Attachment 50798 Reply Comments

This document pretains to SAT-LOA-19941116-00088 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA1994111600088_973577

RECEIVED MAY — 7 1998 Before the FEDERAL COMMUNICATIONS COMMISSION Federal Communicctions Commnission Washington, D.C. 20554 Office of Secrstary In the Matter of ) ) FINAL ANALYSIS ) File Nos. 25—SAT—P/LA—95 COMMUNICATION SERVICES, INC. ) 76—SAT—AMEND—95 ) 79—SAT—AMEND—96 For Authorization to Construct, Launch ) 151—SAT—AMEND—96 and Operate a Non—Voice, Non— ) 7—SAT—AMEND—98 Geostationary Mobile Satellite System ) in the 148—150.05 MHz, 400.15—401 MHz, ) and 137—138 MHz bands ) To: The Chief, International Bureau REPLY COMMENTS Final Analysis Communication Services, Inc. ("Final Analysis"), by its attorneys hereby submits this reply to the comments of Leo One USA Corp. ("Leo One") on Final Analysis‘s request for clarification or stay of a condition placed on Final Analysis‘s above—captioned authorization to construct, launch and operate a non—voice, non—geostationary mobile satellite service ("NVNG MSS" or "Little LEO") system.‘ The condition at issue (the "Certification Condition") is a condition imposed in the International Bureau‘s decision (the "Bureau Order") of April 1, 1998, on the grant of Final Analyéis’s Little LEO authorization that requires Final Analysis to certify in writing within 30 days of the release of the order its commitment to proceeding with implementation of the system as authorized by the Bureau." Leo One‘s arguments in opposition to clarification or stay of the Certification Condition make no sense. First, Leo One implies that by requesting a tolling of the certification See Final Analysis Communication Services, Inc., Order and Authorization, DA 98—616 (rel. Apnil 1, 1998) (the "Licensing Order"). DCOI/BATAP/36186.1

requirement Final Analysis is seeking a suspension of construction milestones. This is simply not the case. Final Analysis does not desire an extension of construction milestones. As Leo One knows, Final Analysis has actually begunconstruction under a Section 319(d) waiver." Final Analysis has no interest in delaying this proceeding and in fact, has asked for expedited consideration of the Application for Review it recently filed of the Licensing Order.* Second, Leo One is wrong in arguing that the certification requirement is unrelated to the Joint Proposal. There can be no closer relationship than the fact that the licensed system must match the system Final Analysis agreed to in the industry settlement. Final Analysis cannot be deemed to have entered into an agreement that would bind it to build a system that it has never, and would never, propose and one that it believes is unworkable. If that is the end result of this licensing proceeding, then there has not been a meeting of the minds and there is no agreement. Therefore, the settlement fails. Any other conclusion strains rationality. Leo‘s statements that "The Joint Proposal5 eliminated mutual exclusivity in this proceeding;" and "Final Analysis cannot change this fact;" are absurd." Mutual exclusivity is eliminated only by mutual agreement. If Final Analysis does not receive the benefit of the bargain, there is no agreement (.. .éontinued) 2 The deadline was recently extended to May 8, 1998. Final Analysis Communication Services, Inc. Order, DA 98—838 (rel. May 1, 1998). 3 See Letter from Donald H. Gips, Chief, International Bureau, FCC, to Aileen A. Pisciotta, Counsel to Final Analysis, Re: Requestfor Section 319(d) Waiverfiled by Final Analysis Communication Services, Inc. (File No. 144—SAT—WAIV—96), dated Sept. 30, 1996 (granting Section 319(d) construction waiver). See Final Analysis, Application for Clarification and Review, filed on May 1, 1998 ("Application for Review"). 5 Joint Proposal of E—SAT, Inc., Final Analysis, Leo One, Orbital Communications Corporation, Orbital Sciences Corporation and Volunteers in Technical Assistance, Inc., IB Docket No. 96—220, filed September 22, 1997. Leo One Comments at 4. DCOLBATAP/36186.1 2

and mutual exclusivity returns. Finally, Leo One is wrong that any "cloud" in this proceeding is of Final Analysis‘s own making. In its Application for Review,‘ Final Analysis clearfy demonstrates that the license it has been granted inaccurately and unfairly denies certain critical amendments required to conform to the Second Round Report and Order® that should have been accepted by the International Bureau under any of three legal principles —(1) the amendments are necessary to conform to the frequency plan ("System 2") assigned to Final Analysis in the Second Round Report and Order; (2) the amendments do not create any increased potential for interference; and (3) the amendments are necessitated by significant changes in operating parameters and frequency assignments imposed by the Second Round Report and Order completely unforeseen when Final Analysis‘s original application was filed in 1994. Clarification or stay of the certification requirement is necessary so that the Commission can cure this error on review and the Bureau can correctly issue a license to Final Analysis that will serve the public interest — not, as Leo One wrongly implies, to serve Final Analysis‘s interest. Most importantly, as amply demonstrated in Final Analysis‘s Application for Review, the Bureau‘s decision is so obscure in certain respects that it is unclear if, or what, the Bureau has permitted or prohibited with respect to certain critical system parameters, such as data rates and link configurations, specified in Final Analysis‘s original application and subsequent See Application for Review at 7—19, 22—3. 8 Amendment ofPart 25 ofthe Commission‘s Rules to Establish Rules and Policies Pertaining to the Second Processing Round ofthe Non—Voice, Non—Geostationary Mobile Satellite Service, IB Docket No. 96—220, Report and Order (rel. October 15, 1997). 9 See Second Round Report and Order at [ 131; 47 C.F.R. §§ 25.116(b)(1), (c)(4). VJ DCQOI/BATAP/36186.1

amendments.‘" Without Commission clarification on review of these aspects of the Bureau‘s decision, Final Analysis does not actually know what it would be certifying to. Because Final Analysis does not know what it would be certifying to, it is completely unreasonable to require Final Analysis to aver, as demanded by the certification condition, that it is committed to implementing the system "as authorized" in the Bureau Order. In any event, with respect to certain other technical parameters clearly set forth in the Licensing Order, the licensed system is an unworkable regulatory hybrid constellation that is commercially untenable in the real world."‘ Final Analysis has demonstrated in its Application for Review that several decisions reached in Licensing Order, including denial of constellation redesign and increased downlink power, are based upon a misreading of the record and incorrect analysis. Clarification that the certification condition is tolled or stayed pending review thus also is necessary so that the Commission has the opportunity to cure the defects in the current license issued to allow Final Analysis to proceed with a workable Little LEO system. Finally, a requirement that Final Analysis certify to do something that it has said it cannot do — i.e., build the system as licensed —— before consideration of its Application for Review is completed, would deny Final Analysis its fundamental due process rights. Final Analysis must be given the opportunity to pursue its administrative remedies to obtain a license for the system it has designed, consistent with the Joint Proposal and applicable Commission rules and policies, before it is required to commit to the design and construction of another system it has not proposed. See Application for Review at 20—22. [ See id. at 5—7. _ DCOLI/BATAP/36186.1 4

WHEREFORE, Final Analysis urges the Bureau to reject Leo One‘s comments and grant the relief requested in Final Analysis‘s Request for Clarification or Stay, in the public interest, convenience and necessity. Respectfully submitted, FINAL ANALYSIS COMMUNICATION SERVICES, INC. Aileen A. Pisciotta Peter A. Batacan KELLEY DRYE & WARREN LLP 1200 19°" Street, N.W., Suite 500 Washington, D.C. 20036 (202) 955—9600 Its Attorneys Dated: May 7, 1998 Un DCOLI/BATAP/36186.1

CERTIFICATE OF SERVICE I, Beatriz Viera, hereby certify that a true and correct copy of the foregoing "Reply Comments" on behalf of Final Analysis Communication Services, Inc. was delivered via hand delivery or regular mail this 7th day of May 1998, to each of the following: Chairman William E. Kennard* Ms. Regina Keeney* Federal Communications Commission Chief, International Bureau 1919 M Street, NW., Room 814 ‘ Federal Communications Commission Washington, D.C. 20554 2000 M Street, NW., Room 830 Washington, D.C. 20554 Commissioner Gloria Tristani* Federal Communications Commission Ms. Tania Hanna* 1919 M Street, NNW., Room 826 International Bureau Washington, D.C. 20554 Federal Communications Commission 2000 M Street, NW., Room 800 Commissioner Harold W. Furchtgott—Roth* Washington, D.C. 20554 Federal Communications Commussion 1919 M Street, NW., Room 802 Mr. Harold Ng* Washington, D.C. 20554 Chief, Satellite Engineering Branch Satellite and Radio Communication Div. Commissioner Susan Ness* International Bureau Federal Communications Commussion Federal Communications Commission 1919 M Street, NW., Room 832 2000 M Street, NW., Room 801 Washington, D.C. 20554 Washington, D.C. 20554 Commissioner Michael K. Powell * Mr. Alex Roytblat* Federal Communications Commission Satellite and Radio Communication Div. 1919 M Street, NW. Room 844 International Bureau Washington, D.C. 20554 Federal Communications Commission 2000 M Street, NW., Room 500 Mr. Thomas Tycz* Washington, D.C. 20554 Chief Satellite Division Federal Communications Commission Stephen Goodman, Esq. 2000 M Street, NW., Room 811 Halprin, Temple & Goodman Washington, D.C. 20054 Suite 650 East 1100 New York Avenue, NW. Ms. Cassandra Thomas* Washington, D.C. 20005 Deputy Chief, International Bureau Counsel for ORBCOMM Federal Communications Commission 2000 M Street, NW., Room 810 Washington, D.C. 20554 DCOL/PISCA/27357.1

Henry Goldberg, Esq. Mr. Richard Barth Joseph Godles, Esq. U.S. Department of Commerce Mary Dent, Esq. National Oceanic and Atmospheric Goldberg, Godles, Wiener & Wright Administration 1229 19th Street, NW. Office of Radio Frequency Management Washington, D.C. 20036 Room 2246, SSMC—2 Counsel for Volunteers in Technical 1325 East West Highway Assistance Silver Spring, MD 20910 Robert A. Mazer, Esq. Mr. William T. Hatch Vinson & Elkins Associate Administrator 1455 Pennsylvania Avenue, NW. Spectrum Management Washington, D.C. 20004—1008 U.S. Department of Commerce Counsel for Leo One USA National Telecommunications and Information Administration Leslie Taylor, Esq. 14 and Constitution Avenue, NW. Leslie Taylor Associates, Inc. Washington, D.C. 20230 6800 Carlynn Court Bethesda, MD 20817—4302 Kira Alvarez, Esq. Counsel for E—Sat Attorney Advisor Office of General Counsel Mr. Nelson Pollack National Atmospheric and Oceanic Adm. AFFMA (Dept. of Commerce) 4040 North Fairfax Drive, Suite 204 1325 East—West Highway 18111 Arlington, VA 22203—1613 Silver Spring, MD 20910 A Yb Beatriz Viera * Hand Delivered DCOUPISCA/27357.1


Document Created: 2012-11-02 13:31:51
Document Modified: 2012-11-02 13:31:51
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