Attachment 51498 Emergency Moti

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

IBFS_SATLOA1994111600088_973579

RECEIVED NAY 1 4 1998 Bofore the mmunICesiCn Commission Federal Communicztions * FEDERAL COMMUNICAT IONS COMMISSION Offics of Secrctary Washington, D.C. 20554 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 EMERGENCY MOTION FOR STAY PENDENTE LITE Final Analysis Communication Services, Inc. ("Final Analysis"), by its attorneys, hereby submits this emergency motion for a temporary stay of enforcement of a condition (the "Certification Condition") on its above—captioned Little LEO license pending the Bureau‘s reconsideration of its order released on May 8, 1998 (the "Denial Order").. The Denial Order rejected Final Analysis‘s April 20, 1998 Request for Clarification or Stay and extended to May 15, 1998, the ‘deadlinefor Final Analysis to certify that it is committed to proceeding with its Little LEO system as authorized in the Bureau‘s Licensing Order." If Final Analysis does not so certify, its license will be rendered "null and void." In a Petition for Reconsideration being filed simultaneously herewith and inco;porated herein by reference, Final Analysis is seeking: x reconsideration of the Denial Order. ‘ See Final Analysis Communication Services, Inc., Order, DA 98—881 (rel. May 8, 1998) (the "Denial Order"). *‘ See Final Analysis Communication Services, Inc., Order and Authorization, DA 98—616 (rel. Apr. 1, 1998) (the "Licensing Order"). DCOI/BATAP/36655.2

For the reasons stated in Final Analysis‘s Petition for Reconsideration, a temporary stay pendente lite of the May 15 certification date, while the Bureau reconsiders Final Analysis‘s Petition for Reconsideration, is in the public interest, convenience and necessity. As discussed in the Petition for Reconsideration, the four factors warranting a temporary stay under Holiday Tours are present here. ‘ In support of this motion, Final Analysis relies on and incorporates herein by reference its showing on the four factor Holiday Tours test set forth it its Petition for Reconsideration. In particular, the harm to Final Analysis in the absence of a temporary stay of the May 15 deadline imposed by the Denial Order for compliance with the Certification Condition, is both certain and irreparable. For the reasons enumerated in the Petition for Reconsideration, enforcement of the condition will irremediably prejudice Final Analysis‘s interests in the Commission‘s review proceeding and will impose on the company a premature and manifestly unfair choice. Moreover, the enforcement, under the threat of loss of license, of a condition with which the company has said it cannot comply in good faith, is tantamount to revocation of Final Analysis‘s license. SL}CI@ aresult is contrary to the procedures for revocation of a license under Section 312 of the Act which afford Final Analysis the right to a hearing prior to final action on . . . 4 revocation of its license. ‘ See Washington Metropolitan Area Transit Comm‘n v. Holiday Tours, Inc., 559 F.2d"" 841, 843 (D.C. Cir. 1977), see also Petitions for Stay of January 1, 1980 Divestiture Requirement, 76 F.C.C.2d 339 at 5 ("While the Commission is confident that its denial of the three waivers will be sustained by the Courts, a stay is warranted given the irreversible nature of divestiture"). * See Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 332 66 S.Ct.. 148, 150 (1945) ("The Commission for specified reasons may revoke any station license pursuant to the procedures (continued...) bJ DCOL/BATAP/36655.2

Furthermore, as demonstrated in the Petition for Reconsideration, the potential harm to other parties of a temporary stay of the May 15 certification deadline pendente lite of the Bureau‘s reconsideration of the Denial Order is remote in comparison to the harm to Final Analysis in the absence of a stay. In fact, a stay of the requirement that Final Analysis certify its commitment to coordinating and building a system that, as shown in Final Analysis‘s Application for Review, cannot be implemented, will spare the other licensees the necessity of committing resources to wasteful coordination. Accordingly, a temporary stay pendente lite of enforcement of the Certification Condition is in the public interest. If, as Final Analysis has demonstrated, the Bureau‘s Denial Order was in error, temporarily delaying enforcement of the certification requirement pendente lite until such time as the Bureau can cure the error on reconsideration will avoid the premature nullification of Final Analysis‘s license. (...continued) described in Section 312(a) . . . . But in all those instances the licensee is given an opportunity to be heard before final action can be taken.") GJ DCOL/BATAP/366355.2

WHEREFORE, Final Analysis urges the Bureau to grant this emergency request for temporary stay of the May 15 certification deadline set forth in the Denial Order, pendente lite, until the Bureau acts on Final Analysis‘s Petition for Reconsideration of the Denial Order. If the Bureau denies Final Analysis‘s Petition for Reconsideration, Final Analysis requests at least a seven (7) day extension of the Certification Condition from the effective date of the Bureau‘s order on reconsideration. Respectfully submitted, FINAL ANALYSIS COMMUNICATION SERVICES, INC. By: /Héi&m\ 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 14, 1998 DCOL/BATAP/36655.2 4

CERTIFICATE OF SERVICE I, Beatriz Viera, hereby certify that a true and correct copy of the foregoing "Motion for Stay Pendente Lite" on behaif of Final Analysis Communication Services, Inc. was delivered via hand delivery or regular mail this 14th 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, NW., 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 Commission _ 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 Commission 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 Commussion 2000 M Street, NW., Room 500 Mr. Thomas Tycz* ' Washington, D.C. 20554 Chief Satellite Division Federal Communications Commussion 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, N.W. 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, N.W. 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, N.W. 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 B Tan Beatriz Viera * Hand Delivered DCOUPISCA/27357.1


Document Created: 2012-11-02 13:31:00
Document Modified: 2012-11-02 13:31:00
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