Attachment reply

reply

REPLY TO COMMENTS submitted by TMI/TerreStar

reply

2006-02-27

This document pretains to SAT-AMD-20051116-00221 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD2005111600221_484946

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 ) In the Matter of ) ) Use ofReturned Spectrum in the ) 1B Docket Nos. 05—220 and 05—221 2 GHz Mobile Satellite Service ) Frequency Bands ) ) Inmarsat Global Limited, Petition for ) FCC File Nos. SAT—PPL—20050926—00184, Declaratory Ruling to Provide Mobile ) SAT—PDR—20050926—00184, Satellte Service to the United States ) SAT—AMD—20081116—00221 Using the 2 GHz and Extended Ku—Bands ) Spprimmimrmesinitacrrrccieatla RECEIVED REPLY OF TMI AND TERRESTAR TO res 2 7 2006 comMENTs oF CTia AND T—MOBILE etent Communcaton Connisson INTRODUCTION OferetSeriny On December 9, 2005, after four rounds of comments in two distinct proceedings, the Commission issued an Order modifying the spectrum assignments of TMI Communications and Company Limited Partership and TerreStar Networks Inc. ("TMUTerreStar®)‘ and ICO Satellite Services (‘ICO") to provide each licensee 10 MHz ofspectrum (in both directions) in the 2 GHz Mobile Satellite Service (‘MSS") band." The Order provided TMUTerreStar and ICO with the resources necessary to bring next—generation mobile communications services to the American public, including the homeland security and emergency response communities and the residents of rural areas. ‘ TerreStar, an American company based in Reton, Viginia, is the prospectiveassignce ofTMI‘s 2 GHz MSS authoritionand,pursuanttoan agreement with TMI, has contracted with Space Systems/Loral Inc. fr a satlfte that will operate in this band. * UseofReturnedSpectrum in the 2 GHiz Moble Satete Service Frequency Bands, Orde, 1B Docket Nos.0$220 and 05—221, FCC 0%—204 (el. Dec.9, 2005)(he "Order").

Not surprisingly, Inmarsat and Globalstar, two providers of traditional mobile satellte service who will face increased competition from the advanced services that TMUTerreStar will provide,fled petitions for reconsideration." CTIA and T—Mobile, representing the terestrial wireless industry, filed "comments" in support of the Inmarsat and Globalstar Petitions.* The comments merely rehash the arguments that the Commission properly rejected in its Order: (1) that TMITerreStar and ICO were, for unspecified reasons, obligated to provide a showing of "need"for spectrum in the 2 GHz MSS band; and (2) that the Commission was obligated to assign spectrum to the parties who could pay the most for t, not the parties who would use the spectrum best to serve the public interest.* As the Commission recognized, these arguments are baseless and should be rejected. * Pettion of Globalsarfor Reconsidestion, TB Docket Nos. 0$—220 & 08—221 (filed Jan. 9, 2006)(*Globastr Pettion®); Conclidted Pertonfor Reconsidention oInmarst VenturesLtd. & InmarsatGlobalL. TB Docket Nos,0%—220 & 0%—221 (fled Jan.9, 200)(*InmarsatPettion®). nmarsat and Globalstarare colectvely eferred to as th "Pettioner:" TMUTereSta and ICO have fied oppostions t these pettions, See Consol. Opp.ofTMZ and TerreStar to Peitions fr Recon., 1B Docket Nos. 05—220 & 05—221, File Nos. SAT—PPL—20050926—00184, SAT~ ror—20050526—00184 & SAT—AMD—20081116—00221 (Rled Feb. 162006) (‘TMUTerreStar Oppositon"); New 100 Selize Sevs, G.P, Opposition o Pettion for Recon, 1B Docket Nos.0$—220 & 0£—221, File Nos. SAT—PAL~ 2o0s0026—00184, sat—Por—20080026—00184 & SAT—AMD—20051 1 16—00221 (Rled Feb. 16, 2006) 100 Opposiion"). " Comment ofCTIA« The Wieless As‘n In Suppor ofthePettions for Reconsideation,IB Docket Nos. 05220 & 05—221 (Rled Feb. 16,2006)(°CTIA Comments"); Comment ofTMobile USA,Ic.TB Docket Nos. 0220& 221, File Nos.SAT—PPL—2005062600184, SAT—PDR—2005092:00184 & SAT—AMD—20081116—00221 (Rled Feb. 16, 2006) (T—Mobile Commens‘). Ofeourse, CTIA and T—Mobilfiledto fil peitons for reconsidertion of their on and many of thearpurments they make— notsbly,thatspectum should betaken from MSS and given to CMRS —— cannot now be raised. The questionable procedral statusofthe CTIA and T—Mobile Comment is highighted by th fettht, wle thterestral carriershave argued consitently that spectrum should be aken from MSS and alocated to their cellr and PCbusiesses, the Peions hatthey supportraise only thequestion of whether spectrum should have been asshed t other MSS operators and not erresrial cariers. > T—Mobilalsorepeats clims made by the Pettonersthatthe Commissionfuled to consider whatthey call *reliic alteatives,®and that it did not consider th supposed relaionship betweenTMUTereStar and Motien. T—Mobile Commens at7,9. TMITerreStar hs amply explained in ts opposition why these il—bck arguments ful, TMUTereStar Opposiion at 12—13 & 15—18, and it sees no need o repeat these explanations here.

L. THE COMMISSION WASNOT REQUIRED TO PREMISE ITS SPECTRUM MANAGEMENT DECISION ON SHOWINGS OF NEED. CTIA and T—Mobile raise again the notion that the 2 GHz MSS licensees are obligated to provide some unspecified showing of "need" for access to the MSS spectrum at issue in these proceedings. The Commission properly rejected the "need showing"argument in its Order when it wrote, "Given the rapidly changing satellte technology and the time needed to construct and launch a satellte, any [needassessment is likely to be obsolete by the time the satellt is ready to provide service."* The Commission concluded that, "given the innovative designs and unique markets targeted by each satellie operator, any proceedings to quantify specific requirements would be lengthy and inherently subjective."" CTIA is mistaken in arguing that there is a "need showing" requirement arising from the Big LEO proceeding." Although, in that case, the Commission requested more detailed information from Iridium concemning its planned use of that spectrum, that requirement was unique to the deficiencies in Iidium‘s showing, and not, as CTIA would have it, the establishment ofa precedent for a need showing in all cases. Even if the Iridium requirement is deemed to have some value as a precedent, the D.C. Circuit has been clear that,in section 316 proceedings, the FCC has broad authority to change its policies and interpretations of law, so Jong as it provides a reasoned explanation, as it has done here, and does not run afoul ofthe Supreme Court‘s standard for statutory interpretation" The Commission is empowered — and, indeed, expected — to collect the information that t believes is necessary and appropriate to make the decision. * Orderat 440. ‘1e * CTIA Commentsat 5. * Rainbow Broadcasting Co. . FCC, 949 F.2d 408408 (D.C. Ci. 1991)

Just as the Commission in the Big LEO proceeding was entitled to request more information where it felt that it was necessary because of concrete and specific concems about the viability of Iridium‘s system design, the FCC has complete discretion not to request such information in this proceeding, in which the Commission has no such concerns. Under Section 316, the relevant question was whether modified spectrum reservations for TMUTerreStar and 1CO were in the public interest. For the reasons discussed exhaustively in the Order, and in TMUTerreStar‘s and 1CO‘s oppositions to the Petitions, the Commission properly concluded that they were. No new reasons have been presented by T—Mobile or CTIA for revisiting that public interest judgment now. IL THE COMMISSION ASSIGNED 2 GHZ MSS SPECTRUM IN A MANNER THAT BEST SERVED THE PUBLIC INTEREST. Again ignoring the public interest considerations that guide the Commission, CTIA and T—Mobile emphasized that their industry can afford to pay more than TMUTerreStar and ICO for the spectrum at issue in these proceedings. The Commission‘s licensing decisions, however, are not to be guided by the revenue implications ofthose decisions, but by the public interest." In its Order, the Commission concluded that assignment of frequencies to TMUTerreStar and ICO would serve the public interest better than any altemative it had before it The Commission‘s public interest determination was based on a variety of factors, each of ©*47 U.S.C. § 309GM(7)@) (when making alloction dcisions, the Commision is precuded from *bafing) a findingofpublic iteres, convenience,and necessity on the expectation ofFederal reventes fom the use of compettivebidding"). See also Order t (62; TMITereStaSecond Reply Commentat16—17. " Orderat§ 26 (cing Reply Comments of SiyTerrs Communications, Ic. 1B Docket No. 05—221,at 9—10 (hled Aug. 15, 2005)) ((We fnd that ncreasing 1CO‘s and TM‘s spectrum assignments t 10 megahert in cach diection would furher the public iterestby beer enblingthem toprovide crucial communicationsservices during times of ational emergencies, and toferraralbroadband services.In addtin, wefind that increasing 1C0‘s and TMI‘s spectrum assignments i n the public iterestbecause 1CO and TMI willbe abl to bing the

which was discussed at length in the Order.. In particular, however, the FCC determined that assignment to TMUTerreStar and ICO would best serve the Commission‘s public safety, rural broadband, and competition goals. A. Public Safety and Rural Broadband CTIA and T—Mobile, like the Petitioners, attempt to disparage the submissions made by the public safety entities and rural nterests in this proceeding and, by extension, the Commission‘s reliance on these submissions. For example, in their comments, the emergency response community explained that existing communications services from traditional MSS and terrestral wireless providers are insufficient to meet today‘s public safety and homeland security challenges and that a next—generation system like TMUTerreStar‘s is necessary to protect our nation effectively. Detailed technical analysis is not necessary to support that conclusion, which emergency response providers are uniquely qualified to make and to which the Commission properly gave due consideration. On the basis ofthe record in this proceeding, the Commission was fully justified in deciding that the assignment of the available spectrum to TMUTerreStar and 1CO would "bring the spectrum into use more quickly — and thus offer public safety and rural broadband services more quickly — than would be possible if the spectrum were assigned to another party.""* Indeed, only TMITerreStar and 1CO — and no other terrestrialor satellte providers — are in a technical and operational position to offer an advanced integrated MSS/ATC system by 2007. Inmarsat, for example, lacks the capability or demonstrated corporate interest to commit to a deployment ofMSS—ATC, either on its own or through a partnering arrangement, speciur nto use more quickly —— and hi ffer publc safet and rralbroadband services more quickly—— than would be posiblifthe spectrum wereassigned t another pary.") "* Orderat¥26. As 1CO notes iis opposiion, even ifone of th Pettioners wer today graned spectrum in the 2 GHtz MSS band, milestone dates would almostcertainly be set s thatthey would not be requiredto commence serviceasquicklyas TMI/TerreStar and 1CO. 1CO Oppositon at 45.

unti three or more years after the launch ofTMUTerreStar‘s system. Any offering by Inmarsat or another provider before that time would be limited to legacy technology that cannot offer the public safety and rural broadband benefis promised by TMUTerreStar. B. Competition Similarly, CTIA and T—Mobile are wrong that the Commission‘s decision will not foster increased competition in the wireless communications market. CTIA and T—Mobile have done nothing more than repeat the discredited argument that TMITerreStar and 1CO do not compete against T—Mobile, Globalstar, or Inmarsat, because their handsets will operate on a different frequency..". As the Commission concluded in the Order, that argument simply does not withstand scrutiny."* Consumers purchase services that are substitutable for each other based on functionality, without regard to the specific technology or frequency used by those services. CONCLUSION Contrary to CTIA‘s complaint about the lack of "any spectrum management consideration" underlying the Commission‘s Order, the Commission applied its most appropriate spectrum management principl he public interest standard. Using that standard, which is also mandated by Section 316, the Commission asked whether the public would be served better by 2 GHz MSS licensees with adequate spectrum resources than it would be served by assignment of the spectrum to other users. After an extensive proceeding characterized by the "See T—Mobile Commentsat. !* TMITerreStar Opposion at $—9; TMI‘TemeStarSecond Reply Comment at9—12. ° Supplementl Declaration of PterCowhey,TMI/TerreStar Commens, ExhbitC,at 3 (*To consumers,the spectrum band in which an MSS provider opertes is irclevant; Bruce M. Owen, "Economic ssues Relted o he Number of Fims Licensed to Use2 GHz Spectrur for MSS Services," TMTerreStar SecondReply Comments, Exhibit4, at 2 (explaining that "rether frequency bands noother reulatry categories are markets," because market aredfined by thsmilarty ofcompetitos srvices t one anothr, rathethin on whether the compe s use thsame frequency band). Thatis manifesly th case, ofcourse, in the Commenters® core mobileservice markets where consumersdo notditinguish between teretra providersusingthe $00/00 and 1900 Mis bands.

active participetion ofmembers ofthe public who would benefit the most from a high—capacity, ubiquitous, state—of—the—art mobile communications system optimized for homeland security, public safety, and the underserved residents of rural areas, the Commission concluded that redistribution to the 2 GHz MSS licensees would best serve the public interest. That is all that is regquired ofthe Commission on both a legal and policy basis. Respectfully submitted, (S}S\s)ry CeBtagle € Jorfathen D. Blake Woodworth A. Wimmer Vinson & Euicns Robert M. Sherman 1455 Pennsylvania Avenue N.W. Covmnoron & Burimc Washington, D.C. 20004—1008 1201 Pennsylvania Avenue N.W. Washington, D.C. 20004—2401 Counselfor TMI Communications and Company Limited Partnership Counselfor TerreStar Networks Inc. February 27, 2006

CERTIFICATE OF SERVICE 1, Robert M. Sherman, hereby cerify that on this 27" day ofFebruary, 2006, 1 caused a true copy of the foregoing Reply of TMI and TerreStar to Comments ofCTIA and T—Mobile to be served by first—class mail, postage prepaid, upon the following: Diane J. Comell John P. Janka Vice President, Government Affairs Jeffrey A. Marks Inmarsat, Inc. Latham & Watkins LLP 1100 Wilson Blvd., Suite 1425 555 Eleventh Street, N.W. Arlington, VA 22209 Suite 1000 Washington, DC 20004 Richard S. Roberts William T. Lake WilliemF. Adler Wilmer Cutler Pickering Hale and Dore LLP Globalstar LLC 2445 M Street, N.W. 461 Milpites Blvd. Washington, DC 20037 Milpites, CA 95035 Michael F. Altschut Thomas J. Sugrue Christopher Guttman—McCabe Kathleen O‘Brien Ham CTIA — The Wireless Association Patrick T. Welsh 1400 16th Street, N.W., Suite 600 T—Mobile USA, Inc. Washington, D.C. 20036 401 Ninth Street, N.W., Suite 550 Washington, D.C. 20004 Sara F. Leibman Robert G. Kidwell Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 701 Pennsylvania Avenue, N.W., Suite 900 Washington, D.C. 20004 Robert M. Shermen


Document Created: 2006-02-28 15:30:50
Document Modified: 2006-02-28 15:30:50
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