Attachment REPLY

REPLY

REPLY TO OPPOSITION TO PETITION FOR RECONSIDERA submitted by EchoStar

REPLY

2005-07-27

This document pretains to SAT-AMD-20010302-00019 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD2001030200019_446149

RECEIVED Before the JUL 2 1 2005 FEDERAL COMMUNICATIONS CommMISSION s Washington, DC 20554 returt fl:gfl;fimm ) In the Matter of ) File No. SAT—LOA—19980702—00066 ) File No. SAT—AMD—20001214—00171 Mobile Satellite Ventures ) File No. SAT—AMD—20010302—00019 Subsidiary LLC ) File No. SAT—AMD—20031118—00335 ) File No. SAT—AMD—20040200—00014 Application for Authority to Launch ) . SAT—AMD—20040028—00192 and Operate a Replacement L—band ) Mobile Satellite Service Satellite ) *101° W.L. )0 ul7 mos & Po ch To: International Bureau intomatonai Bureau REPLY Pursuant to Section 1.106 of the Rules, 47 C. . § 1.106, EchoStar Satellite LL.C. (*EchoStar") hereby filesthis reply to the opposition of Mobile Satellite Ventures Subsidiary LLC (*MSV®) to EchoStars Petition ("Petition") to clarify and/or reconsider the International Bureau‘s ("Bureau‘s") decision to grant the above—captioned application. . INTRODUCTION While EchoStars pending application (iled on February 10, 2004) t operate a satellite at the 101° W.L. orbital lcation ("EchoStar Refiled Application®) has recently been dismissed by the Bureau,"the decision to do so was not well—grounded in fact and law and ! See In the Matter ofMobile Satellite Ventures Subsidiary LLC, DA 05—1492 (rel. May 23, 2008) (CMSY Order®). * See In the Matter ofEchoStar Satellte LLC, DA 05—1955 (rel. July 6, 2005) (*Dismissal Order®).

should be reversed.— EchoStar plans to file an Application for Review ofthe Dismissal Order with the full Commission. Accordingly, theissues identified in EchoStar‘s Petition are not "moot" as MSV states, but instead, are srelevant for consideration by the Bureau. Indeed, if the Bureau were to clarify and/or reconsider the ASY Order as urged by EchoStar, it should sua sponte reinstate the EchoStar Refiled Application nune pro tune. The EchoStar Refiled Application is not "mutually exclusive" with the authorization granted in the ASY Order. To hold otherwise would be to introduce an exceptionally broad concept ofmutual exclusivity. That concept would mean that the use of satellite spectrum for a limited number of feeder link earth stations (inthis case, just two) precludes any other use ofthe spectrum anywhere in the country. That proposition contravenes the important principles of frequeney reuse and spectrum efficiency. The Commission has consistently allowed co—frequency use of satellite spectrum when a satellte carrier uses that spectrum to serve a limited number of feeder link sites.. For example, in the Ka—band plan proceeding, the Commission mandated co—frequency sharing of MSS feeder uplinks with LMDS stations and GSO downlinks with FS stations in portions of the band.? EchoStar continues to believe that is proposed satellte at 101° W.L. can share the extended Ku—band frequencies with MSV‘s two feeder inks —— something even MSV has acknowledged may be possible. By dismissing the EchoStar Refiled Application on the heels of issuing the MSF Order,the Bureau has effectively eliminated any incentive for MSV to engage in any coordination discussions with EchoStar over the shared use of this spectrum —— a result that * Rulemaking to Amend Parts 1, 2, 21 and 25 ofthe Commission‘s Rules to Redesignate the 27,5—29.5 GHz Frequency Band, to Reallocate the 29.5—30.0 GHz Frequency Band, to Establish Rules and Policiesfor Local Multipoint Distribution Service andfor Fixed Satellie Services, 11 FCC Red. 19005, 19033—37 (1996).

clearly is not in the public interest. The Bureau should clarify and/or reconsider the MSY Order as suggested in EchoStar‘s Petition IL THE ECHOSTAR REFILED APPLICATION IS NOT MUTUALLY EXCLUSIVE WITH THE MSV AUTHORIZATION MSV argues that the Dismissal Order has rendered. "moot" the issues raised in EchoStar‘s Petition because that decision dismissed the EchoStar Refiled Application on the basis that it was "mutually exclusive" with the authorization recently granted to MSV (°MSV Authorization")." To the contrary, the Dismissal Order has not rendered EchoStar‘s Petition moot. The Dismissal Order was not well—grounded in law and fact, and accordingly, EchoStar is planning to file an Application for Reviewof that decision While EchoStar does not plan to repeat verbatim the arguments it intends to raise in its forthcoming Application for Review, it will challenge the Bureau‘s totally unsupported finding in the Dismissal Order that the EchoStar Refiled Application "would cause harmful interference to MSV‘s previously licensed operations."" Significantly, the Bureau has filed to cite any evidence or support in the record of this proceeding, or the EchoStar Refiled Application proceeding, that EchoStar‘s intended use of the extended Ku—band at the 101° W.L. orbit location would eause "harmful interference" with MSV*s limited use of this spectrum for up to two feeder link earth stations. To the contrary, both EchoStar and MSV have asserted in the latter * MSV Opposition at 3—5 (July 7, 2005). * Dismissal Order at 1 4.

proceeding that they believe sharing is possible —— undermining the Bureau‘s finding in the Dismissal Order.® While a complete analysis ofthe sharing situation in the extended Ku—band is not possible without MSV‘s cooperation, EchoStar‘s preliminary technical analysis, based upon the disclosed elements of MSV‘s proposed system, strongly supports EchoStar‘s (and MSV‘s) claims that sharing is possible. This preliminary analysis will be submitted with EchoStar‘s forthcoming Application for Review of the Dismissal Order and a copy provided for the record in this proceeding. The EchoStar Refiled Application is not "mutually exclusive" with the authorization granted in the ASY Order. To hold otherwise would be to introduce an exceptionally broad concept ofmutval exclusivity. That concept would mean that the use of satellite spectrum for the purpose of communications with a limited number of feeder link earth stations (in this case, just two) precludes any other use of the spectrum anywhere in the country. That proposition contravenes the important principles of frequency reuse and spectrum efficiency. ee, e.g, Comments of MSV at 6 (‘MSV agrees with EchoStar that sharing may be possible and is prepared to work with EchoStar to attemptto reach an agreement on sharing"),filed in SAT—LOA—20040210—00015 (April 26, 2004). In recent correspondence, however, MSV has hardened its position on shoring with EchoStar. See Letter from Jennifer A. Manner, MSV VicePresident of Regulatory Affairsto Donald Abelson, Chief ofthe International Bureau at 1 (June 15, 2005)(claiming that the EchoStar Refiled Application is "mutually exclusive" with the recently granted MSV application); Leter from Bruce D. Jacobs (Counsel to MSV) to Pantelis Michalopoulos and Philip L. Malet (Counsel to EchoStar)at 2 (June 15, 2005) (‘Moreover, your proposal for two satellites to share the same frequencies atthe same orbitallocation is novel. Any discussions regarding the feasibility ofthis untested concept will be highly technical in nature involving considerable engineering and legal resources. MSV finds it highly unlikely that the parties will reach any agreement in just two weeks.").

The Commission has been making a concerted effort to move in the direction of increased spectrum sharing, not less.. It also runs counter to the Commission‘s specific precedent: the Commission has consistently allowed co—frequency use of satellite spectrum when a satellite carrier uses that spectrum for a limited number of feeder link sites. For example, in the Ka—band plan proceeding, the Commission mandated co—frequency sharing of MSS feeder uplinks with LMDS stations and GSO downlinks with FS stations in portions ofthe band." While this co—frequency sharing involved a satellite and a terrestrial service, such sharing is still equally applicable here. The underlying policy is the same —— to avoid an enormous nationwide waste of spectrum just for the sake of operating a handful of feeder link earth stations. In this case, the spectrum can be reused more efficiently by simply establishing suitable protection zones around MSV‘s feeder link sites. Thisis what the Commission has consistently done in the past to promote spectrum efficiency. The Bureau should be encouraging sharing ofvaluable spectrum resources instead of removing any incentive for MSV to engage in coordination discussions with EchoStar by dismissing the EchoStar Refiled Application and issuing the MSY Order. Shortly after the isstance ofthe MSV Order and before the issuance of the Dismissal Order, MSV agreed to start coordination discussions with EchoStar and then summarily called off those mestings." Now that the EchoStar Refiled Application has been dismissed by the Bureau, such coordination discussions will not progress, thereby squandering a genuine opportunity to maximize use ofthe " Rulemaking to Amend Parts 1, 2, 21 and 25 ofthe Commission‘s Rules to Redesignate the 27.5—29.5 GHe Frequency Band, to Reallocate the 29.5—30.0 GHz Frequency Band, to Establish Rules and Policies for Local Multipoint Distribution Service andfor Fixed Satellite Services, 11 FCC Red. 19005, 19033—37 (1996). * See Letter from Bruce M. Jacobs (Counsel to MSV) to Pantelis Michalopoulos and Philip L. Malet (Counsel to EchoStar) (June 27, 2005)

extended Ku—band frequencies at the 101° W.L.. orbital location. This could not be an intended result ofthe Commission‘s new satellite licensing procedures." The MSV Opposition demonstrates how emboldened MSV has become. In sharp contrast to itsprior statements that "sharing is possible" between EchoStar and MSV, MSV now states that it has a "nationwide and exclusive license to use Planned Ku—band spectrum.""" MSV further asserts that despite its acceptance of the MSY Order, it even "may propose to modify the present design of MSV—1 to intensify use of its feeder link spectrum by deploying spot beams and as many as three or four additional earth stations.""" Under the terms of its authorization, MSV cannot deploy these "additional earth stations" because it is limited to a "maximum of nso ixed satellte earth stations within the continental United States.""" As EchoStar has previously related, coordination of the two satellites is possible based on the likely use of spot beams in the extended Ku—bands for both the EchoStar and MSV systems. EchoStar is committed to using spot beams and believes that MSV‘s system will also benefit from the use of spot beams on its feeder links in order to provide sufficient capacity to meets it stated performance objectives.. EchoStar remains committed to working with MSV to determine the optimum technical and operational means to achieve this goal withoutlimiting the ability ofeither system to meet its performance objectives. * See Amendment of the Commission‘s Space Station Licensing Rules and Policies, First Report and Order and Further Notice ofProposed Rulemaking, 18 ECC Red. 10760, a 1 4 (2003) (‘Satellite Licensing Order®) (finding that the new procedures the Commission adopted were intended to "ensure that satellite spectrum and orbital resources will be used efficiently, to the benefit of American consumers®). ‘ MSV Opposition at 3—4. " td on d5. * MSY Order at 66 (emphasis added)

The Bureau must clarify and/or reconsider the MSYOrder and conclude that the EchoStar Refiled Application is not mutually exclusive with MSV‘s Authorization.. Without doing so, the full potential ofthe extended Ku—band at the 101° W.I.. orbital location will not be achieved. i. CONCLUSION For the reasons stated above and stated in EchoStar‘s Petition, EchoStar respectfully requests that the Bureau clarify and/or reconsider the MSY Order. Respectfully submitted, EchoStar Satellite LL.C David K. Moskowite Aui0 2 Pantelis Michalopoutos Senior Viee President and General Counsel Philip L. Malet EchoStar Satellite L.L.C. Mare A. Paul 9601 South Meridian Boulevard Steptoe & Johnson Lir Englewood, CO 80112 1330 Connecticut Avenue, NW (303) 723—1000 Washington, D.C. 20036 (202) 429—3000 Counselfor EchoStar Satellie LL. C. July 21, 2005

CERTIFICATE OF SERVICE 1, Mare A. Pal, an attorney with the law firm of Steptoe & Johnson LLP, hereby certify that on this 21st day of July, 2005, served a true copy ofthe foregoing "Reply" by hand delivery (or as otherwise indicated) upon the following: Donald Abelson Cassandra Thomas Interational Bureau Satellte Division Room 6—C750 Interational Bureau Federal Communications Commission Room 6—A666 445 12" Street, S.W. Federal Communications Commission Washington, DC 20554 445 12" Street, S.W. Washington, DC 20554 Thomas S. Tyez Bruce D. Jacobs* Satellte Division David S. Konezal International Bureau Pilisbury Winthrop Shaw Pittman LLP Room 6—A66S 2300 N Street, N.W. Federal Communications Commission Washington, DC 20037—1128 445 12" Street, S.W. Washington, DC 20554 Fem Jarmulnck Jennifer A. Manner® Satellite Division Vice President, Regulatory Affairs Intemational Burcau Mobile Satellite Ventures Subsidiary LLC Room 6—A523 1002 Park Ridge Boulevard Federal Communications Commission Reston, Virginia 20191 445 12" Street, S.W. Washington, DC 20554 Robert Nelson Satellte Division Interational Bureau Room 6—B554 Federal Communications Commission 445 12" Street, S.W. Washington, DC 20554 ) [CP Mare A. Paul * By First Class Mail, Postage Pre—paid


Document Created: 2005-07-28 16:53:15
Document Modified: 2005-07-28 16:53:15
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