Attachment ex parte

ex parte

Ex PARTE PRESENTATION NOTIFICATION LETTER submitted by Motient Corporation; TerreStar Networks, Inc.

ex parte

2006-07-20

This document pretains to SAT-LOA-19970926-00156 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA1997092600156_524674

                                                   LAW OFFICES
                                GOLDBERG, GODLES, W I E N E R & WRIGHT
                                          1229 NINETEENTH STREET, N.W.
                                           WASHINGTON, D.C.20036-2413

HENRY GOLDBERG                                                                                           (202) 429-4900
JOSEPH A. GODLES                                                                                         TELECOPIER:
JONATHAN L. WIENER                                                                                       (202) 429-4912
LAURA A. STEFAN1
DEVENDRA ("DAVE") KUMAR
                                                 EX PARTE OR LATE FILED
       -                                                     Wlcs@€?iVd
                                                                                                                e-mail:
                                                                                                       generalOg2w2.com
HENRIETTA WRIGHT
THOMAS G. GHERARDI, PC.                                                                               website: www.g2w2.com
COUNSEL                                                      Jut 3 4 2006
THOMAS S. TYCZ'
SENIOR POLICY ADVISOR
'NOT A N AlTORNEY




                                                                         JUL 2 0 2006
        BY HAND DELIVERY                                         Federal Communications Brnrnission
                                                                          (mice of Secretary
        Ms. Marlene H. Dortch
        Federal Communications Commission
        445 12th Street, SW
        Washington, DC 20554

                          Re:     IBFS Application




         Dear Ms. Dortch:

                On July 20,2006, Motient Corporation ("Motient") and TerreStar Networks, Inc.
         ("TerreStar"), by counsel, filed the attached ex parte notification and related Opposition
         to Motion via the Commission's ECFS. We hereby request that the same notification
         and Opposition also be associated with the above-referenced applications pending
         before the International Bureau.

                    Please direct questions concerning this matter to the undersigned.


                                                            Sincerely,
    File Nos.
    SAT-LOA-19970926-001s l/S2/S3/S1/S6
    SAT-AMD-20001103-00 15-1
    SAT-MOD-20020717-00 116/17/18/19
    SAT-MOD-20020722-00107/O8/09/LO/ 12
                                                            Henry Goldberg
                                                            Attorney for Motient Covporation                I


                                        LAW OFFICES
                         GOLDBERG, GODLES, WIENER &WRIGHT
                                1229 NINETEENTH STREET, N.W.
                                 WASHINGTON, D.C. 20036-2413
HENRY GOLDBERG                                                              (202) 429-4900
JOSEPH A. GODLES                                                            TELECOPIER:
JONATHAN L. WIENER                                                          (202) 429-4912
LAURA A. STEFAN1
DEVENDRA (“DAVE”) KUMAR

                                                                        website: www.g2w2.com
HENRIETTA WRIGHT
THOMAS G. GHERARDI, P.C.
COUNSEL


THOMAS S. TYCZ’
SENIOR POLICY ADVISOR
‘NOT AN ATTORNEY



                                        July 20,2006



Electronic Filing

Ms. Marlene H. Dortch
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

                   Re:   Motient Corporation and TerreStar Networks, Inc.
                         WC Docket No. 06-106
                         IBFS Application File Nos. SAT-LOA-19970962-00151-154;
                         SAT-LOA-19970926-00156; SAT-AMD-20011103-0154;
                         SAT-MOD-20020717-00116-119;SAT-MOD-20020717-00107-110;
                         and SAT-MOD-20020722-00112
                         Notification of Ex Parte Presentation

Dear Ms. Dortch:

       On July 19,2006, the undersigned, representing Motient Corporation
(”Motient”), and Sasha Field, Vice President for Regulatory Affairs for TerreStar
Networks, Inc. (”TerreStar”),met with Aaron Goldberger, Legal Advisor to
Commissioner Tate, to discuss matters related to the above-captioned transfer of control
application and recent ex parte filings by Globalstar.

       During the course of that discussion, it was noted that recent filings by Highland
Capital Management, L.P. (”Highland”) with respect to the above-captioned transfer of
control application are out of time, inaccurate, extraneous and should be dismissed
immediately. This position is stated fully in Motient’s Opposition to Highland’s motion
to accept late-filed comments, which is attached hereto. Additionally, with respect to
Globalstar’s ex partes, its Petition for Reconsideration regarding its S-band licenses was
addressed in terms of the need for the Commission to dismiss the Petition


Marlene H. Dortch
July 20,2006
Page 2

expeditiously, which position has been expressed by TMI/TerreStar in TB Docket Nos.
02-364,05-220, and 05-221.

      Please direct questions concerning this matter to the undersigned.


                                              Sincerely,




                                              Henry Goldberg
                                              Attorney for Motient Corporation



Attachment


cc:   Aaron Goldberger


                                           Before the
                            FEDERAL COMMUNICATIONS COMMISSION
                                     Washington, D.C. 20554



In the Matter of                                                )
                                                                )         WC Docket No. 06-106
Applications Filed For Consent To Transfer                      )
Control Of Mobile Satellite Ventures                            1
Subsidiary LLC From Motient Corporation And                     )
Subsidiaries To SkyTerra Communications, Inc.                   )


              OPPOSITION TO MOTION TO ACCEPT LATE-FILED COMMENTS

         Motient Corporation (“Motient”), by its attorneys, hereby opposes the Motion to Accept

Late-Filed Comments (“Motient”) that was filed by Highland Capital Management, LP

(“Highland”) on July 18, 2006.’


         Highland requests that the Commission accept its Comments, which are in the nature of

an opposition, as if they had been timely filed. The e-mail that is attached to Highland’s Motion

suggest that, in addition to wanting its Comments to be accepted, Highland seeks to become a

“party” to this proceeding so that it may “seek reconsideration” or “appeal to the courts” if it is

not satisfied with the Commission’s decision in this matter.2


         Highland’s request is inconsistent with the explicit terms of the public notice soliciting

comments. The public notice states that in order to become a party to the proceeding, interested

parties had to file comments or petitions to deny, and that all comments and petitions to deny

were due “no later than July 17, 2006.”3 As Highland acknowledges, its comments were not

received by the Commission’s Electronic Comment Filing System (“ECFS”) until July 18,2006,



’ Motient is a party to the transfer of control applications that are the subject of the above-captioned proceeding.
2
 Highland Motion, Exhibit 1.
 Public Notice, Applications Filed for Consent to Transfer Control of Mobile
Satellite Ventures Subsidiary LLC from Motient Corporation and Subsidiaries to
SkyTerra Communications, Inc., WC Docket No. 06-106, released June 16, 2006 (“Public Notice”).


                                                        -2-

and therefore were one day late.4 Highland’s request also runs counter to Section 25.154(a) of

the Commission’s rules,5 which states that “[pletitions to deny ... and other objections or

comments must .., [b]e filed within thirty (30) days after the date of public notice announcing

the acceptance for filing of the application       ... .”

           There are no extenuating circumstances that would warrant accepting Highland’s late

filing6 Although Highland had a full 30 days to prepare its Comments, it waited until not the

1 lthhour, but the 24fhhour, to begin uploading its filing to ECFS. In doing so, Highland bore the

risk that it would miss the deadline that the Commission had imposed. All of the matters

addressed in Highland’s Comments could have been addressed within the 30-day comment

period. It was completely within Highland’s control, therefore, when to begin uploading its

filing and Highland should be held responsible for its actions.


           The only rationale Highland offers for excusing its tardiness is that accepting its

Comments purportedly would “shed as much light as possible on the complex substantive issues

raised by the application ...” and “provide the Comniission with a more complete record upon

                            A review of Highland’s Comments, however, reveals that Highland
which to base its de~ision.”~

has provided no information that is material to the Commission’s deliberations, including its

extended tutorial on the Mobile Satellite Service.* Indeed, even the non-germane information

that Highland provided in its comments is substantially inaccurate and harmful as to both

Motient and TerreStar Networks Inc. (“TerreStar”).




    Highland Motion at 1.
’47 C.F.R. 5 25.154.
  Section 1.46(b) of the Commission’s rules, 47 C.F.R. 5 1.46(b), states that the Commission will consider motions
for acceptance of late-filed comments only in “emergency situations.”
’ Highland Motion at 2.
 Highland Comments at 5-8.


                                                       -3-

        In their transfer of control applications, the parties demonstrated that the proposed

transaction, by rationalizing MSV’s ownership structure, will enable MSV to attract capital more

easily and will facilitate MSV’s efforts to enter into strategic partnerships. Highland has shown

nothing to the contrary.


        Highland devotes substantial portions of its Comments to the potential impact of the

parties’ proposed transaction on TerreStar. Despite its supposed concern for TerreStar, Highland

has never sought to inform itself directly about TerreStar’s business plan and management. As a

result, its statements about TerreStar’s alleged dependency upon MSV for IP, technical expertise

and management abilities are unfounded and potentially harmful. Indeed, by interposing an

unwarranted, false, late, and non-germane pleading in this proceeding, Highland is only

complicating TerreStar’s implementation of its business plan and its initiation of service to the

public, Highland should know that TerreStar is not a party to the transfer of control applications.


        Finally, Highland asserts that the Commission must take into account facts that may be

developed in a lawsuit it has filed in Travis County, Texas seeking to rescind the agreement

between Motient and SkyTerra that gave rise to the MSV transfer of control applications.’ In the

lawsuit, Highland makes claims under federal securities laws and seeks a declaratory ruling

under state contract laws.”


        Highland’s lawsuit, however, is governed by different standards and principles than those

that are applicable here. The Commission will evaluate in this proceeding whether the proposed

transfer of control of MSV is in the public interest, not whether the agreement between Motient

and SkyTerra satisfies securities law requirements or whether the agreement is enforceable. As a

 Highland Comments at 14-17.
loSee Plaintiffs’ Original Petition, Cause No. D-1-GN-06-002219 (District Court, Travis County, Texas), filed June
19, 2006.


                                                      -4-

result of the different standards that apply in securities laws and contractual contexts, the

Commission has long refused to provide a forum for private contractual disputes or for

discontented shareholders seeking to raise issues relating to corporate management practices.”

Consistent with these precedents, the Commission need not await developments in Highland’s

state court proceeding before acting upon the transfer of control applications that are before it.

In any event, the Commission has ample authority, independent of any state court proceedings,

to ascertain the facts it needs to make a public interest determination.




” See Conisat Corporation, 13 FCC Rcd. 2714 at 7 33 (corporate law and the Securities and Exchange Commission,
rather than the Commission, are the appropriate venues for discontented shareholders to raise issues relating to
corporate management practices) (1 997); id. at 7 14 (issues concerning the relations between a company and its
shareholders was “governed by corporate and securities law” and was not relevant to the Commission’s
deliberations). See also Loral Satellite, lnc. (Debtor-in-Possession) and Lord SpaceCom Corp. (Debtor-in-
Possession), Assignors, and lntelsat North America, LLC, Assignee, Order and Authorization, 19 FCC Rcd 2402,
2420,137 (Int’l Bur. 2004) (absent a showing of a violation of the Commission’s rules or federal statute, the
Commission is not the proper forum to raise private contractual disputes).


                                                         -5-

                                                 CONCLUSION


           Accordingly, and for the reasons stated herein, Highland's Motion should be denied and

its late-filed Comments should not be accepted. In light of the fact that no other objections have
been filed,12 moreover, the Commission should eliminate the reply portion of the pleading cycle

                                   In the absence of objections, there is no party that needs to file
that it initially had estab1i~hed.I~

a reply.                                                                           \




                                                                Respectfully submitted,


                                                                MOTIENT CORPORATION


                                                                By:      /s/ Henry Goldberg
                                                                         Henry Goldberg
                                                                         Joseph A. Godles

                                                                GOLDBERG, GODLES, WIENER &
                                                                WRIGHT
                                                                1229 Nineteenth Street, N.W.
                                                                Washington, DC 20036
                                                                (202) 429-4900
                                                                Its Attorneys


July 20,2006




12
    Although it did not file an objection, the Department of Justice, with the concurrence of the Department of
Homeland Security, has filed a routine request asking that action on the transfer of control applications be deferred
pending resolution of potential issues that are within its purview. See letter, dated July 17, 2006, Sigal P.
Mandelker, Deputy Assistant Attorney General, to Marlene H. Dortch, FCC.
l 3 See Public Notice, p. 1.


                                  CERTIFICATE OF SERVICE

     I hereby certify that a copy of the foregoing Opposition to Motion to Accept Late-Filed
Comments was sent by hand this 20th day of July, 2006, to the following:

       Judith L. Harris
       James P. Schulz
       Reed Smith, LLP
       1301 K Street, NW
       Suite 1 100 - East Tower
       Washington, DC 20005
             Counsel for Highland Capital Management LP



                                              /s/ Jennifer Tjsdale
                                             Jennifer Tisdale



Document Created: 2006-07-25 16:14:55
Document Modified: 2006-07-25 16:14:55

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