Attachment DA 05-2526

DA 05-2526

ORDER submitted by FCC,IB

DA 05-2526

2005-09-26

This document pretains to SAT-AMD-19960429-00063 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD1996042900063_456348

Federal Communications Commission pa os2s26 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) CyberStar Licensee, LLC ) FileNos. 109—SAT—PAA ) 1027103—8AT—AMEND—96 Application for Authority to Construct, ) 103/004/105—8AT—ML—98 Launch, and Operate a Ka—band Satellite i System in the Fixed Satellite Service ) Call Signs: $2198, S21G3 ) ORDER Adopted: September 26, 2005 Released: September 26, 2005 By the Chicf, International Bureau: L. INTRODUCTION 1. By this Order, we declare null and void CyberStar Licensee LLC‘s (CyberStar) Ka— band‘ satelite system authorization. Specifically, we find that CyberStar‘s failure to meet the construction and Iaunch milestones for the satelites in its Ka—band system authorization renders CyberStar‘s authorization null and void under ts own terms. Accordingly, the 93° W.L. and 115° W.L. orbit locations and associated 18.55—18.8 GHz, 19.7—20.2 GHz, 28.35—28.6 GHz and 29.5— 30.0 GHz frequencies that had been assigned to CyberStar under its system authorization are available for reassignment. ut BACKGROUND 2. In May 1997, as part of the first "processing round"of Ka—band systems, the Interational Bureau (Bureau) authorized CyberStar to construct, launch, and operate a satelite system in the gcostationary—satellite orbit (GSO) to provide fixed—satellite service (RSS) in portions of the Ka—band.* n itsinitial application, CyberStar also sought operating authority for ‘ The term "Ka—band" generll efers o the spceto—carth (downlinkfequencies at 17.20.2 Gitz and the comesponding to—space (uplink) frequencies at 27.5—30.0GHte. * The Ka—band sytem authorization was originally granted to Loral Space & Communications, Ltd (Lorn). See Loral Space & Communieations Lid., Order and Authorzation, 13 POC Red 1379 (Inl Bur.1997) (CberStar Authorization). On April 22, 1998, parsuantto Commission consent granted March 31, 1998, Loral assigned the authorizationto CyberStar License, LLC, a subsidiry ofLorl. On July 15, 2003, Lonal, and cerain ofts subsidaries,including CyberStar, LP, the parent company ofCyberStar Licensee, LLC, filed for Chapte 11 bankzuptey protction. On Aupust 14, 2003, the Commissiongranted the pro forma trnsferofcontol ofthe suthorizations held by CyberStar Licensee, LLC to CyberStar, .P.as debtorin possession (DIP). See File No SAT— ASG—20030725—00147 (Grant Stamp, Aug, 14,2003). On June 26,2005, CyberStar Licenses,LLC ied an applcationsecking consent t th assignment ofits Ka—band authorzations at 93° W.L. and 11S" W.L. to Loral (contimed...)

Federal Communications Commission pa oszs2 Intersatellite inks (SLs) 3. In the January 2001 CoberSter Milestone Order, the Bureau modified CyberStar‘s Ka—band license to authorize intersatellite links and to assign implementation milestones for the construction, launch, and operation of CyberStar‘s satellites.". In the Order, the Bureau also modified CyberStar‘s license to change the 28° W.L. orbital location to the 93° W.L. orbital location, thus permitting CyberStar to operate its satelites at the 115° W.L., 93° W.L. and 105.5° EL orbital locations." CyberStar was required to commence construction and launch its three satellites by the following dates: Construction Commenced Launch and Operate First Satellite: January 2002 115° W.L. June 25, 2005 Remaining Satellites: January 2003 93° W.L. June 25, 2005 January 2003 105.5°E.L. July 16, 2005 Under the terms of CyberStar‘s license, CyberStar‘s authorization would be rendered null and void, with no further action on the Commission‘s part, in the event that CyberStar failed to meet its milestone deadlines." 4. In March 2002, CyberStar submitted a copy of a construction contract executed in December 2001 for the satelite to be located at the 115° W.L. orbit location. Upon review of the construction contract, the Bureau determined that CyberStar had. satisfied the construction commencement milestone for ts first satellite." 5.. On June 30, 2003, CyberStar informed the Commission that t had determined not to proceed with the construction of a Ka—band satellte at 105.5° E.L. and asked the Commission to cancel its authorization at this location. On August 12, 2003, the Bureau cancelled the license (..contimed from previous page) CyberStar LLC. SeeFile No. SAT—ASG—2005062—00138, seealso Public Notic, DA 0%—2031, IB Docket No. 05— 233 (lly 18,2008) > 18ts are communication ks betweenin—orbitstelites. 1SL. operat n spectrum allocted t the intrsatelite service. Interntional Telecommaunications Union (TTU) Radio Repulaon S1.22. * CyberStar Licensee, LLC, Application for Modifiation ofAuthoriztionto Constrec, Launch and Operte a Ka— band Satelite System in the ized Satlite Service, Order andduthorisaion, 16 FCC Red 2442 (2001) (CyberSter Milestone Order, Inth same Order, the Bureasalso modified CyberSar‘s Hcens t llow t t change the 28" W.Lorbitl loction, which was assignd in CyberSar‘ ntial authorization,to the 93° W.L. orbial ocation. * CberStar Milestone Order, 16 FOC Red at2451 (pra. 20 * Cyberdier Mlestone Order, 16 FCC Red t 2481para. 29. * See Internationl Bureau SateliteDivison Information: Frst Round Ka—band Licensee Compliance with Construction Implementation Milestone, Pubiic Notce, Report No. SPB—179, DA 02—1432 June 18, 2002) * Leterfrom John Stem, Counselfor Loral Space and Communications L1d.,to Maclene Dortch, Secretry, Federl Communications Commision (Jae 30, 2003).

Federal Communications Commission bags2s6 and declared the 105.5 E.L. Ka—band location available for reassignment tit. DISCUSSION 6. The Commission has required satelite licensces to adhere to system implementation milestone schedules for more than two decades.." Milestone schedules ensure that licensees are proceeding with construction and will launch their satellites in a timely manner, and that the orbit spectrum resource is not being held by licensees unable or unwilling to proceed with their plans."" Warehousing this resource could hinder the availability of services to the public by blocking entry by other entities willing and able to proceed immediately with the construction and launch oftheir satelite systems."" 7. 93° W.L Orbital Location. On Tuly 14, 2003, CyberStar submitted to the Commission a copy of a construction contract, executed in January 2003, for CyberStar‘s second satellite — to be located at the 93° W.L. orbital location. Upon review, the Bureau requested. additional clarification from CyberStar regarding the payment schedule and Performance Specification cited in the contract." On August 6, 2004, in response to the Bureau‘s request, CyberStar submitted a letter‘® stating that CyberStar had not proceeded with construction of the satellite at 93° W.L. due to the circumstances that that led up to and necessitated the Chapter 11 fling ofits ultimate parent company, Loral Ld.® 8. The Commission has held that a bankruptey filing does not automatically discharge a * See Cliifcation ItermationalBureau Explains Procedurefor Ka—band GSO—like Satllte Applications, Publc Notte, Report No.SPB—190, DA 03—2657 (August 13, 2003). ® See, eg. Inquryint he Developmentof Regulatory Polic in Repardto Diect BroadcastSatelltes, Report and Order, 90 F.CC2d 676, 719 (pra. 114) (1982)(adopting rulerequiing DBS Hicensees t "begin constcton or complete contractingfor constrction" of sitelites wthin one yea afler receiving constraction permit, and MCI Communications Com, Memorandurs Opirionand Order, 2 FCC Red 233, 233 (pwa. 5) (Com. Car. Bur. 1987) (MCT Order)(voing it a milestone schedul s included in each domesti space station nuthorization issued by the Commission) e aso Noris Satelite Communications, Inc, Memorandars Gpinion and Order, 12 FCC Red 22299 (1997) (Norris Review Onder}; Momming Star Stelite Company, LLC., Memorandam Opinion and Order 15 FCC Red 11350 (la‘! Bur. 2000),af, 16 FCC Red 11550 (2001)(Morning SterReconsideration Order) ©* See, eg, Advanced Communications Corporation, Menorandirn Oplnion and Order, 10 FCC Red 13337, 18338 (par4)(ntI Bur. 1995) (Adbanced Onder) affd, 11 FCC Red 2399 (1995)(AdvancedReview Order), af‘d, Advanced Communications Corporation v. FGC, 84 F3 1452 (D.C. C 1996) (anpablished order avadableat 1996 WL 250460}; National Exchange Satellte, In, Memorandum Opinfon and Order,7 ECC Red 1990 (Com. Car. Bur. 1992) (Nezzet Onder}; AMSC Subsidiry Co.. Memorandian Opinion and Order, 8 FCC Red 4040, 4042 (para, 13)(1993)(AMSC Order); Motorola, Inc. and Teledesic LLC, Memorandurn Gpinion and Order, 17 FCC Red 16543 (InIBr. 2002)(Motorola/Teledesic Order) " Space SationLicesing Reform Order, 18 ECC Red at 10827 (par, 173citing PandmSat Ko—Rond License Revocation Review Order, 16 ECC Rodat 11537—38(pra. 12), citing Nexsat Order7 PC Red at 1991 (paa. $; MC Order, 2 FOC Red at 233 (pars.5); FirstColembia Milestone Order, 15 ECC Red at 13571 (paa.11. * See Leter fom Tom Tycz, Chief Satllte Divison, Inernational Bureas, POC to Jobn Stem, Counscl, CyberSar Licenses, LLC, (luly 23, 2000) "*See Leter rom Jobn Stem, Counsel for Lorl Space and Communications L. to Marlene Dorich, Sccretay, Federl Communications Comnision, (August 6, 2004)(CyberStar Milstone Letr) (sating that"in igh ofthe circumatances thaled up o and necesstted Loral‘s Chapter 11 reorpanization flinglas year, CyberStarhasnot been able o mak payments under the contric and hasnot proceeded with the constrution ofthis satlite", " Seenore2.

Federal Communications Commission pa os—2526 Hicensee‘s obligation to comply with its milestone requirements."" Indeed, we expect licensees to consider alternatives or exercise reasonable care to attempt to resoive issues that may impede its ability to meet its milestones."" CyberStar has conceded that it has not commenced construction of its satellite at 93° W.L. CyberStar did not seck an extension or waiver of its construction milestone, nor id indicate that it had made any good faith effort to comply with its milestone requirements. Thus, CyberStar‘s failure to meet its construction milestone renders its Ka—band authorization at the 93° W.L. orbit location null and void by its own terms. 9. 115° W.L. Orbital Location. In addition, CyberStar failed to meet the June 25, 2005 Iaunch milestone for the satellite at the 115° W.L. orbital location. CyberStar did not seck an extension or waiver of its launch milestone requirements for this satelite. Thus, CyberStar‘s Ka— band authorization at the 115° W.L. location is null and void by its own terms. 1v. CONCLUsION 10. We conclude that CyberStar has failed to meet its satellte construction and launch milestones, as required by its Ka—band system authorization, thereby rendering its authorization null and void by its own terms. Accordingly, the 93° W.L. and 115° W.L. orbital locations and associated frequencies assigned to CyberStar are now available for reassignment to other applicants. v. oRpERING CLAUsSES 11. Accordingly, TT 18 ORDERED that the Ka—band system authorization held by CyberStar Licensee, LLC is DECLARED NULL and VOID and the 93° W.L. and 115° W.L. orbital locations and associated 18.55—18.8 GHz, 19.7—20.2GHe, 28.35—28.6 GHz and 29.5—30.0 GHz frequencies are available for reassignment. 12. This Order is issued pursuant to delegated authority, 47 CFR. § 0.261, and is effective upon release. FEDE c iCATIONS COMMISSION Donald Abelson Chief International Bureau !* see Finl Anilysis Communication Service, In., Memorandiam, Opinion and Order, DA 04—727, 19 FCC Red 4768, 4734 (pars.19—21) (In‘! Buz,2004)(rejectinginvoluntary bankruptey asa justficationfor a milestone extension) © See WidBlueHoldings 1, LLC, Meorandiam Opinion and Order, DA 05—1698 (par. ) (InI Buc. reeased June 20,2009)


Document Created: 2005-09-26 17:26:45
Document Modified: 2005-09-26 17:26:45
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