Attachment reply

reply

REPLY TO OPPOSITION submitted by EchoStar

reply

2005-08-30

This document pretains to SAT-AMD-20040428-00085 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD2004042800085_452980

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 Received RrECEIVED AUG a 1 29 In the Matter of 5 wyg 30 200 Policy Branch connuncatiesconnisien Intornati ; EchoStar Satellite LLC "romational Bureatetr®l ie secrint Application for Authority to Construct, File No. SAT—LOA—20040210—00015 Launch, and Operate a Geostationary File No. SAT—AMD—20040428—00085 Satellite Using the Extended Ku—band Frequencies in the Fixed—Satellte Service Call Sign: S2615 at the 101° W.L. Orbital Location Arraitaretarnndtvataiteaantisnied To: International Bureau REPLY EchoStar Satellte L.L.C. (‘EchoStar") hereby files this Reply to the Opposition of Mobile Satellite Ventures Subsidiary LLC (‘MSV®)to EchoStar‘s Petition for Reconsideration ofthe International Bureau‘s (‘Bureau‘s") order that denied the above—captioned application ("the EchoStar Refiled Application") to construct,launch, and operate a satellte at the 101° W.L. orbital location." The Bureau denied the EchoStar Refiled Application solely based upon a finding that the proposed EchoStar satellte would cause "harmful interference" to the "previously licensed operations* of MSV.2 The Bureau‘s decision, however, was not well—grounded in fact and law and should be reconsidered. Indeed, the technical sharing analysis presented by ‘ See In the Matter ofEchoStar Satellite LLC, DA 05—1955 (rel. July 6, 2005) ("EchoStar Order");see also EchoStar Petition for Reconsideration of EchoStar Order (Aug. 5, 2005) (*EchoStar Petition®); MSV Opposition to EchoStar Petition for Reconsideration of EchoStar Order (Aug. 18, 2005) (‘MSV Opposition®). * EchoStar Order at 94. See In the Matter of Mobile Satellite Ventures Subsidiary LLC, DA 05—1492 (rel. May 23, 2005) ("MSV Order").

EchoStar in support ofits Petition, which shows how both the MSV and EchoStar satelltes can operate co—frequency from the same orbital location, gocs virtually unchallenged by MSV. Accordingly, the EchoStar Refiled Application should be reinstated and prompily granted. + THE PROPOSED ECHOSTAR SATELLITE AT 101° .L. WOULD NOT CAUSE HARMEFUL INTERFERENCE TO MSV‘S LICENSED OPERATIONS In denying the EchoStar Refiled Application, the Bureau concludes that operation of EchoStar‘s proposed satelite "would cause harmfulinterference to MSV‘s previously licensed operations." Significantly, the Bureau did not cite to any record evidence to support such a finding, and the MSV Opposition does nothing to bolster the Bureau‘s erroncous conclusion. MSV‘s Opposition suggests that dismissal ofthe EchoStar Refiled Application was appropriate because the "only information in the record as tothe possibility of sharing was EchoStars bare assertion that is was possible."" To the contrary, the record reflected that MSV, had supported EchoStar‘s view that co—frequency sharing by both satellites was possible, and even indicated that it was prepared to work with EchoStar to reach a sharing agreement." Only after it became clear to MSV thatit no longer needed to support EchoStar‘s sharing proposals, * EchoStar Order at § 4 (citing 47 C.F.R. § 25.158b)G)(i)). * MSV Opposition at 5. See EchoStar Petition at 10—11; see, 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"),fled in SAT—LOA—20040210—00015 (April 26, 2004), In a letter just prior to the release of the MSF Order,although MSV argued that its application should be granted and EchoStar‘sapplication dismissed, MSV still did not dismiss the possibility of sharing and indicated ts "willing{ness] to discuss the potential to share frequencies with EchoStar® even ifthe EchoStar Refiled Application was dismissed. Letter from Jennifer A. Manner (MSV Vice President of Regulatory AfTairs) to Marlene H. Dortch (Secretary, FCC),filed in File Nos. SAT— LOA—19980702—00066 et al. (April 4,2005).

did it reverse course and harden its position.®. Equally important,the record reflects another dispositive fact. The only use ofthe extended Ku—band frequencies at the orbital slot that MSV is authorized to make is for feeder link communications with a limited number of sites in the United States. The idea that sharing is impossible in these circumstances runs against the Commission‘s most fundamental spectrum policies. This points up the crux ofthe matter. If the Bureau does not reconsider ts decision, MSV will have gotten away with monopolizing hundreds of MHz ofnationwide spectrum at a key orbital slot, even though it only needs this spectrum at a handful ofisolated sites. Thus, the record priorto the Bureau‘s decision could only be characterized as supporting the possibility of sharing. In the ZchoStar Order, the Bureau noted the parties‘ positions with regard to sharing." Further, in the AMSY Order, the Bureau acknowledged that EchoStar "may be able to coordinate shared use of"the extended Ku—band frequency bands with MSV.* The Bureau further stated that "[i}f the parties reach agreement, we will entertain a request that involves co— frequency operations."" Thus, while the Bureau appears to acceptthe possibility of sharing, and even appeared to encourage the partiesto reach a private sharing agreement, it never took this * See Letter from Jennifer A. Manner, MSV Vice President of Regulatory Affairsto Donald Abelson, Chiefof the Interational Bureau at1 (June 15, 2005) (claiming that the EchoStar Refiled Application is "mutually exclusive" with the recently granted MSV application}; Lete 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 at the same orbital location is novel. Any discussions regarding the feasibility of this 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."). " See EchoStar Order at § 2 n.7. * MSV Order at §16 n. 45. See also EchoStar Order at 1 2 n.7. Wo

possibility into account when it found just over a month laterin the ZchoStar Order that the proposed EchoStar satellite will cause "harmful interference" to MSV‘s limited feeder link operations. MSV now suggests that EchoStar has conceded that ts proposed satellite would cause "harmful interference" to MSV‘s feeder link operations by the very fact that it is seeking a coordination agreement with MSV..* However,to accept this argument would requirethe Bureau to deny all of the satellite applications that it routinely grants on the condition that the Hicensee enter into a coordination agreement with a previously licensed party. Coordination and sharing of spectrum between licensed partiesis the realityin today‘s crowded marketplace for spectrum, especiallyin the satelite industry."" In light of MSV‘s fluid and self—serving positions on this critical ssue, EchoStar submitted a technical analysis explaining how the two operators could share the same orbital Tocation without causing harmfulinterference to each other. The MSV Opposition fails to challenge the fundamental premise ofthe EchoStar Petition and its sharing analysis which concludes that, with EchoStar‘and MSV‘s particular requirements for use of the extended Ku— band, sharing is possible using co—frequency collocated satellites, without placing undue constraints on either party. Unable to challenge this conclusion, MSV suggests that te sharing ‘° MSV Opposition at6. ‘" MSV is well—aware that coordination is a reality in order to maximize the use of spectrum. See, e«g, Mobile Satellte Ventures Subsidiary LLC Applicationfor Authority to Launch and Operate an L—band Mobile Satellte Service Satellte at 63.5° W.L., DA 05—50 at 3 49 (2005) (‘MSV shall coordinate with co—primary Space Operations Service stations in the 1525— 1559 MHz band and will not be entiled to protection from interference unti t has completed coordination."). This includes co—frequency coordination between satellte systems. See, e.g, /n the Matter ofHughes Communications Galazy, Inc. Application for Authority to Construct, Launch, and Operate a Ka—band Satellte System in the Pixed—Satellite Service, 13 ECC Red. 1351, 1359 (1997) (requiring Hughes to coordinate with the U.S. Government space systems operating in the 17.7—18.8 and 19.7—20.2 GHz bands).

analysis offered by EchoStar is "too late" and that EchoStar‘s operations would unfairly "restrict MSV‘s flexibility to operate feederlink earth stations now and in the future.""" The Bureau should reject any suggestion by MSV that new information cannot be presented through a petition for reconsideration. The Commission‘s Rules specifically contemplate that such a petition may rely on facts not previously presented when it would be in the public interest to do so."" MSV also mischaracterizes the purpose behind EchoStar‘ssharing analysis. Itis not being presented by EchoStar to correct a deficiency (which does not exist) in its original application, as in the precedent cted by MSV, or to somehow restrict the design and implementation of MSV‘s system; rather, this sharing analysis simply illustrates to the Bureau what both parties have previously stated on the record —— e., that sharing is possible. EchoStar is not suggesting thatits analysis sts forth the definitive means by which the parties can operate successfully. EchoStar understands that without MSV‘s cooperation it will not be able to complete coordination of the two proposed satelltes. Itis precisely for this reason, that the Bureau require both parties, as a condition oftheir authorizations, t coordinate the operation of their respective satelites with one another."" MSV finds it significant that EchoStar waited some eighteen months after fling its application before approaching MSV about coordination, and did not do so until MSV‘s application was granted."" This delay, however, is nothing unusual. Such coordination rarely begins in advance of an application being granted by the Commission. After MSV‘s application " MSV Opposition at 6. " See 47 CR. §1.106(). "* See EchoStar Petition for Clarification and/or Reconsideration, File No. SAT—LOA~ 19980702—00066 er al. t 7—8 (filed June 22, 2005); EchoStar Petition at 15. !* MSV Opposition at 6 n.15.

was granted, EchoStar prompily approached MSV about establishing a process for coordinating satellite operations consistent with what the parties had previously indicated on the record. 1t was only then, emboldened with its authorization, that MSV conveniently began to back away from its prior statements concerning sharing and its willingness to discuss coordination. The Bureau should see MSV‘s actions for what they are —— a ransparent attempt to turn its limited authorization in the extended Ku—band for two domestic feeder link earth stations into the ability to preclude any other use of the spectrum from the 101° W.L. orbital location anywhere in the country. MSV only substantive criicism, if one could call it that, of EchoStar‘s sharing analysis is predicated on the mistaken view that MSV‘s authorization allows it to operate more than two feeder link earth stations in the United States. It asserts that EchoStar has incorrectly assumed "no more than four feeder link earth stations and [MSV] would not be permitted to relocate those earth stations.""* In fact, EchoStar demonstrated that at least twice as many MSV feeder links as it is currently authorized to operate could be accommodated under EchoStar‘s sharing proposal. MSV simply cannot rely on the "possibility® of being allowed to operate additional feeder link earth stations in the United States. As currently authorized, MSV is Himited to two feeder ink earth stations, and the Bureau has not indicated that MSV is entitledto any additional feeder link sites.". While MSV may believe thatit has a "nationwide and exclusive license," the reality is that it has a license to operate a nationwide beam in conjunction !* MSV Opposition at6. !" See MSY Order at 1 66.

with only two feeder—Link earth stations located in the United States."® s It does not have a license to deploy as many feeder link earth stations as it would like."" In any event, EchoStar‘s sharing analysis is not predicated on restricting or limiting MSV‘ssystem design."" Rather, the sharing analysis examined several different scenarios including both two feeder link earth stations, as MSV is currently authorized and limited to use, as well as total of four feeder link earth stations,in an effort to demonstrate the fexibility that MSV would have in designing and deploying it system. The analysis was not meant as a way to somehow limit MSV‘s intended operations."" Indeed, as the attached supplement to EchoStar‘s technical analysis demonstrates (see Attachment A},sharing is possible between EchoStar and MSV even with an MSV system incorporating up to six feeder link earth stations."" Consistent with the prior statements of EchoStar and MSV, the sharing analysis set "* MSV Opposition at 7. ‘" MSV suggests that it would be unprecedented to require a licensee to accommodate a later applicant by modifying or restricting its system design in any way. See MSV Opposition at 7. However, the Commission has done so routinely in an effort to facilitate sharing and maximizeuse of searcespectral resources. For example, with respect to feeder links operated by the Big LEO MSS systems, lcensees are limited in the number of feeder link earth stations they are permitted to deploy in an effort to accommodate sharing with LMDS and other GSO systems. See 47 C.F.R. § 25.257; Rulemaking to Amend Parts1, 2, 21 and 25 ofthe Commission‘s Rules to Redesignate the 27.5—29.5 GH Frequency Band, to Reallocate the 29.5—30.0 GHe Frequency Band, to Establish Rules and Policiesfor Local Multipoint Distribution Service andfor Fixed Satellie Services, 11 BCRed. 19005, 19033—34 (1996). ®" See MSV Opposition at 6. *‘ See Attachment A of EchoStar Petition at 11. In fact, EchoStar also assumed that MSV would ultimately utilice spot beams for its feeder link operations, which it has confirmed in is Opposition. See MSV Oppositionat 7—8. "" EchoStar does not concede that MSV should be allowed to operate any additional feeder link earth stations in light of potentia interference with the Fixed Service and the added constraints that such a system would place on EchoStar‘s proposed satellite system.

is possible using co—frequeney collocated satellites, without placing undue constraints on ither party." MSV asserts that EchoStar does not need to have its application reinstated or granted "in orderto discuss coordination with MSV or any other satellite operator.""" Instead, it suggests that EchoStar firsty to reach a "private agreement" with MSV and then seek Commission approval. While EchoStar agrees that private coordination agreements are the norm, it is difficult to take MSV‘s comments at face value when it was MSV that abruptly cancelled the scheduled coordination meeting shortly afteit received itslicense and just prioto the release of the AchoStar Order."" EchoStar welcomes the opportunity to enterinto meaningful coordination discussions with MSV. However, treality is that by dismissing the EchoStar Refiled Application and granting the MSV Authorization, the Bureau has removed any incentive for MSV to engage in such discussions. Further, MSV‘s support of a private coordination agreement in the absence of reinstating EchoStar‘s application ignores the prejudice to EchoStar that may result by subjecting it t intervening applications for use ofthe same extended Ku—band frequencies. Without a reversal of the EchoStar Order, coordination discussions are unlikely to * The Bureau should dismiss MSV‘sridiculous claims thatits use ofthe Ku—band "represents far more efficient use than EchoStar‘s proposal." MSV Opposition at 8. EchoStars proposal is very similar to the extended Ku—band authorizations already approved by the Burcau at other orbital locations. In granting those authorizations, the Bureau was not persuaded by any claims of inefficieney and interference, and the Bureau should similarly reject them here. See, e.g. In the Matter ofEchoStar KuX Corporation Applicationfor Authority to Construct, Launch and Operate a Geostationary Satellite Using the Extended Ku—band Frequencies in the Fixed— Satellite Service at the 121° W.L. Orbital Location, DA 04—3164 at 1 14 (rel. Sept. 30, 2004). "" MSV Opposition at 8. * See EchoStar Petition at 9 n.25.

go anywhere, thereby squandering an opportunity to maximize use ofthe extended Ku—band frequencies at the 101° W.L. orbital location. MSV finally suggests that co—frequency operations is not appropriate in the absence of sharing rules adopted by the Commission" However, with both parties on the record stating that sharing is possible, sharing rules are not necessary —— instead, private coordination discussions mandated by the Bureau should be sufficient. The key to success is not the development of sharing rules, but requiring MSV to follow through with earlier statements supporting such discussions. As set forth in the Petition, EchoStar believes that to do so, the EchoStar Refiled Application should be reinstated and granted, and both parties be required to enter into coordination discussions as a condition of their licenses. 1t MSV SHOULD NOT HAVE FIRST—IN—LINE STATUS FOR THE EXTENDED KU—BAND FREQUENCIES AT THE 101° W.L. ORBITAL LOCATION In the EchoStar Order, the Bureau found that denial of the EchoStar Refiled Application is appropriate because "MSV hafs] first—in—line status with respect to the additional Ku—band spectrum requested by MSV at the 101° W.L. orbital location."""" As set forth in the EchoStar Petition, EchoStar has two pending Applications for Review which,if ether one is granted, would undermine this finding by the Bureau."" MSV argues that since the Bureau explained in the ZchoStar Order that ts decision to dismiss the EchoStar Refiled Application "* See MSV Opposition at 9. " 14 "" See EchoStar Petition at 8.

was "without prejudice," there is no merit o EchoStar‘s claim that these Applications for Review should have been decided prior to the EchoStar Order and the MSF Order."" While the Bureau may believe thatits decision in the EchoStar Order and the MSVOrder is without prejudice tthe pending Applications for Review, in practice, these decisions have unfairly prejudiced EchoStar by subjecting it to intervening applications for use of the same extended Ku—band frequencies. The better course of action would have been for the Bureau to have delayed its decisions in both the EchoStar Order and the MSV Order pending the outcome of the Applications for Review before the Commission. HiL. CONCLUSION For the reasons stated above and in EchoStar‘s Petition, the EchoStar Order should be reversed and the EchoStar Refiled Application reinstated and prompily granted. Respectfully submitted, Star Satellite LL.C. David K. Moskowitz felis Michalopoulo Senior VicePresident and General Counsel Philip L. Malet EchoStar Satellite LL.C. Mare A. Paul 9601 South Meridian Boulevard Steptoe & Johnson Lur Englewood, CO 80112 1330 Connecticut Avenue, NW (303) 723—1000 Washington, D.C. 20036 (202) 429—3000 Counselfor EchoStar Satellite L L August 30, 2005 " MSV Opposition at 10—11. 16.

cermiricate or service 1, QHitcP AGTZwith the law firm of Steptoe & Johnson LLP, hereby certify that on this 30th day of August, 2008, served a true copy of the foregoing "Reply" by first class mail, postage pre—paid (or as otherwise indicated) upon the following: Donald Abslson® Bruce D. Jacobs International Bureau David S. Konczal Room 6—C750 Pillsbury Winthrop Shaw Pittman LLP Federal Communications Commission 2300 N Street, N.W. 445 12" Street, S.W. Washington, DC 20037—1128 Washington, DC 20554 Cassandra Thomas® Jennifer A. Manner International Bureau Vice President, Regulatory Affairs Room 6—A666 Mobile Satellite Ventures Subsidiary LLC Federal Communications Commission 1002 Park Ridge Boulevard 445 12" Street, S.W. Reston, Virginia 20191 Washington, DC 20554 Fom Jamulnck® Satellte Division International Bureau Room 6—A523 Federal Communications Commission 445 12" Street, S.W. Washington, DC 20554 Robert Nelson® Satellte Division International Bureau Room 6—B554 Federal Communications Commission 445 12" Street, S.W. Washington, DC 20554 * By Hand Delivery 11—

ATTACHMENT A Supplementto MSV—EchoStar Sharing Analysis A.1 Introduction This analysis supplements the MSV—EchoStar Sharing Analysis that was included as an attachment to EchoStar‘s Petition for Reconsideration in this proceeding dated August 5, 2005. It has been generated to respond to the information recently provided by MSV in ts Opposition dated August 18, 2005, in which MSV states its requirement to deploy spot beams "... and as manyas three or four additional earth stations," in addition to the maximum of two feeder link earth stations that were a condition of its license.". In the MSV—EchoStar Sharing Analysis we demonstrated how EchoStar could share the same frequency band with up to four MSV feeder link earth stations. This Supplement extends that analysis to include up to six MSV feeder link earth stations and associated spot beams." A.2— Possible Use of Six MSV Feeder Link Earth Stations Figure 2—1 below shows a scenario where MSV is operating six geographically isolated spot beams and associated feeder link earth stations (MSV beams showi red). Because MSV has not given any indication as to the location of these feeder link earth stations we have Itshould be noted. however,that the texitig lensed carth stations aregeographicall oo losetopsther to permi sptil fequency reus othe feederink spectrum. "Thereforethassumption of x peouraphically separated MSV feader inkearth ttions s an overestiat of what MSV may eventally use . EehoStardoes notcancede tht MSV should b allowed o ncreas th nurmber ofedernk locations from the curretly authorized two earth stations. Thi anaysii ntended o demonstrate how the two pariescould coordinatthe us of he extended Ku—band eveif MSV wereauthoried t operate additional feede inearth sutions.

arbitrarily assumed they are located somewhere in the vicinity of the following metropolitan areas: Washington DC, Houston, Chicago, San Diego, Seattle and Denver.. The first four of these are the same as used in the previous analysis. ‘The two additional feeder link sites are assumed to be in Seattle and Denver. Note that the assumed MSV feeder link beams all achieve well in excess of 20 dB beam isolation from the other MSV spot beams, atthe feeder link earth station locations. The example EchoStar beams are shown in blue in Figure 2—1. . These beams do not represent the limit on EchoStar‘s beam coverage possibilities, but rather just a representative example of beams that could easily be operated by EchoStar without causing. harmful interference to MSV‘s assumed feeder link operations. Note that all ofthe assumed MSV feeder link earth stations are located outside of the —26 dB gain contour of the EchoStar downlink beams, which is consistent with the interference analysis provided in the original MSV—EchoStar Sharing Analysis." Note also that additional EchoStar beams could be added, or these beams could be moved, without exceeding this assumed condition. * See Section A.5 of thoriinal MSV—EchoStar Sharing Analysis

Figure 2—1 — Downlink Example Six MSV Feeder Link Earth Stations i memonpsiicins rewoutinoun Blue = EchoStarbeams.. Red =MSV beams A3 Conclusions Even with six MSV feeder link spot beams operating with six geographically separated MSV feeder link earth stations, there are still vast areas of the United States that could be provided service by EchoStar using the same frequencies and same orbital location as MSV. With constructive coordination between the parties, EchoStar and MSV would be able to share the extended Ku—band atthe 101° W.L. orbital position.

CERTIFICATION OF PERSON RESPONSIBLE FOR PREPARING ENGI NFORMATE I hereby certify that I am the technically qualified person responsible for preparation of the engineering information contained in this pleading, that I amfamiliar with Part 25 of the Commission‘s Rules, that T have either prepared or reviewed. the enginecring information submitted in this pleading, and that it is complete and accurate to the best of my knowledge and belief. Richard J. Barnett Richard J. Bamett, PhD, BSc Telecomm Strategies Inc. 6404 Highland Drive Chevy Chase, Maryland 20815 (301) 656—8950 Dated:. August 30, 2008


Document Created: 2005-08-31 18:19:01
Document Modified: 2005-08-31 18:19:01
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