10-2 Ex Parte.pdf

Ex PARTE PRESENTATION NOTIFICATION LETTER submitted by ATCONTACT COMMUNICATIONS, LLC

Ex Parte Letter

2009-10-02

This document pretains to SAT-AMD-20031030-00317 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD2003103000317_745146

Pantelis Michalopoulos 1330 Connecticut Avenue, NW 202.429.6494 Washington, DC 20036-1795 pmichalo@steptoe.com Tel 202.429.3000 Fax 202.429.3902 steptoe.com October 2, 2009 Via ELECTRONIC FILING Marlene H. Dortch Secretary Federal Communications Commission 12th Street S.W. Washington, D.C. 20554 Re: Motion for Stay of International Bureau Order DA 09-1850, Call Signs S2346, S2680, S2681, S2682, and S2683 Dear Ms. Dortch: On October 2, 2009, representatives of AtContact Communications, LLC (“AtContact”) participated in a telephone call with: Austin Schlick, Joel Marcus, Dan Harrold, and Richard Welch from the Office of General Counsel; Roderick Porter, Fern Jarmulnek, and Cassandra Thomas from the International Bureau; and Jennifer Schneider, Legal Advisor to Commissioner Copps. The meeting addressed the October 1st letter sent by the Commission’s Chief Financial Officer to Safeco Insurance Company of America (“Safeco”) regarding the performance bond maintained by AtContact for the above-referenced satellite licenses.1 A copy of that letter is attached. At the meeting it was confirmed that, pursuant to the Chief Financial Officer’s letter, Safeco, acting as the surety for AtContact’s performance bond, is not being asked and does not have to make payment until ten calendar days after a further notification, which will be in writing. As 1 Letter from Mark Stephens, Chief Financial Officer, FCC, to Bruce Echigosima, Safeco Insurance Company of America (Oct. 1, 2009).

Marlene H. Dortch October 2, 2009 Page 2 the letter states: “… [the Commission] will not act in further response to the Bond terms, or otherwise exercise any right thereto without first providing Safeco a courtesy notification of our intent and a period of ten (10) calendar days to comply.”2 Pursuant to 47 C.F.R. § 1.1206(b), this notice is being filed electronically with a copy emailed to the Commission officials that participated on the telephone call. Respectfully submitted, /s/ Pantelis Michalopoulos Christopher Bjornson L. Lisa Sandoval Counsel for AtContact Communications, LLC cc: Dan Harrold Fern Jarmulnek Joel Marcus Roderick Porter Austin Schlick Jennifer Schneider Cassandra Thomas Richard Welch 2 Id. at 2.

FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. 20554 OCT 1 2008 OFFICE OF MANAGING DIRECTOR BY FACSIMILE TO (425) 376—8636 AND BY EXPEDITED DELIVERY SERVICE Mr. Bruce S. Echigoshima Western Region Surety Claims Post Office Box 34670 Seattle, WA 98124 Re: Principal: ATCONTACT Communications, LLC Bond Number: 6321647 Dear Mr. Echigoshima: Thank you for your letter (Letter) dated September 3, 2009," on behalf of Safeco Insurance Company of America (Safeco) acknowledging our demand" (Demand) for payment of the amount due on the above referenced bond (Bond). In accordance with paragraph 3 of the Bond,* our Demand, which included a copy of the relevant Order," notified Safeco that the Commission issued a Notice of Default of the satellite authorization issued to ATCONTACT Communications, LLC (ATCONTACT).© We have complied with all conditions precedent, and we believe that under the ordinary meaning of the terms of the Bond (taking into account subsequent riders to the maximum penal sum), Safeco is obligated to pay three million dollars ($3,000,000) no later than October 5, 2009, which is "thirty (30) business days of [the] Notice of Default." Safeco‘s Letter, however, requests the Commission "either withdraw its claim or stay any demand until all administrative and/or judicial remedies have been exhausted by ‘ Letter to Mark Stephens, Federal Communications, Satellite Division, International Bureau (sic), 455 Twelfth Street S.W., Washington, D.C. 20554 (September 3, 2009) (Safeco Letter). We note that Mark Stephens is the Commission‘s Chief Financial Officer, and not assigned to the Satellite Division of the International Bureau. * We understand that on September 22, 2008, Liberty Mutual Group, Inc. finalized its acquisition of Safeco, but such acquisition does not alter our contact with Safeco. _3 Among other things, see Letter to Safeco Insurance Company of America, Safeco Plaza, 1001 4"" Avenue, Seattle, WA 98184 (August 26, 2009). Unless we are advised otherwise, this and future correspondence from us will be to your stated return address. * Paragraph 3 provides in relevant part: In the event of a Notice of Default (i.e., an order or public notice revoking Principal‘s authorization) issued by the FCC to the Principal and the Surety regarding the performance of the milestones specified above during the terms of this bond, the Surety shall be liable only up to the current outstanding maximum penal sum amount after giving effect to applicable milestone reductions. * ATCONTACT Communications, LLC, Order, DA 09—1850, (IB, rel. August 21, 2009) (A4uthorization Revocation). ° contactMEO Communications, LLC, Order and Authorization, DA—06—864, 21 FCC Red 4035 (Int‘l Bur. 2006) (ATCONTACT Authorization). In June 2006, the licensee notified the Commission that it changed its name from contactMEO Communications, LLC to ATCONTACT Communications, LLC. Letter to Marlene H. Dortch, Secretary FCC, from James M. Talens, Counsel to ATCONTACT Communications, LLC (June 5, 2006).

[ATCONTACT].”7 In regard to that request, Safeco states it had "not yet had an opportunity to hear from [its] principal directly[,] and [Safeco is] unaware if there are any valid defenses to [the Commission‘s] claim against the bond."" Furthermore, Safeco stated an impression that ATCONTACT was "evaluating its options," including "1) pay the amount of the claim; 2) move for reconsideration of the administrative ruling or 3) file an appeal in District Court." We note, ATCONTACT filed a Petition for Reconsideration and a Motion for Stay, but the filings do not alter Safeco‘s obligation." Safeco‘s obligations under the terms of the Bond are clear, and time is of the essence, i.e., the payment date is October 5, 2009. The Bond iterates ATCONTACT‘s five milestones,"" only two of which ATCONTACT met. Indeed, as is evident from the Authorization Revocation, ATCONTACT failed to meet its burden of proof to satisfy its third milestone to "[blegin the physical construction of the first satellite by October 15, 2008," hence the authorization is null and void. Moreover, ATCONTACT stated it "no longer intended to proceed with its NGSO satellites and two of its GSO satellites.""‘ Finally, we note that ATCONTACT‘s authorization contained a fourth milestone, to "[cJomplete construction and launch the first satellite by October 15, 2009.""" Hence, we expected Safeco to provide either payment of the amount due or a detailed explanation why Safeco believes it is permitted to defer a timely payment in compliance with its contractual obligation. We now specifically request that Safeco respond whether it has further reviewed the tentative position expressed in the Letter, and that Safeco provide us with a detailed discussion of its current position on the matter. In summary, Safeco has not to date provided a persuasive argument why payment to the United States should be deferred. Moreover, if such reason does exist, it has not been presented by Safeco or ATCONTACT. Because we invite Safeco to provide us with the results of its discussion with ATCONTACT, and we seek Safeco‘s reasoned explanation why it believes payment should be deferred, we will not act in further response to the Bond terms, or otherwise exercise any right thereto without first providing Safeco a courtesy notification of our intent and a period of ten (10) calendar days to comply. Should there be a decision on ATCONTACT‘s " Safeco Letter, [ 2. 8 1d., 43. ° Under 47 C.F.R. § 1.102(b)(1), the Authorization Revocation was effective and binding upon its release. Rond, [ #1; see also 47 C.F.R. § 25.164; A4TCONTACT Authorization, { 68; and Authorization Revocation, " 3. " Authorization Revocation, 5. ° ATCONTACT Authorization, [ 68.

Petition for Reconsideration and Motion for Stay in the interim, we will notify Safeco of the outcome. Any deferment in this regard is not and should not be construed as a waiver of any right of enforcement of the terms of the Bond. Sincerely, Q/—’»‘\ ark Stephens Chief Financial Officer Copies to: James M. Talens Counsel for ATCONTACT Communications, LLC 6017 Woodley Road McLean, VA 22101 contactMEO Communications, LLC Attention: David Drucker, Manger 2539 North Highway 67 Sedalia, CO 80135 Pantelis Michalopoulos Steptoe & Johnson, LLP 1330 Connecticut Avenue, N.W. Washington, D.C. 20036—1795


Document Created: 2009-10-02 17:37:33
Document Modified: 2009-10-02 17:37:33
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