Seeking Regulatory Mercy: The case for extending constellation deployment deadlines

When international regulators adopted deployment milestones in late 2019 to rein in a flood of proposed satellite constellations, they could not have foreseen the havoc a pandemic was about to wreak across the industry.

COVID-19 jammed up satellite manufacturing supply chains, disrupted workforces and shook financial markets, piling on extra burdens and delays for satellite projects.

Even as the pandemic loosens its grip on the industry two-and-a-half years later, space companies face fierce macroeconomic headwinds and a looming launch capacity crunch.

The war in Ukraine has also exasperated the industry’s manufacturing and launch constraints. Russia’s invasion has disrupted the availability of noble gases used by electric satellite thrusters and semiconductor manufacturers, and prompted international sanctions that have taken Soyuz rockets off the table for those in the West.

Will regulators show mercy for constellation hopefuls battling unprecedented manufacturing and launch constraints outside their control?

KEEPING TO SCHEDULE

The International Telecommunication Union (ITU), an affiliate of the United Nations, regulates spectrum rights for satellites in non-geostationary orbit (NGSO) globally.

The ITU’s task has become increasingly challenging as technology advancements sparked a recent surge of spectrum applications for NGSO constellations.

To help separate applicants that are truly building and launching satellites from those more interested in hoarding spectrum, the ITU adopted rules in November 2019 that force NGSO operators to hit deployment milestones or lose their spectrum rights.

Under ITU Resolution 35, these deployment milestones start seven years after an application for the spectrum is filed with the ITU, during which applicants must deploy and operate their first satellite.

After those seven years, NGSO operators need to launch 10% of their constellation in two years, 50% in five years and 100% in seven years.

If they fail to launch enough satellites before these deadlines, or finish the constellation within the total 14 years allotted, their spectrum rights are limited proportionally to the number deployed before time ran out.

Previously, an NGSO project only needed to operate its first satellite within the initial seven-year deadline to preserve its frequencies.

A cursory survey of the ITU’s filing database uncovers 384 filings that appear to be subject to Resolution 35, notes George John, a senior associate at law firm Hogan Lovells.

While quirks in the database’s search features that prevent precise queries make this tally imperfect, and some NGSO operators enlist multiple filing for one constellation, these filings conservatively represent tens of thousands of proposed satellites.

EXTENSION REQUEST

The ITU said in July that it rejected a petition for a one-year extension for all constellations subject to ITU Resolution 35.

The petition was submitted by the government of Liechtenstein and its U.S.- based industrial partner, Rivada Space Networks, on behalf of all NGSO operators.

Rivada acquired the spectrum filings in early 2022, after their former holder had already brought them into use in 2020, seeking to kickstart a project that continues to be mired by shareholder disputes.

However, the company now has to launch 10% of its planned 600 satellites by September 2023 to keep its frequencies.

With just over a year to put up its first 60 satellites, Rivada has yet to start building spacecraft. Rivada spokesperson Brian Carney said the company is reviewing potential manufacturers for the constellation after issuing a request for proposals in the spring. “We continue to make every effort to meet the applicable deadlines and we expect to be able to meet them,” Carney said.

However, he said “owing to international conflict that has removed launch capacity from the industry, together with the economic effects of the pandemic and other unforeseeable factors, every constellation seeking launch and manufacturing capacity is facing constraints outside its control.”

Carney said Rivada petitioned the ITU for the extension “in part to raise awareness of the industry conditions faced by all NGSO constellation[s] currently in the development stage.”

Rivada is “not surprised at the rejection of our application,” he added, and expects a final disposition of this matter to come the next time the ITU meets to set rules in 2023.

Resolution 35 has a provision instructing the ITU to report any difficulties it encounters in implementing the milestone approach at the next World Radiocommunication Conference (WRC-23), a four-week meeting that starts Nov. 20, 2023.

The ITU’s Radio Regulations Board (RRB) currently only has the authority to grant deadline extensions for individual NGSO operators that can prove circumstances beyond their control.

“The RRB has no authority to change regulatory time limits in general but only with respect to specific individual cases,” an ITU spokesperson said.

These companies need to prove a delay was caused by either an issue with a satellite sharing the same rocket launch or a force majeure event.

There are a number of conditions for an event to qualify as force majeure, including being completely out of the NGSO operator’s control and not self-induced.

It must also be unforeseen — or if it was foreseeable, then inevitable or irresistible — and make it impossible for the NGSO operator to perform its obligation.

“Consequently, mere difficulty in performing an obligation is not deemed to constitute force majeure,” the ITU spokesperson said via email.

There also has to be a direct connection between the force majeure event and the missed deadline.

“It must of course be made clear in this regard that the causal connection should not be the result of behaviour willfully adopted by the obligor,” the ITU spokesperson added.

UNPRECEDENTED CHALLENGES

Given how young the deployment-milestone framework is for NGSO, Hogan Lovells’ John expects more meaningful inquiries and challenges in coming years.

“This next year will most certainly be an interesting one, with the large number of global NGSO constellations seeking access and priorities for scarce spectrum resources, layered atop priorities and operations of existing operators” both in NGSO and geostationary orbit, Hogan Lovells partner Randy Segal added.

“We have certainly been watching with interest applications at the ITU to extend deadlines, and to see whether and how the ITU’s position will change and what those changes will mean for operators.”

There is not enough satellite manufacturing or launch capacity available for every NGSO venture to meet their milestones — even if they can finance their plans, according to Armand Musey, founder of New York-based advisory firm Summit Ridge Group.

“There will be many NGSO systems that really don’t have a chance to make their milestones,” Musey said.

Amazon used its significant financial power earlier this year to snap up 83 future launches for its proposed Project Kuiper constellation, which Musey believes leaves little room for other NGSO projects.

“The only truly proven launch provider that can scale launches is SpaceX and they have their own competing NGSO system,” he said.

Excluding SpaceX’s Starlink constellation, Musey counts more than 55,000 approved satellites.

Even launching weekly and assuming 100 satellites per mission, it would take SpaceX about 10 years to launch that number.

Multiple small, medium and heavy launch vehicles are currently in development, but Musey expects none to fly more than 10 times a year by 2024.

Forcing the industry to rush as many launches as possible to meet satellite deployment deadlines also has implications for space sustainability.

With space environmental issues rising to the top of international agendas, regulators meeting at WRC-23 next year might be encouraged to consider whether their deadlines increase the risk of space debris from rocket and satellite failures.

This article originally appeared in the August 2022 issue of SpaceNews magazine.