Attachment 1996PanAmSat Reply t

1996PanAmSat Reply t

REPLY TO OPPOSITION submitted by PanAmSat

Reply to Opposition of Hughes

1996-02-07

This document pretains to SAT-LOA-19950929-00128 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA1995092900128_1031704

                                                                         RECEIVED
                                   Before the                   FEB — 7 1996
                   FEDERAL COMMUN§ ICATIONS COMMISSION
                                                              COMMUNications commission
                                                                                      Y
                            Washington, D.C. 20554     FEDERAL OFFICE OF SECRETARY

In re
                                                                              Received
Application of Hughes Communications
Galaxy, Inc.,                                       File Nos. 174—181—SAT—P/L &E_QS   9 1996

For Authority to Construct, Launch, and                                    Satellite PolicyDu.resu
                                                                            i Hemabonal     Branch
Operate Galaxy/Spaceway, a Hybrid
Ka/Ku band Satellite System

To: Chief, International Bureau


   REPLY TO OPPOSITION OF HUGHES COMMUNICATIONS GALAXY, INC.

        PanAmSat Corporation ("PanAmSat"), by its attorneys, hereby submits this
reply to the opposition of Hughes Communications Galaxy, Inc. ("Hughes"), to
PanAmSat‘s petition to deny Hughes‘ above—referenced application.

        Inits petition to deny, PanAmSat detailed Hughes‘ domination of the
domestic satellite industry. To help inject some measure of competition into
domestic satellite services and ease the concentration in the domestic satellite
market, therefore, PanAmSat opposed Hughes‘ Ka—band application and proposed
that the Commission cap at five (5) the number of fixed—satellite orbital locations
that may be held by any single entity or its affiliates.

        Not surprisingly, Hughes has responded by urging the Commission to
preserve the status guo, which has so benefited Hughes and which now operates to
assure Hughes‘ dominance. Hughes would—set in stone the policies that have
fostered competitive stagnation in domestic satellite services while conjuring up
phantom competitors where none exist.

      The Commission should not be misled. Only by coming to grips with
Hughes‘ position in the market can the Commission hope to restore competition
in domestic satellite services. Thus, and for the reasons set forth below, Hughes‘
above—referenced application should be denied or held in abeyance while the


                                                  _2

Cormission completes its promised "comprehensive review of its satellite
licensing policies."

L.      The Time Has Come For The Commission To Reevaluate Its Conclusion
        That There Is No Separate Market For Satellite—Delivered Communications
        Services.

       Hughes relies on prior Commission decisions that aggregated the markets
for satellite—delivered and terrestrial communications services." Hughes appears
to believe that merely by reciting this prior Commission policy, the debate should
be over. PanAmSat, however, does not depend upon, nor does its analysis end
with, the Commission‘s earlier satellite decisions. Instead, PanAmSat asks that the
Commission revisit the market definition issue and reevaluate its policies in light
of current market conditions. The Commission‘s top to bottom review of its
satellite policies reflects a recognition that a reevaluation is necessary.

       The market for satellite—delivered communications services has evolved
significantly since the Commission first considered the market definition issue.
Based on early efforts to provide telecommunications service via satellite, the
Commission initially believed that satellites would compete with terrestrial
networks.3 Consequently, the Commission reasonably concluded that satellites
would not constitute a separate telecommunications sub—market.

     The factual assumptions underlying that conclusion no longer are valid.
Today domestic satellites are used primarily as a means of distributing video
programming and point—to—multipoint VSAT services. Because they are able to
transmit to many different points throughout a large geographic area
simultaneously, satellites are ideal for such distribution. As a result, satellites
provide services for which terrestrial networks generally are not used or are not
well—suited.

        Indeed, the lack of interchangeability between satellite delivery and
terrestrial networks is evidenced by the growing shortage of C—band satellite
capacity and the resulting increases in C—band transponder rates. PanAmSat

1 Public Notice, "International Bureau to Review Satellite Licensing Policies," IN—95—25 (Sept. 20,
1995).
2 Hughes Opposition at 34.
3 See, e.g., Policy and Rules Concerning Rates for Competitive Common Carrier Services and
Facilities Authorizations Therefor, 95 FCC2d 554, 567—71 (1983).


                                                 —3.

detailed this shortage in its petition to deny. Hughes, which describes itself as
"operat[ing] the largest fleet of domestic communications satellites,"4 has benefited
from this shortage by charging rates for C—band services that far exceed rates that
would prevail in a competitive market.

         The time has come, therefore, for the Commission to recognize that the
world of satellite—delivered communications services has changed. The
transformation in the marketplace has swept away the basis for the Commission‘s
prior satellite market definition decisions. In light of those changes, PanAmSat
requests that the Commission reevaluate its policies and deny Hughes‘ Ka—band
application, grant of which would add 20 more satellites to Hughes‘ fleet and
further concentrate the market. At the very least, Hughes‘ applications should be
held in abeyance until the Commission completes its upcoming proceeding on
satellite licensing policies, which promises to address specifically many of the
issues raised by the changing satellite market."

IL.      There Is Scant Hope For Competition To Hughes In The Domestic Market
         From New Domestic Applicants, Foreign Operators, Or Ka—Band Applicants.

         Hughes argues, in any event, that it believes there is ample opportunity for
new competitors to enter the domestic satellite market and claims that Hughes
soon will face competition from new domestic C— and Ku—band applicants, foreign
satellite operators, and domestic Ka—band applicants.© Hughes‘ rhetoric, however,
does not match reality.

         To begin with, Hughes can expect little competition from any of the three
new applicants in the current domestic C— and Ku—band processing round. Because
of the scarcity of domestic orbital positions, and because Hughes already occupies
the most sought—after domestic orbital locations, these "new entrants" can hope to
gain at most only a toehold in the market — if they are able to survive the various
regulatory and marketing hurdles that remain in their way.




4 Preparation for International Telecommunications Union World Radiocommunications Conferences,
IC Docket No. 94—31, Comments of Hughes (filed July 15, 1994) at 1—2.
5 See Public Notice, "International Bureau to Review Satellite Licensing Policies," IN—95—25 (Sept.
20,1995); Public Notice, "Roundtable Date Set On Satellite Licensing Policies," SPB—31 (Nov. 21,
1995).
6 See Hughes Opposition at 35.


                                          —4.

      Indeed, of the three would—be entrants, Hughes has opposed the applications
of two for their alleged failure to meet the stringent domestic financial
qualification requirement. Assuming that any of the applicants survives this
process and actually launches a domestic satellite, it will then be forced to compete
with Hughes‘ vast fleet and satellite resources. In short, under existing
Commission rules, there is little, if any, hope on the horizon for meaningful
competition in the domestic C— and Ku—band market.

       With regard to foreign systems, Hughes‘ contentions are similarly
unfounded. It is unclear which foreign systems Hughes has in mind. If it is
existing Mexican or Canadian systems, these satellites do not have full coverage of
the U.S. and, therefore, like U.S. separate satellite systems, they cannot compete
effectively with Hughes, GE Americom and AT&T‘s domestic satellite systems.
Foreign satellite systems are designed primarily to serve the needs of their home
markets. Any U.S domestic service provided from these satellites will be strictly
ancillary or incidental to services provided to foreign locales. Thus, foreign
operators cannot possibly be expected to compete with Hughes‘ fleet of U.S.
domestic satellites.

       Finally, Hughes includes current domestic Ka—band applicants within its list
of parties that, in its view, will provide competition in the domestic market.
Assuming that one or more Ka—band applicants (other than Hughes) finally are
authorized by the Commission to provide U.S. domestic service (Hughes has
opposed the Ka—band applications of Echostar, KaStar, Orion, VisionStar, and
NetSat 28), it is nonetheless questionable whether the broadband services
envisioned for Ka—band ever will be in direct competition with the video services
that predominate in C—band and Ku—band domestically.

      Moreover, although Ka—band satellite systems arguably some day may
provide competition to Hughes‘ C— and Ku—band services, that day, if it ever
arrives, will be many years away. Aside from the delays for licensing,
construction, and launch of Ka—band satellites, there are significant technical and
marketing problems that Ka—band operators will need to overcome. For instance,
Ka—band attenuation margins limit the types of services that can be provided in
this band. Likewise, current Ka—band user equipment is not as wide—spread or
reliable as C—/Ku—band equipment. Thus, Hughes‘ inclusion of Ka—band applicants
as a current source of competition wildly distorts reality.


                                                  —5—

         In sum, there is no source of meaningful competition to Hughes, GE
 Americom and AT&T at this time. Nor is there likely to be any for years to come
 absent affirmative steps by the Commission to remedy the market failure in
 domestic satellite services. As two such steps, PanAmSat petitioned the
. Commission to deny Hughes‘ Ka—band application and to cap orbital assignments.
 By limiting Hughes‘ continued expansion into all aspects of satellite services, and
 by equitably distributing limited spectrum resources among a diverse group of
 competitors, the Commission can begin to create an open and competitive market
 for domestic satellite services.

 III.    The Issues Raised In PanAmSat‘s Petition To Deny Have Not Been
         Rendered Moot By The DISCO Report & Order.

        Hughes, having failed with its claim that it is not dominant in the market
 for domestic satellite services (it is), and knowing the transparency of its assertion
 that competition in the domestic market is imminent (it is not), falls back on a
 "mootness" argument, claiming that PanAmSat‘s position was rejected by the
 Commission in its DISCO Report & Order." This claim, too, must fail.

        In the DISCO Report & Order, the Commission concluded only that special
 limitations on domestic satellite operators are not needed to preserve competition
 in the international satellite market. Issues pertaining to the restoration of
 competition in the domestic market were not addressed. Indeed, the DISCO
 Report & Order specifically states that the Commission will entertain requests for
 reassignment of all satellites following the current domestic processing round.8
 Moreover, in a recent statement before the "satellite roundtable," International
 Bureau Chief Scott Harris indicated that "all issues are on the table."" Thus, the
 Commission has not resolved the issues raised in PanAmSat‘s petition to deny
 regarding the need to promote competition in the domestic market.




 7 Id. at 36 (citing Amendment to the Commission‘s Regulatory Policies Governing Domestic Fixed
 Satellites and Separate International Satellite Systems, ("DISCO") IB Docket No. 95—41 (rel. Jan. 22,
 1996) TY 35—43).
 8 pIsCco { 14.
 92 Remarks of Scott Harris, International Bureau Chief, FCC, at the "Satellite Roundtable" (January
 26, 1996).


                                          —6—


                                 CONCLUSION

        For the reasons stated herein and in its petition to deny, PanAmSat
  urges the Commission to deny the Application of Hughes Communications
~ Galaxy, Inc., to construct, launch, and operate a hybrid Ka/Ku band satellite
 system.

                                  Respectfully submitted,

                                  PANAMSAT LICENSEE CORP.



                                   /s / Joseph A. Godles
                                  Henry Goldberg
                                  Joseph A. Godles
                                  W. Kenneth Ferree

                                  GOLDBERG, GODLES, WIENER & WRIGHT
                                  1229 Nineteenth Street, NW
                                  Washington, DC 20036
                                  (202) 429—4900

                                  Its Attorneys

 February 7, 1996


                              CERTIFICATE OF SERVICE


       I hereby certify that a true and correct copy of the foregoing Reply was sent by
first—class mail, postage prepaid, this 7th day of February, 1996, to each of the
following:

          *   Mr. Scott Blake Harris
              Chief, International Bureau
              Federal Communications Commission
              2000 M Street, NW., Room 800
              Washington, D.C. 20554

          *   Mr. Tom Tycz
              Chief, Satellite & Radiocommunication Division
              International Bureau
              Federal Communications Commission
              2000 M Street, NW., Room 500—
               Washington, D.C. 20554

          *   Gary M. Epstein
              John P. Janka
              James H. Barker
              Latham & Watkins
              1001 Pennsylvania Avenue, N.W., Suite 1300
              Washington, D.C. 20004
              Attorneys for Hughes Communications Galaxy, Inc.

                                                    Smes|W\“@N
                                                       /s / Dawn Hottinger
                                                       Dawn Hottinger



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Document Modified: 2014-01-02 14:37:25

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