Reply in supp of pet to deny amend and app REPLY by Spectrum Five LLC SAT-AMD-20100610-00127 reply in supp pet to

reply in supp pet to

REPLY submitted by Spectrum Five LLC

Reply in supp of pet to deny amend and app

2010-08-19

This document pretains to SAT-AMD-20100610-00127 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD2010061000127_835335

BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C.

------------------------------------------------------ )
)
In the Matter of: )
)
DISH OPERATING L.L.C. ) File Nos.: SAT-MOD-20100329-00058
) SAT-AMD-20100610-00127
Application for Minor Modification of )
Authority to Allow Operation of EchoStar 7 )
at 118.8° W.L. )
)
and ) Call Sign: S2740
)
Amendment to Application for Minor )
Modification of Authority to Allow )
Operation of EchoStar 7 at 118.8° W.L. )
)
)
)
------------------------------------------------------ )

REPLY IN SUPPORT OF PETITION TO DISMISS OR DENY
AMENDMENT TO APPLICATION AND APPLICATION

David Wilson Howard W. Waltzman
President Brian J. Wong
Spectrum Five LLC Mayer Brown LLP
1776 K Street, N.W., Suite 200 1999 K Street, N.W.
Washington, D.C. 20006 Washington, D.C. 20006
(202) 293-3483 (202) 263-3000

Counsel to Spectrum Five LLC
August 19, 2010

SUMMARY

The Opposition offers no persuasive reason that DISH Operating L.L.C. (“DISH”) should

be permitted to amend its defective Application.1 DISH principally contends that the Bureau’s

placing of its Application and Amendment on public notice means that they are presumptively

complete. But that assertion is not based upon the Commission’s regulations: “Neither the

assignment of a file number . . . nor the listing of the application on public notice as received for

filing indicates that the application has been found acceptable for filing or precludes the

subsequent . . . dismissal of the application if it is found to be defective or not in accordance with

the Commission’s rules.” 47 C.F.R. § 25.150. Defective space station applications cannot be

amended, and must, instead, be dismissed.

In any event, DISH’s Amendment neither satisfies the Commission’s orbital debris

mitigation requirements nor addresses the other concerns raised by Spectrum Five. If it were

enough to assert that one would “drift the satellite” “[i]n the event” problems materialized (see

Opposition, at 4-5), the orbital debris mitigation regulations would be a dead letter—every

applicant could satisfy those requirements by parroting the same conclusory formula that DISH

has recited here. DISH’s Application and Amendment should be dismissed or denied.2

1
Opposition to Petition to Dismiss or Deny, filed in, File Nos. SAT-MOD-20100329-
00058, SAT-AMD-20100610-00127, Call Sign S2740 (filed Aug. 12, 2010) (“Opposition”).
2
DISH asserts that Spectrum Five’s petition is untimely. See Opposition, at 1. Spectrum
Five’s petition to deny the Application was timely filed on May 17, 2010, “within thirty (30)
days after the date of public notice announcing the acceptance for filing of [DISH’s]
application.” 47 C.F.R. § 25.154(a)(2); see Petition To Dismiss or Deny, filed in, File No. SAT-
MOD-20100329-00058, Call Sign: S2740 (filed May 17, 2010) (“Petition”). The Bureau has not
yet acted on that Petition. The instant petition to deny the Amendment and as-amended
Application was timely filed on August 2, 2010, again, “within thirty (30) days after the date of
public notice announcing the acceptance for filing of [DISH’s] . . . major amendment.” 47
C.F.R. §§ 1.4(j), 25.154(a)(2); see Petition To Dismiss or Deny Amendment to Application and
(continued)

I. DISH’S ORIGINAL APPLICATION WAS DEFECTIVE.

The Commission’s regulations require space station applications to contain an orbital

debris mitigation assessment. See 47 C.F.R. § 25.114(d)(14)(iii). DISH asserts without

argument that an “orbital debris mitigation statement was not required” because of the

“circumstances” of DISH’s original Application. See Opposition, at 4. This contention is

erroneous, as Spectrum Five has already explained: the orbital debris mitigation requirement

applies to all applications filed after October 19, 2005, and there is no basis for a waiver here.3

Tellingly, DISH does not now assert that the original Application contained a complete

orbital debris mitigation assessment. DISH instead contends that the Bureau should “assume[]”

that the Application was complete, because if the Application “was defective, then the Bureau

would have returned it stating as much.” See Opposition, at 2. But the Commission’s

regulations expressly reject any such “assumption,” providing that the placement of an

application on public notice does not “indicate[] that the application has been found acceptable

for filing or preclude[] the subsequent . . . dismissal of the application.” 47 C.F.R. § 25.150.

Thus, even after an application has been placed on public notice, “the Commission reserves the

right to return any application if, upon further examination, it is determined the application is not

in conformance with the Commission’s rules or its policies.”4 “Conditional acceptance [for

Application, filed in, SAT-MOD-20100329-00058, SAT-AMD-20100610-00127, Call Sign:
S2740 (filed Aug. 2, 2010) (“August 2010 Petition”).
3
Petition, at 6-13; Reply in Support of Petition To Dismiss or Deny, In re DISH Operating
L.L.C. Application for Minor Modification of Authority To Allow Operation of EchoStar 7 at
118.8° W.L., File No. SAT-MOD-20100329-00058, Call Sign: S2740 (filed June 4, 2010)
(“Reply”), at 3-5.
4
Order and Authorization, In re DIRECTV Enterprises, LLC Application for Authorization
to Launch and Operate DIRECTV RB-2, a Satellite in the 17/24 GHz Broadcasting Satellite
Service at the 102.825° W.L. Orbital Location, File Nos. SAT-LOA-20060908-00100 SAT-
(continued)

2

filing (i.e., public notice)] does not preclude further Commission action on an application,

including its dismissal, if the application is not in accordance with Commission rules.”5 Indeed,

the very Public Notices that listed DISH’s Application and Amendment stated that the

“Commission reserve[d] the right to return any of the applications if, upon further examination,

it is determined the application is not in conformance with the Commission’s rules or its

policies.”6 A “further examination” of DISH’s original Application reveals that it is materially

defective for the reasons given in Spectrum Five’s Petition and Reply, which are incorporated by

reference herein.

II. DISH’S DEFECTIVE APPLICATION CANNOT BE CURED BY ITS FILING OF
AN AMENDMENT.

Because DISH’s original Application was defective, and “[a]mendments to ‘defective’

space station applications . . . will not be considered,” the Amendment must be rejected. See 47

C.F.R. §§ 25.112(a), 25.116(b)(5); see Reply at 5-6. DISH argues that the Amendment merely

contains “clarifying information” requested by the Bureau. See Opposition at 2-3. But although

the regulations do allow the Commission to “request . . . additional information concerning any

application” (47 C.F.R. § 25.111(a)), Section 25.111(a) does not trump Section 25.116(b)(5)’s

express prohibition on amendments to defective space station applications. See Reply at 6-10.

Such “additional information” might be considered when the application was already complete

when filed or at least “substantially complete,” but nothing in Section 25.112 suggests that

AMD-20080114-00014 SAT-AMD-20080321-00077, Call Sign S2712, DA 09-1624, 24 FCC
Rcd. 9393, ¶ 7 n.23 (rel. July 28, 2009).
5
Order, In re: Application of Leosat Corporation for Authority to Construct a Low-Earth
Orbit Domestic Satellite System, File No. 12-DSS-P-91(2), 7 FCC Rcd. 2469, at *1 n.4 (rel. Apr.
20, 1992).
6
Public Notice, Report No. SAT-00703, 2010 WL 2641638 (rel. July 2, 2010) (emphasis
added); Public Notice, Report No. SAT-00681, 2010 WL 1514217 (rel. April 16, 2010).

3

“additional information” can be used to amend or cure a defective application, in contravention

of Section 25.116(b)(5). Here, of course, DISH’s original Application did not even attempt to

satisfy the unambiguous orbital debris mitigation assessment requirements with respect to

Spectrum Five’s application to operate a satellite at 118.8° W.L., and was thus materially

defective when filed. See Reply, at 8-9. The Bureau has uniformly and consistently explained

that it is “not the Commission’s duty to perfect a materially deficient application” by requesting

additional information before denying a defective space station application.7 The same rule

should apply here.

DISH’s reliance on the Bureau’s treatment of a modification application filed by Loral

Skynet Network Services, Inc. (“Loral”) is misplaced—indeed, all the more so because the

Bureau already considered and rejected the same argument when DISH advanced the argument

six years ago in the 2004 EchoStar Reconsideration Order proceeding.8 As the 2004 EchoStar

Reconsideration Order explained, “Loral’s application was substantially complete when filed, in

that Loral provided all the information required by the Commission’s rules. The staff did not

provide Loral an opportunity to supply additional information that was omitted from its

7
Memorandum Opinion and Order, In re: EchoStar Satellite LLC Petition for
Reconsideration—Application for Authority to Construct, Launch and Operate Geostationary
Satellites In the Fixed-Satellite Service Using the Ka And/or extended Ku-bands at the 83° W.L.,
105° W.L., 113° W.L. and 121° W.L. Orbital Locations, File Nos. SAT-LOA-20030827-00180
SAT-LOA-20030827-00182, SAT-LOA-20030827-00185, SAT-LOA-20030827-00187, Call
Signs: S2493, S2495, S2498, S2500, 21 FCC Rcd. 4060, ¶ 13 (rel. Apr. 14, 2006) (“2006
EchoStar Reconsideration Order”); see also Reply, at 7 (collecting decisions).
8
Order on Reconsideration, In re EchoStar Satellite LLC Application for Authority to
Construct, Launch and Operate a Geostationary Satellite in the Fixed Satellite Service Using the
Extended Ku-Band Frequencies at the 101° W.L. Orbital Location, 19 FCC Rcd. 24953, ¶ 16 &
n.50 (rel. Dec. 27, 2004) (“2004 EchoStar Reconsideration Order”) (distinguishing Letter from
William Howden, Chief, Systems Analysis Branch, Satellite Division to Stan Edinger, Manager-
Government Relations, Loral Skynet Network Services, Inc. (dated Oct. 16, 2004) (“October
16th Loral Letter”).

4

application, but rather asked Loral to clarify and to reformat certain information contained in the

application.”9 Only when the original application already is “substantially complete” should the

applicant be “asked . . . to provide additional information.”10 Loral’s application was

substantially complete when filed and, therefore, not subject to dismissal as defective. Here, by

contrast, DISH’s original Application was materially defective: it “did not contain all of the

information required by the Commission’s rules and thus was not substantially complete when

filed.”11 The Amendment does not merely “reformat” (cf. Opposition, at 3) existing information;

rather, it purports to add an orbital debris mitigation assessment that was nowhere to be found in

the original Application.

Under the 2004 EchoStar Reconsideration Order (and the other decisional precedent

identified by Spectrum Five in its Reply, at 7-9), the Amendment must be rejected.12

III. THE AMENDMENT DOES NOT CURE THE DEFECTS IN DISH’S ORIGINAL
APPLICATION.

Even if the Amendment could be considered, the Application in its amended form would

still be materially incomplete and defective. The Amendment does not contain a complete

orbital debris mitigation assessment as required by 47 C.F.R. § 25.114(d)(14)(iii). See August

2010 Petition, at 2. DISH argues that it is sufficient for a satellite operator merely to assert that it

“expects to be able to coordinate” and to commit to “drift[ing]” the satellite to another location

9
Id. ¶ 16.
10
Id. ¶ 16 n.50.
11
Id.
12
DISH asserts that this outcome would “lead to absurd results,” in that it might be
“barred” from making subsequent modification requests with respect to EchoStar 7. Opposition,
at 4. DISH’s fears are unfounded. After the Application and Amendment are dismissed or
denied, nothing prevents DISH from submitting a new application for modification of EchoStar
7’s operating authority that complies with all of the Bureau’s requirements.

5

“[i]n the event coordination is unsuccessful.” See Opposition, at 4-5. DISH’s vague assurance

hardly amounts to a concrete proposal or “measure[] . . . to prevent collision.” 47 C.F.R. §

25.114(d)(14)(iii). And the Amendment certainly does not “provide an assessment of

feasibility”13 of the possibility of moving EchoStar 7 to “another portion of the 119° orbital

cluster.” See Opposition, at 4-5. If “drifting” EchoStar 7 will be feasible in the future,14 it is

puzzling why DISH is not seeking authority to “drift” to a non-conflicting location now or why

DISH does not simply continue locating EchoStar 7 at 118.9° W.L. alongside EchoStar 14.15

Finally, as the August 2010 Petition pointed out—and as the Opposition does not

dispute—the Amendment is not responsive to the other defects in the underlying Application.

See August 2010 Petition, at 2; Petition, at 15-20; Reply, at 10-13. For these reasons as well,

even the Application in its amended form would be materially incomplete and defective.

CONCLUSION

For the reasons stated above, the Application and Amendment should be dismissed or

denied.

13
Letter from Robert G. Nelson, Associate Chief, Satellite Division, International Bureau,
to Bruce D. Jacobs and Tony Lin, Pillsbury Winthrop Shaw Pitman LLP, filed in In re: Pegasus
Development DBS Corp. Authority to Construct, Launch, and Operate a Broadcasting-Satellite
Service System, File No. SAT-LOA-20090807-00084, Call Sign S2795 (dated Apr. 15, 2010).
14
DISH’s stated desire to “facilitate . . . its co-existence with DIRECTV at the 119° W.L.
cluster” gives rise to doubt whether DISH would “drift” EchoStar 7 in the direction of
DIRECTV’s DTV-7S satellite at 119.05° W.L. See Opposition, at 1.
15
DISH could readily co-locate EchoStar 7 and EchoStar 14. See Petition, at 10 n.28. See
generally Public Notice, Report No. SAT-00646, Report No. SAT-00646, 2009 WL 3802600
(rel. Nov. 13, 2009) (noting that DIRECTV has requested authorization to co-locate multiple
satellites at the same orbital location “with a reduced station keeping tolerance of ± 0.025°”).
Real-time coordination poses fewer “logistical or cost considerations” when all the satellites are
“operated by a single company.” Second Report and Order, In re: Mitigation of Orbital Debris,
19 FCC Rcd. 11567, ¶ 51 (rel. June 21, 2004).

6

Respectfully submitted,

s/s Howard W. Waltzman
David Wilson Howard W. Waltzman
President Brian J. Wong
Spectrum Five LLC Mayer Brown LLP
1776 K Street, N.W., Suite 200 1999 K Street, N.W.
Washington, D.C. 20006 Washington, D.C. 20006
(202) 293-3483 (202) 263-3000

Counsel to Spectrum Five, LLC

August 19, 2010

7

CERTIFICATE OF SERVICE

I, Howard W. Waltzman, hereby certify that on this 19th day of August, 2010, I caused to
be hand-delivered a true copy of the foregoing upon the following:

Pantelis Michalopoulos Jeffrey Blum
Petra A. Vorwig Senior Vice President and Deputy General Counsel
L. Lisa Sandoval Alison Minea
Steptoe & Johnson LLP Corporate Counsel
1330 Connecticut Avenue, N.W. DISH Operating L.L.C.
Washington, DC 20036 1110 Vermont Avenue NW, Suite 750
Washington, DC 20005

_s/s Howard W. Waltzman
Howard W. Waltzman

1

Document Created: 2010-08-19 10:11:17
Document Modified: 2010-08-19 10:11:17

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