Attachment reply

reply

REPLY submitted by SES Americom

reply

2004-10-08

This document pretains to SAT-LOA-19970904-00083 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA1997090400083_403380

Before the FEDERAL COMMUNICATiONs commsston RECEIVED Washington, D.C. 20584 OCt — 8 2004 In the Matter of § Faden!Communcaton omnissin ) OffesotSecminy contactMBO Communications, LLC ) File Nos. SAT—LOA—19971222—00022 ) SAT—AMD—20040322—00057 ) SAT—AMD—20040719—00141 and ) ) Northrop Grumman Space & Mission ) File Nos. SAT—LOA—19970904—00080/84 Systems Corporation ) SAT—LOA—19971222.00210 ) SAT—AMD—20031104—00324 ) SAT—AMD—20040312—0003034 ) SAT—AMD—20040719—00136/40 Applications for Authority to Launch and ) i _ ) ReCeved Inf]p,, Operate Geostationary Orbit and ) OCT 1 9 2004 OCT 1 Non—Geostationary Orbit Satellites in the ) 3 200 Fixed—Satellite Service ) Poiey Brancn Front IntomationalBureay d CoNSOLIDATED REPLYOF SES AMERICOM, INC. SES AMERICOM, Inc. ("SES AMERICOM®),by its attomeys and pursuant to Section 25.154 ofthe Commission‘s Rules, 47 C.F.R. § 25.145, hereby replies tothe Oppositions of contactMEO Communications, LLC ("contactMEO") and Northrop Grumman Space & Mission Systems Corporation ("Northrop Grumman‘") to SES AMERICOM‘s Consolidated Petition to Deny the above—captioned applications. SES AMERICOM demonstrated in its Petition that contactMBO and Northrop Grumman have proposed spectrum use that conflicts with the Commission‘s band plan for Ka—band spectrum without justifying a waiver ofthat plan." Nothing in the applicants‘ Oppositions cures this fundamental flaw. * Consolidated Petition to Dismiss or Deny of SES AMERICOM, Inc., filed Sept. 13, 2004 (‘SES AMERICOM Petition"). EchoStar Satelite LLC also filed Petitions to Deny against both the contactMEO and Northrop Grumman applications.

INTRODUCTION In adopting the Ka—band plan, the Commission determined that sharing between geostationary orbit ("GSO") and non—geostationary orbit (°NGSO") systems was not generally feasible and accordingly segmented use ofthe band.. See SES AMERICOM Petition at 4—5. Northrop Grumman and contactMEO clearly would prefer thatthe Intemational Bureau completely disregard the history ofthe Ka—band plan‘s development here. However, unless and until the Commission conducts a rulemaking to re—evaluate ts determination that sharing is not possible, and establishes ground rules for spectrum sharing, the current restrictions on spectrum use must be applied. Consistent with prior precedent, he Commission must deny the contactMEO and Northrop Grumman Ka—band applications. . THE APPLICANTS HAVE NOT JUSTIFIED THEIR PROPOSED USE OF GSO SPECTRUM BY NGSO SATELLITES As SES AMERICOM explained in its Petition, contactMEO and Northrop Gramman have not justified their requests for waiver ofthe Ka—band plan to permit their proposed NGSO satellitesto use spectrum allocated on a sole primary basis to GSO systems. In support of the waiver requests, the applicants rely solely on the assertion that their operations will comply with equivalent power flux—density (‘EPFD®) limits specified in Article 22 ofthe TTU Radio Regulations. This reliance is misplaced because there has been no Commission action on the Ka—band EPFD limits. SES AMERICOM Petition at 4—7. SES AMERICOM pointed out that in a comparable situation involving EPFD limits adopted interationally for Ku—band co—frequency operations among NGSO and GSO systems, the Commission conducted a rulemaking proceeding to consider whether the limits were appropriate for U.. domestic implementation. 14. at 6—7. In initiating that proceeding (ET

Docket No. 98—206), the Commission made very clear that notwithstanding the extensive analysis of the issues by an intemational study group, the Commission intended to develop an independent record conceming the adequacy ofthe limits to protect U.S. satellite operations" Conversely, the Commission has not yet even initited a proceeding to review the Ka—band EPFD limits. In these circumstances, the applicants here may not rely on those limits to justify a departure from the Commission‘s band plan. See SES AMERICOM Petition at 7. In their responses, both Northrop Grumman and contactMEO suggest that the Commission‘s ultimate decision to adopt the intemational EPFD limits for the Ku—band should be read as an endorsement of the Ka—band EPFD limits as well" However, there is no foundation for this leap of logic. Most significantly, the applicants® argument ignores the fact that the Commission expressly decided against permitting secondary use ofKa—band GSO downlink spectrum by NGSO systems after the international Ka—band EPFD limits were adopted.* 4 SES AMERICOM Petition at 7, quoting Amendment of Parts 2 and 25 of the Commission‘s Rules to Permit Operation ofNGSO FSS Systems Co—Frequency with GSO and Terrestrial Systems in the Ku—Band Frequency Range and Amendment ofthe Commission‘s Rules to AuthorizeSubsidiary Terrestrial Use of the 12.2—12.7 GHz Band by Direct Broadcast Satelite Licensees and their Affiliates, Notice ofProposed Rulemaking, 14 FCC Red 1131, 1141 1998). { See Northrop Grumman Opposition at 11—12; contactMEO Opposition at 2.3 n.6. f See Redesignation ofthe 17.7—19.7 GHz Frequency Band, Blanket Licensing of Satellite Earth Stations in the 17.7—20.2 GHe and 27.5—30.0 GHz Frequency Bands, and the Allocation of Additional Spectrum in the 17.3—17.8 GHe and 24.75—25.25 GHz Frequency Bands for Broadcast Satelite—Service Use, Report and Order, 15 FCC Red 13430, 13456 (2000); affd 16 FCC Red 19808, 19822 (2001). Both the iniialdecision not to permit secondary NGSO use ofGSO 18 GHz spectrum and the order on reconsideration affirming that decision were issued after the conclusion ofWRC—2000. 3

Furthermore,it is erystal clear that the evaluation of GSO/NGSOshoring in Docket 98—206 and the adoption of EPFD criteria were limited to the Ku—band." In faet, in its one hundred and thirty pages, the Ku—Band Sharing Order contains only one reference to the Ka— band EPFD limits, in a background paragraph describing the actions taken at WRC—97. Jd. at 4106. In contrast,the Order has an extensive and detailed analysis ofthe adequacy ofthe EPFD limits in each segment of the Ku—band atissue. The attempt by Northrop Grumman and contactMBO to equate the status of the Ku—band and Ka—band EPFD limits ignores the care that the Commission properly takes to prevent unaceeptable interference, reflected most prominently in the Ka—band segmentation itself. The Commission ultimately incorporated the Ku—band limits into its rules only after an exhaustive rulemaking proceeding in which all interested parties had an opportunity to comment. The same procedures are necessary in the context ofthe Ka—band EPFD limits, which to date have not been considered at all in a Commission proceeding. In fact,the passages from the Ku—Band Sharing Order quoted by Northrop Grumman and contac(MEO actually support the points SES AMERICOM made in its Petition. We observed that the Commission was emphatic in its Notice in Docket 98—206 that it would conductits own examination of the Ku—band limits in order to determine whether they were appropriate given domestic spectrum use and requirements. The language cited by the applicants in their Oppositions makes clear that the Commission did exactly that: in determining whether $ See, eg., Amendment of Parts 2 and 25 of the Commission‘s Rules to Permit Operation ofNGSO FSS Systems Co—Frequency with GSO and Terrestrial Systems in the Ku—Band Frequency Range and Amendment ofthe Commission‘s Rules to AuthorizeSubsidiary Terrestrial Use ofthe 12.2—12.7 GHz Band by Direct Broadcast Satellite Licensees and their Affilites, First Report and Order and Further Notice ofProposed Rulemaking, 16 FCC Red 4096, 4099 (2000) ("Ku—Band Sharing Order") (decision permits NGSO providers to operate "in certain segments ofthe Ku—band"). a

to implement the Ku—band limits in the U.., the Commission relied not ut on the results ofthe intermational study process but also on the record developed in the Docket 98—206 proceding.* No such record exists with respect to the Ka—band limits because the Commission has never sought comment on their appropriateness for U.S. operations. Perhaps after inviting comment on the issues, the Commission ultimately will conclude that the Ka—band limits are sultable for domestic implementation, as it did with the Ku—band limits. We note, however, that the international Ka—band limits were developed for sharing between co—primary GSO and NGSO systems, while the Commission expressly decided against co—primary allocations in its Ka—band plan. In fact, in a portion of the GSO spectrum to which Northrop Grumman and contactMBO seek access, there is no allocation at all for NGSO systems, and in the remaining spectrum, NGSO operations are secondary to GSO systems. See SES AMERICOM Petition at 6 nil In any event, tfinal decision is for the Commission to make once it has the opportunity to consider all the evidence. Untilthe Commission revisits itsconclusion that Ka— band GSO/NGSO sharing is not feasible, the international Ka—band EPFD limits have no foree domestically and cannot be used as the basis for a waiver ofthe Commission‘s established Ka— band spectrum rules. Accordingly, trequests by contactMEO and Northrop Grumman to have NGSO spaceeraft operate in GSO spectrum must be denied. ® See Northrop Grumman Opposition at 11—12, quoring Ku—Band Sharing Order, 16 FCC Red at 4109 ("the agreements reached within the intemational arena and the record developed in response to these international agreements" give the Commission an adequate basis to resolve sharing issues) (emphasis added);contactMEO Opposition at 3 n.6, quoring Ku—Band Sharing Order, 16 FCC Red at 4130 ("based upon the technical work adopted by the WRC—2000 and the record developed in this proceeding" the Commission determines that the Ku—band EPFD limits are appropriate for adoption domestically) (emphasis added). s

i1 COMMISSION PRECEDENT REQUIRES THAT THE APPLICANTS® REQUESTS TO OPERATE GSO SATELLITES IN NGSO SPECTRUM BE DENIED The SES Petition also demonstrated that the proposals by contactMEO and Northrop Grumman conflct with Commission precedent insofar as they involve operation of GSO satellites using spectrum allocated to NGSO systems. SES AMERICOM Petition at 7—11. The Commission has consistently rejected requests by other GSO operators to access Ka—band NGSO spectrum, most recently in its decision carlier this year denying applications fled by EchoStar." This line ofdecisions requires rejection of the contactMEO and Northrop Grumman proposals as well. In their Oppositions, the applicants strain but fail to distinguish their proposals from the previously rejected applications ofEchoStar. Northrop Grumman and contactMEO make much ofthe "technical showings" they submitted with their applications to support their claims ofnon—interference." But those showings are based on exactly the same mechanism previously relied upon by EchoStar— a commitment to cease operations in the NGSO spectrum when necessary to avoid interference to NGSO systems." The Bureau determined that EchoStar‘s promise to terminate use ofthe NGSO spectrum upon notifiation that an NGSO system was experiencing harmful interference was insulicient to justify a waiver ofthe Ka—band allocation rules. ZchoSter Order at 1 16. The same conclusion is required here because the proposed interference avoidance approach is exactly the same. * EchoStar Satellite LLC, Memorandwn Opinion and Order, DA 04—1167, Sat. Div. rel iApr. 29, 2004 (*EchoSter Order"). See contactMEO Opposition at 6; Northrop Grumman Opposition at 7. + BchoStar makes the same observation in its Petitions against the applications. See EchoStar Petitions to Deny at 5—6. 6

Furthermore, because the Ka—band plan is premised on segmentation of spectrum, the Commission has never even developed standards for evaluating sharing between NGSO and GSO systems. As SES AMERICOM explained in its Petition, the International Bureau in the EchoSter Order re—emphasized that there are no protection criteria for NGSO systems, so the Commission eannot possibly evaluate the impact of a sharing proposal on NGSO operations. SES AMERICOM Petition at $—9, ciing EchoStar Order at 1 17. Northrop Grimman responds with the conclusory statement thatitsproposed operations would have "no noticeable impact" on other NGSO systems with applications pending before the Commission. Northrop Grumman Opposition at 15. Agin, however, it is for the Commission, not Northrop Grumman, to determine whether sharing is possible, and if so, what the technical standards for sharing should be.® Alteratively, Northrop Grumman and contactMEO claim that no waiver ofthe spectrum plan is needed for their GSO satellites to operate in NGSO spectrum because the satelites are all part of an NGSO system. SES AMERICOM‘s Petition conclusively rebutted this novel assertion, demonstrating that the spaceeraft proposed by the applicants fit squarely within Commission definitions of geostationary orbit satelites. SES AMERICOM Petition at 9— 10. The applicants, however, astonishingly continue to insist that for purposes ofthe !® Northrop Grumman and contactMEO also each point out that no other NGSO applicant objected to the proposed use ofNGSO spectrum here. Northrop Grumman Opposition at 16; contactMEO Opposition at 6 n.14. This, however, proves nothing. Since Northrop Grimman and contactMEO are proposing exactly the same thing, it is hardly surprising that neither company objected to the other‘s proposal. Noris SkyBridge‘s silence hard to account for, since according to press reports, the entire SkyBridge system was placed on hold in early 2002. See "Alcatel Halts Plansfor ShyBridge," bitp:lwwwspaceandtech.com/digestash2002/Nash2002— 001.shtml (Jan. 3, 2002).

Commission‘s spectrum plans, all their satelites should be treated as non—geostationary, even those whose orbits the applicants concede are in fact geostationary.." In other words, the applicants contend that the Commission should grant spectrum access rights here without regardto the actual orbital characteristics ofthe satelltes at issue. The obvious and fatal flw in this argument is that the Commission specifically segmented the available Ka—band satellite spectrum based solely on satellite orbital characteristics. The distinctions drawn by the Commission in assigning spectrum reflect the practical reality that the interference potentials of satellite systems are a function of their orbits. While geostationary satelltes can re—use spectrum every two degrees throughout the are, nongeostationary satellite systems generally cannot share spectrum in the same coverage area without special measures to avoid interference. The applicants® attempts to re—label their satellites to suit their own purposes cannot change the operational facts."" Northrop Grumman in particular appears to be trying to manipulate the spectrum rules toits own advantage. Itproposes to have several ofits GSO satellites operate in GSO— primary spectrum in addition to NGSO—primary spectrum."" However, despite its claim that all the GSO satellites are all part of a single NGSO system and should be treated as such, Northrop Grumman does not request a waiver ofthe spectrum rules to permit these satellites to operate in GSO spectrum. Apparently Northrop Grumman hopes to have the GSO satelltes treated as GSOs for purposes of secking access to GSO spectrum but as NGSOs for purposes of secking m11 See Northrop Grumman Opposition at 13; contactMEO Opposition at 6 n.14. 1fthe applicants were to succeed in this definitional sleight—ofhand, the logical next step would be to propose adding some microwave links as part oftheir systems, and then argue that their satelltes should be allowed to operate in spectrum set aside for the errestrial fixed service as well. _ See Amendment ofNorthrop Grumman Space & Mission Systems Corporation, File No. SAT—AMD—20040312—00030 ("Northrop Grumman Amendment"), Narrative at 13—14. s

access o NGSO spectrum. Northrop Grumman‘s overreaching attempt to have it both ways only highlights the basic illogic of ts underlying argument Finally, SES AMERICOM‘s Petition noted that the Commission has not yet addressed EchoStar‘s request for intiation of a rulemaking concerning GSO operations in NGSO spectrum, a request that SES AMERICOM supports. SES AMERICOM Petition at 10—11 & 122. Untilthe rulemaking petition has been addressed, grant of any individual applications for GSO access to NGSO bands would give the applicants unfair precedence over other GSO operators with an interestin access to this spectrum. SES AMERICOM noted that Northrop Grumman itself raised this point in its objections tothe EchoStar applications proposing Ka—band GSO satellites that would operate in NGSO spectrum."" Northrop Grumman now alleges that SE AMERICOM‘s concern about Northrop Grumman gaining date priority over other potential applicants is moot because Northrop Grimman has proposed only "NGSO" use of the bands. Northrop Grumman Opposition at 16. This statement is simply false. Clearly, granting Northrop Grumman or contactMBO rights to use NGSO Ka—band spectrum at the GSO orbital locations they have requested would preclude any future GSO applicant from acquiring the same rights atthose positions. Northrop Grumman goes on to say that ifits applications are granted, there would stil be a "plethora" oforbital locations from which other GSO operators could seck to make use ofthe NGSO—primary bands. Id. Of course, the same thing would have been true if the Commission had granted the EchoStar applications. In short, Northrop Grumman provides no !* SBS AMERICOM Petition at 10, eiting Consolidated Petition to Dismiss ofNorthrop Grimman Space & Mission Systems Corporation, File Nos. SAT—LOA—20030827— 00180/00182/00185/00187, filed Oct. 24, 2003, at 2. 9

reason here why it should be granted an advantage over other potential applicants thatit claimed EchoStar should be denied. CONCLUSION In the proceedings leading up to the adoption ofits Ka—band spectrum allocations, the Commission fully considered the prospects for sharing between GSO and NGSO operations and determined that sharing was not feasible. Any re—examination of those conclusions must take place in a rulemaking proceeding to permit allinterested parties to weigh in. Unless and untilthe Commission conducts a rulemaking to re—evaluate its determination that sharing is not possible, and establishes ground rules for spectrum sharing, the current restrictions on spectrum use must be applied. The waivers requested by contactMEO and Northrop Grumman here conflict with the underlying purpose for segregating the Ka—band satellite spectrum and must therefore be denied. Respectfully submitted, SES AMERICOM, INC. Nuny J Estongti By: ie fanst_._ Vice President & Peter A. Rohrbach Assoc. General Counsel Karis A. Hastings SES AMERICOM, Inc. Hogan & Hartson LLP. Four Research Way 555 Thiteenth Street, N.W. Princcton, NJ 08540 Washington, D.C. 20004 (202) 637—5600 October 8, 2004 10

CERTIFICATE OF SERVICE 1, Cecelia Bumett,do hereby certify that on this 8" day of October, 2004, copies of the foregoing "Consolidated Reply of SES Americom, Inc." were.served to the following parties by first class mail Cecclia M. Bamett James M. Talens 6017 Woodlcy Road MeLean, Virginia 22101 Mr. David M. Drucker Manager, contactMBO Communications, LLC 2539 N. Highway 67 Sedalia, CO 80135 Mr. Peter Hadinger Northrop Grumman Space & Mission Systems Corporation 1000 Wilson Boulevard Arlington, Virginia 22209 Mr. Norman P. Leventhal Mr. Stephen D. Baruch Mr. David S. Keir Leventhal, Senter & Lerman 2000 K Street, N.W. Suite 600 Washington, D.C. 20006 11


Document Created: 2004-10-20 13:05:13
Document Modified: 2004-10-20 13:05:13
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