Attachment petition

petition

PETITION TO DENY submitted by EchoStar

petition

2004-09-13

This document pretains to SAT-LOA-19970904-00081 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA1997090400081_402167

STEPTOE &JOHNSONW attormeys at taw Sonstemstaesniee 1330 ComnecteArerce. 9W szon Washngion bG 2003695 pidevenspsesns Recfi\" wed ‘ncormons racaor293002 gt m se t pcen September 13, 2004 H ECElv\gfil«\a\ Bmfll Via HAND DELIVERY SEP 1 3 zon hm Fadeal Communcatons Comniision Int‘l Bureau Marlene smyH. Dortch Offrot Secmtoy s 1 5 2004 SEP Federal Communications Commission int Pigics 445 12" Street, S.W. Front Office Washington, D.C. 20554 R In the Matter of Northrop Grumman Space & Mission Systems Corporation Application for Authority to Launch and Operate a Geostationary and Non—Geostationary Orbit Fixed Satellite System in the Ka—Band. File Nos.: SAT—LOA—19970904—00080; SAT—LOA~ 19970904—00081; SAT—LOA—19970904—00082; SAT—LOA—19970904—00083; SAT—LOA—19970904 00084 —— as amended. Dear Ms. Dortch: On behalf of EchoStar Satellte LLC ("EchoStar"), enclosed please find an original and four copies of a Petition to Denyof the Applications and Amendments described above. This Petition to Deny is being provided in response tothe Amendments fled in the above—mentioned proceedings on July 19, 2004. Please do not hesitate to contact the undersigned should you have any questions with respect to this fling Respectfully submitted, Zfl. W iter Pantelis Michalopoulos Philip L. Malet Lee C. Milstein Artorneys for EchoStar Sarellite LL C Enclosures ce Thomas 8. Tycz Peter Hadinger, Northrop Grumman Space & Mission Systems Corp Norman P. Leventhal, Stephen D. Baruch, David S. Keir, Artorneysfor Northrop Grumman wasiincton rxornix tos anorues tonbon anussies

Before the RECEIVEp rEDERAL CoMMUNICATIONs commiIssioN,_ Washington, DC 20554 SEP 1 3 20y Foten Dammumuu,, ,, OfceotSegqyy @00 In the Matter of Northrop GrummanSpace & Mission SAT—LOA—19970904—00080 Systems Corporation SAT—LOA—19970904—00081 SAT—LOA—19970904—00082 Application for Authority to Launch SAT—LOA—19970904—00083 and Operate a Geostationary and Non— SAT—LOA—19970904—00084 Geostationary Orbit Fixed Satellite System in the Ka—Band. To: International Bureau PETITION To DENY OF ECHOSTAR SATELLITE LLC EchoStar Satellite LLC (‘EchoStar®) hereby files this Opposition to the above~ captioned applications, as amended, ofNorthrop Grumman Space & Mission Systems Corporation‘s Space Technology Sector (°NGSTY) to operate geostationary orbit ("GSO") and non—geostationary orbit (°NGSO") Fixed Satellite Service (*FSS") satellites in the primary NGSO portions of the Ka—band. EchoStar‘s interest in this matter is acute; its applications for four similar (4) GSO FSS satelltes were summarily denied by the Commission and are subject of pending petitions for reconsideration." EchoStar, therefore, is a party in interest in this ‘ In the Matter ofEchoStar Satellte LLC Applicationfor Authority to Construct, Launch And Operate Geostationary Satelltes in the Fixed—Satellte Service Using the Ka and/or Extended Ku—bands at the 83° W L., 105° W L., 113° W.L., and 121° W L. Orbital Locations, Petition for Reconsideration, fled Jun. 1, 2004 (*EchoStar Peritionfor Reconsideration").

proceeding because it has an interestin any proposal for spectrum use that is inconsistent with the policiesthat were applied to its prior applications. The applications of NGST for GSO satellites operating in the NGSO spectrum and for NGSO use of the GSO FSS spectrum by NGST‘s NGSO system must be denied if the Bureau refuses to reinstate EchoStar‘s pending Ka—band GSO applications because the asserted deficiencies in EchoStar‘s applications were also present in NGST‘s GSO applications at the time they were accepted for filing. Of course,if the Bureau were to reinstate EchoStar‘s applications on reconsideration, then it should process both sets of applications in accordance with their priority in the FCC‘s FCFS Quee. In any event, the Commission should institute a rulemaking proceeding as proposed by EchoStar over a year ago," regarding the operation of GSO FSS satellites in the primary NGSO FSS frequency bands and possibly the operation of NGSO satellites in the primary GSO FSS bands. Regardless, he Bureau cannot grant NGST‘s GSO FSS applications atthis time." 1. Background In relevant part, NGST has applied for authority to operate GSO FSS satellites on a secondary basis using spectrum designated for NGSO FSS use." It has also applied for its GSO * n the Matter ofPetitionfor Rulemaking To Redesignate The 28.6—29.1 GHz (Earth—to— Space) and 18.8—19.3 GHz (space—t0—Earth) Rands to Allow Geostationary Fixed—Satellie Service Operations On A Co—Primary Basis, filed Aug. 27, 2003 (Petitionfor Rulemaking"). * There are similar regulatory infirmities in the proposed use of the primary GSO FSS Ka—band by NGST‘s NGSO satellites since there are no FCC rules in place for sharing this spectrum. ! SAT—AMD—20040312—00031; SAT—AMD—20040312—00032; SAT—AMD—20040312— 00033; SAT—AMD—20040312—00034.

and NGSO satelltes to now use the primary GSO FSS Ka—band spectrum." Under the Commission‘s rules,all ofthe requested NGSO spectrum is allocated solely for NGSO satelltes." and the requested downlinks in the GSO spectrum are allocated solely for GSO FSS use." In part because the Bureau was not convinced that NGST had adequately addressed the NGSO/GSO sharing issues, the Bureau dismissed NGST‘s applications," However, on the Bureau‘s own motion, its dismissal was reversed and NGST was given another opportunity to supplementitsfilings with additional technical information." In ts most recent submissions, NGST has supplemented itssharing analysis and included additionaltechnical information elating to GSO/NGSO sharing.." EchoStar similarly filed applications for authority to operate GSO FSS satellites in the primary NGSO FSS Ka—band; however the Bureau on April 29, 2004, denied these applications without providing EchoStar with any opportunity to supplement its technical Wo 5 See 47 C.FR. 2.106; In the Matter ofRedesignation 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 Satellie—Service Use, Report and Order, IB Docket No. 98—172, FCC 00—212, at 99 10, 28 (rel. Jun. 22, 2000). 3 * Letter from Thomas S. Tyez, FCC, to Peter Hadinger, NGST, DA 04—1387, May 18, 2004 (°NGST DismissalLetter®). ° Letter from Thomas . Tycz, FCC, to Peter Hadinger, NGST, DA 04—1725, Jun. 16, 2004 (*NGST Reversal Letter®). ‘* See SAT—AMD—20040719—00136, Annex 3; SAT—AMD—20040719—00137, Annex 3; SAT—AMD—20040719—00138, Annex 3; SAT—AMD—20040719—00139, Annex 3; SAT—AMD— 20040719—00140, Annex 3.

showing."" EchoStar has petitioned the Bureau for reconsideration ofthe EchoStar Denial Order," but to date the Bureau has taken no action on the Peritionfor Reconsideration. 11. The Bureau Must Deny the GSO FSS Applications of NGST The Bureau‘s recent dismissal ofEchoStar‘s applications to operate GSO satellites using spectrum designated for NGSO FSS in the Ka—band,"" absent reconsideration and reinstatement mrepro fume, requires that it also deny NGST‘s GSO applications, since EchoStar and NGST are similarly—situated parties. As EchoStar explained in ts applications, no harmfulinterference would occur from the operation of its proposed GSO satellitesin the NGSO Ka—bands because it would adhere tointerationally recognized power limits,"" and because it would cease operations in the NGSO spectrum upon notification ofth likelihood of harmful interference.." NGST had made nearly identical representations in its applications and had not made any additional technical showings or interference analyses prior to the reinstatement ofits applications by the Bureau."* Nevertheless, whereas the Commission stated that EchoStar "has ‘ In the Matter ofEchoStar Satellte LLC Applicationfor Authority to Construct, Launch And Operate Geostationary Satellies in the Fixed—Satellite Service Using the Ka and/or Extended Ku—hands at the 83° WL., 105° W., 113° WL, and 121° WOrbital Locations, Memorandum Opinion and Order, DA 04—1167 (rel. Apr. 29, 2004) (*EchoStar Denial Order®). ‘* EchoStar Petition for Reconsideration. " EchoStar Denial Order. "* Inthe Matter ofEchoStar Satellte Corporation Applicationsfor Authority to Construct, Launch And Operate Nine Geostationary Satellitesin the Fixed—Satellite Service Using the Ka and/or Extended Ku—hands at the 81° W.L., 83° WL., 101° W.L, 105° W.L, 109° W.L, 113° W.L, 119° WL, 121° WL, and 123° W.L. Orbital Locations, Applications, Technical Annex, Attachment A at 17—19 (filed Aug. 27, 2003). " 1d, u15. ‘* SAT—AMD—20040312—00031, Amendment narrative at 1 1—14; SAT—AMD—20040312— 00032, Amendment narrative at 11—14; SAT—AMD—20040312—00033, Amendment narative at a4s

not demonstrated that its proposed satelltes will not cause interference to other systems in those frequency bands, nor that a waiver of [Commission] rules is justified,"""" and thereby denied the Applications without accepting them forfling and placing them on public notice, NGST has now been permitted to supplement ts applications. Given a similar opportunity, EchoStar would be able to make the same type of technical showing and analysis that NGST includes in its most recent filings,"" Indeed, the only notable difference between the proposed GSO satelltes in EchoStar‘s applications and those ofNGST is that NGST‘s proposal purports to coordinate the operations of its GSO satelites with its NGSO constellation ofsatelites, while EchoStar‘s proposed GSO satelltes would operate on a stand—alone basis. This distinction, though, is immaterial for purposes of determining the acceptability of both sets of applications for fling and placing them on public notice.." Whereas NGST proposes that ts GSO satelltes could cease operations and switch their traffc to its NGSO satelltes during in line events and potential harmful interference from another NGSO system, EchoStar could similarly cease operations in L—14; SAT—AMD—20040312—00034, Amendment narrative at 11—14. Despite reference to the contrary, NGST has not included any additional technical analysis beyond what is included in the narrative. 14. at fo 14. ‘" EchoStar Denial Order, t 1. "* See SAT—AMD—20040719—00136, Annex 3; SAT—AMD—20040719—00137, Annex 3; SAT—AMD—20040719—00138, Annex 3; SAT—AMD—20040719—00139, Annex 3; SAT—AMD— 20040719—00140, Annex 3. ‘* NGST makes the absurd argument thatits GSO satellites are really NGSO—like sutellites because it proposed to use them in conjunction with its NGSO constellation. Regardless as to how they are used, these proposed satellites would operate at a geosynchronous location in the GSO orbit and would preclude other GSO satellites from operating on the same frequencies at the same orbital locations. While one can call a duck by some other name,if it looks like a duck, walks like a duck and quacks like a duck, it is stil a duck.

the NGSO band and move its traffi to the GSO FSS band during in line events. Thus, NGST and EchoStar are similarly—situated parties and should be treated in the same manner. While EchoStar believes thatit may indeedbe proper for the Bureau to request additional information regarding GSO/NGSO sharing, as it did for NGST, rather than deny its GSO applications outright, the Bureau may not properly change ts practice regarding the processing of applications without prior notice of such a change in policy or practice."" "Itis a basic premise of administrative lawthat the Commission must treat similarly situated parties alike, absent a egally sustainable reason to the contrary.""" Such varying treatment is arbitrary and capricious."" Therefore, in order to ensure regulatory parity in this case, the Bureau should have sustained its denial of NGST*s GSO applications rather than accept them for filing so long as EchoStar‘s GSO applications remain subject to the AchoStar Denial Order. ®" See Salzer v. FCC, 778 F.2d 869, 873 (D.C. Cir. 1985). See, also, Motor Vehicle Mfr.‘s Ass‘nv. State Farm Mutval Auto, Ins. Co, 463 U.S. 29, 43 (1983); Greater Boston Television Corp. v. F.C.C., 444 F.2d 41, 852 (D.C. Cir, 1970) (per Judge Leventhal: "An agency‘s view of what is in the public interest may change, either with or without a change in circumstances. But an agency changing ts course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored, and if an agency glosses over or swerves from prior precedents without discussion it may cross the line from the tolerably terse to the intolerably mute."). *" See, EchoStar Denial Order, at §8, cting Petition to Deny or Dismiss of Hughes Electronies Corporation and Hughes Network Systems, Inc.,fled Oct. 24, 2003, at 7 (Hughes Petiion) (citing Melody Music, Inc. v. FCC, 345 F.2d 730 (D.C. Cir.1965)), and Northrop Grumman Space Technology and Mission Systems Corporation, Consolidated Petition to Dismiss, filed Oct. 24, 2003,at 5 (Northrop Grumman Petition). "" See, eg, Aichison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. Of Trade, 412 U.S. 800 (1973);Melody Music, 345 F2d 730.

IH. Alternatively, The Bureau Could Reinstate EchoStar‘s Applications and Then Process Each Set of GSO Applications According to the FCFS Queue Rather than dismissing or denying once again NGST‘s GSO applications, the Bureau has the option of granting EchoStar‘s reconsideration request, reinstating EchoStar‘s GSO applications mumepro fure, and processing both sets of applications according to the FCFS Queue. As stated above, similarly—situated applicants must be treated alike. Any action by the Bureau other than denial ofNGST‘s appliations would thus violate this principle unless the Bureau were also to reconsider is treatment of EchoStar‘s GSO applications. IV.— The Commission Should Also Initiate a Rulemaking Proceeding Regardless ofthe approach the Bureau takes with respect to the pending GSO applications, the Commission should initiate a rulemaking proceeding to consider redesignating the 18.8—19.3 GHz (space—to—Earth) bands for secondary GSO FSS operations (the 28.6—29.1 GHz uplink band already has such a designation) and develop shoring criteria. EchoStar submitted a petition for such a rulemaking over a year ago. In that Petition, EchoStar demonstrated why NGSO/GSO sharing in these bands would be beneficial and feasible."" EchoStar is not the only party that would be interested in the institution ofthis rulemaking proceeding. Indeed, as evidenced by the recent filings ofNGST and contactMEO Communications, LLC (‘@contact"),several satelite companies are interested in the use of NGSO FSS spectrum for GSO FSS satellites. Moreover, both @contact and NGST seck authority for use of the GSO spectrum by NGSO satellites. This request covers precisely the same issues as EchoStar‘s request —— among other things, the downlink GSO spectrum has no designation, even secondary, for NGSO use. * Petition for Rulemaking.

Indeed, the Commission has also recently noted the benefitsof band sharing, including greater spectrum efficiency and technology neutrality.*" n order to promote the public interest,effectively manage available spectrum, and avoid disputes involving similar applications, the Commission should prompily institute the requested rulemaking to consider NGSO/GSO sharing issues in the Ka—band. V. Conclusion Forall of the above reasons as well as those set forth in EchoStar‘s related Petitionfor Reconsideration and Petitionfor Rulemaking, EchoStar respectfully requests that the Bureau treat EchoStar and NGST as similarly—situated parties by either denying NGST‘s GSO applications or reinstating EchoStar‘s GSO applications mcpro fure and processing both sets of applications according to the FCFS Queue. In any event, the Commission should institute a rulemaking proceeding to govern future sharing ofNGSO—designated Ka—band spectrum by GSO satelltes and GSO—designated spectrum by NGSO satelltes. * See In the Matter ofReview ofthe Spectrum Sharing Plan Among Non—Geostationary Satellite Orbit Mobile Satellte Service Systems in the 1.6/2.4 GHz Bands Amendment ofPart 2 ofthe Commission‘s Rules to Allocate Spectrum Below 3 GH:for Mobile and Fixed Services to Support the Introduction ofNew Advanced Wireless Services, including Third Generation Wireless Systems, Report And Order, Fourth Report And Order And Further Notice OF Proposed Rulemaking, FCC 04—134, at 99 44—50 (re. Jul. 16, 2004) (*[WJe believe that promoting efficient spectrum use through sharing spectrum is consistent with our overall spectrum policy.").

Respectfully submitted, Texde 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 Connecticut Avenue, N.W. Washington, D.C. 20036—1795 Karen Watson (202) 420—3000 Lori Kalani EchoStar Satellie LLC Counselfor EchoStar Satellite LLC 1233 20" Street, NW —— Suite 701 Washington, DC 20036 (202) 203—0081 Date: September 13, 2004

DECLARATION 1, David W. Bair,hereby declare under penalty ofperjury thatthe foregoing is ue and correct tothe best ofmy know!cdgc,mnm(un z)t DividW. Barr VicePresident, Space Programs and Operations EchoStar Satelite LL.C. 9601 S. Meridian Blvd. Englewood, CO 80112 (303)723—1000 Dated: 913/04

CERTIFICATE OF SERVICE 1, Lee C. Milstein, hereby declare that copies of the foregoing Petition to Deny of Northrop Grumman‘s Application and Amendments for authorty to launch and operate a geostationary and non—geostationary orbit fixed satellite system in the Ka—band were sent on this 13th day of September, 2004 by hand delivery or United States Postal Service (indicated by *) to the following: Marlene H. Dortch, Secretary 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. Tycz Norman P. Leventhal* Satellte Division, International Bureau Stephen D. Baruch * Federal Communications Commission David S. Keir® 236 Massachusetts Avenue, NJE Leventhal Senter & Lerman PLLC Suite 110 Suite 600 Washington, DC 20002 2000 K Street, N.W. Washington, DC 20006 filk Lee C. Milstein —10—


Document Created: 2004-10-21 18:50:30
Document Modified: 2004-10-21 18:50:30
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