Attachment letter

letter

LETTER submitted by Globalstar

letter

2003-07-14

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

IBFS_SATLOA1997092600156_718348

1001 Pennsylvania Avenue, NW, Washington, DC 20004—2595 = p202 624-,25NIA LOZ 628—5116 crowell — [€mormng RECEIVED JUL 1 4 2003 Federal Communicati fant Offic:glfcgefgstacr:mmlssm July 14, 2003 Gafe /file Divisien Ms—Ma Int‘] Bureau éecretary JUL + 5 °093 Federal Communications Commission . 445 Twelfth Street, SW Front Office Washington, DC 20554 RE: File Nos: 183/184/185/186—S8AT—P/LA—97; 182—SAT—P/LA—97(64) IBFS Application File Numbers: SAT—LOA—19970926—00151—154 RGCeived SAT—LOA—19970926—00156 JU SAT—AMD—20011103—0154 L { 42003 SAT—MOD—20020717—00116—119 Poligy Brg SAT—MOD—20020717—00107—110 Internationgj B“'frgau SAT—MOD—20020722—00112 Call Signs S2320/82321/82322/82323/82324 Dear Ms. Dortch: On January 29, 2003, the International Bureau adopted a Memorandum Opinion and Order ("MO&O"), DA 03—328, in which it denied a request by Globalstar, L.P. ("GLP"), for modification of certain implementation milestones associated with its 2 GHz Mobile—Satellite Service ("MSS") system and canceled all GLP‘s 2 GHz MSS licenses. The Bureau‘s denial of GLP‘s request for extension of certain milestones was founded on a policy used in the MO&O, but not previously made known to the public. In canceling the 2 GHz MSS licenses, the Bureau reasoned that, since the satellite construction contract between GLP and Space Systems/Loral, Inc., incorporated the milestones as proposed for modification rather than the milestones in GLP‘s original licensing order, the contract could not meet the Commission‘s requirement that a satellite licensee enter into a non—contingent construction contract within one year of the date of licensing. Rather than giving GLP an opportunity to cure its contract with Space Systems to conform with the original milestone schedule, the Bureau simply canceled the licenses for failure to conform to the original milestone schedule. Crowell & Moring LLP a www.crowell.com a Washington @= Irvine & London a= Brussels

Ms. Marlene H. Dortch July 14, 2003 Page 2 On March 3, 2003, GLP filed an "Emergency Application for Review" and "Request for Stay" of the Bureau‘s decision. Both remain pending. Among other points made in its Emergency Application for Review, GLP explained that the Bureau‘s policy under which it canceled GLP‘s licenses and refused to provide an opportunity to cure was a new policy, one which GLP could not have known or anticipated. Indeed, the Bureau felt obligated to overturn an earlier decision to bring its precedent into line with the new policy. (MO&OQO, 12.) However, the Bureau erred by applying its new policy retroactively to cancel GLP‘s licenses.! GLP outlined the relevant law thus: It is well settled that "[tJraditional concepts of due process incorporated into administrative law preclude an agency from penalizing a private party for violating a rule without first providing adequate notice of the substance of the rule." Indeed, when announcing policies affecting milestone enforcement in prior decisions, the Commission has made the policy prospective only. By revising long— standing policy and precedent without prior notice, the MO&QO violated GLP‘s right to due process.? In a recent order, the Bureau has "explained" the new policy under which it cancelled GLP‘s license five months ago.$ Specifically, in granting an application for modification of The Boeing Company‘s 2 GHz MSS license, the Bureau ruled that Boeing‘s satellite construction contract complied with the milestone requirement even though the contract reflected the proposed rather than originally—licensed system. In a footnote, the Bureau stated: That Boeing arranged for construction of the [modified system] proposed in its license—modification application, 1 Emergency Application for Review, at 18—19 (filed Mar. 3, 2003) (citing Satellite Broadcasting Co. v. FCC, 824 F.2d 1, 3 (D.C. Cir. 1987); Eastern Carolinas Broadcasting Co. v. FCC, 762 F.2d 95, 101 (D.C. Cir. 1985); Trinity Broadcasting of Florida, Inc. v. FCC, 211 F.3d 618, 632 (D.C. Cir. 2000)). 2 Emergency Application for Review, at 19 (footnotes omitted) (quoting Satellite Broadcasting Co. v. FCC, 824 F.2d at 3). 3 See The Boeing Company, Order and Authorization, DA 03—2073 (released June 24, 20083). Crowell & Moring LLP a www.crowell.com a Washington s Irvine a London a Brussels

Ms. Marlene H. Dortch July 14, 2003 Page 3 rather than the [system] for which it had license authority as of the milestone deadline date, is not a material deficiency, given our favorable disposition of the application for modification. Had we denied the request for license modification, on the other hand, we could not have found that Boeing‘s arrangements for construction of a [modified] system satisfied the first milestone requirement.* It is appropriate for the Bureau to articulate its policy clearly. However, its explanation comes too late. The Bureau cannot cure its failure in the MO&O to follow the law with respect to GLP by publishing post hoc explanations and policy pronouncements. Now that the Bureau has essentially conceded that its action with respect in the MO&O was unlawful, there is no reason to delay acting on GLP‘s Emergency Application for Review. The MO&O clearly and undeniably violates the due process requirements as set forth in Satellite Broadcasting and other cases. Accordingly, GLP‘s Emergency Application for Review must be granted and GLP‘s 2 GHz MSS licenses reinstated. Respectfully submitted, GLOBALSTAR, LP. Of Counsel: b William F. Adler William D. Wallace Vice President, Legal and Regulatory Affairs Globalstar, LP. 3200 Zanker Road San Jose, CA 95134 (408) 983—4401 4 Id., at 12 n.56 (citations omitted). Crowell & Moring LLP = www.crowell.com = Washington «= Irvine a London a Brussels

CERTIFICATE OF SERVICE I, William D. Wallace, hereby certify that I have on this 14th day of July, 2003, caused to be served true and correct copies of the foregoing "Letter" upon the following persons via hand delivery (marked with an asterisk (*)) or first—class United States mail, postage prepaid: The Honorable Michael K. Powell * The Honorable Kathleen Q. Abernathy * Chairman Commissioner Federal Communications Commission Federal Communications Commission 445 12th Street, SW 445 12th Street, S.W. Washington, DC 20554 Washington, D.C. 20554 The Honorable Michael Copps * The Honorable Kevin Martin * Commissioner Commissioner Federal Communications Commission Federal Communications Commission 445 12th Street, S.W. 445 12th Street, S.W. Washington, D.C. 20554 Washington, D.C. 20554 The Honorable Jonathan S. Adelstein John Rogovin * Commissioner Office of General Counsel Federal Communications Commission Federal Communications Commission 445 12th Street, S.W. 445 12th Street, S.W., Room 6—A665 Washington, D.C. 20554 Washington, D.C. 20554 Donald Abelson * Thomas S. Tyez * International Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 12th Street, S.W., Room 6—C750 445 12th Street, S.W., Room 6—A665 Washington, D.C. 20554 Washington, D.C. 20554 Karl A. Kensinger * Howard Griboff * International Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 Twelfth Street, S.W., Room 6—A663 445 12th Street, S.W., Room 6—C467 Washington, D.C. 20554 Washington, D.C. 20554

Fern J. Jarmulnek * Cassandra Thomas * International Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 12th Street, S.W. 445 12th Street, S.W. Washington, D.C. 20554 Washington, D.C. 20554 Bryan Tramont * Jennifer Manner * Office of Chairman Michael Powell Office of Commissioner Kathleen Abernathy Federal Communications Commission. Federal Communications Commission 445 12th Street, S.W. 445 12th Street, S.W. Washington, D.C. 20554 Washington, D.C. 20554 Paul Margie * Barry Ohlson * Office of Commissioner Michael Copps Office of Commissioner Jonathan Adelstein Federal Communications Commission Federal Communications Commission 445 12th Street, S.W. 445 12th Street, S.W. Washington, D.C. 20554 Washington, D.C. 20554 Sam Feder * Joseph A. Godles Office of Commissioner Kevin Martin Goldberg, Godles, Wiener & Wright Federal Communications Commission 1229 19th Street, N.W. 445 12th Street, S.W. Washington, D.C. 20036 Washington, D.C. 20554 Tom W. Davidson L. Andrew Tollin Akin Gump Strauss Hauer & Feld, Kathryn A. Zachem LL.P. Craig E. Gilmore 1676 International Drive Wilkinson Barker Knauer, LLP Penthouse 2300 N Street, NW., Suite 700 McLean, VA 22102 Washington, D.C. 20037 Douglas I. Brandon John T. Scott, III AT&T Wireless Services, Inc. Cellco Partnership 1150 Connecticut Avenue, N.W. d/b/a Verizon Wireless Washington, D.C. 20036 1300 I Street, NW., Suite 400—W Washington, D.C. 20005

J.R. Carbonell Carol L. Tacker David G. Richards Cingular Wireless LLC 5565 Glenridge Connector, Suite 1700 Atlanta, GA 30342 QMJ@G_S\ William D. Wallace


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Document Modified: 2019-04-09 08:02:00
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