Attachment reply

This document pretains to SAT-AMD-20080114-00018 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD2008011400018_690764

In the Matter of                          )
                                          )
DIRECTV Enterprises, LLC                  1   Call Signs S2242 (File Nos. SAT-LOA-19970605-
                                          )   00049 et al.), S2243 (File Nos. SAT-LOA-19970605-
                                          )   00050 et al.), S2244 (File Nos. SAT-LOA-19970605-
                                          )   0005 1 et al.), S2711 (File Nos. SAT-LOA-20060908-
                                          )   00099 et aZ.) & S2712 (File Nos. SAT-LOA-
                                          )   20060908-00 100 et al.)
                                          )
EchoStar Satellite Operating L.L.C.       )   Call Signs S2440 (File Nos. SAT-LOA-20020328-
                                          )   00050 et al.), S2441 (File Nos. SAT-LOA-20020328-
                                          )   0005 1 et aZ.), S2442 (File Nos. SAT-LOA-20020328-
                                          1   00052 et aZ.), S2723 (File Nos. SAT-LOA-20070105-
                                          )   00001 et al.) & S2725 (File Nos. SAT-LOA-20070105-
                                          )   00003 et al.)
                                          1
Intelsat North America LLC                1   Call Signs S2659 (File Nos. SAT-LOA-20050210-
                                          )   00028 et a,.), S2660 (File Nos. SAT-LOA-20050210-
                                          1   00029 et aZ.), S2661 (File Nos. SAT-LOA-20050210-
                                          1   00030 et al.) & S2662 (File Nos. SAT-LOA-20050210-
and                                       )   00031 et al.)
                                          1
Pegasus Development DBS Corporation       )   Call Signs S2698 (File Nos. SAT-LOA-20060412-
                                          )   00042 et aZ.), S2699 (File Nos. SAT-LOA-20060412-
Applications for Authority to Launch      )   00043 et al.) & S2700 (File Nos. SAT-LOA-20060412-
and Operate 17/24 GHz Broadcasting-       )   00044 et al.)
Satellite Service Space Stations          1

                             REPLY OF SES AMERICOM, INC.

               SES Amencorn, Inc. (“SES Amencorn”), by its attorneys and pursuant to

Section 25.154 of the Commission’s Rules, 47 C.F.R. 5 25.154, hereby submits its reply\o the

response of DIRECTV Enterprises, LLC (“DIRECTV”)’ to SES Arnericom’s comments on the

above-captioned applications of DIRECTV, EchoStar Satellite Operating L.L.C. (“EchoStar”),



   Response of DIRECTV Enterprises, LLC, File Nos. SAT-LOA-19970605-00049 et aZ.
(Aug. 14,2008) (“DIRECTV Response”).


Intelsat North America LLC (“Intelsat”), and Pegasus Development DBS Corporation (“Pegasus”)

for Commission licenses to launch and operate new space stations in the 17/24 GHz Broadcasting-

Satellite Service (“BSS”) (collectively, the “BSS Applications”).2 In our comments, SES

Americom made a straightforward request. We asked the Commission to state in any

authorizations granted pursuant to the BSS Applications that the licenses are subject to

international coordination requirements and that licensed operations will not be protected absent

successful coordination with networks with date priority under the International

Telecommunication Union (“ITU”) rules.

               Given the overwhelming legal precedent supporting this request, we would have

thought it would be uncontroversial. As we explained in our filing, as a member of the ITU, the

U S . is under a treaty requirement to coordinate all U.S.-licensed satellites internationally. SES

Americom Comments at 3. The Commission has codified this obligation in Section 25.11 l(b) of

its rules, and includes a restatement of that provision as part of the routine conditions when it

awards satellite licenses. Id. When it adopted the first-come, first served licensing ftamework that

applies to 17/24 GHz applications, the Commission once again emphasized that licenses are

granted subject to the outcome of international coordination. The Commission made clear that an

applicant assumes the risk that coordination at its chosen orbital location may not be successfwl and

operation pursuant to the license may not be possible as a r e ~ u l t .The
                                                                        ~ Commission has applied the

same policy in the context of BSS service, advising the licensee of the need to comply with




      Comments of SES Americom, Inc., File Nos. SAT-LOA-19970605-00049 et al. (Aug. 1,2008)
(“SES Americom Comments”). Appendix 1 of the SES Americom Comments contains a complete
’
listing of the call signs and file numbers of the BSS Applications.
     Id. at 4, citing Amendment of the Commission ’s Space Station Licensing Rules and Policies,
First Report and Order and Further Notice of Proposed Rulemaking, 18 FCC Rcd 10760 (2003)
(“Space Station Reform Order”) at 7 96.

                                                   2


international coordination requirements and mandating that the operator advise its customers of the

risk that services might need to be modified or terminated to conform to coordination agreement^.^

               Thus, pursuant to international law and the policies and rules of the Commission, the

obligation to coordinate applies to all 17/24 GHz licensees. In that context, SES Americom

requested that any licenses granted here include a coordination condition, not because such a

condition is necessary to impose the obligation, but simply to ensure that there is no confusion on

the part of new licensees. Indeed, given the treaty-based nature of the requirement, the

Commission could not grant a licensee exemption fiom international coordination in any case.

Expressly stating the terms of the coordination mandate as part of the license, however, guarantees

that the licensee is on notice that the ability to operate pursuant to the license and the interference

protection accorded to those operations depend on the outcome of the coordination process.

                Based on its response, DIRECTV, at least, needs this reminder. DIRECTV is the

only 17/24 GHz license applicant to object to SES Americom’s request. Intelsat has previously

expressly acknowledged that the requirement to coordinate pursuant to Section 25.2 11(b) applies to

17/24 GHz    operation^,^ and neither Pegasus nor EchoStar opposed imposition of a coordination
condition here.

                Remarkably, DIRECTV asks the Commission to reject SES Americom’s proposed

coordination condition without even acknowledging - much less disputing - the legal

underpinnings of international coordination requirements. DIRECTV chooses to ignore completely

the fact that as a signatory to the ITU treaty, the U.S. is obligated to conform to ITU rules relating



     SES Americom Comments at 4, citing EchoStar Satellite L.L.C., Application to Construct,
Launch and Operate a Direct Broadcast Satellite at the 86.5” K L . Orbital Location, Order and
Authorization, DA 06-2440,21 FCC Rcd 14045 (IB 2006).
     See Opposition of Intelsat to Telesat Canada Petition for Reconsideration, IB Dkt No. 06-123,
filed Feb. 11,2008, at 3.

                                                    3


to international coordination. Likewise, there is no mention in DlRECTV’s Response of the

Commission’s express reaffirmation, in adopting the first-come, first-served licensing framework

that applies to the BSS Applications, that it grants licenses subject to the outcome of international

coordination. The existence of Section 25.1 11(b), which codifies the Commission’s international

coordination policy, warrants mention only in a footnote of the DIRECTV filing. DIRECTV

Response at 4 n.9. DIRECTV suggests that the rule, which among other things permits licenses to

be modified as needed to conform to international coordination agreements, makes imposition of a

coordination condition unnecessary. Id. DlRECTV does not address the remainder of the rule,

which makes clear that a licensee’s right to interference protection from other networks depends on

successhl international coordination.

               To the limited extent that DIRECTV refers to Commission precedent in its filing,

the company misinterprets the significance or relevance of the applicable case law. For example,

DIRECTV recognizes that the Commission has imposed a coordination condition when granting

market access to a foreign applicant that lacks ITU priority, citing a decision involving Loral? But

DIRECTV uses that decision to suggest that this Commission practice is restricted to situations

involving two non-U.S. licensees. The Commission, however, has emphasized that its policy when

the U.S. lacks ITU priority is to grant any operational authority on a temporary basis and subject to

the outcome of coordination:

                       ITU date priority does not preclude us from licensing the
                       operator of a U.S.-licensed GSO satellite on a temporary basis
                       pending launch and operation of a satellite with higher
                       priority in cases where the non-U.S.-licensed satellite has not
                       been launched yet. When we have authorized a U.S. licensee
                       to operate at an orbit location at which another Administration
                       has ITU priority, we have issued the license subject to the
                       outcome of the international coordination process, and


     DIRECTV Response at 3 n.9., citing Loral SpaceCom Corp., 18 FCC Rcd 16734 (IB2003).

                                                   4


                      emphasized that the Commission is not responsible for the
                      success or failure of the required international c~ordination.~

SES Americom has asked only that the Commission follow this precedent in acting on the BSS

Applications. DIRECTV fails to acknowledge that its opposition to “conditioning U.S. licenses on

coordination with non-U.S. networks” (DIRECTV Response at 3) directly conflicts with this clear

statement of Commission policy.

               Similarly, DIRECTV invokes the Ka-band licensing framework in support of its

arguments (id. at 4-9, but fails to acknowledge that in the Ka-band proceeding, the Commission

did exactly what SES Americom has requested here, granting licenses subject to the outcome of

international coordination. In fact, in the very case cited by DIRECTV, the International Bureau

awarded market access to Telesat Canada, a foreign licensee who had ITU priority, even though the

Commission had previously issued a U.S. license to KaStarCom for Ka-band operations a fraction

of a degree away. The Bureau explained that:

                      Under the ITU’s international Radio Regulations, any U.S.
                      Ka-band satellite at 111.OoW.L. must be coordinated with
                      Telesat’s planned satellite at 111.1O W.L. Consequently, we
                      conditioned KaStarCom’s license on coordination with any
                      non-U.S. satellite within two degrees of the KaStarCom
                      satellite having filing date priority at the ITU. We also
                      reminded KaStarCom that it takes its license subject to the
                      outcome of the international coordination process, and that
                      the Commission is not responsible for the success or failure of
                      the required international coordination.
                               In light of the fact that Canada has ITU priority at this
                      location, we find that granting Telesat access to the U.S.
                      market in the Ka-band from the 111.1O W.L. location is
                      consistent with the Commission’s spectrum management
                      policies.’


7
    Space Station Reform Order, 18 FCC Rcd 10760 (2003) at 1295 (footnotes omitted).
’   Telesat Canada Petition for Declaratory Ruling For Inclusion of Anik F2 on the Permitted
Space Station List and Petition f o r Declaratory Ruling to Serve the U S . Market Using Ka-band
Capacity on Anik F2, 17 FCC Rcd 25287 (Is2002) at 71 25-26.

                                                  5


It is DIRECTV, not SES Americom, that is suggesting that the Commission should depart from the

precedent established in the Ka-band context.

               Thus, SES Americom’s request that the Commission impose a coordination

condition in connection with any action on the 17/24 GHz Applications is filly consistent with U S .

obligations under international law and with long-standing Commission rules and policies.

DIRECTV’s pleading does not present any rebuttal to this fundamental fact.

               DIRECTV’s remaining arguments are simply attempts to distract the Commission

from this fatal defect in the Response and are easily dispensed with. First, DIRECTV claims that in

its Reconsideration Order in the 17/24 GHz rulemaking, the Commission “considered and

rejected” imposition of a coordination requirement.’ In fact, however, apart from a mention of

Telesat Canada’s request for a standard coordination requirement in the decision’s recitation of the

underlying pleadings, the Reconsideration Order contains no discussion of international

coordination matters. DIRECTV attempts to read much into this silence, claiming that it

constitutes an affirmative determination by the Commission that subjecting U.S. licenses to the

outcome of coordination would be “contrary to the public interest.” DIRECTV Response at 1. Yet

as highlighted above, the obligation to comply with international coordination requirements is a

principle of international law, is codified in the Commission’s rules, and has been repeatedly

emphasized in Commission decisions. The suggestion that with no analysis or discussion the

Reconsideration Order effectively abdicated compliance with an international treaty and overruled

years of Commission precedent is preposterous on its face.


    DIRECTV Response at 1-2, citing Establishment of Policies and Service Rules for the
Broadcasting-SatelIite Sewice at the 17.3-1 7.7 GHz Frequency Band and at the 17.7-1 7.8 GHz
Frequency Band Internationally, and at the 24.75-25.25 GHz Frequency Band for Fixed Satellite
Sewices Providing Feeder Links to the Broadcasting-Satellite Service and for the Satellite Sewices
Operating Bi-directionally in the 17.3-1 7.8 GHz Frequency Band, Order on Reconsideration, 22
FCC Rcd 17951 (2007) (“ReconsiderationOrder”).

                                                  6


               Second, DIRECTV implies that making clear to U.S. licensees that their operations

are subject to the outcome of international coordination would somehow undermine the

Commission’s orbital spacing and technical policies. DIRECTV Response at 3-4. But one has

nothing to do with the other. SES Americom’s request that the Commission follow its practice of

including standard coordination language in any licenses granted in response to the BSS

Applications clearly does not implicate the spacing grid or technical requirements for the U.S.

17/24 GHz service.

               DIRECTV also argues that the “international coordination process runs parallel to

the U.S. licensing process, and there is no reason to conflate the two.’’ Id. at 3 (footnote omitted).

SES Americom agrees that licensing and coordination are independent matters. We ask only that

the Commission make this fact clear to its 17/24 GHz licensees so that if they accept their licenses,

they do so with the understanding that the rights conferred by the license are constrained as a

matter of law by the need to comply with ITU coordination requirements.

               Finally, there is no basis for DIRECTV’s suggestion that imposing a coordination

condition on U.S. licensees would allow foreign licensees to subvert the Commission’s market

access policies or otherwise contravene the public interest. The Commission has determined that

U.S. customers benefit from the additional competition resulting from market entry by foreign

licensees who satisfy the Commission’s requirements. DIRECTV itself, of course, has taken

advantage of these policies, seeking and obtaining authority to serve the U.S. using spacecraft

operated pursuant to Canadian licenses.l o




lo
     See, e.g.,DIRECTV Enterprises, LLC, 19 FCC Rcd 15529 (Sat. Div. 2004) at 7 8 (finding that
granting request to serve the U.S. using DIRECTV 5 pursuant to a Canadian license would improve
the quality of service to U.S. DBS consumers).

                                                   7


               For its part, SES Americom has a history of more than thirty years of providing high

quality, state-of-the-art communications services to customers across the U.S. Our fleet currently

consists of seventeen satellites, the overwhelming majority of which are U.S.-licensed. However,

SES Americom, through a wholly-owned subsidiary, has also received authority to use foreign-

licensed satellites to serve the U S . in some instances. Whether or not the U.S. is the licensing

administration, SES Americom customers receive the same high levels of performance and

reliability, and the flexibility to use non-U.S.-licensed assets has allowed SES Americom to be

more responsive to customer requirements.

               For example, in early 2007 we introduced new U.S. C-band service from the

nominal 105" W.L. orbital location using the Gibraltar-licensed AMC-18 spacecraft. Under the

terms of the 1988 Trilateral Agreement among the US., Canada and Mexico, the C-band

                                                                           '
frequencies at that orbital location were not available for U.S. licensing,' but neither Canada nor

Mexico had deployed a C-band satellite to that position. By obtaining a Gibraltar license and

seeking U.S. market access, SES Americom was able to provide new service to U.S. customers

using spectrum at an orbital location that had lain fallow for nearly twenty years.

               SES Americom is ready, willing, and able to build on this legacy of quality service

by bringing its technical expertise and financial assets to bear in developing and deploying

17/24 GHz BSS spacecraft. U.S. customers will be the beneficiaries of facilities that will provide

additional services and serve as the kamework for new competition to existing DBS operations.

DIRECTV, on the other hand, has a clear incentive to attempt to preserve the benefits that flow




''  See Trilateral Arrangement Regarding Use of the Geostationary Orbit Reached by Canada,
Mexico, and the United States, Public Notice, Sept. 2, 1988 at 1 (noting that "the U.S. has agreed to
implement 12/14 GHz band satellites only at 105" W.L.").

                                                   8


 from its position as an incumbent DBS provider by blocking new entry. The Commission must

reject any attempt to thwart its pro-competitive objectives in this manner.

                For the foregoing reasons, the Commission should include in any grants of the

 above-captioned BSS Applications a provision notifying the licensees of the international

 coordination obligations that apply as a matter of international treaty and Commission policy. The

 licensees should be advised that unless coordination is completed, they are not entitled to

 interference protection fi-om networks operating pursuant to ITU filings with date priority. The

 licensees should also be notified that absent successfbl international coordination, their operations

 may have to be modified or terminated to accommodate a network with priority, and they should be

 required to make a disclosure to that effect to their customers.

                                               Respectfblly submitted,

                                               SES AMERICOM, INC.


Nancy J. Eskenazi                               By:
Vice President &                                Peter A. Rohrbach
 Assoc. General Counsel                         Karis A. Hastings
SES Americom, Inc.                              Hogan & Hartson L.L.P.
Four Research Way                               555 Thirteenth Street, N.W.
Princeton, NJ 08540                             Washington, D.C. 20004
                                                (202) 637-5600

August 26,2008




                                                    9


                                 CERTIFICATE OF SERVICE

               I, Gayle Hall, hereby certify that on this 26th day of August, 2008, I caused to be

served copies of the foregoing “Reply of SES Americom, Inc.” on the following parties by first-

class U S . mail, postage prepaid:




                                                     Gayle gall


William Wiltshire                                Susan H, Crandall
Harris, Wiltshire & Grannis LLP                  Intelsat Corporation
1200 18th Street, N.W.                           3400 International Drive, N.W.
Washington, DC 20036                             Washington, DC 20008-3006
Counsel to DIRECTV Enterprises, LLC              Counsel to Intelsat North America LLC

Pantelis Michalopoulos                           Tony Lin
Steptoe & Johnson LLP                            Pillsbury Winthrop Shaw Pittman LLP
1330 Connecticut Ave., N.W.                      2300 N Street, N.W.
Washington, DC 20036                             Washington, DC 20037
Counsel to EchoStar Satellite Operating          Counsel to Pegasus Development DBS
L.L. e.                                          Corporation



Document Created: 2008-08-28 14:19:55
Document Modified: 2008-08-28 14:19:55

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