Attachment reply

reply

REPLY submitted by EchoStar

reply

2004-10-08

This document pretains to SAT-LOA-19970904-00080 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA1997090400080_404774

                                            Before the
                      FEDERAL COMMUNICATIONS COMMISSION
                               Washington, DC 20554



                                             )
In the Matter of                             )
                                             )
Northrop Grumman Space & Mission             ) SAT—LOA—19970904—00080
Systems Corporation                          ) SAT—LOA—19970904—00081
                                             )   SAT—LOA—19970904—00082              0¢7 ; s
Application for Authority to Launch          ) SaT—LOA—19970904—00083                         2004
and Operate a Geostationary and Non—         ) SAT—LOA—19970904—00084               ""‘tys,,,,m
Geostationary Orbit Fixed Satellite          )                                             Burea,
System in the Ka—Band.                       )                                        5          ¥
                                             )                                     Intl Bureat
s                                            j                                      oct 1 3 200«
contactMEO Communications, LLC               )
                                             )
Applieation for Authority to Launch          ) saT—LOA—19971222—00022
and Operate a Geostationary and Non—         ) SAT—AMD—20040322—00057
Geostationary Orbit Fixed Satellite          )   SAT—AMD—20040719—00141
System in the Ka—Band.                       )                                 RECEIVED
                                             )
                                                                                 OCT — 8 200¢
To: International Bureau                                                    Faden Commricaton Comnisson
                                                                                  Offef Seeminy
                                  ConsoLIDaTED REPLY
                       To OPPOSITIONS To PETITIONS To DENY


               EchoStar Satellite LLC (*EchoStar") hereby files this Consolidated Reply to the
Oppositions to the Petitions to Deny the above—captioned applications, as amended, of Northrop
Grumman Space & Mission Systems Corporation‘s Space Technology Sector(NGST") and
contactMEO Communications, LLC (*@contact") (collectively *Applicants") to operate
geostationary orbit ("GSO") and non—geostationary orbit (°NGSO") Fixed Satellite Service
("FSS") satellites in the Ka—band. As previously stated, EchoStar‘s interest in this matter is
acute; its applications for four similar (4) GSO FSS satellites were summarily denied by the


Commission and are subject of pending pettions for reconsideration." EchoStar is also a
Hicensee and applicant of several GSO satelites in the Ka—band that could be interfered with by
NGSO operations in the primary GSO Ka—bands. EchoStar, therefore, is a party in interest in
this proceeding
               In the Oppositions, both @contact and NGST argue that their GSO applications
on file today are not similarly situated to EchoStar‘s Ka—band GSO applications when they were
summarily denied by the Bureau.*. What the Applicants fundamentally misunderstand, however,
is that at the time the Bureau allowed them to provide additional technical information regarding
NGSO/GSO sharing ofthe primary NGSO portions of the Ka—band, their applications were
similarly situated to EchoStar‘s Ka—band GSO applications. In other words, rather than
summarily denying their applications, as the Bureau did with respect to EchoStar‘s Ka—band
GSO applications for failing to provide sufficient technical support regarding NGSO/GSO
sharing, the Bureau provided the Applicants with a second chance to make such a technical
showing. Such disparate treatment clearly violates the requirements ofthe Administrative
Procedure Act as well as the fundamental rule that similarly stuated entities should be treated
the same.
               NGST and @contact invoke procedural gymnastics to somehow differentiate the
posture of EchoStar‘s GSO applications from those of the Applicants. In fact, none of the

       ‘ In the Matter ofEchoStar Satellte LLC Applicationfor Auhority to Construct, Launch
And Operate Geostationary Satelltes in the Fixed—Satellte Service Using the Ka and/or
Extended Ku—hands at the 83° W L., 105° W.L, 113° WL, and 121° W.L. Orbital Locations,
Petition for Reconsideration,filed Jun. 1, 2004 (*EchoStar Perition for Reconsideration").

        * Neither applicant disputes the fundamental principle thatsimilarly situated applicants
should be treated alike. See Melody Music, Inc. v. FCC, 345 F.2d 730 (D.C. Cir. 1965) ("It is a
basic premise of administrative law that the Commission musttreat similarly situated parties
alike, absent legally sustainable reason to the contrary.").


applications can be distinguished on this basis. The Applicants assert that EchoStar‘s
applications were accepted for fling and appeared on public notice, and that the Bureau then
correctly applied its processing procedures, rules and policies to dery EchoStar‘s applications."
Conversely, they maintain that their applications were dismissed prior to appearing on public
notice, and then subsequently reinstated with a request for additional information. This proves a
lack of parity oftreatment, however: Had the Bureau applied the same processing standards to
EchoStar and the Applicants, it would either (a) have denied (or dismissed) all ofthe applications
and not allowed @contact or NGST to supplement their applications with additional support for
NGSO/GSO sharing in the Ka—band; or (b) have allowed all ofthe applicants, including
EchoStar, to amend their technical showings. Indeed, EchoStar has proposed such an outcome in
its pending Petition for Reconsideration in the matter ofits own Ka—band GSO applications,*
               The Applicants® arguments regarding the differences between their updated
interference and sharing analyses and EchoStar‘s lack of such a showing also are to no avail.
Once again, these new technical showings were submitted only after the Bureau reinstated the
above—captioned applications and requested additional information from the Applicants. Itis
precisely because the Bureau requested this information from the Applicants and not from
EchoStar that the disparate treatment arises.
               Applicants further maintain that the substantive explanations they submitted with
their supplemental showings differentiate their applications from EchoStar‘s applications.
       ° @contact Opposition, at 4—5; NGST Opposition, at 6—8.
       * In the Matter ofEchoStar Satellite LLC Application for Authority to Construct, Launch
And Operate GeostationarySatelltes in the Fixed—Satellte Service Using the Ka and/or
Extended Ku—hands atthe 83° WL, 105° W.L., 113° W.L., and 121° W.L. Orbital Locations,
Petition for Reconsideration,filed Jun. 1, 2004 (*EchoStar Peritionfor Reconsideration).
       * @contact Opposition,at 5; NGST Opposition, at 64.


However, neither the substance ofthese explanations, nor their inclusion upon amendment, serve
to differentiate the applications. Substantively, Applicants maintain that they explained how
traffic would be switched between satelltes in order to avoid harmful interference to other
NGSO systems, whereas EchoStar merely stated thatit would cease providing service in order to
avoid an interference event. This supposed discrepancy is nothing more than a twisting ofthe
facts. EchoStar did not state in ts application, as @contact maintains, that "EchoStar would
cease providing service entirely during such times." Rather, EchoStar indicated that it would
"immediately cease operations."*. In other words, EchoStar would only cease operations in the
NGSO portions of the Ka—band that would be subject to such an in line interference event.
Traffic would then be switched,just as is now being proposed by the Applicants, t other
frequency bands or satelltes —— it would not cease service toits customers altogether. In fact,
EchoStar has stated all along that the applications it submitted were intended to "supplement and
support EchoStar‘s existing MVPD offerings.
                  Furthermore, tinclusion ofthe substantive explanations does not advance the
arguments of @contact and NGST because they were not present at the time ofthe disparate
treatment. On review of the @contact and NGST GSO applications, the Burcau initilly




         @contact Opposition, at 6; NGST Opposition, at6
        @contact Opposition, ut 5.
       * In the Matter ofEchoStar Satellite LLC Applicationfor Authority to Construct, Launch
And Operate Geostationary Satelltes in the Fixed—Satellte Service Using the Ka and/or
Extended Ku—bands atthe 81° W.L, 83° W.L., 101° WL, 105° W.L, 109° W.L., 113° W.L., 119°
WL, 121° W.L, and 123° W.L. Orbital Locations, filed Aug. 27, 2003, t 15—16 (*EchoStar
Applications®).
       ° d at ; EchoStar Petitionfor Reconsideration, t 6—9.


dismissed,"" and later reinstated them with a request for additional information."" Though absent

from the reversalletters, the Bureau specifically noted in the dismissal letters that inclusion of
more details regarding NGSO/GSO sharing in the Ka—band would be necessary for grant ofthe
application. Had the Bureau not reversed its earier decision to dismiss the applications, they
would have been devoid ofany technical NGSO/GSO sharing studies.
               Itis also incorrect to suggest, as @contact and NGST seem to be doing, that the
Applicants and EchoStar were not similarly—situated because the Bureau found additional flws
in the Applicants® flings at an earlier stage in the review process then when EchoStar‘s
applications were denied."" Applicants should not be able to improve their procedural positions
by submitting applications containing more flaws. At the point in time that the Bureau denied or
dlismissed each of the applications, EchoStar, @contact,and NGST were all similarly—situated
parties with respect to their GSO/NGSO sharing analyses and the disparate treatment afforded
these partiesby the Bureau has put them in vastly different procedural positions. This result
simply cannot stand.
               NGST separately argues that EchoStar is not similarly stuated because it sought
to change the rules to accommodate its applications while "NGST has designed its hybrid non—
GSO/GSO system to comply with the existing GSO and non—GSO rules, secking a waiver ofthe
frequency allocation rulesto the extent required to permit secondary, non—harmful interference

       ‘" Leter from Thomas S. Tyez, FCC, to David M. Drucker, @contact, DA 04—1386, May
18, 2004 (‘@contact Dismissal Leiter®; Letter from Thomas S. Tyez, FCC, to Peter Hadinger,
NGST, DA 04—1387, May 18, 2004 (*NGST Dismissal Letter")
       "" Letter from Thomas S. Tyez, FCC, to David M. Drucker, @contact, DA 04—1722, Jun.
16, 2004 ("@contact Reversal Letter"); Letter from Thomas . Tyez, FCC, to Peter Hadinger,
NGST, DA 04—1725, Jun. 16, 2004 (*NGSP Reversal Letter®)
       "" @contact Dismissal Letter, at 2; NGST Dismissal Letter, at 4.


geosynchronous operation in the 18.$—19.3 GHz bands.""": EchoStar and NGST both requested
waivers ofthe existing Ka—band plan to accommodate their respective applications. EchoStar‘s
simultancous petition to the Commission for a rulemaking proceeding to address the shoring
issues raised by its applications has no bearing on whether a waiver ofthe rules should be
granted pending the outcome of such a proceeding or whether the parties are similarly situated.
EchoStar was clear in both its applications and Petition for Rulemaking that the petition need not
be resolved in order for the applications to be granted.®
               Finally, Applicants argue that this is an inappropriate proceeding for EchoStar to
request reinstatement ofits own applications."* EchoStar is not using this proceeding to request
any reinstatement ofits applications.. EchoStar has made such a request n its Petition for
Reconsideration of the Bureau‘s action denying its applications.""" EchoStar is merely pointing
out in this proceeding that due to the similarities between the respective proposals, he above—
captioned applications cannot be granted unless and until the Bureau reinstates EchoStar‘s GSO
applications proposing use of the same NGSO Ka—band spectrum.

       " NGST Opposition, at7. In addition, NGST continues to maintain that their satelltes,
unlike those of EchoStar, are not GSO—like satellites because they will communicate with and act
in concert with their proposed NGSO satelltes. L at 13. While such operations, in some
circumstances, could avoid harmful interference to other NGSO satellte systems, this does not
change the regulatory classification ofthese satelites. Satellites that are stationed in
geostationary orbit are GSO—like satelltes whether or not they are used in conjunction with
NGSO setellites.
       "* In the Mater ofPetitionfor Rulemaking To Redesignate The 28.6—29.1 GHz (Carth—to—
Space) and 18.8—19.3 GHz (space—to—Earth) Bands to Allow Geostationary Fixed—Satellte
Service Operations On A Co—Primary Basis, filed Aug. 27, 2003 (*Peritionfor Rulemaking").
       * See, eg. EchoStar Application, t 4 ("The instant applications, however, are not
predicated on any such rule changes.").
       "* @contact Opposition, at 7—8.
       ‘" EchoStar Petition for Reconsideration

                                               16—


              For all othe above reasons as well as those set forth in EchoStar‘s Petitions to

Deny, EchoStar respectfully requests that the Bureau treat EchoStar, @contact, and NGST as
similarly—situated parties by either denying the GSO applications of @contact and NGST or
reinstating EchoStar‘s GSO applications mure pro furc and processing both sets of applications
according tothe FCFS Queue. In any event, the Commission should institute a rulemaking

proceeding to gover future sharing of NGSO—designated Ka—band spectrum by GSO satellites
and GSO—designated spectrum by NGSO satellites.




                                                 Respectfully submitted,

                                                   Ifi;fié {W                        Pn
David K. Moskowitz                               Pantelis Michalopoulos
EchoStar Satellite LLC                           Philip L. Malet
9601 South Meridian Boulevard                    Lee C. Milstein
Englewood, CO 80112                              Steptoe & Johnson LLP
(303) 723—1000                                   1330 Connectiout Aven, N.W.
                                                 Washington, D.C. 20036—1795
Karen Watson                                     (202) 420—3000
Lori Kalani
EchoStar Satellite LLC                           Counselfor EchoStar Satellite LLC
1233 20" Street, NW —— Suite 701
Washington, DC 20036
(202) 203—0081



Date: October 8, 2004


                                CERTIFICATE OF SERVICE

               1, Lee C. Milstein, hereby declare that copies of the foregoing Reply to

Oppositions filed by Northrop Grumman and contactMEO were sent on this 8th day ofOctober,
2004 by hand delivery or United States Postal Service (indicated by *) to the following:

Marlene H. Dortch, Secrctary                      Peter Hadinger®
Federal Communications Commission                 Northrop Grumman Space & Mission Systems Corp.
445 12th Street, S.W.                             Suite 2300
Washington, DC 20554                              1000 Wilson Blvd.
                                                  Arlington, VA 22209

Thomas S. Tyez                                    Norman P. Leventhal*
Satellte Division, International Bureau           Stephen D. Baruch *
Federal Communications Commission                 David S. Keir®
236 Massachusetts Avenue, NE.                     Leventhal Senter & Lerman PLLC
Suite 110                                         Suite 600
Washington, DC 20002                              2000 K Street, N.W.
                                                  Washington, DC 20006
David M. Drucker®                                 David Kane*
contactMEO Communications, LLC.                   Consulting Engineer
2539 North Highway 67                             5396 176" Place, S.E.
P.0. Box 348                                      Bellevue, WA 98006
Sedalia, CO 80135




                                                             of"c Ate
                                                                   Lee C. Milstein



Document Created: 2004-10-20 14:50:57
Document Modified: 2004-10-20 14:50:57

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