Attachment letter

This document pretains to SAT-AMD-20031118-00332 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD2003111800332_412312

D< @ telenor Bruce A Henoch Assstort Generl Counse December 20, 2004 By Hand Delivery ECEIVED The Honorable Michael K.Powell Bc s 0 2004 Chairman Federal Communications Commission D. 445 12° Street, S.W. Washington, D.C. 20554 ,mw" Sureay Re: In the Matter ofMobile Satellite Ventures Subsidiary LLC, Application for Modification of Space Station License, t al. File Nos. SAT—MOD—20031 118—00333 saT—AnD—20031118—003 sEs—MOD—20031118—018 32 70 Dear Chairman Powell: T am writing on behalfof Telenor Satellite Services, Ic., Telenor Satelfte, Inc., and Telenor Satellite Services Holdings, Ic. (callectively, "Telenor") in support ofthe Application for Review filed by Inmarsat Ventures Ltd. on December 8,2004, in the above—referenced proceedings. Telenor, located in Rockville, Maryland, is one the world‘s leading providers ofmobile satelite services (‘MSS") and, together with its affliate Telenor Satellite Services AS of Norway, is th single largest distibutor of Inmarsat services in the world. Telenor provides services using ts network ofowned—and—operated land earthstations in Southbury, Connectiout and Santa Paula, Califomia in the United States and Eik in Norway. Telenor holds a number of Hicenses and authorizations to provide Inmarsatland mobile and aeronauticalservices in the United States, lcenses that were obtained after iterally years oftenacious opposition by MSV as " n the Matter ofMobile Satellite Ventures Subsidiary LLC, Application for Review of Inmarsat Ventures Ltd, File Nos. SAT—MOD—20031118—00333, SAT—AMD—20031118—00332, and SES—MOD—2003111$—01879 (filed Dec. $, 2004) ("Application for Review). Tre Sautn evcestlangs nc Adtens Rergoee tome 10 Moounammy sllitbims eeereaptimsesscon tenros i vewe recomenomeseuse nins eecrommece

it desperately attempted tocling to its monopoly hold on domestic MSS." Now, without regard to the standards carefully established in the ATC Order® and without following any required procedural rules, he Bureau has eviscerated Telenor‘s licenses by effectively giving prionity to MSV‘s untested ATC services, which the Commission clearly intended to be secondary and ancillary service tothe satelite services for which the L—Band has been primarily allocated. Using ts domestic Inmarsat servicelcenses, Telenor provides land mobile services to a range ofcustomers throughoutthe country,in rura, suburban, and urban areas alike. Many of Telenor‘s customers in the U.S. rely on Inmarsat services as their primary method ofproviding back—up communications capabilits in time ofemergency. As Inmarsat noted in its Application for Review, one ofthe primary benefits ofInmarsat services is that they operate independent of local tlephone and power systems, making them ideally suited to disaster response, emergency communications, and other applications where relisble communications are required regardless of the cicumstances. For this reason, a significant number of public and private organizations throughout the country have purchased terminals under Telenor‘s domestic blanket lcenses, including municipal governments,relieforganizations, and news media companies. These customers may require use ofthese terminals at any location at any time, including in cities and suburban areas as well as in raral locations. Neither the customer nor Telenor can reasonably foresee where the terminals might be needed; indeed, these organizations have purchased these terminals with the reasonable expectation of being able to operate them throughout the license area (%e., the United States), a very reasonable assumption given that the L—Band frequencies in which the terminals operate are allocated for primary use by Inmarsatservices, meaning that coordination with other users is not required and users need not accept harmfulinterference from others. These users simply cannot accept a situation where use ofthe terminalsin a particular location may be restricted by the implementation ofATC. Through its grant ofwaivers to MSV, the Bureau is requiring Telenor to make an affirmative showing that ts MSS terminals will beinterfered with in order t prevent MSV from constructing high—powered ATC base stations within Telenor‘s authorized license area. In doing so, the Bureau has effectively modified Telenor‘s lcense. It is forcing Telenor to accept otherwise impermissible interference and consigning Telenor at best toa status co—primary with — * In the Matter ofComsat Corporation d/b/a Comsat Mobile Communications, Memorandum Opinion, Order and Authorization, 16 FCC Red 21661 (2001); /n the Maiter ofLoctheed Martin Global Telecommunicationet al, Applicationsfor Assignment ofSection 214 Authorizations, Private Land Mobile Radio Licenses, Experimental Licenses, and Earth Station Licenses, Order and Authorization, 16 FCC Red 22897 (2001). 5_ In the Matter ofFlesibilityfor Delivery ofCommuntcations by Mobile Satellte Service Providers, Report and Order and Further Notice of Proposed Rulemaking, 18 FCC Red 1962 (2003) ("ATC Order‘).

— and at worstsecondary to —— MSV‘s terrestrial cellular—like network.* As Inmarsat correctly notes in the Application for Review, the Commission‘s unambiguous intent was for ATC to remain a secondary service, ancillary to the mobile satelite services for which the L—Band is primarily allocated. The Bureau‘s actions tum this structure upside down, giving the presumption ofinterference—free operation to MSV while foreing Telenor to make an affitmative showing of interference potentialin order to allow its fully—licensed operations to continue intect and without disruption. Section 316 Prohibits License Modifications Without a Hearing The Communications Act provides that station licenses "may be modified®" by the Commission, but onlafter a hearing. Priorto any such modification, the licensee must be "notified in writing ofthe proposed action and the grounds and reasons therefore," and provided an opportunity t "protest such proposed order."" By its decision to allow a cellular—like network in the L—Band, the Commission has modified Telenor‘s earth station license without notice o Telenor, and without any opportunity for Telenor to protest Permitting MSV to construct thousands ofterrestrial ell sites in the L—Band that will generate interference into nearby MSS user terminals effects license modification under section 316. "Ithas long been established that [section 316] covers indirect as well as direct modifications oflicenses."* Such "indirect modifications" include circumstances where the grant or modification of another license "may create objectionable electrical iterference to an existing licenseand the existing licensee is protected by Commission policy or regulation from such interference.""_ As the Supreme Court stated, "[talter the rules so as to deprive [an existing licensee] ofwhat had been assigned toit and to grant an application which would create interference on the channel given it," would be "in fict and in substance to modify"that license." To be sure, not every grant ofa conflcting application constitutes a license modification. ‘[A]Hensee whose right to use of a frequencyis contingent on satisfying specified conditions has no ight to use ofthe frequency when the conditions are not met."" And a licensee has no greater tights than ts icense, and the relevant rules othe FCC, provide. Thus, licensee whose * In the Matter ofMobile Satellie Ventures Subsidiary LLC, Fle Nos. SAT—MOD—20031118— 00333, SAT—AMD—20031118—00332, SES—MOD—20031118—01879, Order and Authorization, DA 04—3553 (released Nov. 8, 2004) (‘MSV Order"). * 4708C.§316@). 6. Westen Broadcasting Co. v. FCC, 674 F.2d 44, 49 (D.C. Cir. 1982). 7 wl * FCC v. National Broadcasting Co., 319 US. 239, 245 (1943). * P&R Tremmerv. FCC, 743 F24 918, 927—28 (D.C. Cir.1984).

authorization is "expressly conditioned upon and made subordinate to" coordination or other spectrum sharing arrangements cannot be heard to complain when it is required actually to coordinate or otherwise share spectrum in accordance with its authorization.‘" But where one radio station is authorized to operate in a way "which will cause interference to [an existing station] within it lawfully protected contour," that authorization constitutes a modification of the existing station‘s Hcense."".That is the case here. And the Act requizes that prior to such modifications the existing licensee beafforded notice and an opportunity to be heard."" The MSV License There is ittle question that the Commission‘s grant to MSV of authority to construct a . terrestralcellular—like network in the L—Band constitutes a modification of Telenor‘s Kiense. Telenor holds a "blanket authority" to provide L—Band—based services throughoutthe United States. In its 2003 Report and Order authorizing ancillry terrestrial components for crtain satelite—based services, the Commission established narrow exceptions to Telenor‘s otherwise unconditional ights." The ATC Order permitted the construction of certain terrestrial facilites within the L—Band on a strict noneinterference basis, and subject t power limits designed to mitigate their interference with existing L—Band operations." In the MSV Order, however, the Commission waived and modified those rulesin the context of a licensing proceeding that did not involve Telenor. Perhaps most notably, the Commission raised the power limit for terrestrial base station operations by a factor of over 6, thus dramatically increasing the area within which those operations would interfere with existing L—Band uses. According to the Commission‘s own studies, that interference contour more than quadrupled in area:from 31,000 square meters per cel site under the ATC Order, to 130,000 square meters per cellsite under the MSV Order."® Nationally, under the Commission‘s analysis this power increase would allow the cumulative area ofinterference to grow from 53,500,000 squiare meters to 225,000,000 square meters. Inmarsat has estimated the area of interference to be even greater."" Moreover,the non—contigous nature oftheinterference renders the problem even worse than these numbers would suggest, as the spots ofblanketing willcreate, as Inmarsat * AMSC Subsidiary Corp. v. PCC, 216 F3d 1154, 1159 (D.C. Cir. 2000}; see also AT&T Wireless Serv‘s Inc. v. FCC, 270 F3 959, 964 (D.C. Ciz. 2001). "— WBEN, Inc. v. FCC, 290 F.2d 743, 744 (D.C. Cir. 1961) * s * See generally, ATC Order. !*. ATC Order at 104. !*. MSV Order at 81 (expanding interference radius from 100 meters to 204 meters). !*. See Application for Review, Technical Appendix at 2—9.

calls t a "swiss cheese" MSS coverage area, riddled with anomalous pockets ofterrestrial interference —— places where MSS terminals no longer will work. Just as important, the MSV Order appeared to establish a new priority within the L—Band. By the terms ofits lcense, Telenor was authorized to provide L—Band services on a primary basis: no harmful interference to Telenor‘s operations would be tolerated. The ATC Order expressly retained this scheme, providing that if an "MSS or other operator does receive harmful interference from ATC operations, either from base stations or mobile terminals, the ATC operator must resolve such interference.""" The MSV Order, however, tums this scheme on its head. The MSV Order establishes a presumption that interference from MSV‘s cell sites is acceptable, and it requires L—Band satelit service providers to bear the burden of "convincingly show{ing}" that they actually will have users operating in the vicinity of those cell sites who will e adversely affected by thatinterference. Moreover, the MSV Order appears to establish an extremely restrictive "statute oflimitations" for such objections: the L—Band operators must object"within 30 days" oreceiving notice from MSV that it is commencing operations atthe enhanced power level in a particular lcation."" Finally, in areas where the MSV Order concludes that there will be an interference problem into MSS service, it simply dismisses the issue as one to be "worked together" between MSV and the affected satellite service provider," thereby elevating the formerly secondary ATC serviceto a co—primary status. The thirty—day procedural cut—offhas the further, substantive, effect of freezing into place the L—Band operators‘ systems as ofthe date such noticeis given. Though interference might not exist when MSV first builds a cellsite, operators like Telenor inevitably willlater wantto introduce new services and serve new users who would suffer nterference from ATC base stations. Any failure (based on existing technology, services, or customers)to object within 30 days, however, would foreclose the opportunity for those L—Band operators to bring those objections in the future. These substantive changes consttute a modification ofTelenor‘s lcense. The MSV Order dramatically expands the nterference contour oferrestril L—Band operations beyond that which was authorized by the FCC‘s rules, as established in the ATC Order.. And the MSV Order effects a substantive re—prionitization ofthe L—Band, even while freezing the technological status qiand otherwise creating procedural obstacles to the enforcement ofthose prionities. Plainly, MSV‘s terrestril cellular—like network "may create objectionable electrical interference" with the uses that are otherwise allowed under Telenor‘s current lcense and the relevant rules and regulations of the FCC."" The FCC‘s order authorizing construction and operation of that 7. ATC Order at1 104. "*. MSV Order at 81. 5* MSV Order ty 82 ® Western Broadcasting, 674 F2d at 49—50.

network constitutes a "modification" ofTelenor‘s Kcense, and is therefore prohibited absent notice and a hearing." This faling is no mere technicality, devoid ofsubstance. On the contrary, the FCC has introduced a scheme that will cause significant interference with Telenor‘s current services, and could dramatically curtail it ability to expand and introduce new services in the future, As reflected in Telenor‘s blanket license to provide MSS throughout the United States, ubiquitous service is a hallmark of MSS, and MSS subscribers therefore expect that thei terminals will work anywhere they need them to work. A discussed above, they do not expectto find Telenor‘s service area iddled with pockets of interference where they cannot receive service. For the reasons discussed herein, the Commission should grant Inmarsat‘s Application for Review and reverse the action ofthe Bureau in this proceeding. Respectfully submittod, >a Brice A. Henoch Assistant General Counsel ce: Commissioner Kathileen Q. Abemathy Commissioner Michael J. Copps Commissioner Kevin J. Martin Commissioner Jonathan S. Adeistein Ed Thomas, Chief, Office ofEngineering and Technology Donald Abelson, Chief, Itemational Bureau Mariene Dortch, Secretary * Seed7 US.C.§316@).


Document Created: 2004-12-28 14:42:14
Document Modified: 2004-12-28 14:42:14
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