Attachment app for review

This document pretains to SAT-AMD-20040209-00014 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD2004020900014_402466

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 wl €T13,,Yor ) Intormp,2,Bfancn In the Matter of ) Btrony ) Mobile Satellite Ventures ) «{ Subsidiary LLC ) File No. SAT—ANMD—20040200.014 ) Call SignS23s8 Amendment to Application for ) Authority to Lounch and Operate a ) Replacement L—band Mobile ) Satelite Service Satelite at ) actor® w) ) RECEIVED ce OCT 1 5 200 Fode Conmunizatons Con OfesotSecmay *‘ APPLICATION FOR REVIEW David K. Moskowitz Pantelis Michalopoutos EcnoSrar Satetume L.L.C. Philip L. Malet Senior VicePresident and General Counsel Brendan Kasper 9601 South Meridian Boulevard Srepros & Jornson uur Englewood, CO 80112 1330 Connectiout Avenue NW (303) 723—1000 Washington, D.C. 20036—1795 (202) 420—3000 Counselfor EchoStar Satellite LL.C October 15, 2004 1450030—3

TABLE OF CONTENTS BACKGROUND . It. THE BUREAU IN THE MSV REINSTATEMENT ORDER HOLDS MSV TO A MUCH LESS EXACTING STANDARD FOR DETERMINING THAT AN APPLICATION IS "SUBSTANTIALLY COMPLETE® THAN IT APPLIED IN THE ECHOSTAR DISMISSAL LETTER.. A. The MSV Amendment Was Treated As Being Substantially Complete Despite the Omission of an Important Interference Analysi B. The EchoStar Amendment Was Treated As Not Being Substantially Complete Based on Two Minor Erors... L CONCLUSION. 1450930—3

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In the Matter of Mobile Satellite Ventures Subsidiary LLC File No. SAT—AMD—20040209—0014 Call Sign S2358 Amendment to Application for Authority to Launch and Operate a Replacement L—band Mobile Satellte Service Satellite at atto1® w) e APPLICATION FOR REVIEW Pursuant to 47 C.F.R. § 1.115, EchoStar Satellite L.L.C. (‘BchoStar®), formerly known as EchoStar Satellite Corporation, hereby requests that the Federal Communications Commission ("Commission") review the Intemational Burcau‘s ("Bureau‘") decision to reinstate Mobile Satellite Venture‘s (°MSV") February 9, 2004 Amendment (°MSV Amendment") secking to add 50 megahertz ofspectrum to its pending application for its next generation Mobile—Satellte Service (°MSS")." Inconsistent with Commission and court precedent, he Bureau has held the MSV Amendment to a much less exacting standard in determining that the amendment was "substantially complete" than the Bureau applied whenit dismissed EchoStar‘s application and amendment for some ofthe same spectrum. The Commission should act to ‘ See Order,In the Matter of Mobile Satellite Ventures Subsidiary LLC Amendment to Application for Authority to Launch and Operate a Replacement L—band Mobile Satellte Service Satellite at 101° W.L., File No. SAT—AMD—20040209—00014, DA 04—2985 (Released: September 15, 2004) (°MSV Reinstatement Order‘). 1450930—3

ensure that these satellilicensing applications are treated in a manner consistent with existing Commission and court precedent. L BACKGROUND On August 27,2003, EchoStar filed an application to construct, lunch and operate a geostationary satellite to provide Fixed—Satellite Service (°FSS") using the allotted extended Ku—band frequencies at the 101° W.L. orbital location under the Commission‘s new "first—come—first—served" filing procedures (‘EchoStar Application®)" In November 2003, EchoStar amended ts application to (1) increase the service area over which uplink transmissions, used primarily for feeder link type earth stations, may be received; and (2) add steerable uplink and fixed downlink spot beams to facilitate any needed coordination with other satellte systems in the allotted extended Ku—band (*EchoStar Amendment®).". Among other bands, EchoStar requested operating authority for the 10.70—10.75 GHz and 13.15—13.20 GHHe bands. On February 9, 2004, the Bureau dismissed the EchoStar Application and the EchoStar Amendment without prejudice to refiling. The only two reasons given for dismissal were that: (1) Table A.4—1 oSection A.4 ofthe Technical Annex to the EchoStar Amendment incorreetly referred to frequency bands different from the frequency bands requested elsewhere in the EchoStar Application or the EchoStar Amendment; and (2) the EchoStar Amendment * See Amendment of the Commission‘s Space Station Licensing Rules and Policies, First Report and Order and Further Notice ofProposed Rulemaking, 18 FCC Red. 10760, at § 244 (2003) ("Satellite Licensing Order®). * EchoStar Amendment at 1. * See Letter to David K. Moskowitz, Senior Vice President and General Counse, EchoStar Satellite Corporation, from Thomas S. Tyez, DA 04—323 (February 9, 2004) at1 ("EchoStar Dismissal Letter®). In this application, "EchoStar Application" refers to SAT—LOA~ 2003—0827—00179 and "EchoStar Amendment" refers to SAT—AMD—20031 126—00343. 2s 1450930—3

failed to identify which antenna beams would be connected or switchable to each transponder and tracking, telemetry and control (TT&C) finction." On February 10, 2004, EchoStar refiled the EchoStar Application. In addition, EchoStar sought reconsideration of the EchoStar Dismissal Leter.® On February 9, 2004, soon after the EchoStar Application and the EchoStar Amendment were dismissed, MSV filed the MSV Amendment t its pending application for its next generation MSS system." MSV requested an additional 50 Mhz of spectrum in each direction for FSS feeder links including the 10.70—10.75 GHz and 13.15—13.20 GHz bands previously sought by EchoStar. On April 23, 2004, the Bureau also dismissed the MSV Amendment because it filed to include an interference analysis required under Section 25.140(b¥(2) of the Commission‘s rules.® MSV filed a Petiion for Reconsideration for the MSV Distmissal Letter on May 24, 204. EchoStar filed an Opposition to MSV‘s Petition for Reconsideration on June 7, 2004‘° and MSV fled a Reply to the Opposition of EchoStar on June 17, 2004." 5 Dismissal Letter at 2—3. See 47 C.F.R. §§ 25.1 12 and 25.1 14(e)(5). ° See EchoStar Satellte L.L.C., Petition for Reconsideration, File Nos. SAT—LOA~ 20030827—00179 and SAT—AMD—20031 126—0343 (Filed: March 10, 2004). Application ofMobile Satellite Ventures Subsidiary LLC, SAT—AMD—20040209—00014 (February 9, 2004) (°MSV Amendment®). * See Letter to Lon C. Levin, Senior Vice President, Mobile Satellite Ventures Subsidiary LLC, from Thomas S. Tyz, DA 04—1095 (April 23, 2004) at 2 (*MSV Dismissal Letter®). ° See Mobile Satelite Ventures Subsidiary LLC, Petition for Reconsideration, File No. SAT—AMD—20040209—00014 (Filed: May 24, 2004). ‘° See EchoStar Satellite LL.C., Opposition to MSV‘s Petition for Reconsideration, File No. SAT—AMD—20040209—00014 (Filed: June 7, 2004). !* See Mobile Satellite Ventures Subsidiary LLC, Reply to Opposition for Reconsideration, File No. SAT—AMD—20040200—00014 (Filed: June 17, 2004). 13. 1450030.3

On September 15, 2004, the Bureau issued the MSV Reinstatement Order that reinstated the MSV Amendment. The Bureau decided to reinstate the MSV Amendment despite the fact that it determined that "Section 25.140(b)(2) ofthe Commission‘s rules require an interference analysis for feeder links in the FSS bands regardless ofthe classification ofthe service provided to end users.""".In addition, the Bureau clearly indicated that it believed the interference analysis was an important part ofthe satellilicensing application because it issued a Public Notice clarifying that an interference analysis was required in situations to similar to the MSV Amendment and that the failure ofan applicant to supply the interference analysis would resulthe dismissal of the application."" 11. THE BUREAU IN THE MSV REINSTATEMENT ORDER HOLDS MSV TO A MUCH LESS EXACTING STANDARD FOR DETERMINING THAT AN APPLICATION IS "SUBSTANTIALLY COMPLETE® THAN IT APPLIED IN THE ECHOSTAR DISMISSAL LETTER Under the Commission‘s Rules and policies, satellte applications are to be processed ifthey are "substantially complete" when filed."* Under Commission interpretations ofthe "substantially complete" standard, minor errors in an application are acceptable so long as the "the discrepancy [ean be} resolved, confidently and reliably, drawing on the application as a whole.""" Moreover, as explained by the D.C. Circuit, "the FCC must accept applications that ‘* MSV Reinstatement Order at 5. ‘" MSV Reinstatement Order at 5. "* See Satellite Licensing Order t § 244; Satellite Licensing NPRM at 8 84; EchoStar Dismissal Letter at 2. "* Processing ofFM and TV Broadcast Applications, MM Docket No. 84—750, 50 Fed. Reg. 19936, 19946 (May 13, 1985) (°PM and T Order®). —4— 14500303

are substantially complete when filed even ifthey contain minor errors or infiactions of ageney rules, so long as any such defects may be cured without injury to public or private interest.""* The Bureau has not applied the "substantially complete" standard consistently in evaluating the MSV Amendment and the EchoStar Amendment." The errors in the MSV Amendment are not minor errors or violations ofCommission rules that can be resolved based on the contents ofthe rest of the application or which could be cured without causing injury to a private or public interest. In contrast,terrors in the EchoStar Amendment are minor errors or violations ofCommission rules. ‘Yet the Bureau has determined that the EchoStar Amendment and the EchoStar Application should be dismissed while it has determined that the MSV Amendment should be reinstated. The Commission should act t ensure that the substantially complete standard is applied consistently to the MSV Amendment and the EchoStar Amendment. A. The MSV Amendment Was Treated As Being Substantially Complete Despite the Omission of an Important Interference Analysis The error that originally led the Bureau to dismiss the MSV Amendment was that MSV failed to submit an interference analysis where the applicant was required to demonstrate ‘* See Salzer v. FCC, 778 F.2d 869, 872 n.7 (D.C. Cir.1985). (citing James River 399 F2qs81). ‘‘ The EchoStar Petition For Reconsideration ofthe EchoStar Dismissal Letter is still pending. The MSV Reinstatement Decision notes that "(bJecause EchoStar‘s petition for reconsideration is stil pending, MSV‘s status with respect to the 10.70—10.75 GHz and 13.15— 13.20 GHe frequencies is subject to our decision on EchoStar‘s petition for reconsideration of the EchoStar Dismissal Letter." MSV Reinstatement Decision at 6. Thus, it is possible that the Bureau will also determine that EchoStar Amendment is also substantially complete and reinstate the EchoStar Amendment and EchoStar Application. However, in order to protect ts rights, EchoStar had t file this application for review ofthe MSV Reinstatement Order. igs 14500303

stations."* Even while reinstating the MSV Amendment, the Bureau stated that "Section 25.140(b)(2) ofthe Commission‘s rules require an interference analysis for feeder links in the FSS bands regardless of the classification of the service provided to end users.""" Under the MSV Amendment, MSV requested feeder links in the FSS band including the 10.70—10.75 GHz and 13.15—13.20 GHz bands and it should therefore have submitted an interference analysis. This omission is not the type ofminor error in an application that is acceptable so long as the "the discrepancy [can be} resolved, confidently and relisbly, drawing on the application as a whole.""" The rest of the application would not serve as a relisble guide to other spectrum users about the potential interference problems presented by MSV‘s use of ts requested spectrum. B. ‘The EchoStar Amendment Was Treated As Not Being Substantially Complete Based on Two Minor Errors In contrastto the substantive omission that the Bureau allowed when it treated the MSV Amendment as "substantially complete" in the MSV Reinstatement Order, the Bureau treated the EchoStar Amendment as not "substantially complete" based on two minor errors. "The first minor error was that the requested frequency bands were not correetly identified in Table A4—1 of the Technical Annex fled with the EchoStar Amendment due to typographical erzor."" As the Commission has previously stated, an application that contains a minor error or discrepaney that can be "confidently and reliably""" an resolved by looking atthe application as a ‘* See MSV Reinstatement Order at 4. ‘" MSV Reinstatement Order at 5. ® TV and PM Order at 19946. "" Compare, eg., 47 CF.R. § 25.116(c)3)(permitting NGSO applicants to make even major amendments to their appliation after the processing round cut—off date iit is to "correct(} typographical, ranscription, or similar clerical errors which are clearly demonstrated to be mistakes by reference to other parts ofthe application .... * TV and PM Order at 19946. «¢+ 14509303

whole would still meet the "substantially complete" standard. The EchoStar Application and EchoStar Amendment as a whole clearly establish that EchoStar did not changeitsrequested frequency assignments with the fling ofthe Amendment, and was always proposing to use frequencies in the allotted extended Ku—band —namely 10.70—10.75 GHz and 11.20—11.45 GHz on the downlink, and 12.75—13.00 GHz and 13.15—13.20 GHz on the uplink."" Consequently, the typographical error in the frequency table included with the Amendment did not render the Application or Amendment unacceptable under the substantially complete standard. The second minor error cited in the EchoStar Dismissal Letter was that the EchoStar Amendment failed toidentify which anterna beams would be connected or switchable to each transponder and tracking, telemetry and control (TT&C) function.. This is precisely the type oferror that "may be cured without injury to public or private interest.""* In contrast to the interference analysis that was omitted in the MSV Amendment where the Bureau feltthat the ® See, eg., Application at 2 ("Specifically, EchoStar requests authority to launch and operate the following GSO FSS satelltes.. a satellite at 101° W.L. that would operate in a portion ofthe allotted extended Ku—band — 10.70—10.75 GHz and 11.20—11.45 GHz from space— to—Rarth, and 12.75—13.00 GHz and 13.15—13.20 GHz from Earth—to—space."); id. at 5 ("The payload in the allotted portion of the extended Ku—band at 101° W.L. will consistof 18 transponders each of27 MHz usable bandwidth covering 300 MHz in each direction (10.70— 10.75 GHz and 11.20—11.45 GHe from space—to—Earth, and 12.75—13.00 GHz, 13.15—13.20 GHz from Earth—to—space).");id. at Exhibit 1 — A.1 ("The satellite will use the 11.2—11.45 GHz band and a portion of the 10.7—10.75 GHz band for downlink transmissions and the 12.75—13.0 GHz band and a portion of the 13.15—13.2 GHband for uplink transmissions."); id.at Exhibit 1 — A.23 (listing the correctallotted extended Ku—band frequencies for the Sharing Analysis with Other Services and Allocations};id. at Exhibit 2 (lsting the correet allotted extended Ku—band frequencies). See also, e.g., Amendmentat 4 ("The use ofthe bands 10.7—11.7 GHz (space—to— Earth) and 12.75—13.25 GHe (Barth—to—space) by the fixed—satellite service in the geostationary— satellite orbit");i. at Attachment A — A.1 (The satellite will use the 11.2—11.45 GHz band and a portion ofthe 10.7—10.75 GHz band for downlink transmissions and the 12.75—13.0 GHz band and a portion of the 13.15—13.2 GHz band for uplink transmissions (portions of spectrum of the ITU Appendix 30B FSS allotment band)."); id. at Attachment A — A.23 (referring to MSV‘s pending application to use the allotted extended Ku—band frequencies atthe same location); id. at Attachment A — A.24 (referting to the correctalloted extended Ku—band frequencies). * See Salzer, 778 F.2d, at 872. (citing Jumes River 399 F.2d 581) «3. 1450030.3

missing interference analysis was important enough to issue a Public Notice clarifying that the analysis must be provided and failure to do so will result in the application being dismissed, the missing information in the EchoStar Amendment does not make a practical difference as to whether EchoStar‘s proposed satellite would potentially interfere with nearby satellites or other authorized servicesin the allotted extended Ku—band. In fact, the absence or presence ofthe missing technical information identified by the Bureau would not affect EchoStar‘s or any other user‘s interference analsis for the proposed satellte." Other authorized users of the band will tightly assume that there will be simultancous uplink and downlink frequency overlaps in assessing the potential for interference."" "* Itis important to note that the uplink and downlink spot beams in the proposed EchoStar—101 W satellite are all steerable or repointable, as clearly explained in the EchoStar Application, and this means that, from an interference perspective, they must be assumed to point to anywhere on the visible Earth. Only through coordination with other licensees, as foreseen and specifically mentioned in the EchoStar Application, would the benefits of knowing the pointing directions and the channel allocations of each beam be useful in resolving any interference issues. ** In addition, allowing EchoStar to correctits omission without dismissing its EchoStar Application and EchoStar Amendment would not harm the public interest. ‘The processing of this application, as amended, could have waited for EchoStar to supplement ts filing with the requested information. No harm to the public would have resulted from any such minimal delays. Indeed, by allowing EchoStar to refile its application with the requested information, the Bureau presumably will continue to process essentially the same application. Again in contrast to the omission in the EchoStar Amendment, the fact that the Bureau feltthat it was important enough to issue a Public Notice addressing the interference analysis omitted from the MSV Amendment suggests that the failure to include this information would harm the public interest. 1450930.3

111. CoNcLustoN For the reasons stated above, EchoStar respectfully requests that the Commission act to ensure that the "substantially complete"standard for determining when an application is accepted for filing is applied consistently and in accordance with Commission and court precedent in both the MSV Amendment and the EchoStar Amendment. Rezeclinlly st David K. Moskowitz Pantelis Michalopoulos Senior Vice President and General Counsel Philip L. Malet EchoStar Satellite L.LC. Brendan Kasper 9601 South Meridian Boulevard Steptoe & Johnson Lir Englewood, CO 80112 1330 Connecticut Avenue, NW (303) 723—1000 Washington, D.C. 20036 (202) 420—3000 Counselfor EchoStar Satellie LLC. October 15, 2004 —9— 14509303

CERTIFICATE OF SERVICE 1, Brendan Kasper, an attomey with the law firm of Steptoe & Johnson LLP, hereby certify that on this 15° day of October, 2004, served a trie copy of the foregoing "Application for Review" by first class United States mail, postage prepaid, upon the following: Thomas S. Tyez* Robert Nelson® International Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 12" Streeu, S.W. 445 12" Strees, S.W. Washington, DC 20554 Washington, DC 20554 Andrea Kelly* Bruce D. Jacobs International Bureau David S. Konczal Federal Communications Commission Shaw Pitman LLP 445 12" Street, S.W. 2300 N Street, N.W. Washington, DC 20554 Washington, DC 20037 _Beoudnn Brendan Kasper * By hand delivery


Document Created: 2004-10-20 15:49:08
Document Modified: 2004-10-20 15:49:08
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