Attachment 2002Primosphere-Siri

2002Primosphere-Siri

OPPOSITION submitted by Sirius Satellite Radio and Satellite CD Radio (Sirius)

tr

2002-01-11

This document pretains to SAT-A/O-19921215-00043 for Authority to Operate on a Satellite Space Stations filing.

IBFS_SATAO1992121500043_875076

ORIGINAL Before the FEDERAL COMMUNICATIONS COMMISSION Washingion. BC. 20554 RECEIVED JAN 11 2002 In re Application of FEeSERAL COMMUNICATIONS CommIIsignt OFFICEoF The SECrEtam PRIMOSPHERE LIMITED PARTNERSHIP File Nos. 29/30—DSS—LA—93 16/17—DSS—P—93 Application for Authority to Construct, 5?'@{-.@lvor Launch and Operate Satellites in the v—iVvOl Satellite Digital Audio Radio Service 4¥ 1 7 ay & UV Cns tilf p ‘f;‘f&gx "lae Pai / f}i{“}, i% OPPOSITION TO APPLICATION FOR REVIEW!"@!ion#, Z sHAn~p Pursuant to Section 1.115(d) of the Commission‘s Rules, 47 C.F.R. § 1.115(d), Sirius Satellite Radio Inc. and its subsidiary Satellite CD Radio, Inc. (collectively "Sirius") hereby oppose the Application for Review‘ filed December 27, 2001 by Primosphere Limited Partnership ("Primosphere") in the above—captioned matter. Primosphere seeks Commuission review of the International Bureau‘s denial of reconsideration of its 1997 dismissal of Primosphere‘s above—captioned application to launch and operate satellite systems in the Satellite Digital Audio Radio Service ("‘satellite DARS"). BACKGROUND On March 3, 1997, the Commission adopted final rules and policies governing satellite DARS and setting forth the terms for auctioning two 12.5 MHz satellite DARS authorizations." Following Sirius‘s successful bid for one of two satellite DARS authorizations, the International ‘ Application for Review, File Nos. 29/30—DSS—LA—93, 16/17—DSS—P—93 (filed Dec. 27, 2001) ("Application for Review"). * Digital Audio Radio Satellite Service, 12 FCC Red 5754, 5827—29 (1997) (Order) ("Satellite DARS Order‘).

Bureau granted Sirius a satellite DARS license." On October 28, 1997, the Bureau dismissed Primosphere‘s application. Primosphere filed an Application for Review on November 10, 1997, challenging the International Bureau‘s grant of authority to Sirius to launch and operate a satellite DARS system and the Bureau‘s denial of Primosphere‘s petition to deny Sirius‘s application." Primosphere also filed a Petition for Reconsideration on November 26, 1997, seeking reconsideration of the International Bureau‘s dismissal of Primosphere‘s application." On November 30, 2001, the Commission denied Primosphere‘s 1997 Application for Review and reaffirmed the October 1997 Bureau order granting Sirius‘s application.® Concurrently, the International Bureau denied Primosphere‘s Petition for Reconsideration, finding that Primosphere‘s application was moot in light of the Commussion‘s denial of the 1997 Application for Review.‘ Primosphere filed a Petition for Review in respect to the Commission‘s denial of Primosphere‘s 1997 Application for Review in the Court of Appeals on December 27, 2001, followed by a Notice of Appeal on December 28, 2001. Concurrently, Primosphere filed this Application for Review of the International Bureau‘s order denying the Petition for Reconsideration. > Satellite CD Radio, Inc. Application for Authority to Construct, Launch, and Operate Two Satellites in the Satellite Digital Audio Radio Service, DA 97—2210 (Oct. 10, 1997) ("Sirius License Order‘). * Application for Review of Primosphere, File No. 71—SAT—AMEND—97 (filed Nov. 10, 1997) (*1997 Application for Review"). ° Petition for Reconsideration, File Nos. 29/30—DSS—LA—93, 16/17—DSS—P—93 (filed Nov. 26, 1997) ("Petition for Reconsideration"). ° Satellite CD Radio, Inc., Application for Authority to Construct, Launch, and Operate Two Satellites in the Satellite Digital Audio Radio Service, FCC 01—335 (Nov. 30, 2001) (Memorandum Opinion and Order). ‘ Primosphere Limited Partnership, Application for Authority to Construct, Launch and Operate Satellites in the Satellite Digital Audio Radio Service, DA—01—2779 (Int‘l. Bur. Nov. 30, 2001) (Order).

DISCUSSION In its Application for Review, Primosphere maintains that the dismissal of its application was premature, given the pending appeal in the Court of Appeals. However, the Bureau‘s dismissal of satellite DARS applications filed by entities that lost the auction was wholly appropriate. As the Bureau stated, Primosphere‘s application was moot given that the Commission denied its 1997 Application for Review and reaffirmed the October 1997 Bureau Orders granting Sirius and American Mobile Satellite Radio Corporation ("AMRC") applications for the two available SDARS licenses. There being no other licenses available, the Bureau recognized that Primosphere‘s application cannot be granted. Nothing in Primosphere‘s Application for Review casts doubt on the merits of the Bureau‘s dismissal. First, Primosphere‘s central claim has now been twice rejected (by both the International Bureau and the full Commission), is meritless and will in all likelihood be denied. Second, in the unlikely event that the FCC changes its long—standing policies on licensee and service qualifications, Sirius would be afforded an opportunity to cure, by amendment of its application. Even in the still more unlikely event that any current satellite DARS authorizations were rescinded, Primosphere and all other interested parties would be able to submit new applications for the newly available satellite DARS licenses." At this time, however, there are no available satellite DARS licenses and Primosphere‘s Petition for Reconsideration was appropriately denied. 8 47 C.F.R. § 1.2109(c) (requiring the Commission to conduct another auction if the winning bidder is disqualified).

CONCLUSION For the reasons set forth above, Sirius respectfully requests that the Commission deny Primoshere‘s Application for Review. Respectfully submitted, SIRIUS SATELLITE RADIO INC. SATELLITE CD RADIO, INC. by: %%Ab — W Carl R. Frank Jennifer D. Hindin of WILEY REIN & FIELDING LLP 1776 K Street, N.W. Washington, D.C. 20006 ITS ATTORNEYS January 11, 2002

CERTIFICATE OF SERVICE I hereby certify that on this 11th day of January, 2002, I caused a copy of the foregoing Opposition to Application for Review to be served via hand—delivery to the following: Howard M. Liberman, Esq. DRINKER BIDDLE & REATH, LLP 1500 K Street, N.W. Suite 1100 Washington, D.C. 20005—1209 Counselfor Primosphere Limited Partnership ( /// ///L(4/%/;2?%{/ "Claudia L. Cartagena


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Document Modified: 2019-04-10 19:40:14
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