Attachment 1993Primosphere qual

1993Primosphere qual

STATEMENT submitted by Primosphere

Qualified Statement In Support Of Request For Waiver

1993-06-02

This document pretains to SAT-AMD-19900801-00046 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD1990080100046_1080378

FEDERAL Before the COMMUNICATIONS COMMISSION cQBy Washington, D.C. 20554 JUN — 2 1993 In the Matter of FEDERAL COMMUNICATIONS COMMISSION Nn n n n N Ni iz OFFICE OF THE SECRETARY SsATELLITE CD RADIO, INC. File Nos. 49/50—DSS—P/LA—90 58/ 59=—DSS=AMEND—90 Request for Waiver of 44 /45—DSS—AMEND—92 Section 319(d) to Commence ‘Construction of Digital Audio Radio Satellites To: The Commission Jia 41994 OF CE [ C ) m QUALIFIED STATEMENT IN SUPPORT OF REQUEST FOR WAIVER®s1;|~: moadns ns K Li VI N LCOMMON CARRIER Puppa Primosphere Limited Partnership ("Primosphere"), an applicant to construct, launch and operate two satellites to provide Digital Audio Radio Service ("DARS"), by its attorneys, hereby submits this statement in support of the "Request for Waiver of Section 319(d)" submitted by Satellite CD Radio, Inc. ("SCDR") by letter dated May 17, 1993. Primosphere supports SCDR‘s request, but with the proviso that any waiver, if granted, be extended to Primosphere as well as other competing satellite DARS applicants who may wish to_ w s take advantage of the requested Apportunity. SCDR‘s May 17th waiver request contains a well—reasoned showing that the public interest would benefit from allowing SCDR to spend up to $10 million over a period of 10 months from the date of grant of the request to begin construction on its proposed DARS satellites. Pursuant to the Public Notice, DA 92—1408, released October 13, 1992, which established a cut—off date of December 15, 1992 for the filing of satellite DARS applications in the downlink ~

frequency band of 2310—2360 MHz to be considered concurrently with SsCDR‘s application, Primosphere filed an application to construct, launch and operate two satellites to be used to provide satellite DAR services (File Nos. 29/30—DSS—LA—93; 16/17—DSS—P—93). As of this date, Primosphere, SCDR and two other parties have pending satellite DARS applications.} Primosphere submits that the same considerations which support a waiver of Section 319(d) with respect to SCDR‘s application support authorizing Primosphere, and any other satellite DARS applicant who wishes to avail itself of the opportunity, to expend the same amount of money to begin construction of its satellite DARS systen. Primosphere too could realize significant cost— savings and shorten overall construction time by early procurement of components requiring long leadtimes. The same public interest benefits of bringing Primosphere‘s satellite DAR service to the American public sooner will accrue. Moreover, to the extent Primosphere, which alone proposes an advertiser—supported service,. w o+ can reap the benefits of cost savings, it will be able to devote more of its resources to programming services. *‘ The other two parties with pending applications are American Mobile Radio Corp. (File Nos. 26/27—DSS—LA—93; 10/11—DSS—P—93) and Digital Satellite Broadcasting Corp. (File Nos. 28—DSS—LA—93; 12/13—DSS—P—93). Loral Aerospace Holdings, Inc. and Sky—Highway Radio Corp., the other two applicants, have voluntarily requested the dismissal of their respective applications. 2

Primosphere acknowledges and accepts the risks involved in proceeding to construct its system prior to the resolution of certain matters. As is the case with respect to SCDR‘s application, Primosphere‘s application is the subject of several petitions to deny. Primosphere is confident enough in its position relative to those petitions that it would be willing to proceed with construction prior to the FCC‘s resolution of the petitions. Primosphere is also willing to proceed while the Commission goes about the process of establishing a requlatory framework for satellite DARS. It would be fundamentally unfair and contrary to precedent for the Commission to authorize SCDR to begin construction without affording the other applicants the same opportunity. For purposes of a waiver of Section 319 (d) of the Communications Act, 47 U.S.C. § 319(d)(1988), Primosphere and the other applicants are identically situated to SCDR. It is well—established that the Ccommission has an obligation to treat similarly situated applicants. similarly. See Melody Music, Inc v. FCC, 345 F.2d 730 (D.C.Cir. 1965).

WHEREFORE, for the foregoing reasons, Primosphere urges the Commission to grant the requested waiver of Section 319(d) of the Communications Act for all pending satellite DARS applicants who wish to take advantage of the opportunity to commence construction of their respective systems at their own risk.* Respectfully submitted, PRIMOSPHERE LIMITED PARTNERSHIP By:/%;UGU*’(77Z ézz&eAJMhfibfi Howard Liberman Arter & Hadden 1801 K Street, NW, Suite 400K Washington, DC 20006 (202) 775—7100 and Leslie Taylor Leslie Taylor Associates 6800 Carlynn Court Bethesda, MD 20817 (301) 229—9341 ItgAttorneys «+ June 2, 1993 * To the extent the Commission deems necessary, Primosphere will, at the appropriate time, submit a formal request for waiver along with the requisite filing fee.

CERTIFICATE OF SERVICE I, Howard M. Liberman, do hereby certify that on June 2, 1993 a copy of the foregoing "Qualified Statement in Support of Request for Waiver" was sent by United States First Class Mail, postage prepaid, to the following: John E. Fiorini, IILI Gardner, Carton and Douglas 1301 K Street, N.W. Suite 900 Gast Tower Washington, D.C. 20005 Counsel for Radio Operators Caucus Richard E. Wiley Wiley, Rein, and Fielding 1776 K Street, N.W. Washington, D.C. 20006 Counsel for Satellite CD Radio, Inc. Henry L. Baumann National Association of Broadcasters 1771 N Street, N.W. Washington, D.C. 20036 Lon C. Levin American Mobile Radio Corporation 4th Floor 1150 Connecticut Avenue, N.W. Washington, D.C. 20036 Daniel E. Gardner, Jr. & " President Advanced Communications Corporation Suite 1000 1111 19th Street, N.W. Washington, D.C. 20036 Christopher D. Inmlay Booth, Freret, and Inlay 1920 N Street, N.W. Suite 150 Washington, D.C. 20036 Counsel for Society of Broadcast Engineers Steven A. Lerman Leventhal, Senter, and Lerman 2000 K Street, N.W. Suite 600 Washington, D.C. 20006 Counsel for Shamrock Broadcasting, Inc. and Franklin Communications

Theodore A. Miles National Public Radio 2025 M Street, N.W. Washington, D.C. 20036 Bruce Jacobs Fisher, Wayland, Cooper and Leader 1255 23rd Street, N.W. Suite 800 Washington, D.C. 20037 Counsel for AMSC Subsidiary Corporation Gary L. Noreen Radio Satellite Corporation 1167 North Halliston Avenue Pasadena, CA 91109 W. Theodore Pierson, Jr. 1200 19th Street, N.W. Suite 607 Washington, D.C. 20036 Counsel for Diqgital Satellite Broadcasting Corporation fhr wod l(M . [e Howard M. Liberman w—


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