Attachment opposition

opposition

OPPOSITION TO PETITION TO DENY submitted by Northrop Grumman Space & Mission Corp., Northrop Grumman Space Technology

opposition

2004-09-28

This document pretains to SAT-AMD-20040719-00137 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD2004071900137_400600

BEFORE THE Federal Communications Commission WASHINGTON, D.C. 20554 RECEIVED — FCC SEP 2 8 2004 Fedea Communeaton Comnacon In re the Applications of ) SueauOtce ) File Nos. SAT—LOA—19970904—00080/84 Northrop Grumman Space & Mission ) sAT—LOA—19971222—00219 Systems Corporation ) SAT—AMD—20031104—00324 ) SAT—AMD—20040312—00030/34 For Authority to Launch and Operate ) SAT—AMD—20040719—00136/440 Geostationary and Non—Geostationary ) Satelites in the Fixed—Satelite Service ) To: Chief, Intemational Bureau CONSOLIDATED OPPOSITION TO PETITIONS T DENY OR DisMiS$ NORTHROP GRUMMAN SPACE TECHNOLOGY & MISSION SYSTEMS CORPORATION Stephen D. Baruch David 8. Keir Leventhal, Senter & Lerman, PLL.C. 2000 K Street, N.W., Suite 600 Washington, D.C. 20006 (202) 420—s070 September 28, 2004 Its Attomeys

SUMMaARY Petitioners‘ claims are rooted largely in the false premise that NGST‘s applications share critical characteristies with applicationfiled by EchoStar in August 2003, which were denied eartier this ear. Contrary to these claims, both the procedural posture ofthe NGST and EchoStar applications and their substantive content are fundamentally different, and NGST and EchoStar therefore are not "similarly situated" partes. NGST‘s applications were iniially dismissed as not acceptable forfiling due to incompleteness, because the International Bureau‘s Satellite Division determined that they did not include regquired information regarding two—degree spacing at V—band and orbital debris mitigation. Upon further review, however, the Bureau concluded that the relevant requirements were subject to more than one reasonable interpretation, and it reinstated the applications. The sufficiency of NGST‘s contingent showing regarding use of the Ka—band primary non— geostationary orbit (‘non—GSO") bands by geostationary—orbit ("GSO") satelltes was discussed in the Satelite Division‘s initial letter, but was not a basis for the incompleteness finding that was later reversed. EchoStar‘s applications, on the other hand, were denied after acceptance for filing and complete processing. This action was taken because EchoStar failed either to demonstrate compliance with the Commission‘s Rules regarding Ka—band spectrum use orto justify a waiver of those Rules by showing thatits proposed GSO networks would not cause harmful interference to primary non—GSO systems in the bands sought. The defect in EchoStar‘s applications was thus a substantive grantability defect;it was not a matter of procedural completeness. With respect tothe substance ofthe NGST applications, NGST has demonstrated in its March 12 and July 19 Amendments how its geosynchronous—orbit satelites, operating as part of a non—GSO system, will indeed operate compatibly with other non—GSO systems. NGST i

also demonstrated, contingently, how it would be able to operate the same spacecraft as "GSO® satelltes on a completely secondary basis with respect to Commission—suthorized non—GSO FSS systems should the Commission treat the proposal as one for GSO use of the primary non—GSO FSS bands. EchoStar never made a quantitative showing — cither in its applications or its petition for reconsideration — that its proposed GSO operation would not cause harmful interference to non—GSO systems, and in fact, maintained that non—GSO systems should be subject to EPFD limits to protect the GSO networks in these bands too. In its Petition, SES Americom argues that NGST has failed to justify its request for a waiver ofthe Commission‘s 28 GHz band plan, contending that compliance with intemational EPFD limits cannot be the basis for departing from the Commission‘s spectrum allocations because the Commission has not yet formally adopted the EPFD limits forthe Ka— band. SES Americom bases this claim on the early and unsettled status of EPFD limits in 1998, at the time that such limits were first proposed for consideration in the Ku—Band NGSO rulemaking proceeding. The uncertainty and division that characterized the regulatory situation at the time of the decision relied uon by SES Americom was resolved by 2000, and the reliability and validity of the Ku—band and Ka—band EPFD limits to protect co—frequency GSO FSS networks is now both well settled and accepted by the Commission. Significantly, at no point does SES Americom even suggest that the EPFD limits in the ITU Radio Regulations are insufficient to protect Ka—band GSO networks from unacceptable and harmful interference, or that the comprehensive technical showing in NGST‘s March 12 Amendment is insufficient to show that the EPFD limits for 19.7—20.2 GHz and 29.5—30 GHz that are contained in Article 22 of the TTU Radio Regulations are met by NGST‘s non—GSO FSS system. Because NGST has demonstrated that its HEO non—GSO FSS satellites meet the EPFD limits, NGST must be deemed to have successfully demonstrated it entitlement to the i

waiver it seeks to enable secondary operation of the GESN non—GSO FSS system satellites in the upper 500 MHz of the Ka—band GSO FSS spectrum. Finally, SES Americom‘s procedural arguments against NGST‘s "GSO® use of the non—GSO FSS bands are unavailing. NGST recognizes that ts use of geosynchronous satellites in the non—GSO component of GESN subjects it to some additionalregulatory obligations that would not apply if a totally HEO constellation were to be deployed. However, even if it were to be assumed, arguendo, that NGST‘s geosynchronous—orbit satellitesin the 18.8—19.3 GHz and 28.6—9.1 GHz bands are GSO satellites, NGST‘s application contains a technical demonstration that the operational measures it proposes to employ to protect co— frequency non—GSO FSS systems would result in no noticeable impact on the performance of the other non—GSO FSS systems that are proposed for operation in the primary Ka—band non—GSO ESS spectrum.. SES Americom does not make any claim that this demonstration is incorrect in any way, and more significantly, no pending non—GSO FSS applicant has claimed that NGST‘s proposed "GSO" use of the non—GSO FSS primary bands would cause harmful nterference to those proposed systems. The Petitions of EchoStar and SES Americom should thus be denied: iv

TABLE OF CONTENTS SUMMARY L Background 1t The EchoStar Ka—Band Applications Denied Earlier This Year Were Not "Similarly Situated" With NGST‘s Applications. 4 1M ItIs Well Settled That A Non—GSO FSS System That Operates At Or Below The Ka— Band EPFD Limits Will Not Cause Unaceeptable Or Harmful Interference To A Co— Frequency GSO FSS Network. m# IV. NGST‘s Proposed Geosynchronous—Orbit Use OF The Non—GSO FSS Primary Ka— Band Spectrum Is Consistent With Commission Precedent... 13 V.— Conclusion.. 17

BEFORE THE Federal Communications Commission WASHINGTON, D.C. 20554 In re the Applications of ) ) File Nos. SAT—LOA—19970904—00080/84 Northrop Grumman Space & Mission ) SAT—LOA—19971222—00219 Systems Corporation ) SAT—AMD—20031104—0032¢ ) SAT—AMD—20040312—0003034 For Authority to Launch and Operate ) SAT—AMD—20040719—00136/40 Geostationary and Non—Geostationary ) Satellites in the Fixed—Satelite Service ) To: Chief, International Bureau CoNnsoLIATED OPPoSITION To PETITIONS To DENY OR DiSMiss Northrop Grumman Space & Mission Systems Corporation, by counsel and through ts Northrop Grumman Space Technology sector (*NGST), hereby opposes the Petition to Deny and the Consolidated Pettion to Dismiss or Deny filed respectively on September 13, 2004 by EchoStar Satelite LLC ("EchoStar") and SES Americom, Inc. (‘SES Americom") in response to NGST‘s March 12, 2004 and July 19, 2004 amendments to the above—captioned applications. As NGST demonstrates below, neither petitioner has provided any justification for the dismissal or denial of NGST‘s applications, and the subject applications should therefore be processed and granted. . Background NGST‘s applications for a fully—interconnected and interdependent V—band/Ka— band fixed.satellite service (‘FSS") system employing a combination of geostationary satellite orbit (°GSO") and non—geostationary satelite orbit ("non—GSO") spacecraft were originallyfiled in 197.\ International and domestic spectrum allocation issues at V—band and the vagaries of . See Application ofTRW In., File Nos. SAT—LOA—19970904—00080/3¢ (iled Sept4, 1997); Amendment of TRW In.File No. SAT—AMD—19971222.00219 (ild Dec. 22, 1997)

«2. the processing round system for space station applications delayed or derailed the realization of NGST‘s original vision for its proposed "GESN® system for many years. Indeed, it was not until late in 2003 that the Commission finally completed rulemaking proceedings that established shating rules for non—GSO FSS systems in the 2 x 500 MHz of primary Ka—band non—GSO FSS spectrum and a band plan for FSS satelltes and systems at V—band.". By the end of 2003, the regulatory elements were in place to enable the processing of NGST‘s comprehensive approach for its proposed GESN system. On March 12, 2004, NGST amended its four V—band GSO applications and its V~ band/Ka—band non—GSO application to restore ts hybrid, consolidated vision for GESN—® In its Amendments, which NGST requests to have considered and processed as a unified system fling, nost: * reduced the number of satellites in the non—GSO component of GESN from 15 to 7; * changed the orbits of ts non—GSO satellites from exclusively medium Barth orbit to a combination of 3 highly—elliptical orbit ("HEO") and 4 geosynchronous—orbit satelites that will operate in the originally—proposed 2 x 1000 MHz of Ka—band spectrum and 2 x 3000 MHz of V—band spectrum without a material increase in interference potentials * modified the orbital locations proposed for 3 of the 4 spacecraft in the GSO component of GESN; * added 2 x 500 MHz of Ka—band GSO primary spectrum to ts GSO satellites at 89° W.L, 2 x 1000 MHz of Ka—band GSO primary spectrum at 116.5° E.L. and an additional 1500 MHz of V—band downlink spectrum to all butits 15° EL. satellite (bringing the total V—band downlink spectrum on each of the three affected satellites to 4500 MHz). + In December 2003he Commission adoptedrilesto implement alloction and pover limition ctions that were takenata seres ofthee InterationalTeecommunication Union (TTU‘) World Radiocommunicaton Conferences. culminating with the 2003 conference See Alloction and Designation ofSpectfor Fixed—Satlite Servicein the 37.5:38.5 GHts 40.5—41.5 GHicand482.302 GHiz Frequency Bands; Allocaion ofSpectrun to Upgrade Fied and Mobile Allocations i the 40 —42.5 GHs Frequency Band; AllocationofSpectrun in the 16— 47.0GHiz Frequency Bandfor Wireess Services and Allxation ofSpectran in the 37.0:380 and 400405 GHiz Handfr Government Spectruns,Second Report end Order, 1B Docket No. 97.95, FCC 03—296 (rleased Dec. . 2003) (‘V—Rand Second Report and Order 8 See FCC File Nos.SAT—AMD2004031200050 through 00034 (collctvely, "NGST March 12 Amendmens")

es NGST included technical justifications and, where necessary, requested waivers of applicable technical and processing rules to accommodate its GESN system proposal. In the case of the plane of geosynchronous—orbit satelltes in the non—GSO component of GESN at Ka—band, NGST requested, inter alia,a contingent waiver of the 28 GHz Band Plan to permit it to use the four geosynchronous—orbit satellitesto supplement the HEO satellites in the 18.8—19.3 GHz and 28.6— 29.1 GHz bands, and included a demonstration (supplemented in later amendment) of how such use would be made without causing harmfulinterference to Commission—suthorized non— GSO FSS systems in the same bands * On May 18, 2004, the Satellite Division of the Intemational Bureau released a letter dismissing a number ofthe interrelated NGST applications, construing the applications to be incomplete as filed." There were two bases for these dismissals, nither of which pertained to the use of the Ka—band by geosynchronous satellites as part of NGST‘s proposed non—GSO network.. Firs, the Satellite Division found that NGST had failed to include a two—degree spacing interference analysis with respect to "authorized" GSO satelites in the V—band. Second, the Satelite Division found that NGST had omitted a casalty risk assessment with respect to controlled atmospheric re—entry of non—GSO satellites.. The Satellite Division also noted in its letter that NGST would need to provide a more comprehensive technical showing regarding the ability of its proposed plane of geosynchronous satelites to operate on a secondary basis in the Ka—band with respect to proposed and future Commission—authorized non—GSO FSS systems. On June 16, 2004, the Satellite Division reversed its May 18" decision on its own motion; reinstated all of NGST‘s dismissed application and directed NGST to further amend its # NGST March 12 Amendment (File No. SAT—AMD—2004031200030) a 27. * See Leter rom Thomas . Tyes, Chiet, Stellte Division.Iterationa! Bureau, Faderal Communictions Commisionto Peter Hadinger, NGST, DA 04—1387, dted May 18, 2004 (May 18° Lener")

applications to demonstrate thatits GSO satellites are compatible with the two—degree spacing requirement at V—band, and to provide a more detailed casualty isk assessment conceming its proposal for controlled re—entry of the HEO non—GSO spacecraft.* NGST timely filed the requested amendments on July 19, 2004." NGST‘s July 19 Amendments included the showings required by the Commission on two—degree spacing and orbital debris mitigation, along with a supplemental showing (responsive to the admonition in the Satellite Division‘s May 18" Lerter) that provided further technical detail in support of NGSTT‘s contingent request for a waiver of the 28 GHz Band Plan to allow it to operate "GSO" satellites on trily secondary basis in the 18.8— 19.3 GHz and 28.6—29.1 GHz bands. The amended applications were deemed acceptable for filing, and were placed on Public Notice on August 13, 2004." The Petitions of EchoStar and SES Americom to which this Consolidated Opposition responds were filed on September 13, 2004. 1t The EchoStar Ka—Band Aps ions Denied Earlier This Year Were Not "Similarly Situated"With NGST‘s Applications. EchoStar‘s Petition to Deny is rooted in the false premise that NGST‘s applications share critical characteristics with applications originally filed by EchoStar in August 2003, which were properly denied earlier this year." EchoStar maintains "the asserted deficiencies in EchoStar‘s applications were also present in NGST‘s GSO applications at the time they were accepted for filig."""" Not only is this inaccurate, EchoStar leaps from this flse * See Leter rom Thomas STyez, Chit, Satelite Divisin, Inerational Bureau, Fedeal Communications Commision, to Peer Hadinger, NOST, DA Of—1725,dated Je 16, 2004 (Yane 10° Lener") * See FCC Fil Nos. SAT—AMD—20040719—00136through —000140 (collectvely, »NGST July 19 Amendments‘). * ie BOC Publi Noti, ‘Policy Branch Information,Satelite Applications Accepte forFlig,"Report No. SAT—00238 (InBur, August 13, 2008) * See EchStaSatelte, LLC, DA Ot—1167,sipop. (SatDiv. released April 29, 2008) (*RehoSter Denial Order® * EchoStar Pettion at2.

ug. premise to the conclusion thatthe Bureau‘s rejection of EchoStar‘s applications "requires that it also deny NGST‘s GSO applications.""" SES Americom makes a substantilly similar argument in its Petition.*.In fact, however, both the procedural posture of the NGST and EchoStar applications and their substantive content are and were fundamentally different, and NGST and EchoStar therefore are not "similarly situated"partes, as EchoStar and SES Americom maintain. NGST‘s applications were initally dismissed as fatally incomplete atthe acceptance stage, without prejudice to refiling because, as described above, the International Bureau‘s Satellite Division determined that they did not include both (1) a two—degree spacing interference analysis with respect to "authorized" GSO satellites in the V—band, and (2) a casualty risk assessment with respect to controlled atmospheric re—entry ofthe HEO non—GSO satelites" The sufficiency of NGST‘s initil showing in support oits contingent request for a waiver of the 28 GHz Band Plan to ensble it to operate "GSO" satelites on a secondary basis in the non—GSO FSS primary bands was discussed in the iitial ltter, but it was most decidedly not a basisfor the inital incompleteness determination. Upon further review, however, the Bureau reckoned that is two—degree spacing and orbital debris mitigation requirements were subject to more than one reasonable interpretation, and it reinstated the applications, permitting NGST to amend them to provide the required information. In its Petition, EchoStar seizes upon the reinstatement of NGST‘s non—GSO application and maintains that its own GSO Ka—band applications are entitled to the same EEchotar Pition at4 SES Americom Pettionat$9. » See May 18 Lener. See June 16" Leter

treatment, claiming that they are "similarty—situated" with NGST."" EchoStar‘s GSO applications, however, are not similarly stuated with NGSTs non—GSO application. Under the Commission‘s rules and decisions, in order to secure authority to operate GSO satelites in the non—GSO FSS primary bands, EchoStar and NGST (in the event thatthe latter‘s geosynchronous—orbit satellites are not deemed to be part ofthe non—GSO component of GESN as NGST asserts) are each required to justify their requests for a waiver of the Commission‘s 28 GHz Band Plan. ‘This requirement is not a "completeness" requirement thatisassessed at the acceptance for filing stage. Indeed, like NGST‘s Amendments, EchoStar‘s applications were duly accepted forfiling in September 2003."" Instead, the requirement goes to the ultimate grantability of the applications. This is where all similarities between the situation EchoStar was in when its application was denied, and NGST is in now, end. EchoStar‘s applications were premised on its suspect assertion that the operation of non—GSO systems in the Ka—band was unlikely to occur and that ts proposed GSO—only system therefore would not interfere with non—GSO operations. As a fallback position, EchoStar asserted that it would tum off its GSO spacecraf if interference to non—GSO systems occurred."" ‘Where EchoStar did absolutely nothing to enhance this "showing." even after NGST and Hughes separately pointed out the defects therewith in their October 2003 Petitions to Deny/Dismiss the i HEchoStar Petton at4d 6. EchoStar made thissame erroncousclaim in connection with is ettionfor Reconsideration o s applicatios. See EchoStar Reply to Oppositon t Pettion for Reconsideraton, SAT—LOA— 20030827—00180 era, at 4—5 (iled June 28, 2000 w HEchatar seemssomenhatconfused conceening theactul status of ts applications, stating coreclyat several points that ts applications weredenied (Peiton at 1 3 & 5), while elsowher referingto thirismisal® (Peition at 4). EchoStaris faty wrong. however, in ts accusitionthathe Bureay denie ts applcatons"without accepting them for iling and placing them on public notiee"" Rertion at 5. These applicaions wer fully processed and denied. They were acceptedfor Aling ia Public Novee released September 24, 2003. See Public Notice: Satllte Space Sitions Accepted for Fling. Report No. SAT—00165, Petitons to Deny were fled by NGST and Hughes Electronics Comportion (*Hughes") on October 24, 2003, EchoSuar fled ts Consolidated Oppositon on Novermber 6, 2003 and NGST and Hughes fled Reples on November 19, 2003. * See EchoSur Applications, FCC File Nos. SAT—LOA—2003827—00180,—00182,—00185, and —00187,at 15— 16.

19. EchoStar‘s original applications, NGST demonstrated in its March 12 Amendments how its geosynchronous—orbit satellites, operating as part of a non—GSO system, will be capable of operating compatibly with other non—GSO systems, and how, contingently,it would be able to operate the same spacecraft as GSO satellites on a completely secondary basis with respect to Commission—authorized non—GSO FSS systems.‘" In response to the Bureau‘s May 18" Lerter and June 16Leter, NGST supplemented this information with an even more detailed and comprehensive technical showing."" Thus, NGST has submited the type of showing that EchoStar failed toattemptat any time prior to the denial of ts application."" Rather than take EchoStar‘s approach offiling applications whilsecking a change in the rules to accommodate its proposal, NGST has designed its hybrid non—GSO/GSO system to comply with the existing GSO and non—GSO rules, secking a waiver of the frequency allocation rules tothe extent required to permit secondary, non—harmful—interference geosynchronous operation in the 18.8—19.3 GH bands. In contrast, when the Bureau considered EchoStar‘s applications on their merits earlier this yea,it found that "BchoStar did not submit a technical showing demonstrating it could operate compatibly with non—GSO FSS systems," and thus it was compelled to deny the * NGST March 12 Amendment(Fle No. SAT—AMD—20040312.00030), at 13, 2627. 5* SeeNGSTJuly 2004 Amendmentat Amex 3. Specifcal, NGST has proposed to includets non—GSO network a plane of four eosynchronousstelitsthat would operae n confuncionwith and as partof he non— GSO component of GESN. The four geosynctvonoussteiteswllsupplementthe GESN HEO non—GSO satelites in terms ofcoverage, and wll enhance th frequency sharing among non—GSO FSS systemsin t bands by allowing steltes of GESN and other non—GSO FSS systems to maximize thir us of the non—GSO FSS bands cven daring intine evens. Withoutthis enhancement both GESN and th other non—GSO FSS system would have o tetestt one—halfofthe available bandwidth fo thedaration otheinlie event. NGST has commited to bearing the burden ofshiting rffc away from a peosynchronouslane spacecaft in the 18.8—19.3GHte and 28 629.1 Gite bands during intine eventswith another system‘s nonGSO stelites, d will not demand protcionor a reduction in spectrum from any ther Commission—authorized non—GSO steitsystem when such inline inerfrence sititions occur » HEchoSiarnow maintans that could have made such a showingif given the "opportunty." EchaStar Pettion at5. But EchoStar had an opportuntyto corectthe defiiencies n ts application oncethey were pointed outby NGST and Hushes, and it fuiledto availiselfof thischance during thsix months ts applationremained pending prioet is April 2004 denial.

application."" In other words, EchoStar‘s applications were denied after complete processing, not dismissed at the acceptance for filing stage." In EchoStar‘s case, the flaw in its applications was not a procedural omission of required information, but its complete failure either to demonstrate compliance with the Commission‘s Rules or to justify a waiver of the those Rules."" The defect was substantive, not a matter of process or completeness. Ultimately, EchoStar seeks to use the reinstatement of the NGST applications as a lever to secure the reconsideration and reinstatement of is rejected applications."" In substance, itsfiling is as much a supplement to its Petition for Reconsideration of the EchoStar Denial Order as it is a Perition to Deny NGST‘s applications, yet it has not sought leave to augment its showing there nor has it ormally submitted its pleading for consideration in that proceeding. Accordingly, o the extent that EchoStar seeks to use this proceeding as a vehicle toinfluence Commission action in its own application proceeding, while faling to serve all partis tothat proceeding,"these arguments should be disregarded as improper.. For similar reasons, EchoStar‘s arguments directed to its pending Petition for Rulemaking® are misplaced and should be ignored. * See EchoStar Denial Order t 6 4 16) a Indeed, fNGST‘s Amendimenthad been ismised atthacceptancefor Aling stagefor Insuffiency of ts showing on th requested contngent waiveof t28 GHtz Band Plan, NGST would have hd a compeling ‘similary—sitatd" arpumentto make for einsatementbased on the Commission‘s acceptancefrflingof HichaSar‘s applications back in 2003 # See EchoStarDenial Ordeat 616) * SeechoSarPettonat?. * Hichata did notserve Hughes with ts pleading,and Hughesis a parto he EetoStar Denial Order procecting. # See EchoStar Potiton for Rule Making, RM—10767.

111. 1tJs Well Settled That A Non—GSO FSS System That Operates At Or Below The Ka—Band EPFD Limits Will Not Cause Unaeceptable Or Harmful Interference To A Co—Frequency GSO FSS Network, In its Petition, SES Americom argues that NGST has failed to justify its request for a waiver ofthe Commission‘s 28 GHz band plan in orderto operate its non—GSO satellitesin the 29.5—30 GHe and 19.7—20.2 GHz bands on a non—unacceptable—interference basis to co— frequency geostationary fixed—satelite service networks."" Specifically, SES Americom contends that compliance with international equivalent power flux—density ("EPFD®) limits "cannot form the basis forjustifying a departure from the Commission‘s spectrum allocations ..." because the EPFD limits "have not been considered, much less adopted by the FCC.""". SES Americom goes on tocite as support forits proposition the situation cirea 1998 regarding what became EPFD limits for non—GSO FSS systems in the Ku—band frequencies in the Commission‘s ules at tend of 2000."" If SES Americom‘s comparison ofthe situation regarding Ku—band EPFD limits as of November 1998 — the date of the Xu—Band NGSO NPRM on which SES Americom relies — to the situation today regarding Ka—band EPFD limitsis not apples to oranges, it is at least apples to apple pic. In 1998, when the Ku—Band NGSO NPRM was adopted by the Commission, the intermational regulatory status of EPFD limits was very raw and unstable. The Intemational Telecommunication Union‘s (‘TTU®) 1997 World Radiocommunication Conference ("WRC— 97") had,in a hugely controversial and heavily contested move, adopted provisional power limits & SES Americom Pettionat6 * ul _ 1dat7 (quting Amendent ofPats2 and 25 ofthe Commission‘s ules to Pernit Operation ofNGSO F55 Sstems Co—Frequency with GSO and TerrestialSrvice in the Ku—Band Frequency Range and Amendment of the Commission‘s Rules to AuthorzeSubidlary PerresialUseofthe12.2—127 GHz Band by Direct Broadcast SarellteLcenseesan ther Aflates, Notcs of Proposed RuteMaking, 14 PCC Red 1131, 1141 (1998) (‘Xu—Rond NosonpRary.

—10— (they were not yet uniformly called EPFD limits) on non—GSO FSS satellites in Ku—band and in parts of Ka—band (including the 19.7—20.2 GHz and 29.5—30 GHz bands). ‘The objective of the power limits was to provide a quantification of the obligation on non—GSO FSS systems — specified in No. 22.2 of the ITU Radio Regulations — not to cause "unacceptable interference" to GSO networks in the FSS and in the broadcasting—satellte service ("BSS®). WRC—97, in addition to adopting provisional power limits, adopted a resolution that tasked the TTU‘s Radiocommunication Sector ("TTU—R") to conduct technical and regulatory studies during the three—year interval between WRC—97 and the next WRC (WRC—2000)to confirm or revise the power limits.. As of November 1998, the EPFD limit concept had neither been fully developed nor agreed within the TTU—R, and was still the subject of intense technical debate. Intemational consensus on a technical solution involving EPFD limits would not be tentatively reached for another year, and would not become codified untl the conclusion of WRC—2000 in June 2000, at which time the EPFD limits on non—GSO FSS systems in both Ku—band and Ka—band frequencies subject to No. 22.2 of the ITU Radio Regulations were themselves written into the regulations. By the time WRC—2000 ended, international agreement had been achieved. The agreements were developed with the active participation ofthe United States (with representation from both government and industry), and the resulting EPFD limits were deemed sufficient to protect GSO networks from unscceptable interference from non—GSO FSS systems."" In its post—WRC—2000 Report and Order in the Ku—Band NGSO rulemaking proceeding in ET Docket No. 98—206 — a decision that conspicuously is not cited in SES * ‘The reationship between EPED limits and No. 222 of theRadio Regulations is very significant. As EPFD limitsare a quantieation of"unseceptablintrference,"any onGS0 system thatopertesat or below the limits would be producing level finterferenc tht is axiomaticlly deemed acceptableto ortoerble by GSO FSS netvorks. Clealy the. as NGST emphasized in is March 12 Amendment, theleve ofintrference produced ino 1GSO FSS network bya non—GSO FSS sytem operatingat ofbelow the EPFD liitscould not b "harmful" to GSO FSS networksand this s by deinton consistet with secondary ue of h subject frequency bands. See, . NGST Mrch 12 Amendments (Fle No. SAT—AMD—20040312—00030), ar 26—27.

in Americom‘s Petition —the Commission proudly adopted "technical sharing criteria (equivalent power flux density (‘EPED®) uplink and downlink limits) for non—GSO FSS and geostationary— satelite orbit (‘GSO‘) FSS operations in all bands consistent with decisions taken at WRC— 2000.""" The TTU EPFD limits for Ku—band were incorporated into the Commission‘s rules substantiallyintact." The uncertainty and division that characterized the regulatory stuation at the time of the Ku—Band NGSO NPRM, and that led to the hedging expressed therein (and quoted by SES Americom), had been fully resolved by 2000 not only for the Ku—band non—GSO FSS systems for which the ITU EPFD limits were incorporated into the Commission‘s rules, but also for the Ka—band non—GSO FSS systems in bands subject to No22.2 of the ITU Radio Regulations. EPFD limits were developed for Ka—band at the same time and in the same process as they were for Ku—band systems, and they were Finalized by WRC—2000. The Commission,in its Report and Order in ET Docket No. 98—206 characterized the EPFD limits finalized by WRC—2000 as follows: The numerous technical analyses undertaken by the TTU—R and CPM represent the most comprehensive and current studies on NGSO FSS protection of GSO FSS networks, FS operations and BSS systems available to date. Considering the agreements reached within the international arena and the record developed in response to these intemational agreements, we find that we have an adequate basis w Amendmentof Pais2 and 25 of the Commission‘s Rules to Pernit Operation of NGSO FSS Systems Co— Frequeney wth GSO and Terresrial Servces in the KucBand Frequercy Rane and Amendmentofthe Commission‘s Rulesto AuthorizeSubsidlary PerresizalUseofh 122—12.7 GHiz Rand by Direct Broodcast SeteUteLcenseesand thir Affiate, Report and Order,16 FCC Red 4096, 4100 (2000)(emphasis added)(‘Ku— Band EPFD Report and Order * "The ITU Radio Regulationsinclude a se of opertionl EPFD limitsand a se of addtionl operaonal EPED limits (bothofwhich were not subject o compliance veiiction bythe TTU—R) that areinstrumentato the protecion of GO FSS Ki—band networksfrom unacceptableimerfrence. The Commision ncorporated the operational and additionaloperational limit adapted by theITU mt thdomestirules witha requiement that applicants demonstrate upfront compliance. Despite this procediraldiference,the substantive proectin requrements from th ullsetofEPFD Linit at Ko—band. as adopted by the FTU at WRC—2000,were included n the Commission‘s ules intact, Seit 4136—4136. There are operational EPFD limis fo te Ka—band downlink frequenciesaswell and NGST‘s March 12 Amendments demonstrteits compliance with all applcableKacband EPED liits— valiation and operationl.

243. 10 adopt rules governing co—frequency operation of NGSO FSS systems in certain frequency bands." As the Ka—band EPFD limits were developed in parallel with the Ku—band limits, the Commission‘s endorsement clearly applies to these limits as well. SES Americom‘s attempt to equate the 1998 pre—EPFD limit stuation for Ku—band with the universally agreed post—WRC— 2000 EPED limit situation is unsuccessful. Neither the limits nor any intemational consensus on the protection of GSO FSS and BSS networks from unacceptable interference by non—GSO FSS Ku—band and Ka—band systems existed in 1998; both exist now. As a final matter, NGST emphasizes that nowhere in SES Americom‘s Petition is there even the assertion that the comprehensive technical showing in NGST‘s March 12 Amendment is anything other than sufficient to show that the EPFD limits for 19.7—20.2 GHz and 29.5—30 GHz thatare contained in Article 22 ofthe ITU Radio Regulations are met by NGST‘s non—GSO FSS system. SES Americom also does not even implicitly contend that the Ka—band EFPD limits in the ITU Radio Regulations are not adequate to protect GSO FSS networks in the subject bands. ‘To the contrary, the United States has, in recent meetings of TTU—R Working Party 4A meeting,"" taken the express position that the ITU Radio Regulation Article 22 EPFD limits on non—GSO FSS systems in the 19.7—20.2 GHz band protect GSO FSS networks from unacceptable interference." In sum, there is every basis, technical and precedential,forthe Commission to conclude that a Ka—band non—GSO FSS system that meets the EPFD limits in Article 22 of the ITU Radio Regulations will protect a co—frequency GSO FSS network from unacceptable * KiBand EPFD Report and Order,16 FCC Red. t 4109 9 ITU—R Working Pary 4A is the IU stady group withresponsilityforFSS maters,includingnon— GSOIGSO FSS shoring # See, 3.Document WPAATI4 (March 31, 2006)(US.contibutionto Aprl 200¢ meetingof TU—R Working Pary 4A.

As2 interference. As NGST has demonstrated that its HEO non—GSO FSS satellites meet the EPFD limits,there is no need for further Commission assessment here, and NGST must be deemed to have successfully demonstrated its entitlement to the waiveit seeks to enable secondary operation of the GESN non—GSO FSS system satelltes in the upper 500 MHz of the Ka—band GSO FSS spectrum. IV. NGST‘s Proposed Geosynchronous—Orbit Use Of The Non—GSO FSS Primary Ka—Band Spectrum Is Consistent With Co ents SES Americom next contends that NGST‘s proposed use of the Ka—band non—GSO FSS primary spectrum at 18.8—19.3 GHz and 2.6—29.1 GHz is "fundamentally inconsistent with Commission policies and must be denied.""" SES Americom relies on the fact that the Commission has previously rejected proposals seeking authority to operate GSO spacecraft in non—GSO Ka—band spectrum."" As an initial matter, and as described fully above, NGST has not proposed to operate "GSO" spacecraftin the Ka—band non—GSO primary bands;it merely has recognized and accounted for the prospect that the Commission may decide to treat ts proposal to include a plane of geosynchronous—orbit satelites in the non—GSO component of GESN as a proposal to operate GSO satelites on a secondary basis in the non—GSO primary bands. Even so, NGST maintains that the arguments leveled by SES Americom against "GSO" use ofthe non—GSO bands are inapposite. The fact that the spacecraft are, as SES Americom points out,"" within the definition of geosynchronous satelltes does nothing to change this assessment. NGST has recognized that its use of geosynchronous satellites in the non—GSO component of GESN ® SES Americom Pottionat7. t as. See id at9—10.

4. subjects t to some additional regulatory obligations that would not apply if a totally HEO constellation were to be deployed in the bands."" Uimately, however,it is the operation of the satelltes as part and parcel ofthe non—GSO component of GESN that must control here; not the mechanistic fact that the orbits of the four geosynchronous—orbit satellits fit a definition. Even if it were to be assumed, arguendo, that NGST‘s four geosynchronous—orbit satelltes in the 18.8—19.3 GHz and 28.6—9.1 GHz bands are GSO satellites, the Commission should nevertheless refect SES Americom‘s arguments in opposition tothe waiver ofthe Commission‘s 28 GHz band plan that NGST has requested to permit is four "GSO" satelites to operate on a secondary basis in those bands. Contrary to SES Americom‘s contention,the Satelite Division‘s denial of EchoStar‘s 2003 applications for authority to operate GSO satellites on a secondary basis in the Ka—band non—GSO primary frequencies is not controlling. As explained above, EchoStar‘s application was rightfully denied because EchoStar had completely failed to demonstrate how its proposed satelltes could operate on a secondary basis with non— GSO FSS systems.® In its comments on the Petition for Rule Making that EchoStarfiled in conjunction with its applications for GSO FSS use ofthe non—GSO FSS primary bands, NGST took the position it maintains today:. "Northrop Grumman emphasizes that it would not oppose a Commission determination, in whatever forum is appropriate, that GSO FSS networks may use the 18.8—19.3 GHz and 28.6—29.1 GH bands on trily secondary basis to non—GSO FSS * See, ., NGST‘sdiscusionof miletone deadines, power limitation, and waiver ofany rightt laim protection rom Commision—authrized non—geasynchronous non—GSO satlites i is March 12 and July 2004 Amendmenis.. March 12 Amendment (Fil No SAT—AMD—20040312.00030) at 20 .27, 27July 19 Amendmens, Atchmentat4. ®=— See EchaStar Denial Orderat 67 (%17); EchoStar made notechnicl showing whatsoever thatitcould protect non—GSO FSS systems, and ts own application wasinernally inconsiten on th subjct — most noably withespectto EchaStr‘s asserion that EPFD limts on non—GSO FSS systems for protecton ofGSO FSS networks should be extended to the non—GSO FSS pimary bands. Se, ¢, NOST Paition o Dismiss Applictions offEchaStr, File Nos. SAT—LOA20050827—00180, e sq. at 78 & . 26 (Rled October 24, 2003

—1s— networks.""" It went on toidentify the three conditions that would constitute "truly secondary" use."" All three of those conditions are met by NGST‘s application if indeed its proposed use of the non—GSO primary bands for four geosynchronous—orbit satellites is considered to be a GSO use; none have been met by EchoStar. SES Americom argues that NGST‘s application for what it calls GSO use of the non—GSO primary bands cannot be granted because interference levels for the protection of non— GSO FSS systems have not yet been established:" In fact, NGST‘s application contains a technical demonstration that the operational measures it proposes to employ to protect co— frequency non—GSO FSS systems would result in no noticeable impact on the performance of either ofthe other two non—GSO FSS systems that are proposed today for operation in the primary Ka—band non—GSO FSS spectrum.:"‘ Furthermore, the Commission‘s 2003 decision establishing sharing arrangements between non—GSO FSS systems in the 18.8—19.3 GHz and 28,6—29.1 GHz bands, while not entirely on point with respect to the question of GSO use of the non—GSO bands, is at least instructive in terms of establishing the situations where interference mitigation measures are needed to permit the operation of non—GSO FSS systems.© NGST has incorporated the lessons learmed from the Ka—band non—GSO/non—GSO sharing proceeding into itsanalysis in the March 12 Amendments, as supplemented in the July 19 Amendments. ® Comments of NGST in RM—10767, at 2:3 (Rled October 27, 2008) ® wias # SES Americom Pettion at9. * NGST July 19 Amendment at Amex 3. pp.6. $ * Te Establshnent of Plicies and Service Rulesor the Non—Geostaionary Sovellze Orbi, Fized Sovllze Service in the Ko—Band, 18 FGC Red 14708 (2003)(discussing and adopting an *avidance of inine inerference events" spectrum sharing method for on—GSO FSS Ka—band systems).

—16— ‘The standard that applies here is whether NGST has shown that it can operate "GSO" satellites on a non—harmfuliterference basis to primary non—GSO FSS operations in the 28.6—29.1 GHz and 18.8—19.3 GHz bands."* NGST has met this standard, notwithstanding SES Americom‘s formalistic assertions to the contrary. In this last regard, it is significant that there is no claim by SES Americom that NGST‘s "GSO" use of the non—GSO FSS primary bands would cause harmful interference to non—GSO FSS systems; it is more significant that there was no laim by either of the other two pending non—GSO FSS applicants — SkyBridge I1, LLC or contactMBO Communications, LLC — that NGST‘s proposed "GSO" use of the non—GSO FSS primary bands would cause harmful iterference to those proposed systems. As a final point, SES Americom asserts that the grant of NGST‘s application would allow it to obtain "date priority® over other prospective applicants to use non—GSO FSS systems on GSO satelltes."" NGST emphasizes first, in response, that as it has proposed only non—GSO FSS use of the bands (including through its plane of geosynchronous—orbit satellites), SES Americom‘s concem is moot. Even as a "GSO"filing,the fact remains that NGST‘s use of the bands is compliant with the Commission‘s two—degree spacing policy, thereby leaving a plethore of orbital locations both within CONUS and around the world from which other GSO eperators may (ifjustified) make secondary use of the non—GSO FSS primary bands.®® Finally, NGST can only wonder aloud why SES Americom elected not to make its "date prionity" assertion last September, following the Commission‘s acceptance for fling of EchoStar‘s applications for four GSO slots in the non—GSO FSS primary bands. * See BchoStar, DA O4—1167, sop. t 7 @ 17 9 SBS Americom Petitonat 10— ©* NGST notes in thi repard that with ts flings for peosynchronous—rbit satlites n the non—GSO band at 89° W.Land 119° W.L, thas not ied on top ofor within two degreesof ny Ka—‘band GSO orbtal location currenty Heensed o appled for by SES Americom.

17— In sum, SES Americom levels a number of proceduralfprocess type assertions against NGST‘s proposed use of the non—GSO FSS bands at 18.8—19.3 GHz and 28.6—29.1 GHz. None of these assertions, either alone or in combination, poses any obstacle tothe grant ofthis element of NGST‘s appliation — either in the form applied for by NGST, or if the geosynchronous—orbit non—GSO FSS satellites proposed by NGST are treated by the Commission as GSO FSS satellites. ¥ Conclusion For all of the foregoing reasons, the Petitions filed by EchoStar and SES Americom should be denied, and the subject NGST applications should be processed and granted in due course. Respectfully submitted, NORTHROP GRUMMAN SPACE TECHNOLOGY & MISSION SYSTEMS CORPORATION Leventhal, Senter & Lerman, PLLC. 2000 K Street, N.W., Suite 600 Washington, D.C. 20006 (202) 429—2070 September 28, 2004 Iis Artomeys

CERTIFICATE OF SERVICE 1, Rochelle Johnson, do hereby certify that on this 28" day of September 2004, I sent a copy of the foregoing Consolidated Opposition to Petitions to Deny or Dismiss by U.S.first— class, postage prepaid mail to the following: Mr. Thomas Tyez* Nancy J. Eskenazi, Bsq. International Bureau — Room 6—A66S SES AMERICOM, Inc Federal Communications Commission Four Research Way 445 12" Street, S.W. Washington, D.C. 20554 Princeton, NJ 08540 Mr. Jay Whaley® Pantelis Michalopoutos, Esg, Intemational Bureau — Room 6—A623 Philip L. Malet, Esq. Federal Communications Commission Lee C. Milstein, Esg. 445 12" Street, S.W. Steptoe & Johnson LLP Washington, D.C. 20554 1330 Connectiout Avenve, N.W. Washington, D.C. 20036—1795 Mr. David M. Drucker Mr. David K. Moskowitz Manager EchoStar Satellite LLC ContactMEO Communications, LLC 9601 South Meridian Boulevard 2530 N. Highway 67 Englewood, CO 80112 Sedalia, CO 80135 Peter A. Robrbach, Esq. Ms. Karen Watson Karis A. Hastings, Bsg Ms. Lori Kalani Hogan & Hartson LLP. EchoStar Satellite LLC 555 Thirteenth Street, N.W. 1233 20° Street, N.W.— Suite 701 Washington, D.C. 20004 Washington, D.C. 20036 *via e—mail only e Rochellé Johnson


Document Created: 2004-10-06 17:10:47
Document Modified: 2004-10-06 17:10:47
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