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

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September 13, 2004
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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




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                                             Before the                       RECEIVEp
                      rEDERAL CoMMUNICATIONs commiIssioN,_
                                      Washington, DC 20554                      SEP 1 3 20y
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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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