orbit spares) leveraging primarily Ku- and Ka- frequency bands across 83 orbital planes ranging from 1110 km to 1325 km in altitude.[17] These Ka-bands (26.5 GHz to 40 GHz) offer higher data transfer rates, but Ku-bands (12 GHz to 18 GHz) are typically considered more cost-effective for the end consumer.[18] The vast majority of Starlink communications to date are therefore in this set of bands, though in recent months, the company has successfully petitioned for use of the high-frequency V and E bands, which span the 50-75 and 60-90 GHz ranges, respectively.[19]

The current expansion of SpaceX’s band operating requests was spelled out in their original filing, as the company indicated that their “advanced phased array beam-forming and digital processing technologies within the satellite payload give the system the ability to make highly efficient use of Ku- and Ka-band spectrum resources [as mentioned previously] and the flexibility to share that spectrum with other licensed users.” In response to the filing, the FCC held that satellite networks such as Starlink may operate in shared frequencies only if they comply with certain operating limits defined by the FCC and the ITU.[20] To support SpaceX in its endeavor, the FCC updated and streamlined regulations for non-geostationary orbit constellations such as Starlink to remove some of the obstacles that the company faced in deploying such a considerable satellite constellation, altering frequency allocations, power flux-density (PFD) limits, sharing requirements, and deployment requirements for such networks.[21]

Section 3: The Modern Dispute

A relatively new entrant into the satellite telecommunications industry, SpaceX has disrupted the traditional methods of delivering internet and data transmission services, and through its streamlined vertical integration of manufacturing, launch, and deployment of Starlink satellites, it has considerably overtaken market share from other incumbent predecessors. Several major satellite operators in the United States have consistently deployed and managed communications satellite networks, including EchoStar, Globalstar, Intelsat, Iridium, Lynk, Orbcomm, Amazon’s Project Kuiper, and Visasat.[22] However, Starlink—sitting at a whopping 60-70% of all active satellites currently deployed in Earth’s orbit—now certainly dominates the market share, resulting in competing interests in satellite-based broadband spectrum allocation.[23]

Beyond the initial filing SpaceX presented, its director of satellite policy, Jameson Dempsey, has formerly indicated the company’s desire to continue expanding the total bandwidth it operates on to enable its next-generation Starlink satellites to “deliver gigabit-speed, truly low-latency broadband and ubiquitous mobile connectivity to all Americans and the billions of people globally who still lack access to adequate broadband.”[24]

Two pertinent challenges face the company as it works towards achieving its goal.

Certain technical limits place restrictions on which bands may be made available for telecommunications purposes: as a general rule, “the higher the frequency, the greater the bandwidth, which leads to less congestion, higher speeds, higher traffic, and higher bit rates.”[25] Higher frequency leads to a lower wavelength, which requires smaller components, systems, and antennas, making it far more practical for space-based applications.[26] For these reasons, most operators strive to leverage the Ku and Ka bands, as opposed to some of the lower-frequency and higher-wavelength L, S, C, and X bands, for these commercial purposes.[27] Beyond this point, in even higher frequency V and E bands (which SpaceX has recently begun using for its Gen2 Starlink satellites), communications may be subject to rain and oxygen attenuation, which may absorb the frequencies, degrade signal strength, and decrease system performance.[28] As SpaceX develops new systems to enable satellite-to-satellite and satellite-to-ground station communication with these bands and conducts tests with the FCC, it appears that the vast majority of communications at this point are strategically conducted in the Ku and Ka bands.[29] Indeed, the company may have permission to apply the V-band for its next generation satellites and the E-band for its ground stations, but it continues to use the Ka- and Ku-bands for most operations today.[30]

In addition, several bands are additionally restricted for operational use by satellite-based telecommunication providers in favor of operation by the military or by critical services such as emergency communications, navigation, and weather reporting. Section § 15.205, Restricted bands of operation, in the Code of Federal Regulations tabulates the bands restricted for operation, many of which formerly spanned the ranges that SpaceX now operates in.[31]

With the sheer number of telecommunications providers but the limited number of technically and legally available bands for communication, rising competition and ballooning bandwidth desires have forced the FCC to hear and adjudicate on conflicting filings that often overlap on their requested band allocations.[32] Without such regulatory intervention, shared band usage between satellite operators during transmission downlink or uplink could lead to congested operation of frequencies, which may cause interference that makes it difficult or impossible to parse through garbled data and provide critical internet or communication services.

Herein lies the modern debate: Is it possible for the FCC to establish a set of procedures that may allow companies to adequately engage in, dispute, and resolve bandwidth sharing requests? Put more explicitly, how might SpaceX, in particular, nudge the FCC towards this path forward?

Section 4: Recent Litigation and Filings

Repeated litigation between SpaceX and Dish & Globalstar, notably in 2023 and 2024, strikes at the core of this debate—in recent years, the companies have been involved in several disputes over radio spectrum and satellite services.

Section 4a: Dish v. SpaceX (2023-2024)

In International Dark-Sky Association, Inc., Appellant v. Federal Communications Commission, Appellee & Space Exploration Holdings, LLC, Intervenor, this bandwidth-sharing dilemma was raised before Rao and Childs, Circuit Judges, and Ginsburg, Senior Circuit Judge. Here, a satellite owner—the Dish Network—and an environmental group of amateur astronomers and dark-sky enthusiasts—the International Dark Sky Association—petitioned for review of the Federal Communications Commission’s (FCC) issuance of a license for a new satellite system to be deployed by the applicant—SpaceX—that was the petitioner’s competitor.[33]

More specifically, SpaceX operates part of its network in the 10.7-12.7 GHz band range, but Dish, with its vested interest in linear TV programming in the 12.2 to 12.7 GHz band, hoped to expand its operations into the shorter portion of the 12 GHz band and provide expanded broadband services to its customers. However, this proposal faced strong opposition from SpaceX, which “has long warned that satellite broadcaster Dish’s proposal to use 5G in the 12GHz band would impact its users’ experiences.”[34] In an analysis that SpaceX conducted with support from the engineering consulting firm Savid LLC,  SpaceX quantified that “Starlink users would experience harmful interference 77 percent of the time, and suffer total outage of services 74 percent of the time” if Dish’s proposal were to be approved by the FCC.

Dish rebuked the findings, petitioning the Commission to deny SpaceX’s license to that band based on that the sheer size of SpaceX’s proposed network would instead cause unacceptable interference to Dish’s satellites and prevents any further band sharing for Dish’s purposes, as well as on the basis that Commission acted arbitrarily and capriciously in its license grant in violation of the Administrative Procedure Act.

Citing the Communications Act of 1934, the Court of Appeals ultimately held that the FCC reasonably granted the license to SpaceX, in light of its “necessary [obligation] to prevent interference between” satellite systems. This conclusion was upheld on the basis of the test of reasonable—not strict—scrutiny and prior precedent on delegation to external authorities.

Under the precedent established in Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., the Administrative Procedure Act “requires courts to set aside agency actions, including licensing decisions, that are arbitrary and capricious or not in accordance with law”. Under comparable precedent held by FCC v. Prometheus Radio Project, the Administrative Procedure Act also requires courts to uphold agency action that is “reasonable and reasonably explained.” In consideration of further precedent held by AT&T Wireless Serv. v. FCC, it became readily clear that for this specific case, the Commission can waive its rules—e.g. in this case, providing the initial license for SpaceX’s operation in the aforementioned band while their application to the International Telecommunications Union was still pending—“for good cause shown,” including when “strict compliance” would be “inconsistent” with its statutory mandate to act in the public interest.[35]

The court ended up agreeing with the FCC’s adjudication in this case that it was “in the public interest to … allow [SpaceX] to begin deployment as soon as possible to bring next-generation [internet] service to unserved and underserved areas of the country and globally.” In light of the commission’s delegation satisfying both criteria for what constitutes lawful sourcing of third-party input from the ITU, the court concluded that the FCC had acted reasonably under the law.

Section 4b: Globalstar & Dish v. SpaceX (2024-2025)

In assessing whether the grant of an authorization of service will serve the public interest, the Commission held in the previous case that a proposed service ought not cause “harmful interference” to other communication services (See Globalstar, Inc. v. FCC; Teledesic LLC v. FCC).[36]

One core detail, to the dismay of Dish, was a statement the FCC included in their final finding, citing an opinion the agency had formerly declared two decades ago: the FCC concluded that “if non-geostationary fixed-satellite services conformed to the ITU’s equivalent power flux density limits, they could share the 12.2-12.7 GHz band with Dish services without causing harmful interference to Dish operations.”[37] In other words, it appears that the FCC left the door open for future litigation by SpaceX in order to start operating in certain bandwidths previously operated solely by Dish.

Yet, in the most recent slew of FCC filings, the FCC dismissed “as unacceptable for filing the application of … SpaceX … for modification of its authorization to construct, deploy, and operate up to 7,500 “second-generation” Starlink satellites (Gen2 Starlink) to include authority for operations in” a variety of Earth-to-space and space-to-Earth bands.[38]

The basis for the rejection? The FCC wrote that the 1.6/2.4 GHz and 2 GHz requests do not “substantially comply with Commission requirements established in rulemaking proceedings” resulting in a denial of the bands for additional mobile-satellite service (MSS) applications and that the 2020-2025 MHz request does not constitute a comprehensive enough proposal necessary to sustain a satellite application.[39] In particular, the FCC held that “SpaceX’s request to operate MSS (Earth-to-space) in the 2020-2025 MHz band is inconsistent the Commission’s rules in the U.S. Table of Frequency Allocations” and that “SpaceX’s application was unacceptable when it was filed because the Commission is currently not accepting applications for new MSS entrants in the 1.6/2.4 GHz and 2 GHz bands”, but left the door open for the company to reapply upon an alteration to the MSS rule framework.

Given the precedent from the 2023-2024 case between the International Dark Sky Association on behalf of Dish versus SpaceX, it seems incongruous for the FCC to vote this way on the matter—it is certainly one thing to uphold administrative procedure for licensing bandwidth application but it is another to hold certain commercial bands to be leveraged solely by incumbent operators, as this may stand in direct conflict with the PICN standard the agency has worked so hard to enforce for nearly a century.

Just as before in Dish v. SpaceX, SpaceX here had claimed that receiving access to operate in these bands would allow the company to “augment its MSS capabilities and leverage its next-generation satellite constellation to provide increased capacity, reduced latency, and broader service coverage for mobile users across the United States and the world, including those users underserved or unserved by existing networks.”[40] SpaceX continued that its variety of strategies including phased arrays and beam scheduling protocols, would enable it “to “coexist” with existing operations.”[41]

In response to the filing request, Globalstar, which operates in the 1.6/2.4 GHz bands; and Dish, which is licensed in the 2 GHz bands, both asked that the application be dismissed, arguing that “that the Modification Application lacks sufficient technical justification, contradicts settled Commission precedent, and jeopardizes important services, including emergency services, provided by Globalstar for more than two decades.”[42]

The FCC in this case sided with Globalstar and Dish, citing that for the past 30 years or so, these entities (as well as Iridium) have been subjected to exclusive operating rights in these bands per the FCC’s existing “Big LEO” rulemaking. In fact, a 2007- 2012 era FCC order limited use of the 2 GHz band to incumbent MSS operators to prevent any sort of interference between the satellite and terrestrial-based operators of the band and to prohibit the addition of any new MSS systems, including those that would be offered by SpaceX’s Starlink service.[43]

As part of the original filing, SpaceX accordingly contended that portions of these spectra—particularly those operated by Dish—are not currently used to offer MSS services and are not being planned to be used to offer MSS services in order to suggest that their band-sharing mechanisms would constitute little to no interference to any existing operations. Dish contended that it was at the moment building its capabilities to make effective use of the spectra.

In light of these nuances, although the FCC judged that the license application was unfit at this time, it conceded that the proper proceeding would be “a new rulemaking to determine whether there is additional availability for another CDMA MSS system in the 1.6/2.4 GHz bands, and if so, what operating criteria would be appropriate for that system.” In part because of this precise absence of this rulemaking but also in part due to the fact that the Commission is currently not accepting applications for new MSS entrants in the 1.6/2.4 GHz and 2 GHz bands, SpaceX’s application was ultimately considered unacceptable at the point of filing.

On that same day, March 26, 2024, the FCC thereby sought public comment on a” Petition for Rulemaking filed by Space Exploration Holdings, LLC (SpaceX), requesting that the Commission revise its licensing and spectrum sharing framework for “Big LEO” non-geostationary satellite orbit, mobile-satellite service systems operating in the 1610-1617.775 MHz and 2483.5-2500 MHz band.”[44]

A year after the initial rulemaking request thrust forth by the FCC, it does not appear that the FCC has concluded its rulemaking process regarding SpaceX’s petition. This pending status to SpaceX’s case indicates that the FCC is still evaluating how to allocate spectrum for MSS operations in these bands, presenting a novel point of discussion in this review: how ought the FCC fairly weigh these matters as to not prefer one satellite system over another and how ought the FCC perhaps create a standardized method for review of further cases? Herein lies the novelty in the discussion, as the law continues to evolve in this regard.

Section 5: Amicus Brief and Precedent Review

Given the unpredictability of future bandwidth disputes, the FCC ought to establish clear, pre-defined adjudication criteria from this rulemaking process. Without a doubt, as the pace of space-based telecommunication endeavors exponentially grows—especially as the SpaceX constellation hopes to grow at least 7 times its original filing size from 4,500 satellites to 30,000—future operators will have to navigate the license filing and refiling process smoothly.[45]

To craft future possible rulemaking, it was imperative to consult the amicus briefs filed on behalf of either SpaceX or GlobalStar & Dish around March 2024. After all, FCC Chairwoman Rosenworcel said, “the new space age needs new rules”; there is arguably no better place to start than from the set of briefs filed in favor of or against the current rulemaking agenda.[46]

Section 5a: In favor of new rulemaking

SpaceX claims that although the FCC was “ahead of its time” when it first crafted its sharing framework for Mobile Satellite Service (“MSS”), it appears that the Big LEO operators in space have only been partially using the bands they have been allocated. It remains standing in the record that only one provider remains in the band, Globalstar, which in a recent partnership filing with Apple, Inc., is now bound to retain only “15% of network capacity to support its existing and future Duplex, SPOT and IoT subscribers.”[47]

It was exactly on this basis—where the FCC was initially worried about a bandwidth underserving its consumers—that the Commission is said to have recognized the “development of future MSS systems” as a vital part of its sharing plan, and explicitly rejected proposals to “preclude new entrants from access to this band.”[48] It appears that in the past, “the Commission has repeatedly rejected requests by the sole remaining licensee in the band, Globalstar, to be allowed to claim a perpetual, exclusive right to the Band”, aligning with the PICN principle that the band was meant to be shared per the Communications Act of 1934.[49] Furthermore, back in 2003, when major changes were made to the 1.6/2.4 GHz and 2 GHz bands, the FCC concluded that “rebalancing of spectrum in the Big LEO band would serve the public interest”, a finding that I believe is well in congruence with these long-held governing frameworks.[50]

Because the court ruled in Dish Network v. FCC & SpaceX in 2023-2024 that the FCC’s perspective on spectrum-sharing (feasible if certain operational limits were respected) was reasonable under the Administrative Procedure Act, perhaps the FCC should defer to its earlier consideration for the future of the MSS band here—it might be possible to consider a new entrant to the band, if flux limits are considered, implemented, and maintained. A further amicus brief filed by TechFreedom and Kepler Communications indicates that licensees demonstrating better and more efficient systems should be allowed access to more spectrum, perhaps presenting a unique forward-looking path for consideration.

There is precedent here for this review.

In Federal Communications Commission v. Prometheus Radio Project (PRP) (2021), the Supreme Court held that “section 202(h) of the Telecommunications Act of 1996 directs the FCC to review its media ownership rules every four years and to repeal or modify any rules that no longer serve the public interest”. Under the idea that the FCC has the authority to regulate broadcast media “as public convenience, interest, or necessity requires” under 47 U.S.C. § 303, “the FCC’s decision to repeal or modify the three ownership rules [in FCC v. PRP] was not arbitrary and capricious for purposes of the APA.”[51] The parallels in this case are concerning for Globalstar.

Just as several of the rules for Globalstar’s Big Leo allocation were crafted in a time predating the rise of satellite megaconstellations, several of the rules in the FCC v. PRP were adopted “in an early-cable and pre-Internet age when media sources were more limited”, but as the years went on, technological advances “challenged the traditional dominance of” some of these sources. Because “the rules no longer served the agency’s goals of fostering competition, localism, and viewpoint diversity,” the agency chose to forgo these rules in favor of the public interest.[52] Perhaps similarly, the FCC ought to forgo some of its preconceptions regarding the Big LEO band and permit the entrance of new players in the bandwidth, bringing a conclusion to the still-ongoing rulemaking procedure left open by the FCC. To not do so—and to perhaps prevaricate in its rulemaking choices—echoes the pre-1927 chaos in radio to which statutory authorities like the FCC were set out to solve.

Beyond the element of updating rules, the FCC has judiciously applied its authority to balance the interests of different telecommunications operators. In Teledesic LLC v. Federal Communications Commission, the court upheld the FCC’s new rules that allocated specific segments of the 17.7-19.7 GHz frequency band to both satellite and terrestrial users, striking a reasonable rather than an arbitrary nor capricious approach given how the agency had carefully balanced the interests of both users of the bandwidth and encouraged the formation of new satellite networks shortly thereafter.[53] The court’s affirmation of the FCC’s rulemaking sets a critical precedent for resolving future spectrum disputes, one that balances legal rigor with adaptability from an implementation standpoint, simply because the ruling was largely based on the FCC’s finding that the spectrum could be shared equitably by both parties.

Overall, the Teledesic and PRP cases strongly underscore the FCC’s longstanding commitment to inclusivity and fostering competition, rather than exclusivity and the stockpiling of bandwidth.

Section 5b: Against new rulemaking

In their opposition to petition for rulemaking, Globalstar disputes the idea that it has not made effective use of its allocated band, claiming that it has been investing “billions of dollars to innovate a satellite system that supports the provision of mobile satellite services (“MSS”) to more people globally than any other satellite band.”[54] With how Globalstar currently uses its narrow megahertz band in comparison to how SpaceX currently operates its 15 gigahertz of bandwidth, it cites a risk that “SpaceX’s 7,500 satellite mega-constellation or any other commercial MSS system into Globalstar’s licensed Big LEO spectrum would cause harmful interference to Globalstar’s safety-of-life and other MSS offerings.”

In this regard, Globalstar calls on SpaceX to elucidate the technical details on exactly how they would be able to share the spectrum, rather than crowd out Globalstar and other similar smaller operators eventually. A further amicus brief filed by Omnispace in favor of Globalstar’s position exclaims that there is little transparency between direct-to-cell providers currently in space, raising questions as to how operators working at SpaceX might collaborate with companies such as Globalstar if their bandwidths are shared. Omnispace, in their brief, states that they have been sharing their 1990-1995 MHz bandwidth with SpaceX for over a year, but in that time, SpaceX has refused “to provide system parameters for interference studies, testing times, and other information required under its current experimental authorizations.”[55]

These claims are problematic for SpaceX—if it is not able to justify how it can adequately share the bandwidth, the sheer size of the constellation may spook the FCC and/or overwhelm Globalstar and Dish’s access to the network. In M2Z Networks v. FCC (2009), the issue of operating in previously barren networks was discussed extensively, serving as some sort of precedent for reference here.[56] In 2005, the FCC had allocated the 2155-2175 MHz band “for AWS use”, or in other words, use for advanced wireless services. In 2006, “M2Z Networks filed an application with the FCC for a license to the entire AWS–3 band”, claiming that several of these AWS bands—2155-2175 included—had “lain largely fallow” since first allocated. By 2007, the FCC had denied M2Z’s access to the 2155–2175 MHz band, denied M2Z’s petition for forbearance, and found “that the public interest is best served by first seeking public comment on how the band should be used and licensed.” M2Z’s arguments against the decision—that forbearance would promote competitive market conditions, that its technologies were considered novel and should earn them preferential treatment under 47 U.S.C. § 157—were considered “creative” by the Court of Appeals. However, the court ultimately upheld the FCC’s decision to deny the petitioners of their claim.

The Ligado bankruptcy case is especially compelling in this regard. For context, “in 2020, the Federal Communications Commission (FCC) granted Ligado exclusive rights to operate terrestrial 5G services within its licensed L-Band spectrum after a comprehensive, multiyear review process.”[57] However, soon thereafter, “the Department of Defense (DOD) unilaterally seized Ligado’s licensed spectrum”, citing that “Ligado’s wireless signals would interfere with military global positioning system (GPS) receivers.” Ligado eventually sued the Defense Department and other U.S. agencies in 2023 based on its lost “$39 billion in potential earnings”, “seeking just compensation for the spectrum license it has been unable to use.”[58] In the aftermath of this behavior, in late 2024, the U.S. Court of Federal Claims denied in part the government’s Motion to Dismiss Ligado’s claims against it, “ruling that Ligado had properly alleged that the U.S. government engaged in physical, categorical, and regulatory takings of Ligado’s exclusively licensed spectrum without compensation in violation of the Fifth Amendment.”[59] The parallel here is that without proper sharing procedures, a private company like Starlink behaving comparably to that of the U.S. Government could be violating the terms of their sharing agreement, punishable as a tortious interference with business operations or as an antitrust violation through the Sherman Act, as opposed to the Fifth Amendment for government takings.

Section 6: Recommendations

SpaceX, in its aim to gain access to certain MHz bands, needs to consider the precedent held under the aforementioned cases for future bandwidth applications, as they underscore the importance on what it means to adequately, equitably, and transparently share a spectrum.

These cases also outline paths forward to ensure that SpaceX remains compliant with the Sherman Act and does not prompt the FCC to view the Starlink constellation as violating fundamental market competition principles, providing substantive support to its brief in this stage of the rulemaking input process.

Starting with 47 U.S.C. § 157 cited in M2Z Networks v. FCC, the federal code holds that states that if a new technology or service is proposed, any party opposing it (except the FCC itself) must prove that it is not in the public interest, meaning that by default, new technology proposals are presumed to be in the public interest unless shown otherwise. Strictly, “[a]ny person or party (other than the Commission) who opposes a new technology or service proposed to be permitted under this chapter shall have the burden to demonstrate that such proposal is inconsistent with the public interest”). To cement its claim in further rulemaking briefs, SpaceX could cite the FCC’s findings in Dish Network vs SpaceX (2023) on how its Starlink network serves the public interest with novel technology—advanced phased array beam-forming and digital processing technologies, per their original filing—and therefore satisfies this basic test, keeping in mind where M2Z failed to relay this novelty (as they were using existing, proven technologies already deployed in other spectrum bands, their proposed transmission speeds were relatively slow compared to other broadband services available at the time, other providers already offered similar broadband services with better performance, and the company’s buildout and expansion schedule was not particularly aggressive).[60]

Simply demonstrating public interest does not guarantee access to contested bands, but it provides a useful place to start in establishing a compelling case for regulatory approval. Because SpaceX’s Starlink network has previously been held to satisfy the public interest test, under Federal Communications Commission v. Prometheus Radio Project (PRP), Teledesic LLC v. Federal Communications Commission, and 47 U.S.C. § 309(j) as raised in M2Z Networks v. FCC, the FCC is required by law to process mutually exclusive applications for spectrum that are identified to be in the public interest through a competitive bidding process (i.e., an auction, negotiations, etc). Of course, SpaceX faces a lower burden in its request for bandwidth access compared to M2Z, as it is seeking participation in a shared-band framework rather than exclusive rights, unlike M2Z (provided that it can adequately address the relevant technical details on sharing raised by Omnispace). Before forcing the FCC to kickstart bidding or negotiating, SpaceX, at this point of the public input-gathering stage, ought to push the FCC to consider the following in their next rulemaking regime for these Big Leo bands:

1. What is considered to be an active bandwidth in the public interest? The FCC needs to settle on a uniform or at least baseline definition of what the “active” threshold of capabilities should look like in terms of speed, latency, spectral efficiency, number of satellites in active operation, and other parameters, under the idea of the public interest in 47 U.S.C. § 157. With the advent of new non-geostationary orbiting satellites, where these orbiting spacecraft can service a particular region at different points in time, “active use” may no longer simply imply operation in a bandwidth as was traditionally the case in the CSA, but instead it may also factor into account spatial (geographical) and temporal operational details. It must also factor in the size of the active satellite network and the rate at which operations are changing—for example, investments towards increased operation in the next 10 years may not be considered as active operation currently under a narrowly-constructed interpretation of such a statute.
2. What level of flexibility does the FCC have in opening bands to new entrants? To engage in any meaningful dialogue on FCC flexibility in this aspect, the FCC needs to establish a proper procedure for opening comparable bands to new entrants. Establishing clear, pre-defined criteria for the agency to achieve its PICN standard could be achieved in part by considering what operations are considered as “active” but also in part by defining acceptable interference levels & time-sharing protocols, modernizing CSA-era regulations that were originally crafted for a much smaller, slower-moving space industry.
3. What incentives and penalties does the FCC have for active operation and spectrum hoarding, respectively? As more entrants to the space-based telecommunications industry populate the domain seemingly every year, it is the FCC’s responsibility to offer rewards to reinforce and support better, more spectrally efficient services to the public. These rewards could involve sharing of bandwidths, tiered spectrum rights for different operators based on size and investment, longer hours for bandwidth sharing access, or some other incentive elements that would encourage and perhaps foster innovation, as imagined under  47 U.S.C. § 157. Alternatively, the FCC could pursue a stricter policy of incentives, whereby a “use-it-or-lose-it clause” could potentially prevent companies from stockpiling frequencies by forcing them to deploy and maintain active operation of a certain number of satellites proportional to the size of the fleet and investment within a certain timeframe, or face forced auction of bands pursuant to 47 U.S.C. § 309(j).
4. What conflict resolution mechanisms does the FCC have in place currently? It would be instructive and expedient to the operators if there was an FCC-mandated requirement to implement frequency coordination software to assist in the adjudication of matters when interference is detected, and to issue monetary penalties to allow for just restitution in matters of interference. Several concerns have been posed to SpaceX, in particular, regarding its capacity and willingness to share spectrum cooperatively, raising questions about whether current regulatory mechanisms are sufficient to enforce allocated spectrum operation.

Once definitions and regulatory mechanisms are clearly established following public input and the rulemaking process, the Big LEO bands could potentially move into a competitive auction, bidding stage, or negotiation process. This would allow various operators to equitably utilize the spectrum, replicating the successes of Teledesic LLC v. FCC while avoiding the pitfalls of Ligado v. U.S..

Section 7: Conclusion

In the space age, companies are just now figuring out how to mass produce, launch, and deploy satellite technologies to connect the world. The legislation of the past—the Outer Space Treaty, the Radio Act of 1927, the Communications Act of 1934, and the Communications Satellite Act of 1962—has certainly supported these companies in their endeavor to convert the impossible into the possible. Yet, as the future landscape of space technology dwarfs the pace of these regulatory endeavors, modern policy authorities, especially including but not limited to the Federal Communications Commission, must take it upon themselves to revisit the approaches they have taken for the last few decades and consider how the space environment has considerably changed since the first satellite, Sputnik, was launched. With more thought in this area, existing operators—such as SpaceX, Globalstar, Dish, and others—may be able not only to coexist but also cooperate more effectively in providing next-generation internet access to the world.  

---

[1] Lyndon B. Johnson, Remarks at the Signing of the Treaty on Outer Space (Jan. 27, 1967), The American Presidency Project, https://www.presidency.ucsb.edu/documents/remarks-the-signing-the-treaty-outer-space#:~:text=After%20signatures%20by%20Secretary%20Rusk,held%20in%20London%20and%20Moscow; Center for Arms Control and Non-Proliferation, Outer Space Treaty, https://armscontrolcenter.org/outer-space-treaty/ (last visited Mar. 20, 2025).

[2] United Nations Office for Outer Space Affairs, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html (last visited Mar. 20, 2025); U.S. Department of State, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, https://2009-2017.state.gov/t/isn/5181.htm#:~:text=It%20was%20opened%20for%20signature,force%20on%20October%2010%2C%201967. (last visited Mar. 20, 2025).

[3] Federal Communications Commission, Space, https://www.fcc.gov/space#:~:text=Among%20its%20responsibilities%2C%20the%20Bureau,use%20of%20scarce%20spectrum%20and  (last visited Mar. 20, 2025); Jeff Foust, FCC Launches Space-Focused Bureau, SpaceNews, https://spacenews.com/fcc-launches-space-focused-bureau/ (last visited Mar. 20, 2025).

[4] Jon Brodkin, Starlink Mobile Plans Hit Snag as FCC Dismisses SpaceX Spectrum Application, Ars Technica, https://arstechnica.com/tech-policy/2024/03/starlink-mobile-plans-hit-snag-as-fcc-dismisses-spacex-spectrum-application/#:~:text=The%20FCC%20said%20the%20questions%20raised%20are,criteria%20would%20be%20appropriate%20for%20that%20system.&text=The%20new%20rulemaking%20will%20determine%20whether%20changes,warrant%20the%20authorization%20of%20additional%20MSS%20systems (last visited Mar. 20, 2025).

[5] Encyclopædia Britannica, Federal Communications Commission, https://www.britannica.com/topic/Federal-Communications-Commission (last visited Mar. 20, 2025).

[6] Ibid.

[7] Ibid.

[8] Arthur C. Clarke, Extra-Terrestrial Relays, Clarke Institute, http://clarkeinstitute.org/wp-content/uploads/2010/04/ClarkeWirelessWorldArticle.pdf (last visited Mar. 20, 2025).

[9] Smithsonian National Air and Space Museum, Communications Satellite, Telstar, https://airandspace.si.edu/collection-objects/communications-satellite-telstar/nasm_A20070113000#:~:text=Launched%20on%20July%2010%2C%201962,world’s%20first%20active%20communications%20satellite (last visited Mar. 20, 2025).

[10] Congress.gov, 76 Stat. 419 (1962), https://www.congress.gov/87/statute/STATUTE-76/STATUTE-76-Pg419.pdf (last visited Mar. 20, 2025).

[11] Congress.gov, 76 Stat. 419 (1962), https://www.congress.gov/87/statute/STATUTE-76/STATUTE-76-Pg419.pdf (last visited Mar. 20, 2025).

[12] Electronic Code of Federal Regulations, 47 C.F.R. Chapter I, https://www.ecfr.gov/current/title-47/chapter-I (last visited Mar. 20, 2025); Electronic Code of Federal Regulations, 47 C.F.R. Part 25, https://www.ecfr.gov/current/title-47/chapter-I/subchapter-B/part-25 (last visited Mar. 20, 2025); United Nations Office for Outer Space Affairs, USA Technical Presentation (Apr. 18, 2024), https://www.unoosa.org/documents/pdf/copuos/lsc/2024/TechnicalPresentations/April_18_Afternoon/1_–_06_-_USA_Technical_Presentation_PPT_Slides_.pdf (last visited Mar. 20, 2025).

[13] Statista, Number of Active Satellites by Year, https://www.statista.com/statistics/897719/number-of-active-satellites-by-year/ (last visited Mar. 20, 2025).

[14] Id.

[15] Starlink, Official Website, https://www.starlink.com/ (last visited Mar. 20, 2025).

[16] Jonathan C. McDowell, Satellite Statistics, https://planet4589.org/space/con/star/stats.html (last visited Mar. 20, 2025).

[17] Federal Communications Commission, SAT-LOA-20161115-00118 License Application, https://fcc.report/IBFS/SAT-LOA-20161115-00118/1158350.pdf (last visited Mar. 20, 2025).

[18] Get SAT, Ku-Band vs. Ka-Band, https://www.getsat.com/knowledge-base/ku-band-vs-ka-band/#:~:text=What%20is%20Ku%2Dband?,%2Dband%20and%20Ku%2Dband (last visited Mar. 20, 2025).

[19] Jason Rainbow, SpaceX Gets E-Band Radio Waves to Boost Starlink Broadband, SpaceNews, https://spacenews.com/spacex-gets-e-band-radio-waves-to-boost-starlink-broadband/ (last visited Mar. 20, 2025); RF Wireless World, Millimeter Wave Power Amplifier, https://www.rfwireless-world.com/Vendors/millimeter-wave-power-amplifier.html (last visited Mar. 20, 2025).

[20] Federal Communications Commission, Public Notice, DOC-394413A1, https://docs.fcc.gov/public/attachments/DOC-394413A1.pdf (last visited Mar. 20, 2025).

[21] Federal Communications Commission, FCC Document DOC-346584A1 (Sept. 7, 2017), https://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db0907/DOC-346584A1.pdf (last visited Mar. 20, 2025); Jon Brodkin, SpaceX Gets FCC Approval to Build Worldwide Satellite Broadband Network, Ars Technica, https://arstechnica.com/information-technology/2018/03/spacex-gets-fcc-approval-to-build-worldwide-satellite-broadband-network/ (last visited Mar. 20, 2025).

[22] SatNow, Satellite Network Operators, https://www.satnow.com/satellite-network-operators (last visited Mar. 20, 2025).

[23] Michael J. Kramer, Starlink Satellites Make Up 60% of All Active Spacecraft in Orbit, PCMag (Mar. 29, 2025), https://www.pcmag.com/news/starlink-satellites-make-up-60-percent-active-spacecraft-in-orbit.

[24] Nick Farrell, SpaceX Wants to Increase Its Bandwidth, Fudzilla, https://www.fudzilla.com/news/network/59902-spacex-wants-to-increase-its-bandwidth (last visited Mar. 20, 2025).

[25] Cadence, The Pros and Cons of Ka-Band Applications, https://resources.pcb.cadence.com/blog/2022-the-pros-and-cons-of-ka-band-applications (last visited Mar. 20, 2025).

[26] Cadence, Comparing the Ka-Band vs. the Ku-Band, https://resources.pcb.cadence.com/blog/2023-comparing-the-ka-band-vs-the-ku-band (last visited Mar. 20, 2025).

[27] Jason Rainbow, SpaceX Gets E-Band Radio Waves to Boost Starlink Broadband, SpaceNews, https://spacenews.com/spacex-gets-e-band-radio-waves-to-boost-starlink-broadband/ (last visited Mar. 20, 2025).

[28] Siklu, E-Band vs. V-Band: Batman or Invisible Man? You Choose, https://go.siklu.com/blog/custom-blog/e-band-vs-v-band-batman-or-invisible-man-you-choose (last visited Mar. 20, 2025).

[29] Michael Kan, FCC Clears SpaceX to Use E-Band for Starlink Capacity Improvement, PCMag, https://www.pcmag.com/news/fcc-clears-spacex-to-use-e-band-for-starlink-capacity-improvement (last visited Mar. 20, 2025).

[30] Network King, SpaceX Receives Authorisation to Operate Satellite in E-Band, https://network-king.net/spacex-receives-authorisation-to-operate-satellite-in-e-band/ (last visited Mar. 20, 2025).

[31] Electronic Code of Federal Regulations, 47 C.F.R. § 15.205, https://www.ecfr.gov/current/title-47/chapter-I/subchapter-A/part-15/subpart-C/section-15.205 (last visited Mar. 20, 2025).

[32] Electronic Code of Federal Regulations, 47 C.F.R. § 15.205, https://www.ecfr.gov/current/title-47/chapter-I/subchapter-A/part-15/subpart-C/section-15.205 (last visited Mar. 20, 2025).

[33] Brief for the FCC, Int’l Dark-Sky Ass’n v. FCC, No. 22-1337 (D.C. Cir. June 15, 2023).

[34] Paul Lipscombe, SpaceX Provides Third-Party Analysis That Details ‘Disruptive’ 12GHz 5G Band, Data Center Dynamics, https://www.datacenterdynamics.com/en/news/spacex-provides-third-party-analysis-that-details-disruptive-12ghz-5g-band/ (Oct. 7, 2022).

[35] Federal Communications Commission, Public Notice, DOC-394413A1, https://docs.fcc.gov/public/attachments/DOC-394413A1.pdf (last visited Mar. 20, 2025).

[36] Federal Communications Commission, Public Notice, DOC-394413A1, https://docs.fcc.gov/public/attachments/DOC-394413A1.pdf (last visited Mar. 20, 2025).

[37] Id.

[38] Federal Communications Commission, Order, DA-24-300A1, https://docs.fcc.gov/public/attachments/DA-24-300A1.pdf (last visited Mar. 20, 2025).

[39] Id.

[40] Jon Brodkin, Starlink Mobile Plans Hit Snag as FCC Dismisses SpaceX Spectrum Application, Ars Technica, https://arstechnica.com/tech-policy/2024/03/starlink-mobile-plans-hit-snag-as-fcc-dismisses-spacex-spectrum-application/ (Mar. 2024).

[41] Id.

[42] Federal Communications Commission, Order, DA-24-300A1, https://docs.fcc.gov/public/attachments/DA-24-300A1.pdf (last visited Mar. 20, 2025).

[43] Id.

[44] Federal Communications Commission, Order, DA-24-298A1, https://docs.fcc.gov/public/attachments/DA-24-298A1.pdf (last visited Mar. 20, 2025).

[45] Dan Swinhoe, Starlink Files for 30,000 W-Band LEO Satellites, Data Center Dynamics, https://www.datacenterdynamics.com/en/news/starlink-files-for-30000-w-band-leo-satellites/ (Oct. 25, 2023).

[46] Expediting Initial Processing of Satellite and Earth Station Applications, IB Docket Nos. 22-411, 22-271, Notice of Proposed Rulemaking, Statement of Chairwoman Jessica Rosenworcel, 37 FCC Rcd. 15167, FCC 22-95, 1 (rel. Dec. 22, 2022); Federal Communications Commission, ECFS Search Results for RM-11975, https://www.fcc.gov/ecfs/search/search-filings/results?q=(proceedings.name:(%22RM-11975%22)) (last visited Mar. 20, 2025).

[47] Federal Communications Commission, ECFS Filing, https://www.fcc.gov/ecfs/document/102211948918123/1 (last visited Mar. 20, 2025).

[48] Id.

[49] Id.

[50] In the Matter of Flexibility for Delivery of Communications via Mobile Satellite Service, FCC (Mar. 29, 2025), https://www.fcc.gov/document/flexibility-delivery-communications-mobile-satellite-service-3.

[51] Supreme Court of the United States, Opinion, No. 19-1231, https://www.supremecourt.gov/opinions/20pdf/19-1231_i425.pdf (last visited Mar. 20, 2025); M2Z Networks v. FCC, 558 F.3d 554 (D.C. Cir. 2009).

[52] Supreme Court of the United States, Opinion, No. 19-1231, https://www.supremecourt.gov/opinions/20pdf/19-1231_i425.pdf (last visited Mar. 20, 2025).

[53] Teledesic LLC v. FCC, https://casetext.com/case/teledesic-llc-v-fcc (last visited Mar. 20, 2025).

[54] Federal Communications Commission, ECFS Filing, https://www.fcc.gov/ecfs/document/1042500695864/1 (last visited Mar. 20, 2025).

[55] Federal Communications Commission, ECFS Filing, https://www.fcc.gov/ecfs/search/search-filings/filing/104262409918597 (last visited Mar. 20, 2025).

[56] M2Z Networks v. FCC, 558 F.3d 554 (D.C. Cir. 2009).

[57] Ligado Networks, Ligado Networks Announces Comprehensive Restructuring Transaction, https://ligado.com/press/ligado-networks-announces-comprehensive-restructuring-transaction/ (last visited Mar. 20, 2025).

[58] Reuters, Ligado Files Bankruptcy After Stalled Wireless Expansion, https://www.reuters.com/business/media-telecom/ligado-files-bankruptcy-after-stalled-wireless-expansion-2025-01-06/ (Jan. 6, 2025).

[59] Ligado Networks, Ligado Networks Announces Comprehensive Restructuring Transaction, https://ligado.com/press/ligado-networks-announces-comprehensive-restructuring-transaction/ (last visited Mar. 20, 2025).

[60] Reuters, Ligado Files Bankruptcy After Stalled Wireless Expansion, https://www.reuters.com/business/media-telecom/ligado-files-bankruptcy-after-stalled-wireless-expansion-2025-01-06/ (Jan. 6, 2025).