Attachment reply

reply

REPLY submitted by AT&T; Cingular; Verizon

reply

2003-03-28

This document pretains to SAT-LOA-19970926-00154 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA1997092600154_715294

ORILGINAL RECEIVED Before the Federal Communications Commuission M ' Washington, DC 20554 AR 2 8 2003 FEDERAL Co In the Matter of Application of ) DA 03—328 officeormee5ononl!°80 ) Globalstar, L.P. ) File Nos.: ) 183/184/185/186—SAT—P/LA—97 For Modification of License for a Mobilee ) 182—SAT—P/LA—97(64) Satellite Service System in the 2 GHz Band ) ) IBFS Nos.: For Waiver and Modification of ) —SAT—LOA—19970926—00151/52/53/54 Implementation Milestones for 2 GHz MSS ) SAT—LOA—19970926—00156 System ) SAT—AMD—20001103—00154 ) —SAT—MOD—20020717—00116/17/18/19 ) —SAT—MOD—20020722—00107/08/09/10/12 ) ) Call Signs: ) $2320, §2321, $2322, MeRaRed To: The Commission APR 0 1 2003 Policy Branch REPLY TO COMMENTS International Bureau Pursuant to Section 1.115(d) of the Commuission‘s Rules, 47 C.F.R. § 1.115(d), AT&T Wireless Services, Inc., Cingular Wireless LLC and Verizon Wireless (jointly, the "Carriers") hereby reply to the "Comments in Support of Emergency Application for Review" submitted by the Official Creditors Committee of Globalstar, L.P. (the "Creditors") on March 18, 2003. In their comments, the Creditors have raised a new substantive argument concerning the applicability of Section 312 of the Communications Act to the license nullification at issue in the Bureau Order under review.‘ Because this argument is developed for the first time in the Creditors‘ supporting comments (submitted during the opposition phase of the pleading cycle), the Carriers submit this limited reply to address the new points raised by the Creditors. ‘ Globalstar, L.P., Memorandum Opinion and Order, 18 F.C.C.R. 1249 (2003) ("Bureau Order"). Section 312 is mentioned only in passing by footnote reference in the underlying application for review. See Emergency Application for Review at 4 n.2, 5 n.10.

Specifically, the Creditors claim that the International Bureau was barred from canceling Globalstar‘s 2 GHz MSS conditioned license without a hearing under Section 312, without indicating what type of hearing (evidentiary or otherwise) Globalstar should receive." As a threshold point, the Creditors‘ argument that the cancellation of Globalstar‘s authorization violates Section 312‘s hearing provisions is a question upon which the Bureau has been afforded no opportunity to pass. This argument, therefore, cannot be raised before the Commussion for the first time." Notwithstanding this procedural error, Section 312 is inapplicable to this case. Section 312 applies to license revocation, but that is not what happened to Globalstar‘s authorization. The Bureau Order held that "consistent with the terms of Globalstar;s license, its authorization for a 2 GHz MSS system is null and void" for failure to satisfy the initial implementation milestone set forth in its authorization.* Globalstar‘s authorization was therefore not revoked." Rather, the non—contingent contract milestone was a condition on its authorization, which was * Comments in Support of Emergency Application for Review at 18—19. * See 47 C.F.R. § 1.115(c) & note; see also Richard Duncan d/b/a Anderson Communications, FCC 03—52, at «[ 7 (rel. Mar. 12, 2003) ("Duncan"). * Bureau Order at § 13. ° See, eg., Glendale Electronics, Inc., 17 F.C.C.R. 22189, 22194 (CWD/WTB 2002); Revision ofPart 21 of the Commission‘s Rules, 2 F.C.C.R. 5713, 5718 (1987). The NextWave D.C. Circuit decision relied upon by the Creditors is inapposite. See Comments in Support of Emergency Application for Review at 18—19. In NextWave, it was undisputed that the case involved revocation of licenses under Section 525 of the Bankruptcy Code. See NextWave Personal Communications, Inc. v. FCC, 254 F.3d 130, 149 (D.C. Cir. 2001), affd 123 S. Ct. 832 (2003); see also, e.g., United States v. Verdugo—Urquidez, 494 U.S. 259, 272 (1990) (judicial decisions do not serve as precedent for points that were not raised and analyzed). In fact, the Court expressly ruled that it was unclear whether the FCC‘s automatic cancellation policy even applied under the facts of that case. 254 F.3d at 142. Finally, the discussion cited to by the Creditors concerning the "effect" of license cancellation occurred in the context of determining whether jurisdiction existed under 47 U.S.C. § 402(a) or (b), see 254 F.3d at 140, and not whether Section 312(c) hearing rights had been triggered. 2

valid only as long as the condition was satisfied. Its authorization was rendered null and void by operation of law and automatically cancelled when Globalstar failed to satisfy the license condition." Moreover, under the D.C. Circuit‘s Temmer precedent, Globalstar has no hearing rights because its authorization was never perfected.‘ Temmer makes clear that an applicant who accepts a license that is conditioned on future performance accedes to such condition(s), which renders the applicant‘s rights contingent.© Only after satisfaction of the condition(s) do the contingent rights vest. In other words, where an entity fails to satisfy a requirement on which its authorization is conditioned, its rights under the license remain unperfected and it is not entitled to a hearing prior to cancellation for failure to meet that condition." Globalstar‘s failure to satisfy the initial milestone upon which its license was conditioned meant that its rights under the authorization, including the right to a hearing, never vested. The FCC was fully empowered to declare the license null and void for failure to satisfy the condition. In any event, no purpose would be served in holding an evidentiary hearing because there is no factual dispute as to the terms of Globalstar‘s contract and its arrangements for construction of its 2 GHz MSS system. There is only a pure question of law as to whether those arrangements ° See, eg., Richard Duncan d/b/a Anderson Communications, 16 F.C.C.R. 4312, 4312—13 (2001), affd in part, Morris Communications, Inc. v. FCC, No. 01—1123 (D.C. Cir. Apr. 17, 2002), on remand, FCC 03—52, at «[ 6 (rel. Mar. 12, 2003). ‘ P & R Temmer v. FCC, 743 F.2d4 918 (D.C. Cir. 1984) ("Temmer). 8 See id. at 928. ° See id. Although Temmer arose in the context of Section 316 hearing rights, the case has been applied in the context of Section 312. See Peninsula Communications, Inc., 17 F.C.C.R. 2838, € 4 (2002) (citing Temmer, 743 F.2d at 928); Revision ofPart 21 ofthe Commission‘s Rules, 2 F.C.C.R. at 5718 (citing Temmer; Music Broadcasting Co. v. FCC, 217 F.2d 339, 342 (D.C. Cir. 1954)). The term revocation is loosely used in Temmer in all probability because failure to meet the condition did not result in automatic cancellation. See 743 F.2d at 925—26. Nevertheless, the Court recognized no hearing rights were triggered. 3

satisfied the initial milestone. Where there are no material questions of fact to be resolved, only questions of law, the FCC is not required to hold a purposeless evidentiary hearing.‘" The Bureau‘s finding that the Globalstar contract failed to satisfy the initial non—contingent contract milestone as a matter of law was fully justified given the clear notice the milestones would be strictly enforced and precedent that the contract must provide for construction and launch of the satellites under the terms of the license."‘ Accordingly, for the reasons stated herein and in the Carriers‘ Opposition to Application for Review, Globalstar‘s Emergency Application for Review should be denied and the Bureau Order affirmed. 9 See, eg., U.S. v. Storer Broadcasting Co., 351 U.S. 192, 2002—05 (1956); Alabama Power Company v. FCC, 311 F.3d 1357, 1372 (1 1°" Cir. 2002) ("APCo must therefore identify a material question of fact that warrants a hearing. But its dispute is only over . . . a legal issue that hardly warrants an evidentiary hearing since no material facts are disputed."); RKO General, Inc. v. FCC, 670 F.2d 215, 231 (D.C. Cir. 1981) ("RKO") (where the Commission needs only to "draw legal conclusions from ‘facts already known,""it is "not required to . . . reopen the proceeding for an evidentiary hearing that would have served no purpose") (quoting Lakewood Broadcasting Service, Inc. v. FCC, 478 F.2d 919, 924 (D.C. Cir. 1973)); Network Project v. FCC, 511 F.2d 786, 796 (D.C. Cir. 1975) (a hearing is not necessary where the Commission‘s decision is based on "inferences and conclusions drawn from undisputed facts"); Cifizens for Allegan County, Inc. v. Fed. Power Comm‘n, 414 F.2d 1125, 1128 & n.5 (D.C. Cir. 1969) ("The right of opportunity for hearing does not require a procedure that will be empty sound and show, signifying nothing."); Anti—Defamation League ofB‘nai B‘rith v. FCC, 403 F.2d 169, 171 (D.C. Cir. 1968) ("inferences to be drawn from facts already known and the legal conclusions to be derived from those facts" may be made by the Commission without an evidentiary hearing); TelePrompTer Cable Systems, Inc., 52 F.C.C.2d 1263, 1264 & n.2 (1975) ("[E]ven if Section 312 were applicable, it is difficult to see what there would be to hear, given our view of the case. .. . It seems to us beyond question that ‘once evidentiary facts are undisputed, a hearing serves no purpose."") (quoting Gellhorn & Robinson, Summary Judgment in Administrative Adjudication, 84 Harv. L. Rev. 612, 630 (1971)), remanded on other grounds, 543 F.2d 1379 (D.C. Cir. 1976). See Bureau Order at § 6 & nn.12—13 (citing cases); Opposition to Application for Review at 5—8.

Respectfully submitted, ceS‘ 4_ Kathryn A. Zache L. Andrew Tolhn Craig E. Gilmore Wilkinson Barker Knauer, LLP 2300 N Street, NW, Suite 700 Washington, DC 20037 (202) 783—4141 Douglas I. Brandon John T. Sceott, III — J. R. Carbonell AT&T Wireless Services, Inc. Charla M. Rath Carol L. Tacker 1150 Connecticut Avenue, NW Cellco Partnership David G. Richards Washington, DC 20036 d/b/a Verizon Wireless Cingular Wireless LLC (202) 223—9222 1300 I Street, NW 5565 Glenridge Connector Suite 400—W Suite 1700 Washington, DC 20005 Atlanta, GA 30342 (202) 589—3760 (404) 236—5543 March 28, 2003

CERTIFICATE OF SERVICE I, Paula Lewis, hereby certify that a copy of the foregoing "Reply to Comments" has been served this 28" day of March, 2003, by first class United States mail, postage prepaid, on the following: Tom Davidson *R. Paul Margie Phil Marchesiello Legal Advisor Akin, Gump, Strauss, Hauer Office of Commissioner Michael Copps & Feld, L.L.P. Federal Communications Commission 1676 International Drive 445 — 12th Street, SW, Room 8—¢A302 Penthouse Washington, DC 20554 McLean, VA 22102 *Jennifer Manner Joseph A. Godles Legal Advisor Goldber% Godles, Wiener & Wright Office of Commissioner Kathleen Abernathy 1229 19°" Street, NW Federal Communications Commission Washington, DC 20036 445 — 12th Street, SW, Room 8—B115 Washington, DC 20554 William F. Adler Vice President, Legal and *Barry Ohlson Regulatory Affairs Interim Legal Advisor Globalstar, L.P. Office of Commissioner Jonathan S. 3200 Zanker Road Adelstein San Jose, CA 95134 Federal Communications Commission 445 — 12th Street, SW, Room 8—C302 William D. Wallace Washington, DC 20554 Crowell & Morning LLP 1001 Pennsylvania Avenue, NW *Donald Abelson, Chief Washington, DC 20004 International Bureau Federal Communications Commission *Bryan Tramont 445 — 12th Street, SW, Room 6—C750 Senior Legal Advisor Washington, DC 20554 Office of Chairman Michael K. Powel! Federal Communications Commission *Thomas J. Sugrue, Chief 445 — 12"" Street, SW, Room 8—B201 Wireless Telecommunications Bureau Washington, DC 20554 Federal Communications Commission 445 — 12th Street, SW, Room 3—C252 *Samuel L. Feder Washington, DC 20554 Legal Advisor Office of Commissioner Kevin Martin *Edmond J. Thomas, Chief Federal Communications Commission Office of Engineering and Technology 445 — 12th Street, SW, Room 8—¢¥A204 Federal Communications Commission Washington, DC 20554 445 — 12th Street, SW, Room 7—C153 Washington, DC 20554

*Robert M. Pepper, Chief, *Alexandra Field Policy Development Senior Legal Advisor Office of Strategic Planning International Bureau & Policy Analysis Federal Communications Commission Federal Communications Commission 445 — 12th Street, SW, Room 6—C407 445 — 12th Street, SW, Room 7—C347 Washington, DC 20554 Washington, DC 20554 *Breck J. Blalock *John A. Rogovin Deputy Chief , Policy Division General Counsel International Bureau Office of General Counsel Federal Communications Commission Federal Communications Commission 445 — 12th Street, SW, Room 6—¢A764 445 — 12th Street, SW, Room 8—C758 Washington, DC 20554 Washington, DC 20554 *Thomas S. Tycz *David E. Horowitz Chief, Satellite Division Attorney Advisor International Bureau Office of General Counsel Federal Communications Commission Federal Communications Commission 445 — 12th Street, SW, Room 6—A665 445 — 12th Street, SW, Room 8—A636 Washington, DC 20554 Washington, DC 20554 *Christopher Murphy *Neil A. Dellar Senior Legal Advisor Office of General Counsel International Bureau Federal Communications Commission Federal Communications Commission 445 — 12th Street, SW, Room 8—C818 445 — 12"" Street, SW, Room 6—C:750 Washington, DC 20554 Washington, DC 20554 *Howard Griboff *William H. Bell Attorney Advisor, Satellite Division International Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 — 12th Street, SW, Room 6—B505 445 — 12"" Street, SW, Room 6—C467 Washington, DC 20554 Washington, DC 20554 *Cheryl Williams *Karl A. Kensinger Administrative Management Specialist Special Advisor, Satellite Division International Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 — 12th Street, SW, Room 6—A721 445 — 12th Street, SW, Room 6—A663 Washington, DC 20554 Washington, DC 20554

*James L. Ball *Evan R. Kwerel Chief, Policy Division Senior Economist International Bureau Office of Strategic Planning Federal Communications Commission & Policy Division 445 — 12th Street, SW, Room 6—A763 Federal Communications Commission Washington, DC 20554 445 — 12"" Street, SW, Room 7—C347 Washington, DC 20554 *Thomas Sullivan Assistant Bureau Chief *Kathleen O‘Brien Ham Administrative and Management Office Deputy Bureau Chief International Bureau Wireless Telecommunications Bureau Federal Communications Commission Federal Communications Commission 445 — 12th Street, SW, Room 6—C841 445 — 12th Street, SW, Room 3—C255 Washington, DC 20554 Washington, DC 20554 *Richard B. Engelman *Fern J. Jarmulnek Chief Engineer International Bureau International Bureau Federal Communications Commission Federal Communications Commussion 445 12"" Street, SW 445 — 12th Street, SW, Room 6—A668 Washington, DC 20554 Washington, DC 20554 *Cassandra Thomas *David L. Furth International Bureau Senior Legal Advisor Federal Communications Commission Wireless Telecommunications Bureau 445 12" Street, SW Federal Communications Commission Washington, DC 20554 445 — 12th Street, SW, Room 3—C217 Washington, DC 20554 *John Branscome Attorney Advisor Apola Commercial Wireless Division Wireless Telecommunications Bureau Federal Communications Commission 445 — 12th Street, SW, Room 4—¢A324 Paula Lewis Washington, DC 20554 *Via Hand Delivery


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Document Modified: 2019-04-09 04:09:23
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