SpaceX Tells FCC New Data Shows EchoStar ‘Barely Uses’ AWS-4 Band, Reiterates Request for FCC to Initiate S-Band Spectrum Sharing Proceeding

Regulatory Analyst: Mitchell McVeigh
Credit Research: Adam Rhodes, CFA

Relevant Documents:
SpaceX Letter
SpaceX Triple Delete Comment
EchoStar OOBE Reconsideration Application

SpaceX today filed a letter with the Federal Communications Commission arguing that “new data confirms” that EchoStar “barely uses the AWS-4 band, if it is used at all, to provide 5G or any other service to American consumers.” SpaceX says that “new measurements show that [EchoStar’s] DISH uses less than 5% of what would be expected from an actual wireless network operator.”

SpaceX argues this is “the starkest example yet” why the FCC should grant SpaceX’s long-standing request for the agency to let new entrants into the 2 GHz band and to initiate a rulemaking to establish a spectrum sharing framework for mobile satellite services, or MSS, operations in the 2 GHz band, also referred to as the S-band. SpaceX’s letter is dated April 14 but was filed publicly today.

SpaceX, which is seeking spectrum for its growing Starlink satellite broadband and direct-to-cell operations, last month sent a letter to the commission arguing that DISH’s market access to the 2 GHz band “expired years ago” after it failed to deliver to consumers any MSS offering in that shared band. EchoStar’s terrestrial rights to the AWS-4 band involves the 2000-2020 MHz and 2180-2200 MHz portions of the 2 GHz band.

SpaceX reiterates in its letter today that DISH acquired the terrestrial AWS-4 rights “for free over a decade ago, based on a claim that it would continue providing satellite service in the band,” but asserts that DISH failed to uphold its “end of the bargain.” SpaceX adds that a recent spectrum analysis demonstrates that “DISH barely uses the spectrum,” which explains the “extensive consumer complaints about the difficulties of signing up for DISH’s mobile service.”

Instead of providing satellite service, SpaceX says that DISH “instead chose to maintain a façade of use by filing occasional earth station license renewals for a non-existent MSS system while simultaneously telling the Securities and Exchange Commission and the investing public that its satellites have no monetary value.”

SpaceX’s letter did not provide direct references to specific SEC filings or investor communications where SpaceX alleges that EchoStar or DISH made these disclosures. However, in a 2023 FCC filing, SpaceX argued that DISH’s 2022 annual report “omits any discussion or evidence of a commercial MSS service in the United States” and “lists its MSS satellites at an estimated fair value of zero.”

EchoStar operates two S-band geosynchronous orbit, or GSO, satellites with coverage over North America:

• D1: DBSD North America launched this satellite in April 2008, and it was formerly known as EchoStar G1 and ICO G1; and
   
• T1: TerreStar launched this satellite in July 2009, and it was formerly known as EchoStar T1 and TerreStar 1.

Additionally, SpaceX’s most recent letter suggests that DISH failed to satisfy its 70% population coverage nationwide buildout requirement of its AWS-4 licenses by June 2023. “While DISH represented to the Commission that it had satisfied its 70% buildout commitment in the AWS-4 band, new data vindicates those that have questioned DISH’s claims,” the letter argues.

The FCC in October 2023 confirmed that DISH met all of its June 2023 band-specific 5G deployment commitments, including its population coverage deployment metrics, required for the contingent extension of its AWS-4, H-block, 700 MHz and 600 MHz spectrum licenses.

According to SpaceX, a satellite measuring the power spectral density, or PSD, levels in the AWS-4 bands “found that DISH’s use of the band is de minimis at best.” PSD levels can be viewed as a proxy for spectrum usage, SpaceX explains, with higher PSD values indicating higher usage and lower PSD values indicating lower usage.

SpaceX provides a chart with blue, red and green lines representing PSD measurements taken over a region in the Northeastern United States, the Western United States and Alaska, respectively. The labels at the top of the diagram depict the range of DISH’s AWS-4 band spectrum along with those of other adjacent terrestrial wireless networks.

SpaceX argues that this data suggests that DISH’s usage 2000-2020 MHz range in the Northeast is “1% to 5% of what is expected compared to the activity in the adjacent-band terrestrial wireless networks.” Additionally, SpaceX contends that DISH’s usage in the 2180-2200 MHz range is “1% to 3% of what is expected” in the Northeast, with “even lower usage in the Western U.S. and effectively no usage in Alaska.”

“DISH essentially admitted in its financial filings that it has no 2 GHz MSS operations in the United States and, based on these measurements, appears to have virtually no terrestrial network operations in the AWS-4 band either,” SpaceX maintains.

Accordingly, SpaceX contends that the 2 GHz band “remains ripe for sharing among next-generation satellite systems that seek to finally make productive use of the spectrum for consumers and first responders.” The company asks the FCC to “expeditiously” welcome new entrants into the band and start a new rulemaking to ensure “the 2 GHz MSS band is put to efficient and intensive use.”

As Octus, formerly Reorg, has previously discussed, EchoStar has engaged in a yearslong process to more fully utilize its global S-band authorizations, and we expect that in the near term a number of factors are aligning for the company to advance these efforts with a robust direct-to-device, or D2D, low earth orbit constellation and potential partnership. Industry participants speculate that MDA Space, the prime contractor for Globalstar’s planned D2D constellation, is in line to manufacture an EchoStar constellation, with Apple serving as a partner.

In March 2024, the FCC denied SpaceX’s application to use spectrum in the S-band, the 1.6/2.4 GHz (Big LEO) and 2020-2025 MHz bands for its second-generation Starlink satellites. However, the agency sought comment on SpaceX’s parallel rulemaking petition to revisit the MSS licensing and spectrum-sharing framework for the S-band and Big LEO bands. In comments to the agency last year, EchoStar warned that revising the spectrum sharing regime in the S-band would upend billions of dollars of investments to deploy 5G services across the United States.

SpaceX’s rulemaking petition for the spectrum sharing in the S-band remains pending. The FCC could be more sympathetic to SpaceX’s arguments under Chairman Brendan Carr, who assumed leadership of the commission in January.

SpaceX Asks for New Rulemakings in FCC’s Triple-Delete Proceeding

Carr on March 12 announced a sweeping review of the FCC’s regulations in a rulemaking titled “In Re: Delete, Delete, Delete,” which seeks public comment on rules and regulations that should be eliminated or modified. In addition to asking the agency to relax certain rules, SpaceX in its April 11 comment called on the commission to initiate several new rulemakings and adopt final orders in several pending proceedings.

SpaceX’s comment in the “Delete, Delete, Delete” docket, like the letter discussed above regarding EchoStar’s AWS-4 operations, urges the FCC to initiate a new rulemaking to update service and sharing rules for MSS operations in mid-band satellite spectrum to “promote new competition, more efficient sharing, and enhanced service quality.”

Additionally, SpaceX asks the FCC to “propose a robust satellite spectrum pipeline to support gigabit-speed, low-latency satellite broadband and 6G connectivity.” This would include “promoting flexible use of satellite spectrum, removing outdated restrictions on existing fixed-satellite Service allocations, and adding new satellite uplink allocations for emerging frequency bands above 95 GHz.”

SpaceX also asks the FCC for a new rulemaking proceeding to sunset “ossified” equivalent power flux-density, or EPFD, limits that protect “legacy satellite systems.”

On April 7, the agency requested comments on a potential update to the spectrum sharing regime between GSO and non-geostationary orbit, or NGSO, satellite systems operating in the 10.7-12.7, 17.3-18.6, and 19.7-20.2 GHz bands. The FCC is scheduled to vote on launching the rulemaking at its April 28 open meeting.

With respect to pending rulemaking proceedings, SpaceX in its “triple-delete” comment asks the FCC to:

• Eliminate “burdensome and unnecessary” supplemental coverage from space, or SCS, requirements;
   
• Permit NGSO systems to modify licenses without prior commission approval so long as modifications do not cause significant interference with other systems;
   
• Establish clear orbital debris mitigation rules that apply equally to all operators;
   
• Reject demands to “inject harmful high-power terrestrial services” in and adjacent to the 12 GHz band; and
   
• Replace pre-coordination and site-by-site licensing rules with a self-coordinated “light-licensing” framework for upper millimeter-wave spectrum bands shared on a co-primary basis between satellite and terrestrial operators.

SpaceX also asks the FCC to upgrade its space station and earth station licensing procedures, which, it asserts, will “achieve many of the goals” of the proceeding without any changes to FCC rules. These include establishing internal “shot-clocks” for final actions on space and earth station applications of 60 days and a presumption that granting certain space or earth station requests would serve the public interests.

Additionally, SpaceX suggests that the commission require U.S.-based satellite companies that “have sought to evade Commission oversight by seeking licenses from foreign jurisdictions” to refile those applications as U.S. space station applications for new systems. The company also suggests that the FCC decline NGSO milestone extensions “except in extremely rare and truly unforeseeable circumstances.”

Meanwhile, EchoStar focuses its triple-delete proceeding comments on television-related regulations. EchoStar calls on the FCC to eliminate syndicated exclusivity and network nonduplication rules for satellite carriers, which give legacy local broadcasters and syndicators a blackout right based on a zone of protection. EchoStar also calls for the removal of political file rules for DBS providers, prohibitions of importing distant signals during programming blockouts, and high-definition must-carry rules.

Reply comments for the triple-delete proceeding are due April 28.

EchoStar Asks FCC to Reconsider ‘Arbitrary and Capricious’ OOBE Waiver

Separately, EchoStar on April 7 filed an application asking the full commission to reconsider the FCC Space Bureau’s decision granting SpaceX’s waiver of aggregate out-of-band emission limits for supplemental coverage from space, or SCS. “Instead of finding that harmful interference would be unlikely at the higher power levels proposed by SpaceX, the Bureau failed to make any decision about the likelihood of harmful interference, granted the waiver, and put the burden on EchoStar to protect itself,” EchoStar argues.

EchoStar contends that the waiver was “arbitrary and capricious” because the Space Bureau decision was not reasoned, as the bureau failed to show that the FCC’s prior concerns “had changed, been eliminated, or rendered unlikely.” Additionally, EchoStar contends that the plain text of the Communications Act vests the FCC “with the responsibility to ‘prevent interference’ before it happens.”