Attachment reply

reply

REPLY TO OPPOSITION submitted by ECHOSTAR

reply

2004-10-08

This document pretains to SAT-AMD-20040719-00141 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD2004071900141_403392

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 ) In the Matter of ) ) Northrop Grumman Space & Mission ) SAT—LOA—19970904—00080 Systems Corporation ) SAT—LOA—19970904—00081 ) SAT—LOA—19970904—00082 0¢7 ; s Application for Authority to Launch ) SaT—LOA—19970904—00083 2004 and Operate a Geostationary and Non— ) SAT—LOA—19970904—00084 ""‘tys,,,,m Geostationary Orbit Fixed Satellite ) Burea, System in the Ka—Band. ) 5 ¥ ) Intl Bureat s j oct 1 3 200« contactMEO Communications, LLC ) ) Applieation for Authority to Launch ) saT—LOA—19971222—00022 and Operate a Geostationary and Non— ) SAT—AMD—20040322—00057 Geostationary Orbit Fixed Satellite ) SAT—AMD—20040719—00141 System in the Ka—Band. ) RECEIVED ) OCT — 8 200¢ To: International Bureau Faden Commricaton Comnisson Offef Seeminy ConsoLIDaTED REPLY To OPPOSITIONS To PETITIONS To DENY EchoStar Satellite LLC (*EchoStar") hereby files this Consolidated Reply to the Oppositions to the Petitions to Deny the above—captioned applications, as amended, of Northrop Grumman Space & Mission Systems Corporation‘s Space Technology Sector(NGST") and contactMEO Communications, LLC (*@contact") (collectively *Applicants") to operate geostationary orbit ("GSO") and non—geostationary orbit (°NGSO") Fixed Satellite Service ("FSS") satellites in the Ka—band. As previously stated, EchoStar‘s interest in this matter is acute; its applications for four similar (4) GSO FSS satellites were summarily denied by the

Commission and are subject of pending pettions for reconsideration." EchoStar is also a Hicensee and applicant of several GSO satelites in the Ka—band that could be interfered with by NGSO operations in the primary GSO Ka—bands. EchoStar, therefore, is a party in interest in this proceeding In the Oppositions, both @contact and NGST argue that their GSO applications on file today are not similarly situated to EchoStar‘s Ka—band GSO applications when they were summarily denied by the Bureau.*. What the Applicants fundamentally misunderstand, however, is that at the time the Bureau allowed them to provide additional technical information regarding NGSO/GSO sharing ofthe primary NGSO portions of the Ka—band, their applications were similarly situated to EchoStar‘s Ka—band GSO applications. In other words, rather than summarily denying their applications, as the Bureau did with respect to EchoStar‘s Ka—band GSO applications for failing to provide sufficient technical support regarding NGSO/GSO sharing, the Bureau provided the Applicants with a second chance to make such a technical showing. Such disparate treatment clearly violates the requirements ofthe Administrative Procedure Act as well as the fundamental rule that similarly stuated entities should be treated the same. NGST and @contact invoke procedural gymnastics to somehow differentiate the posture of EchoStar‘s GSO applications from those of the Applicants. In fact, none of the ‘ In the Matter ofEchoStar Satellte LLC Applicationfor Auhority to Construct, Launch And Operate Geostationary Satelltes in the Fixed—Satellte Service Using the Ka and/or Extended Ku—hands at the 83° W L., 105° W.L, 113° WL, and 121° W.L. Orbital Locations, Petition for Reconsideration,filed Jun. 1, 2004 (*EchoStar Perition for Reconsideration"). * Neither applicant disputes the fundamental principle thatsimilarly situated applicants should be treated alike. See Melody Music, Inc. v. FCC, 345 F.2d 730 (D.C. Cir. 1965) ("It is a basic premise of administrative law that the Commission musttreat similarly situated parties alike, absent legally sustainable reason to the contrary.").

applications can be distinguished on this basis. The Applicants assert that EchoStar‘s applications were accepted for fling and appeared on public notice, and that the Bureau then correctly applied its processing procedures, rules and policies to dery EchoStar‘s applications." Conversely, they maintain that their applications were dismissed prior to appearing on public notice, and then subsequently reinstated with a request for additional information. This proves a lack of parity oftreatment, however: Had the Bureau applied the same processing standards to EchoStar and the Applicants, it would either (a) have denied (or dismissed) all ofthe applications and not allowed @contact or NGST to supplement their applications with additional support for NGSO/GSO sharing in the Ka—band; or (b) have allowed all ofthe applicants, including EchoStar, to amend their technical showings. Indeed, EchoStar has proposed such an outcome in its pending Petition for Reconsideration in the matter ofits own Ka—band GSO applications,* The Applicants® arguments regarding the differences between their updated interference and sharing analyses and EchoStar‘s lack of such a showing also are to no avail. Once again, these new technical showings were submitted only after the Bureau reinstated the above—captioned applications and requested additional information from the Applicants. Itis precisely because the Bureau requested this information from the Applicants and not from EchoStar that the disparate treatment arises. Applicants further maintain that the substantive explanations they submitted with their supplemental showings differentiate their applications from EchoStar‘s applications. ° @contact Opposition, at 4—5; NGST Opposition, at 6—8. * In the Matter ofEchoStar Satellite LLC Application for Authority to Construct, Launch And Operate GeostationarySatelltes in the Fixed—Satellte Service Using the Ka and/or Extended Ku—hands atthe 83° WL, 105° W.L., 113° W.L., and 121° W.L. Orbital Locations, Petition for Reconsideration,filed Jun. 1, 2004 (*EchoStar Peritionfor Reconsideration). * @contact Opposition,at 5; NGST Opposition, at 64.

However, neither the substance ofthese explanations, nor their inclusion upon amendment, serve to differentiate the applications. Substantively, Applicants maintain that they explained how traffic would be switched between satelltes in order to avoid harmful interference to other NGSO systems, whereas EchoStar merely stated thatit would cease providing service in order to avoid an interference event. This supposed discrepancy is nothing more than a twisting ofthe facts. EchoStar did not state in ts application, as @contact maintains, that "EchoStar would cease providing service entirely during such times." Rather, EchoStar indicated that it would "immediately cease operations."*. In other words, EchoStar would only cease operations in the NGSO portions of the Ka—band that would be subject to such an in line interference event. Traffic would then be switched,just as is now being proposed by the Applicants, t other frequency bands or satelltes —— it would not cease service toits customers altogether. In fact, EchoStar has stated all along that the applications it submitted were intended to "supplement and support EchoStar‘s existing MVPD offerings. Furthermore, tinclusion ofthe substantive explanations does not advance the arguments of @contact and NGST because they were not present at the time ofthe disparate treatment. On review of the @contact and NGST GSO applications, the Burcau initilly @contact Opposition, at 6; NGST Opposition, at6 @contact Opposition, ut 5. * In the Matter ofEchoStar Satellite LLC Applicationfor Authority to Construct, Launch And Operate Geostationary Satelltes in the Fixed—Satellte Service Using the Ka and/or Extended Ku—bands atthe 81° W.L, 83° W.L., 101° WL, 105° W.L, 109° W.L., 113° W.L., 119° WL, 121° W.L, and 123° W.L. Orbital Locations, filed Aug. 27, 2003, t 15—16 (*EchoStar Applications®). ° d at ; EchoStar Petitionfor Reconsideration, t 6—9.

dismissed,"" and later reinstated them with a request for additional information."" Though absent from the reversalletters, the Bureau specifically noted in the dismissal letters that inclusion of more details regarding NGSO/GSO sharing in the Ka—band would be necessary for grant ofthe application. Had the Bureau not reversed its earier decision to dismiss the applications, they would have been devoid ofany technical NGSO/GSO sharing studies. Itis also incorrect to suggest, as @contact and NGST seem to be doing, that the Applicants and EchoStar were not similarly—situated because the Bureau found additional flws in the Applicants® flings at an earlier stage in the review process then when EchoStar‘s applications were denied."" Applicants should not be able to improve their procedural positions by submitting applications containing more flaws. At the point in time that the Bureau denied or dlismissed each of the applications, EchoStar, @contact,and NGST were all similarly—situated parties with respect to their GSO/NGSO sharing analyses and the disparate treatment afforded these partiesby the Bureau has put them in vastly different procedural positions. This result simply cannot stand. NGST separately argues that EchoStar is not similarly stuated because it sought to change the rules to accommodate its applications while "NGST has designed its hybrid non— GSO/GSO system to comply with the existing GSO and non—GSO rules, secking a waiver ofthe frequency allocation rulesto the extent required to permit secondary, non—harmful interference ‘" Leter from Thomas S. Tyez, FCC, to David M. Drucker, @contact, DA 04—1386, May 18, 2004 (‘@contact Dismissal Leiter®; Letter from Thomas S. Tyez, FCC, to Peter Hadinger, NGST, DA 04—1387, May 18, 2004 (*NGST Dismissal Letter") "" Letter from Thomas S. Tyez, FCC, to David M. Drucker, @contact, DA 04—1722, Jun. 16, 2004 ("@contact Reversal Letter"); Letter from Thomas . Tyez, FCC, to Peter Hadinger, NGST, DA 04—1725, Jun. 16, 2004 (*NGSP Reversal Letter®) "" @contact Dismissal Letter, at 2; NGST Dismissal Letter, at 4.

geosynchronous operation in the 18.$—19.3 GHz bands.""": EchoStar and NGST both requested waivers ofthe existing Ka—band plan to accommodate their respective applications. EchoStar‘s simultancous petition to the Commission for a rulemaking proceeding to address the shoring issues raised by its applications has no bearing on whether a waiver ofthe rules should be granted pending the outcome of such a proceeding or whether the parties are similarly situated. EchoStar was clear in both its applications and Petition for Rulemaking that the petition need not be resolved in order for the applications to be granted.® Finally, Applicants argue that this is an inappropriate proceeding for EchoStar to request reinstatement ofits own applications."* EchoStar is not using this proceeding to request any reinstatement ofits applications.. EchoStar has made such a request n its Petition for Reconsideration of the Bureau‘s action denying its applications.""" EchoStar is merely pointing out in this proceeding that due to the similarities between the respective proposals, he above— captioned applications cannot be granted unless and until the Bureau reinstates EchoStar‘s GSO applications proposing use of the same NGSO Ka—band spectrum. " NGST Opposition, at7. In addition, NGST continues to maintain that their satelltes, unlike those of EchoStar, are not GSO—like satellites because they will communicate with and act in concert with their proposed NGSO satelltes. L at 13. While such operations, in some circumstances, could avoid harmful interference to other NGSO satellte systems, this does not change the regulatory classification ofthese satelites. Satellites that are stationed in geostationary orbit are GSO—like satelltes whether or not they are used in conjunction with NGSO setellites. "* In the Mater ofPetitionfor Rulemaking To Redesignate The 28.6—29.1 GHz (Carth—to— Space) and 18.8—19.3 GHz (space—to—Earth) Bands to Allow Geostationary Fixed—Satellte Service Operations On A Co—Primary Basis, filed Aug. 27, 2003 (*Peritionfor Rulemaking"). * See, eg. EchoStar Application, t 4 ("The instant applications, however, are not predicated on any such rule changes."). "* @contact Opposition, at 7—8. ‘" EchoStar Petition for Reconsideration 16—

For all othe above reasons as well as those set forth in EchoStar‘s Petitions to Deny, EchoStar respectfully requests that the Bureau treat EchoStar, @contact, and NGST as similarly—situated parties by either denying the GSO applications of @contact and NGST or reinstating EchoStar‘s GSO applications mure pro furc and processing both sets of applications according tothe FCFS Queue. In any event, the Commission should institute a rulemaking proceeding to gover future sharing of NGSO—designated Ka—band spectrum by GSO satellites and GSO—designated spectrum by NGSO satellites. Respectfully submitted, Ifi;fié {W Pn David K. Moskowitz Pantelis Michalopoulos EchoStar Satellite LLC Philip L. Malet 9601 South Meridian Boulevard Lee C. Milstein Englewood, CO 80112 Steptoe & Johnson LLP (303) 723—1000 1330 Connectiout Aven, N.W. Washington, D.C. 20036—1795 Karen Watson (202) 420—3000 Lori Kalani EchoStar Satellite LLC Counselfor EchoStar Satellite LLC 1233 20" Street, NW —— Suite 701 Washington, DC 20036 (202) 203—0081 Date: October 8, 2004

CERTIFICATE OF SERVICE 1, Lee C. Milstein, hereby declare that copies of the foregoing Reply to Oppositions filed by Northrop Grumman and contactMEO were sent on this 8th day ofOctober, 2004 by hand delivery or United States Postal Service (indicated by *) to the following: Marlene H. Dortch, Secrctary Peter Hadinger® Federal Communications Commission Northrop Grumman Space & Mission Systems Corp. 445 12th Street, S.W. Suite 2300 Washington, DC 20554 1000 Wilson Blvd. Arlington, VA 22209 Thomas S. Tyez Norman P. Leventhal* Satellte Division, International Bureau Stephen D. Baruch * Federal Communications Commission David S. Keir® 236 Massachusetts Avenue, NE. Leventhal Senter & Lerman PLLC Suite 110 Suite 600 Washington, DC 20002 2000 K Street, N.W. Washington, DC 20006 David M. Drucker® David Kane* contactMEO Communications, LLC. Consulting Engineer 2539 North Highway 67 5396 176" Place, S.E. P.0. Box 348 Bellevue, WA 98006 Sedalia, CO 80135 of"c Ate Lee C. Milstein


Document Created: 2004-10-20 14:50:57
Document Modified: 2004-10-20 14:50:57
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