Attachment opposition

opposition

OPPOSITION TO MOTION TO STRIKE submitted by EchoStar

opposition

2005-08-05

This document pretains to SAT-AMD-20040928-00192 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD2004092800192_449532

RECEIVED Before the & FEDERAL COMMUNICATIONS COMMISSION AUG — 5 2005 Washington, DC 20554 o ideal Comnuncaton Comniason Offee t Secminy ) In the Matter of ) File No. SAT—LOA—19980702—00066 ) File No. SAT—AMD—20001214—00171 ) File No. SAT—AMD—20010302—00019 ) File No. SAT—AMD—20031118—00335 ) File No. SAT—AMD—20040209—00014 Application for Authority to Launch ) File No. SAT—AMD—20040028—00192 and Operate a Replacement L—band ) Call Sign 82358 Mobile Satellite Service Satellite ) C actor® w § Reoerved naveathiinrnandnavantrnncd ; AUE 1 1 2opg To: International Bureau Plcy Brench IntomatonyBC orrostrion to motion To srrike REBEY"® EchoStar Satellite LLC. ("EchoStar") hereby files this Opposition to Mobile Satellite Ventures Subsidiary LLC‘s (‘MSV‘s") Motion to Strike Reply of EchoStar Satellte 146 As set forth in the MSV Motion, the EchoStar Reply to MSV‘s Opposition to EchoStar‘s Petition for Clarification and/or Reconsideration ("EchoStar Petiion®) was filed on July 21, 2005." The EchoStar Petition for Clariication and/or Reconsideration was timely filed in response to the Bureau‘s decision granting MSV a license to launch and operate a Mobile Satellte Service (‘MS8") satellite." MSV argues that the actual deadline for filing the EchoStar Reply was July 19, 2005, not July 21, 2005. Counsel for EchoStar acknowledges that ts Reply ! See MSV Motion to Strike Reply of EchoStar Satellite LL.C. (fled August 1, 2003) (MSV Motion®). * See EchoStar Reply (July 21, 2005). * See In the Matter ofMobile Satellite Ventures Subsidiary LLC, DA 05—1492 (rel. May 23, 2005) (CMSYOrder®).

was fled two days late due to a good faith miscalculation.. Because the two daydelay in filing resulting from this innocent error did not give rise to any conceivable prejudice for MSV, there is ample good cause for the Bureau to acceptthe EchoStar Reply and deny the MSV Motion. By Commission Rule 1.106(h), 47 C.F.R. § 1.106(h), EchoStar had seven (7) days to file a reply after any opposition was filed to the EchoStar Petition." Commission Rule 1.4(g), 47 C.FR. § 1.4(g),states that ifiling period is "less than 7 days"" then intervening holidays (which include weekends) are not included in the calculation ofthe filing deadline for the reply." At the time when calculating the deadline for its reply, counsel for EchoStar inadvertently read Commission Rule 1.4(g) as if it stated 7 days or less," as opposed to "less than 7 days." As a result,in calculating the deadline for the EchoStar Reply, weekend days were excluded in the calculation. This resulted in the calculation ofthe deadline of July 21, 2005, as opposed to the correct deadline of July 19, 2005. Counsel for EchoStar firmly believed thatits Reply was timely filed when submitted on July 21, 2005. Counsel for EchoStar only recognized its miscalculation ofthe deadline upon reading the MSV Motion EchoStar recognizes that late—filed pleadings are not routinely accepted by the Commission without good cause.® EchoStar respectfully submits that its miscalculation in this matter was inadvertent, and not intended to somehow deceive MSV or the Bureau." Further, as a result ofthe miscalculation by counsel,there has not been undue prejudice to MSV. The late— * See 47 C.FR. § 1.106(b). 5 See 47 CER. § 1.4@) * See 47 CF.R. § 1.46(a). " See In the Matter ofLockheed Martin Corporation et al., 18 FCC Red. 16605, 1661 1 (2003) (dismissing a lte—filed reply where it appeared a party intentionally filed ts reply late, intentionally did not seek leave to fila lte—filed pleading and did not serve the reply on parties to the proceeding)

action against msV — filed pleading by EchoStar was not a pleading that initted adjudicatory without EchoStar‘s Reply, a timely the EchoStar Petition doing so was timely filed. Even ission‘s Rules Petition ofthe MSFOrder remains pending before the Bureau. Purther,the Comm . As a result, do not contemplate an additional pleading by MSV in response to EchoStar‘s Reply. to fle a the two day delay in filing EchoStar‘s Reply has not hindered or affected MSV‘s ability pleading in this matter. In contrast, ejecting the EchoStar Reply would result in an incomplete record in this matter." EchoStar respectfully requests that is lte—filed Reply be accepted by the Bureau and the MSV Motion rejected.. Acceptance of EchoStars Reply will not unduly prejudice MSV and will ensure a complete record in contemplation of the EchoStar Petition that has been timely filed. Respectfully submitted, EchoStar Satellite LL.C. David K. Moskowitz LA2CL Pantelis Michalopoulos Senior Viee President and General Counsel Philip L. Malet EchoStar Satellite L.L.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 C August 5, 2005 * Late—filed pleadings have been accepted for purpose of creating a complete record in a proceeding. See,e, /n the Matter ofLoral Satellte, nc. and Loral Spacecom Corporation et al, 19 FCC Red, 2404, 241 1 (2004) (accepting a late—filed petition filed with the International Bureau in order to ereate a "full and complete factual record");see also /n the Marter of Application of Verizon Hawaii,Inc. etal., 19 FCC Red. 24110, 24111 (2004) (Finding that the Wireless Bureau has "discretion to accept late—filed pleadings to develop a complete record"). 13.

CERTIFICATE OF SERVICE 1, Mare A. Paul, an attomey with the lawfirm of Steptoe & Johnson LLP, hereby certify that on this 5th day ofAugust, 2005, served a true copy of the foregoing "Opposition to Motion to Strike Reply® by hand delivery (or s otherwise indicated) upon the following: Donald Abelson Naney J. Eskenazi® International Bureau Viee President & Associate General Counsel Room 6—C750 SES Americom, Inc. Federal Communications Commission Four Research Way 445 12" Street, S.W. Princeton, NJ 08540 Washington, DC 20554 Cassandra Thomas Kalpak Gude* Satellte Division Vice President & Associate General Counsel International Bureau PanAmSat Corporation Room 6—A666 1801 K Street, NW Suite 440 Federal Communications Commission Washington, DC 445 12" Street, S.W. Washington, DC 20554 Fem Jarmulnck Bruce D. Jacobs* Satellte Division David S. Konczal International Bureau Pillsbury Winthrop Shaw Pittman LLP Room 6—A523 2300 N Street, N.W. Federal Communications Commission Washington, DC 20037—1128 445 12" Street, S.W. Washington, DC 20554 Robert Nelson Jennifer A. Manner® Satellte Division Viee President, Regulatory Affairs International Bureau Mobile Satellite Ventures Subsidiary LLC Room 6—B554 1002 Park Ridge Boulevard Federal Communications Commission Reston, Virginia 20191 445 12" Street, SW. Washington, DC 20554 OCf Mare A. Paul * By First Class Mail, Postage Pre—paid


Document Created: 2005-08-11 12:37:10
Document Modified: 2005-08-11 12:37:10
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