Attachment Sprint opposition se

This document pretains to SAT-ASG-20010302-00017 for Assignment on a Satellite Space Stations filing.

IBFS_SATASG2001030200017_953634

RECEIVED . Before the APR 1 8 2001 FEDERAL COMMUNICATIONS COMMISSION Washington, i D.C. 20554 [ farre @¢®@ain.#& M.’mewmi FEDERAL Wm it 2 3 In the Matter of ) _ J ~® Motient/TMI Assignment and ) Transfer of Control Applications, and ) Motient‘s Request for Second ) File No. — 0302—00019 Generation Satellite/Terrestrial ) File No. SAT—ASG— Base Station System ) ) Public Notice, Report No. SAT—00066 ) ) SPRINT CORPORATION OPPOSITION Sprint Corporation, on behalf of its wireless, local and long distance divisions (collectively, "Sprint‘‘), opposes the request of the applicants — Motient Services, Inc. and Mobile Satellite Ventures Subsidiary, LLC (collectively, "Motient") — for a rule waiver to provide terrestrial—based commercial mobile radio services ("CMRS") using spectrum assigned to satellite services.‘ Motient has not met its burden of demonstrating entitlement to a rule waiver. In addition, given Motient‘s admission that its mobile satel— lite services ("MSS") are not viable in urban areas, the Commission should consider re— allocating, at least in metropolitan areas, MSS spectrum to terrestrial third generation ("3G") CMRS uses. _ See Public Notice, "International Bureau Sets Deadlines Concerning Motient/TMI Assignment and Transfer of Control Applications, and Motient‘s Request for Second Generation Satel— lite/Terrestrial Base Station System," Report No. SAT—00066 (March 19, 2001).

L. MOTIENT HAS NOT MET ITS BURDEN OF DEMONSTRATING ITS ENTITLEMENT TO A WAIVER Courts have held that waiver applicants "face[] a high hurdle even at the starting gate" and "must plead with particularly the facts and circumstances which warrant such action.‘" In certain cases, a waiver may be appropriate if "[1] special circumstances war— rant a deviation from the general rule and [2] such deviation will serve the public inter— est." In addition, the applicant "must clearly demonstrate that the general rule is not in the public interest when applied to its particular case and that granting the waiver will not 4 undermine the public policy served by the rule. * Of course, "[the very essence of waiver is the assumed validity of the general rule."" Finally, a decision to grant a waiver "must be based on articulated, reasonable standards that are predictable, workable, and not susceptible to discriminatory application."" 2 WAIT Radio v. FCC, 418 F.3d 1153, 1157 (D.C. Cit. 1969), cert. denied, 409 U.S. 1027 (19729. *‘ Texas Waiver Order, 13 FCC Red 21798, 21801 6 (1998)(emphasis added), citing Northeast Cellular v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990), and WAIT Radio, 418 F.2d at 1157. 4 U S WEST. 12 FCC Red $343, $346 «| 10 (1997); Bell Atlantic, 12 FCC Red 10196, 10198 5 (1996). °* WAIT Radio, 418 F.2d at 1158. See also Southwestern Bell, 12 FCC Red 10231, 10239 11 13 (1997); U S WEST Communications, 7 FCC Red 4043, 4044 6 (1992). Courts have recognized that the Commission "has broad discretion to deny waivers." A/B Financial v. FCC, 1995 U.S. App. LEXIS 37378, at 5 (D.C. Cir. 1995). Courts will reverse a waiver denial only if the Com— mission‘s reasons are "so insubstantial as to render that denial an abuse of discretion." Melcher v. FCC, 134 F.3d 1143, 1163 (D.C. Cir. 1998). 6 Texas Waiver Order, 13 FCC Red at 21801 4| 6, citing Northeast Cellular, 897 F.2d at 1166.

Motient has not begun to satisfy its heavy burden here. First, it has not "plead with particularly" the facts justifying the relief it seeks. Motient‘s waiver request is lim— ited to the following single sentence: [Motient] urge[s] the Commission to waive those rules in light of the pub— lic interest benefits that will be provided by the addition of base stations and the absence of any interference to other users from their operations.‘ Such a cursory statement is inadequate. Second, Motient has not demonstrated how grant of the requested waiver would serve the public interest. Although Motient asserts that grant of a waiver would "revital— ize" its MSS system," grant of special treatment to a single competitor so it can be "revi— talized" is hardly consistent with the public interest. As the Commission has recognized, "the Commission‘s statutory responsibility is to protect competition, not competitors."" Third, Motient also fails to identify the circumstances unique to it. Thus, it is questionable whether the Commuission could even grant Motient a waiver without pro— viding the identical relief to all other MSS providers — thus undermining the basis for the 10 original waiver. Indeed, another MSS provider has already sought authority to engage 11 in the same activity. For all practical purposes, grant of the Motient waiver would re— ‘ Motient Application at 15. 8 Motient Application, Summary at i. ° Alascom, 11 FCC Red 732, 758 «[ 56 (1995). See also Hawaiian Telephone v. FCC, 498 F.2d 771, 776 (D.C. Cir. 1974)(FCC did not conform to public interest mandate when it considered the factor of "competition not in terms primanrily as to benefit the public but specifically with the ob— jective of equaling competition among competitors."); LEC Interexchange Services, 14 FCC Red 10771, 10798 «[ 38 (FCC goal "is to ‘protect competition in the relevant market, not particular competitors.""). °_ See Northeast Cellular, 897 F.2d at 1166 ("The agency must explain why deviation better serves the public interest and articulate the nature of the special circumstances to prevent dis— criminatory application and to put future parties on notice as to its operation."). _ See Letter to Hon. Chairman Michael K. Powell from Lawrence H. Williams, New ICO Global Communications (March 8, 2001)("New ICO Letter."). Rele

sult in a de facto reassignment of the MSS bands to terrestrial CMRS bands without the conduct of a rulemaking. In the past, the Commission has properly rejected waiver re— quests that would result in the defacto reallocation of spectrum: Guidance from the courts indicates that issues of general applicability are more suited to rulemaking than to adjudication. Here, we conclude that the practical effect of granting the waiver applicants‘ requests . . . would have established a policy of general applicability to all operators in the 28 GHz band. * * * [Rjulemaking rather than individual adjudication is the better method to set national policy in a matter of frequency designation.‘" The appellate court, in affirming the dismissal of the waiver applications in that case, held the "FCC‘s reasoning in this regard was not only rational, but highly sound": The [waiver] petitions raised systemic issues most appropriately consid— ered in a rulemaking proceeding that offered all interested parties the op— portunity to comment and gave the agency the opportunity to proceed in a more thorough and fair manner. Thus, assuming arguendo that Motient‘s next generation/fill—in terrestrial base station proposal has merit, it should be considered in a rulemaking proceeding, not in the context of a waiver application. IJ. THE COMMISSION SHOULD CONSIDER MSS SPECTRUM IN ITS 3G PROCEEDING Motient states that mobile satellite services are "ideal for rural areas" but incapa— ble of providing "high—quality service in urban areas.""* New ICO, another MSS pro— vider, recently made the same point." They further assert that the need for additional mobile services in metropolitan areas is "well documented": 2 Second 28 GHz Order, 12 FCC Red 1254512705 388—89 (1997). } Melcher v. FCC, 134 F.2d 1143, 1164 (D.C. Cir. 1998). "‘ Motient Application at ii and 12—13. 5 See New ICO Letter at 5 and 13—15.

[T]he proliferation of mobile and data communications has only whet the appetite of U.S. consumers for faster and more pervasive wireless com— munication capabilities. The Commission is struggling to find enough spectrum to meet this demand."" The solution now proposed by some within the MSS industry is to let it use MSS spec— trum to provide terrestrial—based CMRS in metropolitan areas.‘" For example, Motient states that it would introduce its proposed services five years from now, in 2006." At that time, it would offer data services at transmission rates of "up to 165.5 Kbps."" This proposal is not impressive. Sprint PCS will be providing later this year data rates of up to 144 kbps."" Sprint PCS plans on deploying 1xEV—DO in 2003 — three years before Motient proposes to launch 165.5 kbps service. Indeed, Sprint PCS envi— sions achieving rates of 3 to 5 Mbps in 2004 — two years before Motient plans to launch its 165.5 kbps service."‘ Given these facts, it would also be difficult to justify the reallo— cation of spectrum for a service that provides data rates that are significantly slower than what other carriers will be supporting. * Motient Application at 13—14. ‘‘ Motient‘s and New ICO‘s position apparently is not unanimous within the MSS industry. See, e.g., Mobile Communications Report, "McCaw Creates Stir by Asking FCC for Terrestrial Spec— trum" (April 16, 2001)("Executive of satellite rival called proposal ‘a devious plan to secure free spectrum.‘ ... Iridium and Arianespace official Leo Mondale . . . said Commission ‘should auc— tion spectrum‘ rather than give it away: ‘The spectrum would be worth billions and billions of dollars worldwide and McCaw now wants it free of charge.""). . See Motient Application at ii. " Id. at 34. * See Press Release, "Sprint PCS Prepared to Transition Its Nationwide Network to 3G Later This Year" (March 20, 2001). * Seeid.

In sum, the Commission has commenced a rulemaking to locate additional spec— trum for 3G technologies and services."" If MSS spectrum cannot be efficiently used in metropolitan areas, as Motient and New ICO appear to concede, the Commission should consider this spectrum in its 3G rulemaking proceeding. III. CONCLUSION For the foregoing reasons, Sprint respectfully requests that the Commussion deny the Motient waiver request and that it consider use of mobile satellite spectrum for ter— restrial CMRS services in a rulemaking proceeding. The pending 3G rulemaking may be the appropriate proceeding in which to consider this important issue. Respectfully submitted, SPRINT CORPORATION ( TuisaLancetti _ Vice President, PCS Regulatory Affairs Jay C. Keithley Vice President, Federal Regulatory Affairs Roger C. Sherman Senior Attorney, PCS Regulatory Affairs 401 9°" Street, N.W., Suite 400 Washington, D.C. 20004 (202) 585—1924 Its Attorneys April 18, 2001 * See Amendment ofPart 2 to Allocate Spectrum Below 3 GHzfor Mobile and Fixed Services to Support the Introduction of New Advanced Wireless Services, including Third Generation Wire— less Systems, ET Docket No. 00—258.

CERTIFICATE OF SERVICE I, Jo—Ann G. Monroe, hereby certify that on this 18"" day of April 2001, copies of the foregoing "Opposition of Sprint Corporation" were served by first class U.S. mail, postage prepaid, to the following: Bruce D. Jacobs Lon C. Levin David S. Konczal Vice President and Regulatory Counsel Shaw Pittman Motient Services Inc. and Mobile Satellite 2300 N Street, NW. Ventures Subsidiary LLC Washington, D.C. 20037 10802 Parkridge Boulevard Reston, VA 20191 Cheryl A. Tritt Lawrence H. Williams Charles Kennedy Suzanne Hutchings Morrison & Foerster LLP New ICO Global communications 2000 Pennsylvania Avenue, N.W. (Holdings) Ltd. Suite 5500 1730 Rhode Island Avenue, N.W. Washington, D.C. 20006 Suite 1000 Washington, D.C. 20036 International Transcription Services The Portals 445 12"" Street, S.W., Room CY—B402 Washington, D.C. 20554 @/mAMoare JqfnnG. Monroe


Document Created: 2012-05-31 15:18:53
Document Modified: 2012-05-31 15:18:53
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