As the satellite industry continues its efforts to convince governmental authorities around the world that it has a meaningful role to play in the delivery of high-speed broadband access, an all-too-familiar nemesis has once again surfaced to frustrate such efforts — latency.

Disappointingly, one of the more receptive regulators to these concerns is the U.S. Federal Communications Commission (FCC), which has repeatedly exhibited considerable skepticism regarding the inclusion of satellite technology as a viable option for broadband delivery, even for serving more remotely populated areas. Confronted with multiple opportunities to include satellite technology as a broadband delivery solution, the FCC has repeatedly chosen not to.

This trend began with a rather dismissive attitude toward satellites in the FCC’s 2010 National Broadband Plan, and has been followed by a series of regulatory decisions with the cumulative effect of marginalizing any meaningful role for satellites in the achievement of the Plan’s objectives. These include the ground rules established for grants made under the American Recovery and Reinvestment Act of 2009 (ARRA) via the Broadband Technology Opportunities Program (BTOP) and the Broadband Initiatives Program (BIP), as well as the funding approaches taken regarding funding under the first round of the Connect America Fund (CAF) and the Rural Broadband Experiments Program.

Much of this hostility is squarely predicated on concerns relating to latency. For most of its funding efforts, the FCC has imposed a funding eligibility precondition of a 100 millisecond latency requirement, which geosynchronous satellites, by definition, cannot achieve. As a result, some very innovative proposals put forward by ViaSat in submitting an application in the Rural Broadband Experiments Program were rejected out of hand because of unwavering insistence on meeting the 100 millisecond latency requirement, even though many services to be offered were not latency sensitive and ViaSat had proposed alternate means of meeting the latency requirement when timing was sensitive. ViaSat has pending an appeal of the FCC’s dismissal of its application, but even if ultimately granted, the program could well be in its final phases of implementation, rendering such a reversal academic in nature.

To be sure, latency has always been a potential issue regarding the delivery of a broad range of satellite services, although the concern has been put to bed, or at least the industry thought so, on more than one occasion by various technological developments. And irrespective of some legitimate quality of service issues associated with the early days of broadband delivery by satellite, satellite technology has again made a quantum leap forward in recent years. Clearly, with the advent of High Throughout Satellites (HTS), and the latest generation of such satellites offered by ViaSat and Hughes Network Systems, high quality broadband connectivity can be delivered via satellite, at a fraction of the cost of terrestrial alternatives in many instances, latency concerns notwithstanding. Yet, it seems impossible for some to resist continuing to drink the latency Kool-Aid. While regulatory lip service is given to the bromides of being technology neutral and not picking winners or losers, it is difficult to comprehend how a level playing field is maintainable when significant federal funds are being committed to various wireline and wireless operators in order to promote broadband connectivity, but at the exclusion of satellite operators.

Whether any progress can be made is a fair question. Over the past several months, the FCC has issued two new documents that will shape future policy determination in this regard. The first, issued in June 2014, deals with, among other things, the proposed funding approach for the second round of CAF financing; and the second, issued in August 2015, is the 11th Broadband Progress Notice of Inquiry, addressing a broad range of policy issues, including prospective consideration of satellites in the delivery of broadband service delivery. In both of these proceedings, the FCC will have before it the choice of whether to continue drinking the latency Kool-Aid or to allow satellites the fair opportunity to demonstrate their ability to compete in the broadband services marketplace on equal footing with wireless and wireless service providers. Both ViaSat and Hughes have put forward specific proposals as to how satellite technology can be included on a going-forward basis. Irrespective of which approach makes more sense, one can only hope that the FCC is keeping an open mind.

One final caveat: Clearly, latency is a key aspect of proposals for new Low Earth Orbit (LEO) satellite constellations being put forward by the likes of OneWeb, SpaceX and Boeing. LEO deployment of satellites is certainly one approach to addressing latency concerns, and these proposals merit serious consideration on that basis. But in advancing such viewpoints, LEO systems proponents must be careful not to overplay their hand. The last thing that the satellite industry needs at this time is internecine warfare over the latency issue between geosynchronous and LEO satellite operators. It is difficult enough to fight this issue with governmental regulators without having the battle spill over into the satellite industry itself. VS

_{Maury Mechanick is a counsel at White & Case LLP}