Attachment 2001Hughes Petit for

2001Hughes Petit for

PETITION FOR RECONSIDERATION submitted by Hughes

Petition for Reconsideration

2001-07-19

This document pretains to SAT-LOA-19950929-00127 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA1995092900127_1031679

Satoin ~~E, &, "Temetm Eorethg, j ED FEDERAL COMMUfiI%’A”HONS COMMISSI%UL J 9 Washington, D.C. 20554 2097 %m ng 8 c Sf%an,m In the Matter of ) ) Hughes Communications Galaxy, Inc. ) ) File Nos. 3/4—DSS—P/LA—94 For authority to construct, launch and ) CSS—94—021 through CSS—94—025 operate a Ka—Band satellite system in the ) Fixed Satellite Service ) PETITION FOR RECONSIDERATION Hughes Communications Galaxy, Inc. ("Hughes") hereby respectfully requests, for the reasons set forth below, that the International Bureau reconsider its Order and Authorization in this proceeding (released June 19, 2001)‘ as modified by Erratum (released July 13, 2001).‘ This Order and Authorization acted on an element of the Hughes Spaceway application that has been pending since 1995, and modified the license for the Spaceway Ka band satellite system that was issued in 1997.> _ In the Matter ofApplication by Hughes Communications Galaxy, Inc. for Authority to Construct, Launch, and Operate a Ka—Band Satellite System in the Fixed—Satellite Service, Order and Authorization, DA 01—1457 (rel. June 19, 2001) ("International Authorization Order"). * In the Matter ofApplication by Hughes Communications Galaxy, Inc. for Authority to Construct, Launch, and Operate a Ka—Band Satellite System in the Fixed—Satellite Service, Erratum, (rel. July 13, 2001) ("Erratum").

1. Background. In a Memorandum Opinion and Order in the 28 GHz Proceeding released in May of this year," the Commission directed the International Bureau to modify Hughes®‘ license for the Spaceway satellite system to include authority in the 17.7—18.8 GHz, 19.7—20.2 GHz, 27.5— 28.6 GHz, and 29.25—30.0 GHz bands for service outside the United States. Previously, the Spaceway license was limited to service to and from the U.S. Noting that the 17.7—18.3 GHz band is no longer available domestically for FSS downlinks, the Commiuission concluded that Hughes and any other FCC licensee seeking to internationally coordinate use of that band with foreign—licensed satellite systems first must demonstrate that it has coordinated such proposed operation with other U.S. FSS licensees." Hughes timely filed a Petition for Reconsideration of the Commission‘s decision.© Following the Commission‘s directive in the MO&O, the International Bureau granted Hughes international authority in the 17.7—18.8 GHz, 19.7—20.2 GHz, 27.5—28.6 GHz, and 29.25—30.0 GHz bands.‘ However, in the Bureau‘s attempt to implement the Commission‘s prior—coordination requirement established in the MO&O, the Bureau also extended the prior— * Hughes Communications Galaxy, Inc. Application for Authority to Construct, Launch, and Operate a Ka—Band Satellite System in the Fixed—Satellite Service and a Ku—band Broadcast Communications Satellite System, Order and Authorization, 13 FCC Red 1351 (1997). + In the Matter ofRulemaking to Amend Parts 1, 2, 21, and 25 of the Commission‘s Rules to Redesignate the 27.5—29.5 GHz Frequency Band, to Reallocate the 29.5—30.0 GHz Frequency Band, to Establish Rules and Policies for Local Multipoint Distribution Service andfor Fixed Satellite Services, Memorandum Opinion and Order, FCC 01—172 (rel. May 25, 2001) ("MO&O"). 5 MO&Oat§{1S. © Petition for Reconsideration, CC Docket No. 92—297, Hughes Communications Galaxy, Inc. (filed June 25, 2001). International Authorization Order.

coordination requirement further than the Commission stated. Specifically, the Bureau imposed the condition that, prior to requestinginternational coordination of the downlink frequencieé at 17.7—18.3 GHz or the uplinkfrequencies at 27.5—28.35 GHz, Hughes must certify in an affidavit to the International Bureau that it has coordinated its proposed operation with FCC—licensed GSO or NGSO satellite systems operating globally in those bands.‘ The Bureau subsequently issued én erratum clarifying with which FCC licensees Hughes must coordinate its proposed operations in these frequency bands." IL. Discussion. The Bureau should entirely eliminate the conditions set forth in the third sub— paragraph of paragraph 3 of the International Authorization Order. As set forth in Hughes‘ Petition for Reconsideration of the MO&O which provided the basis for these conditions,‘" there is no legally sustainable basis for imposing such conditions."‘ In short, the deletion of the domestic allocation for FSS at 17.7—18.3 GHz provides no logical basis for eliminating the international priority of the GSO FSS over the NGSO FSS in that band that the Commission established in 1997." Nor did the Bureau articulate any basis for requiring, prior to seeking international coordination with foreign—licensed satellite systems, that Hughes coordinate its 8 1d. Erratum. !° See MO&O, supra, n.3. ! See Petition for Reconsideration, CC Docket 92—297, Hughes Communications Galaxy, Inc. (filed June 25, 2001), Section L. * In the Matter ofRulemaking to Amend Parts 1, 2, 21, and 25 ofthe Commission‘s Rules to Redesignate the 27.5—29.5 GHz Frequency Band, to Reallocate the 29.5—30.0 GHz Frequency Band, to Establish Rules and

proposed use of 17.7—18.3 GHz with other U.S. GSO and NGSO satellite licensees. Hughes hereby incorporates by reference in full the arguments made in that Petition for Reconsideration, a copy of which is attached as Exhibit A." In addition, the Commission‘s MO&O imposed a prior—coordination requirement only on Commission licensees proposing use of downlink frequencies between 17.7 and 18.3 GHz in foreign countries. When the Bureau modified Hughes‘ license to include international afithority, it extended that requirement to Hughes‘ use of uplink frequencies at 27.5—28.35 GHz. The Bureau also should reconsider this condition that Hughes prior—coordinate with othér U.S.— licensed GSO FSS systems who are authorized to use 27.5—28.35 GHz before Hughes may undertake coordination with foreign—licensed systems in the 27.5—28.35 GHz band. This condition precedent to international coordination does not apply to licenses issued to GSO FSS licensees for other uplink portions of the Ka band (e.g., 28.35—28.6 GHz or 29.25—30.0 GHz). The Bureau has not articulated any reason why such a condition is needed specifically with respect to other GSO FSS systems at 27.5—28.35 GHz, or why the Commission‘s general requirement that GSO FSS systems coordinate with each other is not sufficient in this case." Imposing this type of a condition precedent could allow one U.S. GSO FSS licensee to block the international coordination efforts of another U.S. GSO FSS licensee simply by refusing to Policies for Local Multipoint Distribution Service andfor Fixed Satellite Services, Third Report and Order, 12 FCC Red 22310 (1997) at 67. 5 As a practical matter, the Hughes Petition for Reconsideration in CC Docket 92—297 will need to be resolved before, or at the same time as, this Petition for Reconsideration is acted upon. " See, eg., Loral Space & Communications, Ltd, For Authority to Construct, Launch and Operate Space Stations in the Domestic Fixed—Satellite Service, 11 FCC Red 20441, [ 8 (1996).

coordinate with the other U.S. licensee, and is inconsistent with the Commission‘s general policy not to impose special coordination obligations on GSO FSS licensees.‘ ° In sum, this condition is legally unsustainable because the Bureau has not explained, and cannot justify, any rational basis for the requirement, and it is inconsistent with general Commission policies.‘" Therefore, this condition should be deleted. Alternately, should the Bureau not reconsider the matters addressed above, Hughes aské the Bureau to clarify that the obligation to coordinate with other U.S. licensees does not include other licensees who hold secondary licenses. By definition, a secondary user is not entitled to interference protection, and cannot complain about receiving interference, from an authorized primary user."" Therefore, there should not be any obligation for Hughes, a primary license holder, to coordinate with any secondary license holder. For these reasons and those articulated in Hughes‘ Petition for Reconsideration in CC Docket No. 92—297, the condition precedent to international coordination with foreign— licensed satellite systems set forth in the third sub—paragraph of paragraph 3 of the International Authorization Order, as applied to both the downlink frequencies at 17.7—18.3 GHz and the uplink frequencies at 27.5—28.35 GHz is legally unsustainable, and should be deleted. 5 Seeid. $ Petroleum Communications, Inc. v. FCC, 22 F.3d 1164 (D.C. Cir. 1994) (Commission must demonstrate a rational basis for its decision); Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970) (agency must supply reasoned analysis how prior policies and standards are being deliberately changed), cert. denied, 403 U.S. 923 (1971). U 47 CFR. §2.104(d)(3).

IIL. Conclusion. For the reasons set forth above, Hughes respectfully requests that the Bureau | reconsider its decision requiring that Hughes, prior to seeking international coordination with foreign—licensed satellite systems, coordinate its proposed international use of 17.7—18.3 GHz with U.S. GSO and NGSO licensees authorized to use that band and its use of 27.5—28.35 GHz with U.S. GSO licensees authorized to use that band. Respectfully submitted, HUGHES COMMUNIC NS GALAXY, INC. By: . ein John P. Janka Arthur S. Landé&holm Tonya Rutherford* LATHAM & WATKINS 555 11"" Street, N.W. Suite 1000 Washington, D.C. 20004 (202) 637—2200 July 19, 2001 *Authorized to practice in Georgia only. District of Columbia bar application pending.

CERTIFICATE OF SERVICE I hereby certify that I have this 19" day of July, 2001, caused a true copy of the foregoing "Petition for Reconsideration of Hughes Communications Galaxy, Inc." to be sent by first—class mail, postage prepaid, to the following: Bruce D. Jacobs Kathryn R. Schmeltzer Dawn Sciarrino Tony Lin Shaw Pittman 2300 N Street, N.W. Washington, D.C. 20037.

EXHIBIT A

Before the FEDERAL COMMUNICATIONS COMMISSIQGN RECE;VEQ Washington, D.C. 20554 In the Matter of N/ Nt Ne N/ NZI NA NNN Rulemaking to Amend Parts 1, 2, 21, and 25 of the Commissions Rules to Redesignate CC Docket No. 92—297 the 27.5 — 29.5 GHz Frequency Band, to Reaflocatethe 29.5 — 30.0 GHz Frequency Band, to Establish Rules and Policies for Local Multipoint Distribution Service and — for Fixed Satellite Services 'PETITION FOR RECONSIDERATION HUGHES COMMUNICATIONS GALAXY, INC. Gary M. Epstein John P. Janka Arthur S. Landerholm Tonaya Rutherford* LATHAM & WATKINS — 555 11" Street, NW. Suite 1000 Washington, D.C. 20004 (202) 637—2200 June 25, 2001 * Authorized to practice in Georgia only. District of Columbia bar application pending.

TABLE OF CONTENTS Page tm ees en snn rer n n ns rr ie ts rererere e k en e e se en en en rarn t ns es ennaea en ns 1 L. AUROMZAMHOML 1.2.2..222020002000000 esn er s vnere s re n rresr n sns a esn r n en re en a es e 1 II. International Deviations From 28 Ghz Band Plan. .................22...2.hesirreeerrersrrrrre ... 7 T. COMACIUSIOM 22..2.22222222022222200errerveereerteeeaserererrrresreeeresrssereesrersrrresereererrrrerrereerea ks lk ... 11

SUMMARY .. Authorization. The Commission decided in the Third Report and Oruer of this proceeding that U.S.—licensed satellite systems must operate in accordance with the 28 GHz band plan throughout the world. In that order, the Commussion gave GSO FSS coordination priority over NGSO FSS in the 27.5—28.35 GHz band segment. Subsequently, in the 18 GHz proceeding, the Commission deleted the domestic allocation for FSS at the 17.7—18.3 GHz. The Commission recently concluded in the underlying Memorandum Opinion and Order that the deletion of the domestic FSS allocation at 17.7—18.3 GHz leaves no basis for providing GSO FSS systems with priority over NGSO FSS systems in that band internationally. The Commission‘s conclusion that there is no guidance for international coordination between GSO FSS and NGSO FSS is illogical and constitutes an unexplained change in policy. If the Commission now seeks to change the international coordination priority between GSO FSS and NGSO FSS systems, Hughes and the industry must be given notice and an opportunity to comment on the impact of such changes in policy. Furthermore, eliminating the international priority coordination for the GSO FSS downlinks while retaining the international priority coordination for the GSO FSS uplinks results in an imbalance between the designation for GSO FSS uplinks and downlinks. In addition, Hughes urges the Commission to reconsider its requirement that Hughes coordinate with other U.S.—licensed GSO FSS systems that are authorized to use the 17.7—18.3 GHz band segment before undertaking coordination with foreign— lLicensed systems in that band. The Commission has not explained why the 17.7—18.3GHz band and other downlink portions of the Ka band should be treated differently. International Deviations from 28 GHz Band Plan. The Commission concluded in the Third Report and Order that, because of the existence of some international coordination

agreements that existed prior to the adoption of the 28 GHz band plan, satellite systems would be required to comply with certain rare deviations from the policy that U.S.—licensed sarellite systems operate in accordance with the 28 GHz band plan throughout the world. Hughes has reciuested from the Commission information detailing the impact of these deviations on Hughes‘ licensed Spaceway system, but the Commission declined in the Memorandum. Opinion and Order to provide Hughes with the requested information, stating that the information is a matter of public record, and that Hughes will obtain the information during the international coordination process. Not only is the Commission‘s Order unresponsive to Hughes‘ request, but the Commission‘s assumptions also are unreasonable. There is no reason to believe that the Japanese administratiofi will give Hughes this information, nor can the Japanese administration be reasonably expected to inform a U.S. licensee that it may encounter interference from another U.S. license. Hughes requests that the Commission provide Hughes information regarding the deviations, subject to any appropriate safeguards to enable Hughes to comply with the terms of its license. Alternatively, the Commission should eliminate this condition. 1

Before the FEDERAL COMMUNICATIONS COMMISSIQGN Washington, D.C. 20554 In the Matter of N N N N N NZNZ NN Rulemaking to Amend Parts 1, 2, 21, and 25 of the Commission‘s Rules to Redesignate CC Docket No. 92—297 the 27.5 — 29.5 GHz Frequency Band, to Reallocate the 29.5 — 30.0 GHz Frequency Band, to Establish Rules and Policies for Local Multipoint Distribution Service and for Fixed Satellite Services PFETITION FOR RECONSIDERATIQON Hughes Communications Galaxy, Inc. ("Hughes") hereby respectfully requests that the Commission reconsider its Memorandum Opinion and Order, FCC 01—172 (released May 25, 2001)‘ in this proceeding as set forth below. 1. Authorization. In the Third Report and Order in this proceeding, the Commission decided that U.S.—licensed satellite systems must honor the GSO/NGSO/MSS Feeder Link sharing aspects of the Commission‘s band plan for the Ka band with respect to their operations outside the United States." Namely, for U.S.—licensed systems, satellite—to—satellite sharing outside the U.S. would be on the same terms as within the U.S. The Commission expressly decided to provide the GSO In the Maiter ofRulemaking to Amend Parts 1, 2, 21, and 25 ofthe Commission‘s Rules to Redesignate the 27.3—29.5 GHz Frequency Band, to Reallocate the 29.5—30.0 GHz Frequency Band, to Establish Rules and Policiesfor Local Multipoint Distribution Service andfor Fixed Satellite Services, Memorandum Opinion and Order, FCC 01—172 (rel. May 25, 2001) ("Memorandum Opinion and Order"‘). 2 In the Maiter ofRulemaking to Amend Parts 1, 2, 21, and 25 of the Commission‘s Rules to Redesignate the 27.3—29.5 GHz Frequency Band, to Reallocate the 29.5—30.0 GHz Frequency Band, to Establish Rules and Policiesfor Local Multipoint Distribution Service andfor Fixed Satellite Services, Third Report and Order, 12 FCC Roed 22310 at [ 67 ("Third Report and Order‘).

FSS with coordination priority over the NGSO FSS in the 27.5—28.35 GHz band segment." That decision corresponded with the Commission‘s decision in the First Report and Orderin this proceeding to provide the GSO FSS with coordination priority over the NGSO FSS in the corresponding part ofthe downlink band (17.7—18.8 GHz).* The Third Report and Order cleared the way to grant an aspect of the Hughes Spaceway application that had been pending since September 1995. Hughes had— requested the authority to use the 17.7—17.8, 19.7—20.2, 27.5—28.6, and 29.25—30.0 GHz bands for international service on the Spaceway system, which request had been deferred until resolution of the issues in the Third Report and Order." Last Summer, in the 18 GHz proceeding, the Commission revised its domestic Table of Frequency Allocations and, in doing so, deleted the domestic allocation for the FSS at 17.7—18.3 GHz.° That proceeding, like the First Report and Order in the 28 GHz proceeding, dealt entirely with domestic spectrum issues within the United States. Nowhere in the 18 GHz Order did the Commission even intimate that the decision would in any way alter the satellite—to— ‘ Third Report and Order at "[ 70. 5 Rulemaking to Amend Parts 1, 2, 21, and 25 ofthe Commission‘s Rules to Redesignate the 27.5—29.35 GHz Frequency Band, to Reallocate the 29.5—30.0 GHz Frequency Band, to Establish Rules and Policiesfor Local Multipoint Distribution Service andfor Fixed Satellite Services, First Report and Order and Fourth Notice of Proposed Rulemaking, 11 FCC Red 19005 at § 77 (1996). ta Hughes Communications Galaxy, Inc. Application for Authority to Construct, Launch, and Operate a Ka— Band Satellite Systems in the Fixed—Satellite Service and a Ku—hband Broadcast Communications Satellite System, Order and Authorization, 13 FCC Red 1351 (1997). °8 Redesignation ofthe 17.7—19.7 GHz Frequency Band, Blanket Licensing ofSatellite Earth Stations in the 17.7—20.2 GHz and 27.5—30.0 GHz Frequency Bands, and the Allocation ofAdditional Spectrum in the 17.3— 17.8 GHz and 24.75—25.25 GHz Frequency Bandsfor Broadcast Satellite—Service Use, Report and Ordezr, 15 FCC Red 13430 ("18 GHz Order") (2000). 1J

satellite sharing priorities for inrernational operations outside the United States that were established in the Third Report and Order. The Commission now appears to have concluded in the Memorandum Opinion and Order that, because the 17.7—18.3 GHz band segment is no longer available in the U.S. for domestic FSS downlinks, there is no longer a basis for providing U.S.—licensed GSO FSS systems with coordination priority over U.S.—licensed NGSO FSS systems in that band with respect to international operations.‘ Based on this conclusion, the Commission indicates that it will impose a condition on Hughes‘ authority to use the 17.7—18.3 GHz band: Prior to undertaking coordination with foreign—licensed systems, Hughes must demonstrate to the Commission that it has coordinated with ofher U.S. FSS licensees with authority for global operation in the band regarding Hughes‘ use of the 17.7—18.3 GHz band." Hughes respectfully requests that the Commission reconsider this aspect of its decision as it relates to both GSO and NGSO systems. It is a non sequitur to conclude that there is no longer any guidance for international coordination between the GSO FSS and the NGSO FSS because satellite systems may no longer use the 17.7—18.3 GHz band within the U.S. While it is true that the band is no longer available domestically for FSS downlinks, it does not logically follow that there must be a change in the policy determination about the way in which the GSO FSS may use the 17.7—18.3 GHz band internationally vis—a—vis the NGSO FSS. Nothing in the Third Report and Order suggests that how the band is shared internationally between different types of satellite systems is dependeéent upon whether the band is now dedicated domestically for terrestrial service. Memorandum Opinion and Order at ¢ 15 (stating that "the policy for coordination betwesn FCC—liceased systems adopted in the Third Report and Order provides no guidance for coordination of international aperation in that segment"). w2

To the extent that the Commussion now seeks to change the service rules for the 28 GHz band, and the express policy decisions reached in the Third Report and Ordezr—vith respect to GSO/NGSQO sharing, such changes. may not be imposed before Hughes and the rest of the industry are provided notice and an opportunity to comment on the impact of these changes in the Commission‘s rules." The Commission has not even attempted to articulate a policy basis for changing the priorities for GSO/NGSO sharing that were established almost four years ago, or how this decision to place the NGSO FSS on parity with the GSO FSS at 17.7—18.3 GHz can be reconciled with the Commission‘s decision last year, in the 18 GHz proceeding, to delete the secondary designation for the GSO FSS at 18.8—19.3 and 28.6—29.1 GHz." To the extent that the Commission wishes to revisit the question of GSO/NGSO priorities in general, that matter also is properly the subject of a full notice and comment rulemaking. It is arbitrary and capricious to decide here that the GSO FSS should lose its priority over the NGSO FSS in the 17.7—18.3 GHz band without also considering whether the NGSO FSS should lose its priority over the GSO FSS in the 18.8—19.3 GHz and 28.6—29.1 GHz bands." In its petition for reconsideration of the 18 GHz Order, Hughes raised similar arguments about why piecemeal alterations to the satellite—to—satellite sharing criteria established in the 28 GHz Order are inappropriate, and why any such changes should be done (1) in the context of a 8 14. ° Administrative Procedure Act, 5 U.S.C. § 553. i° See Motor Vehicle Manufacturers Association ofthe United States v. State Farm Mutual Automotive Ins. Co., 463 U.S. 29, 41—44 (1983) (an agency changing course must supply a reasoned analysis for the change). 4 Petroleum Communications, Inc. v. FCC, 22 E.34 1164, 1172 (D.C. Cit. 1993) (agency must provide adequate explanation before it treats similarly situated parties differently}; Grearer Boston Television Corp. v. FCC, 444 F.2d §41, 852 (D.C. Cir. 1970) {(agency must supply reasoned analysis how prior policies and standards are being deliberately changed), cerf. denied, 403 U.S. 923 (1971).

further notice of proposed rulemaking, (ii) only with an adequate and refreshed record, and (ii) only after taking into account the results of WRC—2000. Hughes reasonably believed that it would continue to hold priority coordination internationally over U.S.—licensed NGSO systems for the 17.7—18.3 GHz band. The Commission stated in the Third Report and Order that it gave GSO FSS coordination priority internationally for the uplink frequencies between 27.5—28.35 GHz because dissimilar treatment of the uplink frequencies would render the downlink designation meaningless. Yet, the Commission‘s most recent decision leads to the exact result that the Commission sought to avoid in the Third Report and Order. Specifically, the Commission‘s decision to eliminate international priority coordination for the GSO FSS at 17.7—18.3 GHz by definition renders n;eaningless the international designation for the uplink frequencies that the Commission made in the First Report and Order. As such, the Commission‘s decision results in an imbalanced treatment between the uplinks and downlinks to and from Spaceway internationally. The rational result would be to allow the GSO FSS to retain priority coordination internationally at 17.7—18.3 GHz, as the Commission originally concluded in the Third Report and Order, a decision upon which Hughes has reasonably relied in awaiting action on Hughes‘ request for international authority."" The Commission also should reconsider the condition that Hughes coordinate with other U.S.—licensed GSO FSS systems who are authorized to use 17.7—18.3 GHz before Hughes may undertake coordination with foreign—licensed systems in the 17.7—18.3 GHz band. This * Hughes had awaited action on its request for authority to provide service outside the United States for four years since its license was first granted in May 1997. In contrast, another first round licenses was awarded similar international authority in March of 1997, even though the Ka band service rules were still pending. Teledesic Corp. Application for Authority to Construct, Launch, and Operate a Low Earth Orbit Satellite System in the Domestic and International Fixed Satellite Service, Order and Authorization, 12 FCC Red 3154 (1997). Ur

condition precedent to international coordination does not apply to licenses issued to GSO FSS licensees for.other downlink portions of the Ka band (e.g., 18.3—18.8 GHz or 19.7—20 2 GHz). The Commuission has not articulated any reason why such a condition is needed specifically with respect to other GSO FSS systems a‘; 17.7—18.3 GHz, or why the Commission‘s general requirement that GSO FSS systems coordinate with each other is not sufficient in this case." Imposing this type of a condition precedent could allow one U.S. GSO FSS licenses to block the international coordination efforts of another U.S. GSO FSS licensee simply by refusing to coordinate with the other U.S. licensee, and is inconsistent with the Commission‘s general policy not to impose special coordination obligations on GSO FSS licensees."" In sum, this condition is legally unsustainable because the Commission has not explained, and cannot explain, any rational basis for the requirement, and it is inconsistent with general Commission policies." Therefore, this condition should be deleted. Alternately, should the Commission not reconsider the matters addressed above, Hughes asks the Commission to clarify that the obligation to coordinate with other U.S. licensees does not include other licensees who hold secondary licenses. By definition, a secondary user is not entitled to interference protection, and cannot complain about receiving interference, from an 5 See, ecg., Loral Space & Communications, Ltd, For Authority to Construct, Launch and Operéte Space Stations in the Domestic Fixed—Satellite Service, 11 FCC Red 20441, 8 (1996). 14 . See id. 5 Petroleum Communications, Inc. v. FCC, 22 F.34 1164 (D.C. Cit. 1994) (Commission must demonstrate a rational basis for its decisiony; Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970) {agency must supply reasoned analysis how prior policies and standards are being deliberately changed), cert. denied, 403 U.S. 923 (1971).

authorized primary user."" Therefore, there should not be any obligation for a primary license holder to coordinate with a secondary license holder. I1. International Deviations from 28 GHz Band Plan. As noted above, in the Third Report and Order in this proceeding, the Commission adopted a requirement that U.S. satélliie licensees operate in accordance with the 28 GHz band plan throughout the world, to the extent that band plan relates to spectrum sharing between satellite systems."" Due to the existence of some international coordination agreements that were negotiated before the 28 GHz band plan was adopted in July 1996, the Commission indicated that ’certajn rafe deviations from this rule would apply with reépect to certain unspecified gepgraphic areas in foreign countries."" On December 18, 1997, Hughes timely filed a petition requesting that the Commission clarify this requirement by providing detailed information about the precise nature of these international deviations from the 28 GHz band plan and the extent to which Hughes will be required to fiodify its Spaceway system to comply with these rare deviations.‘" Hughes believed that these deviations involved the Indium system using spectrum designated for GSO FSS use. Hughes was very concerned about the impact of these deviations on Hughes‘ licensed Spaceway system in light of Iridium‘s long—standing position in this very proceeding that Indium could not share spectrum with Spaceway. In its recent Memorandum Opinion and Order, the Commission declined to provide Hughes with detailed information regarding system modifications that Hughes will be 5 47 CER. §2.104(40(G). _ Third Report and Order at [ 67. ® 1d. at € 69. 19 Hughes Communications Galaxy, Inc., Petition for Reconsideration or Clarification, (filed Dec. 18, 1997).

required to make in order to comply with deviations from the band plan. Rather, the Commission simply stated that (1) an agreement between the United States and Japan regarding the !<idium system and the Japanese N—Star and COMET.systems is the only international agreement affecting spectrum that is designated for GSO FSS operations, and (ii) the information Hughes requests is a matter of public record. The Commission further stated that "the international coordination process is designed to elicit information regarding potential conflicts between spectrum uses authorized by different national administrations." In other words, according to the Commission, Hughes could obtain the requested information during the international coordination process. The Commission‘s rejection of Hughes‘ request for detailed information regarding international agreements affecting spectrum availability designated for GSO FSS use is not legally sustainable."" First, while confirmation that the Iridium agreement is the only relevant international agreement limits the scope of the potential problem, it is unresponsive to Hughes‘ request in its Petition. The Commission still has failed to disclose the extent to which Hughes will be required to modify its system to comply with the international coordination agreement. And, contrary to what the Memorandum Opinion and Order suggests, Hughes has been informed by Commission staff that the Indifum agreement is not public, and, because that agreement is confidential, the Commission has declined to provide this information to Hughes. Withoutaccess to such information, Hughes cannot be expected to finalize its system design and commence construction, because Hughes does not know the extent of the modifications that the Commission may require. If the Commission imposes a condition on a licensee‘s use of spectrum,- it is axiomatic that the Commission also must disclose to the licenses the specific terms of that °° MCI Telecommunications Corp. v. FCC, $42 F.24 1296 (D.C. Cit. 1988) (Commission‘s approach was irrational because of its incoherent analysis).

here between Indium and Spaceway. As such, the Japanese administration cannot reasonably be expected to inform a U.S. licenses that it may encounter potential conflicts with anoumer U.S. licenses. Hughes écknowledges that the Commission customarily treats international coordination agreemé;zts as confidential. However, that practice does not legally permit the Commission to condition Hughes‘ license on complying with the terms of a confidential coordination agreement, and then decline to disclose those terms to Hughes. To the contrary, in order for Hughes to design its satellite network such that it does not "jeopardize the successful operation of these systems outside of the United States,""" as the Commission so desires, the Commission must disclose to Hughes the terms of the Iridium agreement,"* subject to any appropriate protective safeguards. On the other hand, Hughes recognizes that the Indium system may have changed its manner of operations since 1997 when this issue first arose. To the extent that the terms of the Iridium agresment are no longer relevant to Spaceway, the Commission should remove the | "international deviation" condition from the Hughes license, in which case there would be no need to disclose to Hughes the terms of the Iridium agreement. Hughes, therefore, respectfully requests that the Commission disclose to Hughes the specific deviations from the 28 GHz band plan with which Spaceway must comply, or otherwise eliminate this condition on the Spaceway license. * Third Report and Order at { 63. * Id. at 67. 10

L. Conciusion For the reasons set forth above, Hughes respectfully requests that the Commission reconsider and/or clarify its Memorandum Oi)inion and Order in this proceeding in order to (1) disclose to Hughes the extent to Whicil Hughes will have to modify the international operations of Spaceway in order to comply with deviations from the 28 GHz band plan that are the result of preexisting U.S. government coordination agreements, and (ii) confirm that Hughes‘ Spaceway system is authorized to conduct international operations across the full bandwidth at Ka band that was designated for GSO FSS systems on a primary basis in the Third Report and Order. Respectfully submitted, HUGHES COMNIUNICAI&NSG AXY, INC. (7 C_ i22 GayMansteie— o Kgilr S. Landerholm Tonya Rutherford* LATHAM & WATKINS 555 11°" Street, NW. Suite 1000 Washington, D.C. 20004 (202) 637—2200 June 25, 2001 *Authorized to practice in Georgia only. District of Columbia bar application pending. | * The Commission has repeatedly declined to provide Hughes with information regarding how it should modify its system. Hughes therefore may file a Freedom of Information Act request with the Commission seeking access to the Iridium agreement. 11


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