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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