Attachment reply

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

IBFS_SATAMD2004020900014_407884

Before the copy, FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In the Matter of Mobile Satellite Ventures Subsidiary LLC File No. SAT—AMD—20040209—00014 Call Sign S2358 Amendment to Application for Authority to Launch and Operate a Replacement L—band Mobile Satelite Service Satellite at at 101° w ) Snrmmimcintooncoicricctee REPLY TO OPPOSITION TO APPLICATION FOR REVIEW David K. Moskowitz Pantelis Michalopoulos EcnoSrar Sateturre LLC. Philip L. Malet Senior Vice President and General Counsel Brendan Kasper 9601 South Meridian Boulevard Srerros & Jormson Lt Englewood, CO 80112 1330 Connecticut Avenue NW (303) 723—1000 Washington, D.C. 20036—1795 (202) 429—3000 Counselfor EchoStar Satellite LL C. November 16, 2004

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 $2358 Amendment to Application for Authority to Launch and Operate a Replacement L—band Mobile Satellite Service Satellite at ac101° w ) mminrtas REPLY TO OPPOSITION TO APPLICATION FOR REVIEW Pursuant to 47 C.RR. § 1.115, EchoStar Satellite LLC. ("EchoStar‘") hereby files this Reply to Opposition to Application for Review in the above captioned matter. In its Application for Review," EchoStar demonstrates, that the Bureau held Mobile Satellite Ventures Subsidiary‘s (*MSV") February 9, 2004 Amendment (‘MSV Amendiment")to a much less exacting standard in determining that ts amendment was "substantilly complete""# than the Bureau applied when it dismissed EchoStar‘s application and amendment for some of the same ‘ See EchoStar Satelite L.L.C., Application for Review, File No. SAT—AMD—20040209— 00014 (Filed: October 15, 2004) ("Application for Review"). * See In the Matter of Mobile Satellite Ventures Subsidiary LLC Amendment to Application for Authority to Lainch and Operate a Replacement L—band Mobile Satellte Service Satelite at 101° W.L., Order, File No. SAT—AMD—20040209—00014, DA 04—2985 (Released: September 15, 2004 (°MSV Reinstatement Order®). sas

spectrum." MSV‘s latest Opposition fails to justify the Bureau‘s disparate treatment ofthe two applications. Itis not rational for the Bureau to hold that on the one hand, the omission of an interference analysis by MSV was an excusable minor error in circumstances where past practice had been to require such an analsis, and on the other hand, a minor typographical error by EchoStar in the Technical Annex of an amendment and the omission of certain technical information regarding which transponders are connected to which spot beams in circumstances where this omission would not prefudice other potential spectrum users are major blunders justifying the draconian sanction of dismissal. Thus, the Commission should act to ensure that these satelite licensing applications are treated the same, consistent with existing Commission and court precedent. L. MSV HAS NOT SHOWN THAT THE SUBSTANTIALLY COMPLETE STANDARD WAS APPLIED CONSISTENTLY TO BOTH APPLICATIONS Under the Commission‘s Rules and policies, satellite applications are to be processed if they are "substantially complete"when filed.* Minor errors in an application are acceptable so long as the "the discrepaney [can be} resolved, confidently and relinbly, drawing on the application as a whole."" Moreover, as explained by the D.C. Circuit, "the FCC must ° In this reply, "EchoStar Application"refers to SAT—LOA—20030827—00179 and "Echotar Amendment" refers to SAT—AMD—20031126—00343. * See Amendment ofthe Commission‘s Space Station Licensing Rules and Policies, First Report and Order and Further Notice ofProposed Rulemaking, 18 FCC Red. 10760, at J 244; Amendment ofthe Commission‘s Space Station Licensing Rules and Policies, Norice of Proposed Rulemaking and First Report and Order, 17 FCC Red. 3847, at J 84; Letter to David K. Moskowitz, Senior Vice President and General Counsel, EchoStar Satelite Corporation, from Thomas S. Tycz, DA 04—323 (February 9, 2004) at 2. 5 Processing of FM and TV Broadcast Applications, MM Docket No. 84—750, 50 Fed. Reg. 19936, 19946 (May 13, 1985) (‘FM and TV Order"). 1468770—4

accept applications that are substantially complete when filed even if they contain minor errors orinfractions of ageney rules, so long as any such defects may be cured without injury to public or private interest."" MSV contends in its Opposition that the "substantially complete"standard was applied consistently because the interference analysis omitted from its amendment "was in fact not required atthe time its application was filed" while the two minor errors in the EchoStar Amendment violated Commission rules and were prejudicial to potential applicants." MSV fails to demonstrate, however, that the substantially complete standard was applied consistently for both applications. MSV claims that its omission of an interference analysis was not an erzor at all because it "was in fact not required at the time ts application was fled."" This claim overstates the impact of the June 16, 2004 Public Notice." The Bureau did not establish that an interference analysis was in fact never required, instead it essentially excuses the failure to submit such an analysis based on a lack of clarity in the Rules. The MSV Reinstatement Order clearly states that even prior to the June 16, 2004 Public Notice (1) the Bureau had already interpreted the rule to require an interference analysis even where there are no authorized stations within two degrees and (2) applicants had historically submitted this information even prior to the Public Notice See Salzer v. FCC, 778 F.2d 869, 872 n.7 (D.C. Cir. 1985). (cting James River 399 F2d 581) (‘Salzer‘). " See Opposition at 9. * Opposition at 9. ° See International Bureau Satellite Division Information: Clarification of 47 C.ER. § 25.140(b)(2) Space Station Application Interference Analysis, DA 04—1708 (June 16, 2004) (‘June 16, 2004 Public Notice). 1468770—4

without need for the clarification."" Similarly, the June 16, 2004 Public Notice states that it was clarifying (not establishing) that applicants must submit an interference analysis even when there is no authorized space station within two degrees of the proposed satellite. The omission of an interference analysis is not the type of minor error in an application thatisacceptable since such a "discrepancy [cannot be} resolved, confidently and reliably, drawing on the application as a whole: "" The rest of MSV‘s application would not serve as a relisble guide to other spectrum users about the potential iterference impacts presented by MSV‘s use of its requested spectrum."" Further, it was clear that despite accepting the MSV Amendment, the Bureau did not view the failure to provide an interference analysis as falling in "minor errors or infractions of agency rules" that "may be cured without injury to public or private interest.""" On the contrary, the Bureau issued a Public Notice on June 16, 2004 clarifying that an interference analysis must be provided in circumstances similar to those presented by the MSV Amendment. As set forth in this Public Notice,if the applicant fails to provide such interference analysis, the application will be dismissed.." Finally, the Bureau determined that MSV‘s failure to provide an interference analysis was "contrary to historical practice" and that similarly situated applicants had submitted the required interference analysis in the past." Because MSV incorreetly claims thatits failure to submit an interference analysis was ‘° See MSV Reinstatement Order at 4—5. ‘" TV and FM Order at 19946. "* Application for Review at6. * Salzer, 778 F2d at 872. "* MSV Reinstatement Order at 5 and June 16, 2004 Public Notice. "" See MSV Reinstatement Order at 4—5. See also June 16, 2004 Public Notice at 1 (‘Historically, applicants have submitted interference analyses based on other authorized or proposed systems or based on the technical data of the applicant‘s own satellite in cases where —4— 14687704

permissible, it does not address the factors the Commission and courts have used when analyzing whether an application should be considered "substantially complete." Similarly, MSV incorrectly claims that the EchoStar Amendmentfailed to clearly state what frequencies it was applying for and thereby violated Commission rules and prejudiced potential applicants."" Perhaps most telling in regard to ts claim of prejudice is what MSV does not say in its Opposition. MSV does not, and obviously cannot, assert that it was somehow mislead or confused by the typographical error in the Technical Annex about the frequencies requested by EchoStar, even though it seems to have the most direct interest of any other third party in the requested frequencies. Despite this clear weakness in it claim, MSV cites the Common Carrier Bureau‘s Mobile Phone decision for the proposition that intemal inconsistencies with regard to requested frequencies prejudice other potential applicants and are fatal to an application.""" However, the EchoStar Amendment is readily distinguishable from that case. In the EchoStar Amendment, the only inconsistency was easily resolvable by reviewing the rest of the application and amendment while the numerous inconsistencies present in Mobile Phone were not. While both the cover Jetter and accompanying FCC Form 401 in Mobile Phone made reference to certain frequencies, these references conflicted with those specified in the body of the application. Additionally, there were other inconsistencies within the engineering statements themselves. This inextricable there are no licensed or proposed satelites within two degrees ofthe applicant‘s proposed orbital location.") !* See Opposition at 9. ‘" See Opposition at fn 28. (Citing In re Application of Mobile Phone of Texas, Inc., Memorandum Opinion and Order, 5 FCC Rec. 3459 (Common Carrier Bur., June 12, 1990) ("Mobile Phone"). 14687794

web of conflicting information provided reasonable doubtas to which frequency bands were being requested by the applicant. By contrast,in the EchoStar Amendment, EchoStar‘s request for frequencies and all elevant textual information within the EchoStar Application and EchoStar Amendment, with the exception of one instance in one table in the Technical Annex, refers to the correct frequency bands. Thus,it would be wrong to classify the correction of one typographical error as an amendment to change the frequencies requested in the pending application. This type of correction is not the type of "major amendment" envisioned by 47 C.FR. § 25.1 16(b)(1), and only was classified as such in the case of Mobile Phone because of the repeated inconsistencies and genuine question as to the applicable frequency bands being requested by the applicant. The decision in Mobile Phone is also distinguishable because in that case the amendment submitted to correct the numerous inconsistencies "created a new conflictwith [a mutually exclusive} application that was not apparent at the time Mobile Phone filed its application.""" By contrast, the single inconsistency in the EchoStar Amendment prejudiced no one. Thus, MSV‘s reliance on Mobile Phone is misguided. ‘The typographical error in this case can easily be "resolved, confidently and reliably, drawing on the application a whole.""" MSV also claims that it was prejudiced because EchoStar‘s failure to specify which transponder would be connected to which spot beam deprived MSV of information that might have been useful in determining whether EchoStar‘s sharing proposal is possible."" However,it is unclear how MSV would be prejudiced in this case.. As EchoStar explained in its Application for Review, because the spot beams are all steerable and repointable, only through ‘* Mobile Phone at 8. * FM and TV Order. ®" Opposition at fn 27. ag. 14687794

coordination with other licensees, as forescen and specifically mentioned in the EchoStar Application, would knowing the pointing directions and channel allocations of each beam be useful in resolving any interference issues."" Thus coordination would be necessary toallow interference free spectrum sharing irrespective ofthe spot beam and transponder connections, and MSV cannot convincingly claim prejudice in that or any other regard. Thus, MSV has not demonstrate that the two minor errors in the EchoStar Amendment failed to render the amendment "substantially complete" under existing Commission and court precedent. These minor errors easily could be "resolved, confidently and relibly, drawing on the application as a whole""" m or could be corrected "without injury to public or private interest.""" *‘ See Application for Review at 8 and fn 25. "* TV and FM Order at 19946. * See Salzer 778 F2d at 872. 1468779—4

IL CONCLUSION The Bureau has impermissibly treated the MSV Amendment as "substantially complete" while rejecting the EchoStar Amendment as requiring the dismissal ofits application. MSV has not shown that this disparate treatment ijustified underthe "substantially complete"" standard. Thus, EchoStar respectfully requests that the Commission actto 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 to both the MSV Amendment and the EchoStar Amendment. Rcszlfullz submitted, David K. Moskowitz Pantelis Michalopoulos Senior Vice President and General Counsel Philip L. Malet EchoStar Satellite L.L.C. Brendan Kasper 9601 South Meridian Boulevard Steptoe & Johnson Lt Englewood, CO 80112 1330 Connecticut Avenue, NW (303) 723—1000 Washington, D.C. 20036 (202) 429—3000 Counselfor EchoStar Satellite LLC. November 16, 2004 —8— 1468779—4

CERTIFICATE OF SERVICE 1, Brendan Kasper, an attomey with the law firm of Steptoe & Johnson LLP, hereby certify that on this 16th day of November, 2004, served a true copy of the foregoing "Application for Review" by firstclass 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" Street,S.W. 445 12" Street, 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 Brendan Kasper T * By hand delivery


Document Created: 2004-11-29 11:35:54
Document Modified: 2004-11-29 11:35:54
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