Attachment MO&O

MO&O

MEMORANDUM OPINION AND ORDER submitted by FCC, IB

MO&O

2003-08-15

This document pretains to SAT-LOA-19880128-00046 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA1988012800046_352579

FCC 89-257 Federal Communications Commission Record 4 FCC Rcd No. 17 MEMORANDUM OPINION AND ORDER Before the Federal Communications Commission Adopted: August 2,1989; Released: August 15, 1989 Washington, D.C. 20554 By the Commission: Commissioner Dennis issuing a statement. In re Applications of 1. On February 3, 1988, the Commission issued a Pub- CONTINENTAL DBS-87-01 lic Notice (Report No. DBS-SA) accepting for filing the SATELLITE applications for Direct Broadcast Satellite ("DBS") sys- CORPORATION tems of Continental Satellite Corporation ("Continental") and Echostar Satellite Corporation ("Echostar"). A cut- off date of April 8, 1988 was established for the filing of ECHOSTAR DBS-88-01 any additional applications to be considered with them. SATELLITE O n April 8, 1988, new applications for DBS systems were CORPORATION filed by DIRECTSAT Corporation ("Directsat") and TEMPO Satellite, Inc. ("Tempo").' O n the same date, DIRECTSAT DBS-58-02 Direct Broadcast Satellite Corporation ("DBSCorp"), CORPORATION which had earlier requested an extension of its condi- tional construction permit, requested consideration as a new applicant in the event its extension request were to ORBITAL DBS-88-03 be denied. Also on that date, applications for modification BROADCASTING of existing DBS construction permits were filed by Ad- COMPANY vanced Communications Corporation ("Advanced"), Unit- ed States Satellite Broadcasting Company, Inc. (YJSSB"), TEMPO DBS-88-04 and by Hughes Communications Galaxy, Inc. ("Hughes"); SATELLITE, and Continental modified its pending application. INC. 2. The Association of Maximum Service Telecasters ("AMST") has filed "Comments" opposing each of the subject applications, and the National Black Media Coali- DIRECT BROADCAST DBS-88-08 tion ("NBMC") has filed a petition to deny the applica- SATELLITE tions of Advanced, DBSCorp, Hughes, Orbital, and USSB. CORPORATION In addition, petitions to deny Tempo's application have been filed by Advanced, by the Wireless Cable Association For Construction Permits for New ("Wireless Cable"), and by the National Association for Direct Broadcast Satellite Systems; Better Broadcasting and the Telecommunications Re- search and Action Center ("NABB/TRAC"). The Motion Picture Association of America ("MPAA") filed an un- ADVANCED DBS-88-05-MP timely and unauthorized pleading opposing Tempo's ap- COMMUNICATIONS plication. Finally, GTE Spacenet ("GTE") has filed CORPORATION comments in response to the applications of Echostar and Continental, which apply to the other applications as UNITED STATES DBS-88-06-MP well. SATELLITE BROADCASTING 3. On October 19, 1988, the Commission staff directed COMPANY, INC. a letter to all DBS permittees and applicants requesting their comments on the Commission's policy for allocating DBS channels and orbital locations. Responses were sub- HUGHES DBS-88-07-MP mitted by most of the DBS entities, including technical COMMUNICATIONS studies by two, and several replies to those responses were GALAXY. INC. also filed. 4. This Order first considers orbital assignments and For Modification of Construction Permits for service areas in light of the advancements in transmission Direct Broadcast Satellite Systems. technology and systems for DBS, as well as the increased demand for the DBS orbitlspectrum resource presented by In re Permit of the subject applications. The Order concludes that half- CONUS signals* will be allocated only in eastlwest pairs, with eastern half-CONUS service permitted only from the DOMINION VIDEO four DBS orbital locations furthest east and western half- SATELLITE, INC. CONUS service permitted only from the four DES orbital locations furthest west. (See paragraphs 7, 8 , below.) The Modification of Construction Permit for outstanding authorizations at variance with this allocation Direct Broadcast Satellite System. policy will be modified to conform. (See paragraphs 12 - 14, below.) Full-CONUS signals will also be authorized from those orbital locations from which such service is feasible and in keeping with United States treaty obligations. (See paragraphs 9, 10, below.) This Order also

4 FCC Rcd No. 17 Federal Communications Commission Record FCC 89-257 considers and denies a request filed by Advanced seeking an allocation at the same orbital location as Hughes to - Haw CONUS Service 7. To date, the Commission has authorized DBS oper- reuse the same channels as Hughes. (See paragraphs 15, ators to transmit complementary half-CONUS signals that, 16, below.) This Order then considers the qualifications of when combined, would provide signal coverage over thc each of these applicants and the availability of requested entire Continental United States.‘ As noted, the United DBS facilities, and disposes of these applications and asso- States has eight orbital locations from which to transmit ciated petitions to deny. All of the applications except DBS service in the 12.2 - 12.7 GHz band. Given the Tempo’s are granted to the extent possible, with all ap- transmission and reception technology and equipment plicants receiving a reservation for a pro-rata share of the available currently and in the foreseeable future, three of orbitkhannel allocations available. (See paragraphs 54 - the domestic DBS orbital locations, 1OloW, llOoW,and 57, below.) Action on Tempo’s application is withheld 1 1 9 w , are suitable for delivering DBS service to an part pending further consideration of its qualifications, with its of the continental United States; one location, 61.5&, is pro-rata share of the remaining allocations also held in suitable for service into the eastern United States but only reserv4 pending the outcome of the further consider- marginally suitable for service into the western United ations. (See paragraphs 53, 56, below.) States; and four locations, 1 4 8 w , WOW, 166’W and 1 7 5 w, are suitable for DBS service only to the western United States. Thus, while the western United States can ORBITAL ALLOCATIONS AND be covered from seven or eight of the eight orbital loca- SERVICE AREAS tions, the eastern United States can be covered only from the four “eastern“ orbital locations. Consequently, a west- Background ern orbital location, which can serve only the western 5. The basis for domestic DBS allocation policies is United States, can be part of a national system only when provided by the Region 2 Plan (Appendices 30 and 30(a), used in conjunction with one of the eastern locations ITU Radio Regulations). This Plan provides, in pertinent serving the eastern United States. As a result, every time part, for service to eastern areas of the continental United an eastern locatiodchannel is allocated, a western loca- States from each of four “eastern” orbital locations tiodchannel becomes unavailable for use as part of a (61.5OW, lOlW, llO%, and 119OW) and to western areas nationwide system, whether o r not that western loca- from each of four “western” orbital locations (148”, tiodchannel is actually utilized to deliver a DBS signal? 157%’, 166”, and 175%’). The Commission has granted In light of this, it is clearly evident that to permit an authorizations for proposed systems which are at variance eastern channel to provide a service that is limited to with the Plan; e.g., the operation of two satellites at the western half-CONUS utilizes that spectrudorbit resource same orbital location, with one satellite serving the east- less intensely.6 The number of potential DBS operators ern part of the country and one serving the western part that can be accommodated is correspondingly reduced, as of the country. Such proposals were permitted, to the well. extent they did not violate the interference parameters 8. As emphasized particularly by Hughes, the Commis- established in the Plan, in order to afford permittees the sion is also concerned that DBS service can be imple- maximum flexibility in designing and implementing their mented in a commercially successful manner. Thus, services, both to take advantage of changes in technology balanced against the concern for intensive utilization of and to present the most efficient or effective service from the orbitfspectrum resource are the economic and operat- a business per~pective.~ Initially, the limited number of ing efficiencies achieved for individual operators, which applicants and channels requested, coupled with the flexi- would correspondingly benefit consumers, by colocating bility of the provisions of the Region 2 Plan, provided eastern and western half-CONUS channels and satellites at significant latitude in defining and characterizing propos- the orbital locations suitable for such operation (10lw. als for use of the DBS spectrum/orbit resource and in llO%’, and 119%’). Colocating satellites reduces the allocation of that resource. This policy of maximum flexi- number of uplink facilities required to transmit to the bility in allocations was intended to contribute to the satellites, simplifies the design of any spare satellite which ability of early DBS participants to initiate this new ser- might be built, and increases the flexibility an operator vice expeditiously, as well as efficiently or economically. would enjoy in delivering its service, particularly if a loss 6. With the applications under consideration in this of transponder(s) or satellite required reconfiguration of Order, the demand for channellorbit allocations far ex- signals. Nevertheless, in light of the current demand for ceeds the available supply. Furthermore, those permittees DBS facilities, these benefits are not sufficient to justify who were expected to be operational, or nearly oper- the considerable, and possibly critical, reduction in the ational, by now, have not achieved that goal and have allocations which could be made to each of the applicants requested, or are in need of, authority to modify their and the corresponding reduction in the number of poten- authorizations to permit additional time to implement tial channels of service available to the public, both of their systems. Under these circumstances, and in recogni- which would result from permitting colocation of eastern tion of the rights and equities attendant to the various and western half-CONUS signals. Moreover, many of the applicants and permittees at issue in this Order, certain benefits claimed for colocated half-CONUS channels will aspects of the allocation policy must be refined in order be achievable with the probable introduction of full- to assure an equitable and more efficient allocation of the CONUS service, as discussed in paragraphs 9, 10, below.’ DBS resource among the qualified and competing ap- Consequently, orbitkhannel allocations will not be made plicants. As discussed in the following sections, the neces- without regard to their effect on the overall availability of sary refinements in the allocation policy will reduce remaining allocations suitable for nationwide DBS ser- flexibility in some respects, but enhance it in more mean- vice, and western half-CONUS service will not be ingful respects. permitted from “eastern“ orbital locations. 6293

4 FCC Rcd No. 17 Federal Communications Commission Record FCC 89-257 based on its modification application, and can obtain systems. Continental projects expenses of $410 million to further additional channels, if it deems it necessay; e.g., build and launch three satellites. NRG Datacom, Inc. by merger or by purchase of another party's permit. expects to raise the necessary funds for Continental through equity issues. Duplicate Orbital Assignments 15. Prior to the recent emphasis on full-CONUS chan- Echostar Satellite Corporation nels becoming the common mode of operation, Advanced 20. Echostar is a Colorado corporation incorporated for requested orbitkhannel allocations to mirror Hughes' cur- the purpose, among other more general purposes, of con- rent allocations, proposing to use the same channels as structing, launching, and operating a DBS system. It is Hughes to serve the opposite half of the U.S. with each 79% owned by Echosphere Corporation, which it states is channel as Hughes would serve. That is, if Hughes would one of the largest distributors of home satellite receive serve the western U.S. with even channels and the eastern equipment in the United States. The remaining stock is US. with odd channels, Advanced would serve the west- owned by two individuals, one of whom is the president ern U.S. with odd channels and eastern US. with even of Echosphere. Echostar is legally qualified to hold a DBS channels, while operating from the same orbital location authorization. as Hughes. Advanced claimed that this is possible using 21. Echostar proposes to launch two satellites, with digital transmission technology, although it would have to each serving half-CONUS with sixteen channels at 100 give up some service to the central US., losing approxi- watts each, for an EIRP of at least 51 dBW at edge of mately five percent bf the U.S. population. It also claimed coverage. It may also provide spot beam service to that if Hughes were to use digital transmission technology unspecified discrete market areas. It expects to be able to as well, no service would be lost. Hughes has strenuously provide "limited" full-CONUS service on an emergency opposed Advanced's request. basis, if necessary. Echostar apparently does not intend to 16. Advanced's proposal, even if technically sound, serve any areas outside the 48 continental states. (Its pre- would not be possible to effectuate in conjunction with ferred orbital positions are 61.5'W and 148@W, unless full-CONUS operations, as authorized in this Order. other positions currently held by others become avail- Based on Advanced's modification application and its able.) Echostar proposes to build one on-ground spare, comments in connection with the orbital allocation, issue, and provide six-for-four transponder redundancy. Six it appears that Advanced is more interested in pursuing channels would be eclipse protected at full power (or full-CONUS operations than colocated, mirror-image half- more channels at lesser power) by battery. CONUS operations. Consequently, the request will be 22. Echostar proposes to program some of its capacity considered moot and it will be dismissed without preju- and lease some on a non-common carrier basis. It projects dice. total costs for three satellites, two launches, ground facili- ties and support and one year marketing and operations to total $496 million. Echostar's parent, Echosphere, has DESCRIPTION OF NEW APPLICATIONS committed to finance the construction and continued op- eration. Echosphere enjoys a $50 million line of credit Continental Satellite Corporation and will finance the remaining costs with additional debt 17. Continental is a California corporation incorporated and with equity offerings. Merril Lynch and Hanifen, for the purpose of constructing, launching, and operating Imhoff, Inc. have indicated their interest in raising the a DBS system. All of its principals are identified in its necessary additional funds through equity offerings, and application, and Continental is legally qualified to hold a Hanifen has expressed its expectation that the funds can DBS authorization. be raised successfully. In addition, Scott Science and 18. Continental proposes to launch three satellites, with Technology, a satellite financing, construction and launch one serving the eastern half of the continental United manager, has expressed its expectation that the necessary States ("half-CONUS") and one serving western half- funds can be raised. CONUS with sixteen channels each, and one serving the full continental United States (Yull-CONUS") with eight DIRECTSAT Corporation channels. The half-CONUS satellites would operate at 100 23. Directsat is 77% owned by SSE Telecom, Inc., a watts per channel, for an effective isotropic radiated pow- telecommunications company which specializes in satel- er ("EIRP'') of 51 dBW for all channels on all satellites. lite technology. The remainder of its stock is held by The power and signal strength levels for the full-CONUS three individuals. The officers and directors of Directsat satellite are not specified. Continental apparently does not and SSE are identified, as well as the shareholders of intend to serve any areas outside the 48 continenta! states. Directsat and the cognizable shareholders of SSE. (Continental's preferred orbital positions are 61.5 W and Directsat is legally qualified to hold a DBS authorization. 148% for the half-CONUS satellites and 1 1O w for the 24. Directsat proposes to launch two satellites, with full-CONUS satellite.) Continental's satellites would have each serving half-CONUS with sixteen channels at 100 24-for-16 transponder redundancy and full eclipse protec- watts each, for an EIRP of at least 51 dBW at edge of tion from stored (battery) power. Continental proposes to coverage. Directsat apparently does not intend to serve build one on-ground spare. any areas outside the 48 continental states. (Its preferred 19. Continental proposes to program some of its capac- orbital positions are lOloW and 148W.) Directsat pro- ity (including "value-oriented, alternative" channels), and poses to build one on-ground spare, and provide six- to lease some, presumably on a non-common carrier ba- for-four transponder redundancy. A battery would power sis. It states that it will actively participate in a variety of an unspecified number of channels through eclipse research and development projects intended to enhance periods. the quality and amount of video services offerred via DBS 6295

H X ' W.Zfi7 Federal Communications Commission Record 4 FCC Rcd No. 17 1 4 Ihtci.twt l)iopow> to lease all of its transponder request, during which time the Commission refrained c q ) o r i t ~ io pioginni packapeis and other businesses that from taking any unnecessary negative action. DBSCorp w t ~ i i l t i w t v c i n d i v i d u a l receive dish owners, as well as to has not satisfied the due diligence requirement, even be- t h w p i i n itling \ales. training and other video materials latedly (or made any significant progress of which we are io h ~ ~ i i e \and \ educational organizations. It specifically aware), and its subject conditional construction permit rxl)cc 1 4 I O target cable television program suppliers, public will be canceled. 7 111 oii(lLri\t ing m t t o n operators, High Definition Television 30. During the cut-off period for the subject applica- ("I I 1 ) l V") broadcasters, as well as ancillary "business" tions, DBSCorp requested that if its extension request X I vice pioviders. Estimated expenses for construction and were denied and its permit canceled, it be considered as a hunch aggregate to approximately $320 million for the new applicant with the current group. Had DBSCorp's two-wtelltte system, with another $14 million estimated extension request been acted upon previously, it could f o r first year operations. Directsat proposes to finance its have applied o n time in a more routine fashion. Accord- operation, without reliance on revenues. with the assis- ingly, its application will now be considered with the tance of PaineWebber Incorporated and Strategic Re- current group, and assigned File No. DBS-88-08.22 search, Inc. PaineWebber and Strategic Research have 31. DBSCorp is a corporation formed for the purpose both expressed their interest in raising the required funds, of providing DES service, and has n o other business with Strategic Research expressing its opinion, based on activities. Its primary principals are Kansas City Southern experience in supporting other telecommunications ven- Industries, Inc., a company with operations in transporta- tures, that the financing is feasible and attainable. tion, financial services, real estate, and broadcasting, and several individuals involved in communications and tech- TEMPO Satellite, Inc. nologies industries. DBSCorp has previously been found 26. Tempo is wholly-owned by TEMPO Enterprises, legally qualified; there is no information upon which to Inc., which is wholly-owned by Tele-Communications, reconsider that finding. lnc. (TCI"), a publicly held company engaged primarily 32. DBSCorp proposes to launch two satellites, with in the cable television business, with licenses for a variety each serving half-CONUS with sixteen channels at 100 of other communications services. The principals of all watts each, for an EIRP of 51 dBW at edge of coverage. companies are identified in this or other incorporated Its spacecraft will be designed to provide quarter-CONUS applications. Tempo's legal qualifications are further dis- service on demand, and it requests authorization to utilize cussed in paragraphs 49 - 53, infra. up to four channels for spot beam coverage for regional 27. Tempo proposes to launch two satellites, with each broadcasts and for increasing EIRP for HDTV. (Its pre- serving half-CONUS or full-CONUS with sixteen chan- ferred orbital positions are llOoW and 1 4 8 w . ) DBSCorp nels at 100 watts each or eight channels at 200 watts each, does not plan to build a spare satellite. DBSCorp's sat- for an EIRP of 51 dBW or 48 dBW, depending o n con- ellites will provide nine-for-six transponder redundancy, figuration. Tempo would also serve Puerto Rico and the and one third of its channels will be eclipse protected. Virgin Islands. (Its preferred orbital positions are 1lOoW 33. DBSCorp proposes to lease its transponder capacity for each satellite.) Tempo proposes to build one on- on a non-common carrier basis. It lists anticipated ex- ground spare, and provide six-for-four transponder redun- penses totalling $524 million to put its system into opera- dancy. Up to six channels on each satellite will be eclipse tion. It has entered an agreement with a securities protected for service at full power, or more channels will company which states its expectation of raising the neces- be provided lesser power, by battery. sary funds through a combination of debt and equity 28. Tempo proposes to operate and program its facilities placements. as a non-common carrier, and to provide half of its channels for "free" and half on a subscription and/or pay-per-view basis. Tempo estimates costs of approximate- DESCRIPTION OF MODIFICATION ly $500 million to launch and operate its two-satellite APPLICATIONS system for one year. Tempo proposes to finance its ven- ture with funds from "operating income, equity contri- Advanced Communications Corporation buted by principals, and loans to be secured as required." 34. Advanced is currently authorized to build and op- Also, "the total debt of $1.3 billion will be supported by erate two satellites, with each serving half-CONUS, in- starting equity of $250 million [with] further equity to be cluding Puerto Rico and the Virgin Islands, with sixteen raised over a five-year period as required supported by the channels at 125 watts each for an EIRP of "at least" 5 1 assets of the corporation." Tempo's parent, TCI, explicitly dBW. (In conjunction with this Order, Advanced is al- states its intention to support Tempo's venture. located the sixteen odd-numbered channels at 110%' and at 148w.23(See n. 42, infra.)) Advanced has no provision Direct Broadcast Satellite Corporation for a spare satellite. Advanced would have six-for-four 29. DBSCorp has held a construction permit since Oc- transponder redundancy, and up to six channels on each tober 3, 1986. That permit was granted with the condition satellite will be eclipse protected for service at full power, I hat IIBSCorp begin construction or secure a construction or more channels will be provided lesser power, by bat- contract within within one year of that date?' Unable to tery. meet that requirement, DBSCorp requested an additional 35. Advanced has modified its proposal, seeking author- year. citing its vigorous efforts, including past involvement ity to operate each of its thirty-two channels over in the earlier development of DBS, and a variety of full-CONUS (from a suitable orbital location). It asserts circumslances which i t believes now make it more possi- that this is a minor change. In support of its request, it hlc to succeed. I t contended that an additional year would relates that its satellite builder (GE Astro-Space Division) give it the o p p o r t u n i t y to pursue promising new business is "confident that full-CONUS coverage from their Series oppoi-tunicies. More than one year has elapsed since that

4 FCC RcQ NO. 17- Federal Communications Commission Record w 89457 J 5000 spacecraft to receiving antennas two feet in diameter 40. Hughes now seeks authority to opcratc thirty-two with at least minimum EIRP power levels can be pro- full-CONUS channels on a full-time basis with IkO-wrtl vided." GE Astro later submitted a letter stating that it is W A ' s , for a claimed EIRP of 52 dBW at edpc of capable of providing a DBS system that could provide coverage. All channels will be eclipse protected by battery full-CONUS service at a 51 to 52 dBW signal strength on backup. It also seeks authority to use 3 mHz of the the ground. Advanced's most recent amendment states channel guardbands of each channel to expand each chan- that channels will be operated at either 130 or 260 watts, nel from 24 mHz to 27 mHz wide, in order to facilitele with fewer channels operated if the higher power is used. transmission of high definition television ("HDTV") sig- (Advanced requests an allocation of all thirty-two chan- nals. In conjunction with this request, it also requests nels at llOoW; sixteen of those channels are being al- modification of the specific channels assigned to each of located to it pursuant to its earlier appli~ation.'~ its satellites for more efficient channel pairings.26 Hughes' 36. Consistent with the analysis of DBS allocations request, as Advanced's, constitutes a major amendment." policy set out in paragraphs 7 - 10, supra, this request constitutes a major amendment of Advanced's existing permit. As explained- in the earlier discussion, Advanced's PETITIONS TO DENY progosed change from thirty-two half-CONUS channels to thirty-two full-CONUS channels would double the Association of Maximum Service Telecasters orbitkhannel allocations its system would consume, ahd it 41. AMST opposed all of the applications, contending must be considered as a major change. Advanced's cur- that no new authorizations should be permitted in the rent authorization for sixteen pairs of half-CONUS chan- nels is convertible to only sixteen full-CONUS channels - 12.2 12.7 GHz band while that spectrum is being consid- ered for terrestrial Advanced Television Service ('*A,'*). as a minor modification. Advanced did not pay the filing The allocation of this spectrum for DBS is wellsettled, fee required for a major amendment in the DBS service, and mere "consideration" of other uses, in the absence of believing its request to be a minor amendment, for which an allocation Rule Making, does not warrant withholding there is no filing fee. As the Commission's DBS allocation authorizations that are consistent with the allocation. policy explained in this Order had not been explicitly Moreover, the most recent Commission statement regard- stated at the time Advanced filed its amendment, Ad- ing "consideration" of this spectrum for ATV is that this vanced will not be faulted or penalized for its failure to spectrum is not suitable for terrestrial ATV use. Tentative recognize its modification as a major amendment, and Decision and Further Notice of Inquiry in MM Docket No. will be permitted to pay its filing fee late, without penalty, 87-268, 3 FCC Rcd 6520, 6530-31 (1988). Accordingly, within fifteen days of the release date of this Order. AMST's petition will be denied?' United States Satellite GTE Spacenet Broadcasting Company, Inc. 42. GTE has requested that the Commission institute a 37. USSB is currently authorized to build and operate Rule Making to redefine the distinction between Fixed two satellites, with each serving half-CONUS with eight Satellite Service ("FSS") and DBS service. It asks, al- channels at 240 watts each for an EIRP of approximately ternately, that the Commission uphold the limitations on 54 dBW. (USSB has been allocated eight even channels at nonconforming usesz9and analyze the subject applications 110%' for eastern service and at 148OW for western ser- with those limitations in mind. vice.) 43. Applications in any service are always fully scrutini- 38. USSB now proposes to operate each channel at 260 zed in all respects, including the propriety of any pro- watts, for half-CONUS signals with an EIRP of approxi- posed service. None of the current applicants k proposing mately 55 dBW at edge of coverage and full-CONUS service at odds with the provisions for DBS service or the signals with an EIRP of approximately 52 dBW a! edge of Commission's decision in United States Satellite Broadcast- coverage. It seeks authority to operate its 110%' satellite ing Company, Inc., 1 FCC Rcd 977, supra. Accordingly, it at full-CONUS until its 148%' satellite is placed in opera- is not appropriate to resolve issues regarding alternate tion. USSB will not build a spare satellite. It will have uses here. As stated in n. 12, supra, comments are being seven-for-four transponder redundancy. It will have 75% solicited on the subject of offering additional services eclipse protection, so that six channels of each eight can from western DBS orbital locations. operate at full power or all eight channels can operate at 75% power. This request constitutes a minor amendment. National Black Media Coalition USSB also states that it may seek reallocation of its 148%' satellite to 1low if satellite colocation is permitted by the 44. NBMC has filed petitions to deny several of the omm mission.^^ subject applications on the basis that each has failed to meet its Equal Employment Opportunity obligations. NBMC insists that EEO enforcement is especially impor- Hughes Communications Galary, Inc. tant for DBS, which is only now putting together a 39. Hughes is currently authorized to build and operate workforce. It further argues that several applicants have two satellites, with each serving half-CONUS with sixteen deliberately ignored the rule, even after having been ap- channels at 100 watts each for an EIRP of 51 dBW. prised by NBMC of the alleged shortcoming, and that this (Hughes has been allocated all of the channels (thirty-two) is evidence of intent to discriminate. It contends that at lOl@W, sixteen for eastern service and sixteen for west- because common carriers and cable systems operators, as ern service, with full-CONUS operation permitted on an well as broadcasters, are subject to EEO regulation by the "emergency" basis.) Hughes has no plans for a spare Commission, no DBS applicant should be exempted from satellite. Hughes does plan full eclipse protection for all compliance by disclaiming any intent to operate as a channels, and will have a 24-for-16 transponder redun- broadcaster. Each applicant will be discussed below. dancy.

Federal Communications Commission Record 4 FCC Rcd No. 17 4 5 . DHSCorp. N B M C points out that DBSCorp submit- sions, however, no DBS applicant governed by the rule tccl no EEO program with its subject application. which failed to file a program or whose program did not I)I3SCorp adamantly disavows an intent to discriminate. It comply with the exact provisions of the rule will be inninrains that i t is not yet an operational company, that disqualified or designated for hearing. Rather, the applica- i t will make its employment policy explicit and detailed tions which are granted will be conditioned on full com- when it enters the marketplace for employees, and that it pliance with the provisions of Section 100.51(b) of the w i l l comply with all Commission policies in effect at that rules within thirty days of the release of this Order.’* time. 46. Advanced, Hughes, and USSB. NBMC charges that Petitions Against Tempo each of these applicants has neglected to list any minority 49. Petitions to deny Tempo’s application have been o r female organizations from which it will recruit em- filed by the National Association for Better Broadcasting ployees, or any minority media in which it will advertise and the Telecommunications Research and Action Center for employees. In addition, Hughes and USSB have not (“NABB/TRAC”), by the Wireless Cable Association listed ‘minority and female educational institutions from (“Wireless Cable”), and by Ad~anced.’~In addition, the which it will recruit employees. All three applicants re- Mass Media Bureau sent a letter to TCI regarding TCI’s spond that they were found qualified when their original applications to acquire three broadcast stations in con- permits were issued, and that their EEO compliance junction with its takeover of TEMPO Enterprises, Inc. should not now be reviewed in conjunction with the (Tempo’s former parent),34 requesting further information modification applications they have filed. Hughes and regarding TCI’s conduct in Jefferson City, Missouri, more Advanced contend that the €EO rules for DBS do not fully discussed immediately below. TCI’s response to that apply to them, as they do not intend to operate as broad- letter and NABBERAC’s reply to that response are con- casters. Hughes insists that its parent’s corporate policy, sidered with the petitions and related pleadings in this which was submitted, complies with Commission require- proceeding. ments even without specific recruitment sources, and re- SO. Wireless Cable and Advanced assert that TCI’s ex- fers to that parent’s long record of compliance with EEO tensive cable system holdings, coupled with its earth sta- requirements as a government contractor to rebut the tion (satellite uplink) facilities and its interests in at least charge of discriminatory intent. Advanced points out that twelve cable progammers, would result in undue con- no specific facts are alleged indicating intentional dis- centration of control in the video services marketplace if crimination. a DBS system were added to its holdings. They both refer 47. Resolution. The EEO rules for cable systems and to various public statements by industry participants and common carriers, cited by NBMC, do not apply to the observers that the cable industry, and TCI in particular, DBS service. The Commission adopted specific EEO rules has deliberately denied programming to its competitors, for the DBS service, and those rules apply only to those and that TCI has used its considerable market power and DBS entities which would operate as broadcaster^.^' its interests in programming sources to negotiate preferen- Moreover, the Commission’s determination to limit the tial or exclusive programming contracts, preventing al- application of EEO rules in the DBS service to DBS ternate outlets from competing effectively, or at all. broadcasters was affirmed in Report and Order in Gen. Allowing an additional outlet source to TCI would exacer- Docket No. 85-305, 2 FCC Rcd 1001, n. 3 (1987); aff’d, bate the problem, according to these petitioners. They National Association for Better Broadcasting v. FCC, 849 both further maintain that the Commisison’s policy goal F.2d 665 (D.C. Cir. 1988). To the extent petitions disagree of diversity would be thwarted by granting a DBS permit with those Rule Making decisions, the proper course to Tempo. Advanced cites TCI’s conduct in a cable fran- would be to file a petition for Rule Making. Under exist- chise renewal proceeding in Jefferson City, Missouri as ing rules, however, only DBS operators which will Op- evidence of TCI’s willingness to abuse a monopoly posi- erate as broadcasters are subject to EEO requirements tion. In that case, a $35.6 million verdict was rendered and, in accordance with those rules, EEO requirements, against TCI on alternate verdict of violation of federal will not be extended to other DBS operators in the con- antitrust law and tortious interference with business under text of this licensing proceeding. Accordingly, only ap- Missouri law.3s NABBnRAC cites the same case as evi- plicants intending to operate as broadcasters are required dence that TCI lacks the requisite character to be a DBS to file Model EEO Programs, as provided by the rule. (47 permittee. C.F.R. !j100.51(~).)~~ 51. Tempo responds that the Commission has already 48. For any such applicant uncertain of the ultimate decided not to impose a cross-ownership restriction on location of many of its facilities, specification of nation- DBS, and appropriately so. It remarks that all claims of wide recruitment sources and media, and any prominent past anticompetitive conduct by cable system operators educational institutions will be appropriate, as done by are anecdotal and hearsay, and contends that any con- several other applicants. Nationwide recruitment is com- cerns of future abuse are merely speculative. It contends monplace, particularly for upper management jobs, and if that existing antitrust law and Commission oversight are i t is desirable or appropriate for these entities, a nation- sufficient to prevent any conduct that is illegal or delete- wide affirmative action effort is equally appropriate, re- rious to the DBS industry and its customers. It insists that gardless o f the ultimate headquarters location. As its conduct in Jefferson City, Missouri is outside the scope geographic locations do become more certain, EEO Pro- of Commission purview under its recently stated policy grams should be further refined when appropriate. Com- guidelines in Character Qualifications Policy Statement, 102 pliance with current EEO provisions is equally important FCC2d 1179 (1986), recon. denied 1 FCC Rcd 421 (1986). for previously authorized DBS permittees intending to It also contends that its application for a DBS permit is operate as broadcasters. and they will be required to come not encompassed by the Character Policy. It finally main- into compliance with the current rules. Given the pre- vious uncertainty over the pertinence of the EEO provi- 6298

4 FCC Rcd No. 17 Federal Communications Commission Record tains that even if the misconduct in Jefferson City were each of the remaining permittees seeking new or sddi- subject to consideration, it would not cast doubt on Tem- tional channels would then receive for its new or modi- po’s qualifications to hold a DBS authorization. fication application a total of thirty-two new or addilionel 52. The prospect of an increase in the concentration of channels. Finally, any comparative procedure adopted and control of video entertainment sources and outlets which utilized would likely be designed, in significant part, to would result from TCI’s acquisition of a DBS system compare the applicants’ actual ability and willingness IO through Tempo does not warrant denial or designation for construct and operate their systems. The most immediate hearing of Tempo’s application. To the contrary, in fact, and concrete demonstration of that willingness and abil- Tempo’s participation could well accelerate the initiation ity, however, will be the timely initiation of construction of DBS service by bringing valuable marketplace exper- of satellites, according to the procedures recently clari- ience and presence and possibly enhancing access to pro- fied.38 The grant of these authorizations, as set out below, gramming. As Tempo argues, existing antitrust law and will require an actual demonstration of, rather than con- Commission oversight are sufficient to prevent any con- jectural argument regarding, the willingness and ability to duct that is illegal or deleterious to the DBS industry and construct. Any and all of those parties which can and will its “customers, or to operators and customers in the other proceed under these standards will end up with specific video entertainment distribution industries as well. allocations. In the event that all of the permittees main- 53. With regard to Tempo’s fitness to be a DBS li- tain their permits, and some of them determine that the censee, however, petitioners have raised potentially se- resulting systems, smaller than req~ested,’~are not ten- rious questions stemming from the misconduct of able, they are free to seek Commission approval to com- Tempo’s parent, TCI, requiring examination and consider- bine assignments and resources through merger or ation by the Commission of the facts and circumstances buyout. Commission consideration of any such combina- surrounding TCI’s conduct in the Jefferson City cable tion will include an assessment of its competitive effects franchise renewal case. The Mass Media Bureau is sending and other relevant factors. Accordingly, the public interest a letter to Tempo requesting additional information con- will be best served by partial grant of all of the applica- cerning that conduct and any additional arguments con- tions, as described below, rather than setting these ap- cerning its relevance to and impact on Tempo’s subject plications for a comparative proceeding. application. While this matter is being further considered, 56. The eligible cut-off applicants’ collective requests is not necessary to delay action on other pending applica- would require 240 of the available DBS half-CONUS tions which can be granted. Accordingly, the channeyorbit allocations. However, on1 160 half-CONUS orbitlspectrum resource required to satisfy Tempo’s ser- orbitkhannel allocations are available!g In recognition of vice proposal will be held in pending the result the equal rights of these applicants to the available alloca- of further inquiry into its qualifications to hold a DBS tions, each of the seven new and modification applicants authorization. will be granted an equal number of orbitlchannel reserva- tions from the available supply. This will permit the reservation of 22 half-CONUS orbitlchannel assignments DISPOSITION OF APPLICATIONS for each applicant.41 As previously stated, if the permit of 54. Each of the other applicants is fully qualified to any of these applicants, or of any of the current hold the DBS authorization it seeks. However, the avail- permittees, is surrendered or canceled, the remaining able allocations are not sufficient to fully satisfy the permittees from this group will have the first right to orbitkpectrum requests of all of the applications. Each of additional allocations, apportioned equally, up to the the applicants has an equal right to consideration for the number requested in their applications. requested facilities. Accordingly, each application seeking 57. The conditional construction permits granted herein new or additional channels should be granted only to the will authorize the permittees to proceed with the con- extent that it is possible to award an equal number of struction of their systems and will be conditioned on each general orbitlchannel reservations to each applicant. Addi- permittee’s due diligence in beginning construction, or tionally, in the event the permit of any of these ap- completing contracting for construction of its satellite(s) plicants, or of any of the current permittees, is within one year, and beginning operation within six years, surrendered or canceled, the remaining permittees from of the date of release of this Order (47 C.F.R. $10.19(b)). this group will have the first right to additional alloca- Specific orbital positions and channels will be assigned to tions, apportioned equally, up to the number requested in each permittee upon its demonstration of due diligence their applications. Specific allocations will be awarded, as on a firstcome, first-served basis, as has been the proce- always, on a first-come, first-served basis, as each ap- dure for past applicants, DBS Processing Procedures, supra. plicant demonstrates due diligen~e.~’ 58. All of the permittees are specifically referred to the 55. This authorization policy permits the continued recent discussion of standards regarding the adequacy of participation of all of the applicants and also provides for construction contracts in satisfaction of the due diligence the most prompt disposition of these applications, so that requirement, and the subsequent monitoring of construc- direct construction efforts can begin at the earliest possi- tion progress under those contracts. Specifically, due dili- ble time. The prime alternate procedure would be to gence showings must include regular specific construction evaluate comparatively all of the applications to deter- progress milestones to facilitate monitoring of progress mine which should be granted in their entirety and which and financial commitment throughout the construction should be denied. Creation and utilization of any com- process sufficient to determine whether meaningful levels parative procedure would likely result in considerable of advancement have occurred. Also, any changes in the delay and the expenditure of substantial Commission and timetable must be reported and explained. United States applicant resources. Moreover, a comparative proceeding Satellite Broadcasting Company, Inc., supra, 3 FCC Rcd at could well prove to have been unnecessary. If two of the 6861 (1988). current or new permittees surrenders or loses its permit, 6299

FCC 89-257 Federal Communications Commission Record 4 FCC Rcd No. 17 59. Hughes’ request for 27-MHz-wide channels will be ORDERING CLAUSES denied. The DBS channel designation scheme already has 62. Accordingly, IT IS ORDERED, That the petitions some overlap between channels, relying on cross-polariza- to deny filed by the Association of Maximum Service tion to neutralize the negative effect of that amount of Telecasters, by the National Black Media Coalition, by the overlap. Moreover, the Region 2 Plan for DBS specifies Wireless Cable Association, and by Advanced Commu- that all odd channels be located at +0.2’ and all even nications Corporation ARE DENIED. channels at -0.2’ from the nominal orbital position. Thus 63. IT IS FURTHER ORDERED, That action on the some channel origination points would be moved by 0.4’. petition to deny filed by the National Association for Hughes has not submitted information from which to Better Broadcasting and the Telecommunications Re- ascertain the effects, if any, its proposed variant operation search and Action Center IS DEFERRED pending fur- would have on other domestic or foreign DBS operations, ther consideration of the application for DBS facilities including possible operations from the same orbital loca- filed by TEMPO Satellite, I ~ c . ~ ~ tion by another entity. In the absence of a conclusion that there would be no adverse effect, a compelling justifica- 64. IT IS FURTHER ORDERED, That the DBS ap- tion is needed to warrant authorization of such an opera- plication of Continental Satellite Corporation IS GRANT- tion. Hughes’ only specific justification, that it would use E D IN PART to provide service from two or more a wider channel bandwidth to implement HDTV is under- satellites delivering 11 channels to each half of the con- cut in its recent biannual progress report, wherein it tinental United States, or from one o r more satellites indirectly indicated that it has not determined the delivering 11 channels to the entire continental United bandwidth o r channel configuration it would require for States, as described in this Order and its application, File HDTV. It also acknowledged that HDTV is deliverable No. DBS-87-01, subject to the following conditions and over a 24-MHz-wide channel at a higher power. Should provisions: Hughes wish to continue to pursue this channelization scheme, it should submit a technical analysis and/or a (a) This grant does not include launch a n d o r oper- justification for authorizing such an operation. ational authority for any phase of the proposal; (b) This grant does not include the assignment of frequencies or orbital positions for any satellite; and EXISTING SATELLITE CONSTRUCTION CONTRACTS (c) The applicant must proceed with the construc- 60. In the Order clarifying the due diligence standard tion of its system with due diligence, as defined in and modifying the -Commission’s satellite construction Section 100.19 of the Commission’s Rules (47 monitoring procedures for DBS, existing permittees were C.F.R. 8100.19); and required to update information regarding their existing (d) The applicant will receive reservations for addi- construction contracts, in conformance with the clarified tional channels, up to the total number of half- requirements. Id. Advanced requested permission to delay CONUS channels necessary to fulfill the proposal in filing pending resolution of the issues affecting the DBS its application, if DBS allocations are surrendered allocation policy, which occurs in this Order. Dominion’s by other permittees or canceled by the Commission. submission did not include specific construction milestones, and its payment timetable appears contingent 65. IT IS FURTHER ORDERED, That the DBS ap- on the issuance of this Order. USSB’s submission does plication of EchoStar Satellite Corporation IS GRANTED not include construction milestones in sufficient number IN PART to provide service from two or more satellites or frequency to permit effective monitoring of its con- delivering 11 channels to each half of the continental struction progress, and USSB neither specifies that all United States, or from one or more satellites delivering 11 other provisions are as earlier submitted nor submits channels to the entire continental United States, as de- changed provisions. Hughes’ construction progress line scribed in this Order and its application, File No. DBS- chart lacks sufficient clarity or detail regarding satellite 88-01, subject to conditions and provisions (a), (b), (c), construction. In any event, the specifications in all of and (d) in paragraph 64, above. those contracts, and the corresponding timetables, may 66. IT IS FURTHER ORDERED, That the DBS ap- well be affected by the provisions in this Order. Con- plication of DIRECTSAT Corporation IS GRANTED IN sequently, Dominion, USSB, Hughes, and Advanced will PART to provide service from two or more satellites be required to file within sixty days of the release of this delivering 11 channels to each half of the continental Order, updated information regarding their construction United States, or from one or more satellites delivering 11 contracts and timetables. channels to the entire continental United States, as de- 61. From the system descriptions in several applica- scribed in this Order and its application, File No. DBS- tions, it appears possible that Hughes and Advanced may 88-02, subject to conditions and provisions (a), (b), (c), have already under contract satellite capacity sufficient to and (d) in paragraph 64, above. meet their authorizations as modified herein. Those 67. IT IS FURTHER ORDERED, That the Request for pcrmittees are encouraged to demonstrate at the earliest Extension of Time filed by Direct Broadcast Satellite Cor- possible opportunity that they have satisfied the due dili- poration IS DENIED and its outstanding conditional con- gcnce rcquirement for the additional facilities granted in struction permit IS CANCELLED, and that its pending this Order, and to request the additional specific alloca- DBS application IS GRANTED IN PART to provide ser- t i o n s they desire. If both parties make such a demonstra- vice from two or more satellites delivering 11 channels to t i o n , their allocation requests will be considered in the each half of the continental United States, or from one or ordcr o f their original contracts.42 more satellites delivering 11 channels to the entire con- tinental United States, as described in this Order and its application, File No. DBS-88-08, subject to conditions and 6300

4 FCC Hcd Nu. 17 Federal Communications Commission Record FCC 89-257 kmmisions (a), (b), (c), and (d) in paragraph 64, above, paragraph 64, above, and the condition that Hughes file nnd the condition that DBSCorp file within thirty days within thirty days either an Equal Employment Opporlu- either a n Equal Employment Opportunity Program that nity Program, specifically designed for Hughes' DBS oper- 1) sets out the corporation's general policy with respect to ations, that 1) Sets out the corporation's general policy EEO and affirms that the corporation has adopted an with respect to EEO and affirms that the corporation has EEO program; 2) designates the official who will have adopted an EEO program; 2) designates the official who responsibility for implementing the corporation's pro- will have responsibility for implementing the corpora- gram; 3) sets out how the corporation's EEO program tion's program; 3) sets out how the corporation's EEO will be disseminated to present and future employees; 4) program will be disseminated to present and future em- lists specific recruitment sources, including minority and ployees; and, 4) lists specific recruitment sources, includ- women's organizations, educational institutions and media ing minority and women's organizations, educational that the corporation will use to attract qualified minority institutions and media that the corporation will use to and female applicants whenever a job opportunity occurs, attract qualified minority and female applicants whenever or-an amendment to its application stating clearly wheth- a job opportunity occurs, or or an amendment to its er"% intends to operate as a broadcaster on any channel application stating clearly whether it intends to operate as authorized and explaining its intended manner of opera- a broadcaster on any channel authorized and explaining tion on all channels, consistent with that stated intention. its intended manner of operation on all channels, consis- 68. IT IS FURTHER ORDERED, That the application tent with that stated intention. for modification of DBS facilities of Advanced Commu- 71. IT IS FURTHER ORDERED, That Dominion Vid- nications Corporation IS GRANTED IN PART to provide eo Satellite, Inc., United States Satellite Broadcasting service from additional satellites as required, to deliver 11 Company, Inc., Hughes Communications Galaxy, Inc., additional channels (27 total) to each half of the continen- and Advanced Communications Corporation SHALL tal United States or 11 additional channels (27 total) to SUBMIT, within sixty days of the date of this Order, the entire continental United States, as described in this additional information regarding the status of their sat- Order and its applications, File No. DBS-88-05-MP, sub- ellite construction contracts and timetables, as provided in ject to conditions and provisions (a), (b), (c), and (d) in paragraph 60, above. paragraph 64, above; the condition that Advanced file 72. IT IS FURTHER ORDERED, That Dominion Vid- within fifteen days the required filing fee for a major eo Satellite, Inc. SHALL SUBMIT, within twenty days of modification application in the DBS service, as provided the release of this Order, its specification of the eight in paragraph 36, supra; and the condition that Advanced channels it wishes to retain at 119% and its request for file within thirty days either a list of specific recruitment eight channels at a western orbital location. sources, including minority and women's organizations 73. IT IS FURTHER ORDERED, That Hughes Com- and specific media which have significant circulation or munications Galaxy, Inc. SHALL SUBMIT, within thirty are of particular interest to minorities and women, that days of the release of this Order, its specification of the the corporation will use to attract qualified minority and sixteen channels it wishes to retain at 101%' and its female applicants whenever a job opportunity occurs, or request for sixteen channels at a western orbital location. an amendment to its application stating clearly whether it 74. IT IS FURTHER ORDERED, That the request of intends to operate as a broadcaster on any channel au- Advanced Communications Corporation for an allocation thorized and explaining its intended manner of operation of all thirty-two channels at lOloW IS DISMISSED with- on all channels, consistent with that stated intention. out prejudice. 69. IT IS FURTHER ORDERED, That the application 75. IT IS FURTHER ORDERED, That the request of for modification of DBS facilities of United States Satellite Hughes Communications Galaxy, Inc. for authorization to Broadcasting Company, Inc. IS GRANTED to provide operate its DBS facilities with channels that are 27 MHz service from two satellites each to deliver eight channels wide IS DENIED. to half of the continental United States, with the first satellite launched and operational to deliver eight chan- nels to the entire continental United States until such FEDERAL COMMUNICATIONS COMMISSION time as the second satellite is operational, as described in this Order and its application, File No. DBS-88-06-MP, subject to the condition that USSB file within thirty days a list of specific recruitment sources, including minority and women's organizations, educational institutions with Donna R. Searcy significant minority and female enrollments, and media Secretary which have significant circulation or are of particular interest to minorities and women that the company will use to attract qualified minority and female applicants FOOTNOTES whenever a job opportunity occurs. * Orbital Broadcasting Company also filed an application on 70. IT IS FURTHER ORDERED, That the application that date (DBS-88-03), but voluntarily withdrew the application for modification of DBS facilities of Hughes Communica- on June 19, 1989. tions Galaxy, Inc. IS GRANTED IN PART to provide * Signals from DBS satellites which cover half of the con- service frdm additional satellites as required, to deliver 11 tinental United States are referred to as "half-CONUS'' signals; additional channels (27 total) to each half of the continen- similarly, those which cover the entire continental United tal United States or 11 additional channels (27 total) to States are referred to as "full-CONUS" signals. the entire continental United States, as described in this See, eg., Satellite Synduakd Systems, IN., 99 FCC2d 1369, Order and its applications, File No. DBS-88-07-MP, sub- 1378 (1984). ject to conditions and provisions (a), (b), (c), and (d) in 6301

, W C 119.287 Federal Communications Commission Record 4 FCC Rcd No. 17 ' 1 % (.omniiwion ~ has also authorized quarter-CONUS sig- assume elliptical beams and a full-CONUS boresite power of 56 nal\, and will continue to do so where such authorization is dBW. Based on these worst case assumptions, interference con- rppropriately rcqucsred. However, such delivery is apparently sequences which are potentially severe enough to require the considered obmlcte. and there appear to be no present plans to agreement of another administration for a Plan modification opcrorc in 5uch a mode. Ouarter-CONUS signals do not affect occur at only two or three test points (out of nearly 16,000, thc various analyses in this Order, and will not be further according to Hughes' estimate). At several other test points, the nicniioned i n this Order. The Commission also once authorized interference increases are within the limits which would permit a limited number of full-CONUS signals to be operated at high unilateral Plan modification. As stated above, these results are power by the first DBS entity (Satellite Television Corporation). based on worst case assumptions regarding power levels and at a time when few DBS applicants existed and few operational beam parameters, necessitated by capability limitations of the standards had been established. CBS, Inc., 99 FCC2d 565, 574 computer programs of NASA and Telesat. It is likely that when (1984). STC surrendered its DBS permit on February 9. 1988, actual systems are modeled as specifically proposed, the thresh- and the permit was canceled on February 19, 1988; the Commis- old criteria for the simpler and more desireable lnterim Systems sion has made no additional full-CONUS authorizations since notification procedures may be met without requiring Plan that time. The propriety and efficacy of full-CONUS authoriza- modification or consent from other administrations. In any case, tions h further discussed in paragraphs 9, 10, below. these calculations will be made when final operational plans are ' Such allocations could still be useful for other purposes, as established by DBS operators, and any appropriate action can be taken at that time. discussed in paragraph 10, below. Eg., if two eastern channels are used to provide one eastern It is arguable whether an adequate full-CONUS signal can be half-CONUS and one western half-CONUS signal, two western delivered from 61.5%. It will be left to any operator at that channels are spent as well, while only one nationwide channel location to make such a determination. of service is delivered. However, if the same two eastern chan- lo The three orbital locations can provide a total of % chan- nels are each used to provide eastern half-CONUS service and nels of DBS service nationwide when operated full-CONUS (32 two corresponding western channels are used to provide western channels at each of three locations). Adding the 32 channels of half-CONUS service, two nationwide channels of service are nationwide service deliverable from 61.5OW paired with chan- delivered. The overall impact of such allocations would be con- nels from a western location (or from 32 full-CONUS channels siderable. The locations 101 OW, llOoW, and 119OW collectively at 61.5%)'. a total of 128 channels of DBS service could be have 96 channels for DBS service (32 channels at each of three delivered nationwide. This provides for the same number of locations). If half of those channels were used for eastern half- nationwide channels as if allocations were made for half- CONUS service and half for western half-CONUS service, there CONUS signals only in east/west pairs. (Compare n. 6. supra.) would be 48 channels of nationwide DBS service provided from Authorization of full-CONUS signals is not a concession to those locations. At the same time, three of the four western lower power flux density levels. The requirement that power orbital locations would stand useless for purposes of providing levels be adequate for reception by relatively small and inexpen- part of a nationwide DBS service, as they would be suitable sive receive equipment remains a key ingredient of DBS service. solely for western service, with only one remaining location United States Satellite Broadcasting Company, Inc., 1 FCC Rcd available for providing a complementary eastern service 977, 979 (1986): satellite Syndicated Systems, Inc., supra at (61.5OW). Adding the 32 channels of nationwide DBS service 1379-84. Full-CONUS signals cover roughly twice as much area delivered from that remaining eastlwest pair, a total of 80 chan- as half-CONUS signals, and thus require roughly twice the nels could be delivered nationwide. However, if western half- power input to maintain the same power flux density at points CONUS service is prohibited from eastern locations. those three on the ground. Le.. if a half-CONUS channel would require 100 eastern orbital locations, in conjunction with three western watts to produce a 51 dBW signal; a full-CONUS channel would locations providing complementary western half-CONUS ser- require roughly 200 watts to produce a 51 dBW signal. Thus two vice, would be parts of systems which could provide 96 nation- half-CONUS signals and one full-CONUS signal require wide DBS channels. Adding the 32 channels of nationwide DBS roughly the same amount of total power to be produced in and service delivered from the remaining east(61.50W)/west pair, a delivered from orbit. Consequently, conversion to full-CONUS total of 128 channels could be delivered nationwide. channels will not reduce appreciably the total amount of power ' Several of the DBS entities supported the proposition adopt- that must be generated and delivered, or the consequent amount ed here, prohibiting western half-CONUS service from the east- of space platform capacity that is required for each nationwide ern orbital locations under current circumstances. Those that DBS channel. However, the number of discrete satellites could opposed the proposition appeared to object narrowly to a com- possibly be reduced if satellites can be built sufficiently large to plete prohibition of all western United States service from an provide the double power capacity required for full-CONUS eastern location, which the DBS allocation policy would not do operations, and one large satellite may be easier and cheaper to under the provisions stated here. Western service as a compo- design, build, launch and operate than two smaller satellites. nent of a full-CONUS signal will be permitted from eastern Even if double-powered satellites are not available, and two orbital locations, as further discussed in paragraphs 9, 10, below. satellites with full-CONUS channels remain necessary to deliver ' Hughes submitted a study on January 17, supplemented on the same service that otherwise would have been delivered from two satellites with half-CONUS channels, there is some effi- January 31, 1989. which will be referred to as the NASA study, and USSB submitted a study on January 17. 1989. which will be ciency involved in designing and building multiple satellites referred to as the Telesat study. These studies use computer (possibly including back-up capacity) for operation in similar models to predict the intereference levels at the test points configurations from the same orbital location. There can be established in the Region 2 Plan which would occur from other operational economies as well, of various degrees of sig- simultaneous full-CONUS transmissions at 101%. 11Ow, and nificance, such as reduction in terrestrial facilities, and in- 119 "W, and also the additional cumulative effect of operation creased flexibility in normal and emergency operations. In any from 61.5%.' The computer models are derived from those used event, as there appears no adverse consequence to the public or by the international Frequency Registration Board (''IFRB") in other operators, each DBS operator will be permitted to make establishing the Region 2 Plan and its parameters. The studies its own decision as to its mode of signal delivery. 6302

Federal Communications Commission Record 4 FCC Rcd No. 17 :h Onc wtrlliic is currently authorized to carry even channels 37 The continued interchangeability of DBS allocations is nrid ttir othrr 10carry odd channels, in accord with the Region discussed in paragraph 11, supra. Specific orbidchannel alloca- 2 Plan. Hughes now requests that channels 1, 2, 5 , 6, 9, 10. 13, tions are made for each permittee upon its submission of a 1.1, 17. 18. 21. 22. 25. 26. 29. and 30 be assigned to one satellite, showing that it has satisfied the first part of the due diligence w l t r ihc other channels on the other satellite. requirement (47 C.F.R. 9 lOO.l9(b)) by beginning construction or .. ' A l t h o u g h Hughes stated its belief that its proposed modi- completing contracting for construction of its satellites. fication is a minor amendment, it nonetheless submitted a filing 38 United States Satellite Broadcasting Company, Inc., 3 FCC k c with the amendment "should it be necessary." Rcd 6858 (1988). '' Several parties have challenged AMST's standing. Given the 39 It may be notable that two current permittees have systems disposition of this matter, the question of standing need not be comprised of 16 half-CONUS channels. further addressed. 40 There are a total of 256 half-CONUS orbidchannel alloca- 29 United States Satellite Broadcasting Co., Inc., 1 FCC Rcd 977 tions which can be made from the United States' orbital loca- (1986). recon. denied, 2 FCC Rcd 3642 (1987). This Order pro- tions assigned under the Region 2 Plan (eight orbital locations viQes that DBS licensees may use their DBS facilities for ser- with thirty-two channels each). Two permittees already are vices other than direct-to-home video services on a limited basis assigned or reserved thirty-two channels each and two others under certain circumstances. are already assigned sixteen channels each, for a total of 96 47 C.F.R. 5100.51 provides in pertinent part: "(a) General half-CONUS orbitkhannel allocations already assigned, leaving policy. Equal opportunity in employment shall be afforded [by] 160 available. all licensees or permittees of direct broadcast satellite stations 41 Six individual half-CONUS channels will remain licensed as broadcasters to all qualified persons, and no person unallocated. In view of the requirement to allocate half-CONUS shall be discriminated against in employment. . ." . channels in pairs and the existence of seven applicants. these It must be noted that even in the absence of a specific rule channels cannot be allocated equitably at this time. They will be requiring particular affirmative action recruitment activities. all allocated if and when additional channels become available for DBS operators are governed by federal statutes regarding dis- allocation or the number of applicants from this group seeking crimination in employment practices. additional channels under their instant applications is reduced to the point that equitable distribution is possible. 32 From the contested applications. only USSB's intention regarding its utlimate mode of operation is clear. USSB has '* Advanced's most recent allocation request consistent with stated that it is "committed to providing advertiser supported the allocation policy, submitted November 18, 1986, has been television programming to all residents of the United States. analyzed and found grantable. Consequently, the Mass Media USSB Application at 5. Advanced, in its Opposition to NBMC'S Bureau will send under separate cover an instrument of au- petition to deny, states that it will operate on a subscription thorization allocating to Advanced the odd-numbered channels basis and refers to a statement to that effect in its original at 110%' and at 148%'. application. That original application, however, contemplated a 43 Eleven pairs of half-CONUS channels are held in reserve, system of a different technical configuration with far fewer pending final action on Tempo's application. channels that the system authorized as a result of this Order. Hughes' opposition pleading similarly states that it has already been authorized to selectively lease its transponders on a non- SEPARATE STATEMENT common carrier basis. Hughes' proposed system has also evolved OF considerably since that time. DBSC's proposed system has also COMMISSIONER PATRICIA DIAZ DENNIS increased in size since its original system was projected to be operated on a common carrier basis. None of these applicants I n Re: Applications in the Direct Broadcast Satellite has made a specific representation which necessarily precludes (DBS) Service for Construction Permits for New Systems its operation as a broadcaster on any of its channels of operation and for Modification of Construction Permits for Au- which are under consideration in this Order. In the absence of thorized Systems, Filed by the Fifth Round of DBS Ap- such a representation regarding its intended mode of operation, plicants, and Petitions to Deny Certain of Those and an explanation of its intended manner of operation on all Applications. channels consistent with that claim, full compliance with the EEO rules will be required. I write separately to explain m y views on potential 33 A reply to Tempo's opposition to the petitions to deny was concentration of control i n DBS. late-filed by the Motion Picture Association of America ("MPAA"), which had not filed a petition to deny. It will be W e have no rules governing agreements between DBS considered like an informal objection under Section 73.3587 of permittees to acquire or merge channel allocations. I our rules. (47 C.F.R. 573.3587.) All of the arguments raised are agree with m y colleagues that it would b e premature to fully encompassed by the petitions to deny considered here, and adopt them at this stage. Nevertheless, I would be recep- MPAA's objection will not be further addressed individually. tive to adopting rules if t h e DBS industry develops. BTC-880120EA. BTCCT-880120KP. and BTCCT-880216K.J Since first authorizing DBS service i n 1982, the Com- for transfer of stations WTPO(AM), Conyers, Georgia. mission has purposely imposed the lightest possible WIHT(TV), Ann Arbor, Michigan, and KGCT-TV. Tulsa, Okla- regulation. The cost of providing service is extremely homa were later withdrawn, and those stations were transfered high; the prospects for DBS are uncertain. A n elaborate to another entity. regulatory structure would further add to t h e cost of '' Central Telecommunications, Inc. v. TCI Cablevision, 610 F. entering what is still a risky business. Supp. 891 (W.D. Mo. 1985), affd, 800 F.2d 711 (8th Cir. 1986), Our DES policies seek to provide incentives to make ccri. denied 480 US. 910 (1987). the huge capital investments required to introduce ser- '' See paragraphs 54 - 56, below, regarding the pro-rata reduc- vice. W e allocate channels conditionally, based on a re- tion of all applicants' requests for facilities. quirement to act diligently in proceeding toward a 6304

Commission Record FCC 89-257 I Wc assign specific channels, on a firstcome, first- basis, only to those applicants that demonstrate ve exercised due diligence. h1,4 stage, we also permit applicants to combine en& through merger or buyout, subject to Com- approval. We have declined to adopt rules limit- number of channels that any one permittee may We have no experience on which to predict how channels may be required to make a DBS system nmically feasible. It would be premature to adopt a oviding, for example, that no applicant may accu- more than 64 half-CONUS channels. w, we will review merger or buyout agreements -by-case basis. In reviewing those agreements, we c guided in part by the effect of the combination on petition in the DBS business and, more generally, in ideo programming business. remain committed to promoting diversity and com- ion throughout the mass media. If DBS matures, I Id be interested in adopting rules to promote those 5 . Yet at this point, I would rather take a permissive prortch to DBS than devise a perfectly competitive el on paper that may bear no relation to the eco- Le challenges facing the intrepid DBS pioneers.


Document Created: 2004-01-14 17:22:13
Document Modified: 2004-01-14 17:22:13
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