Attachment opposition

opposition

OPPOSITION TO PETITION TO DENY submitted by contactMEO

opposition

2004-09-28

This document pretains to SAT-LOA-19971222-00222 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA1997122200222_400504

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 RECE]VED SEP 2 8 20 ) FedealConmunceton Camning In the Matter of ) Offee olSectny n ) contactMEO Communications, LLC ) SAT—L0A—19971222.00202 ) SAT—AMD—20040322—00057 Application for Authority to Launch ) SAT—AMD—20040710—00141 And Operate a Geostationary and Non— ) Geostationary Orbit Fixed Satellite ) System in the Ka—Band ) ) OPPOSITION TO PETITIONS TO DENY OR DISMISS ContacMEO Communications, LLC ("@contact") hereby files ts Opposition to the Petition to Deny of EchoStar Satellite LLC (‘EchoSter") and the Consolidated Petition to Dismiss or Deny of SES Americom, Inc. (°‘SES Americom") (ointly, "Petitioners") in the above—captioned proceeding. EchoStar‘s arguments in large part amount to no more than a late—filed second petition for reconsideration ofthe Satellte Division, International Bureau‘s (*Bureau‘s") summary denial of its Ka—band applications." EchoStar essentilly argues that the Bureau erred by "dismissing" its ‘ Memorandum Opinion and Order, In the Matter ofEchoStar Satellite LLC, Applicationsfor Authority to Construct, Launch and Operate Geostationary Satellites In the Pixed—Satellite Service Using the Ka and/or Extended Ku—Bands at the 83° WL, 113° W.L, and 121° W.L. Orbital Locations, DA 04—1167 (rel. Apr29. 2004) (‘Denial Decision") (denying EchoStar‘s applications to use NGSO FSS Ka—band frequencies for GSO FSS satellites, denying EchoStar‘s failure to show good cause for waiver ofthe NGSO FSS spectrum designation, denying EchoStar‘s application to use the extended

applications for, among other things, failure to demonstrate that its proposed satellites will not cause harmfulinterference to other systems.* It asserts that the technical showings by @contact are equally inadequate and that the Bureau should reinstate its applications or deny @contact‘s application." Finally, EchoStar appeals to the Bureau to reinstate its applications because its applications are "similarly situated" to @contact‘s application.* For ts part, SES Americom argues that @contact does not show that its proposal stisfies the Ka—band segmentation plan." It also states that @contact cannot rely on intemational EPFD limits to justify domestic use ofthe 19.7—20.2 GHz and 29.5— 30.0 GHz bands.° Finally, it asserts that @contact has not provided any justifiation for warranting a different outcome from the Denial Decision" Ku—band, denying EchoStar‘s application to operate Ka—band GSO satellites at 121° W.L. and 83° WL., denying EchoStar‘s request for waiver of footnote NG 165 of 47 C.F.R. Section 2.106, and denying applications ofEchoStar to operate hybrid GSO satelltes at 105° W.L. and $3° W.L),petition for reconsideration filed June 1, 2004. * EchoStarPetitionat 2, 4. See n6, infra. * 1d, at4—6. Also, EchoStar once again asks the Commission to commence a rulemaking petition redesignating the NGSO Ka—band spectrum for use by its GSO satelltes. 14. at 8, Denial Decision at 5. The Bureau rejected EchoStar‘s attempt to seck use of that spectrum for its GSO satellites by waiver Jd. at 8. o thar?s 5. SES Americom Petition at 5—6. * 1d. at6—48. The matter of NGSO interference into GSO satellites has been the subject ofmany joint industry—government meetings, including those that were conducted under the aegis ofJTG 4—9—11 in 1998. At CPM (2000) and then at WRC—2000, maximum EPFD levels were adopted to assure that NGSO satelltes do not cause unacceptable interference to GSO satellites, The objective was to establish an EPFD quantification of acceptable interference, The Commission made it quite clear, contrary to SES 2

For the reasons discussed below, Petitioners® arguments are entirely without merit. Accordingly, @contact‘s application should be processed and granted as soon as possible." Americom‘s argument, that it accepts EPFD limits adopted by the ITU—R to avoid unacceptable interference into GSO satellites from NGSO satellites: The limits adopted by WRC—2000 were developed using the agreed upon criteria developed by the ITU—R. The JTG 4—9—11 (1) studied the characteristis of the GSO FSS systems to be protected, (2) defined protection criteria for GSO FSS systems, and (3) based on these parameters, determined the level ofinterference that could be accepted from NGSO FS systems. We find, based upon the technical work adopted by the WRC—2000 and the record developed in this proceeding, that the international consensus single—entry EPFD4o,, limits for 0.6, 1.2, 3, and 10 meter GSO FSS receive earth station antennas are appropriate for adoption domestically. Amendment ofParts 2 and 25 ofthe Commission‘s Rules to Permit Operation of NGSO FSS Systems Co—Frequency with GSO and Terrestrial Services in the Ku— Band Frequency Range and Amendment ofthe Commission‘s Rules to Authorize Subsidiary Terrestiral Use ofthe 12.2—12.7 GHz Band by Direct Broadcast Satellite Licensees and their Affliates, Report and Order, 16 ECC Red 4096, 4100 (2000) (emphasis added), 16 FCC Red 4096 (2000) at para. 77 [foomotes omitted); see also, id. at 4100, 4109. Note that SES Americom does not contend that the EPFD limits for 19.7—20.2 GHz and 29.5—30 GHz contained in Article 22 of the ITU Radio Regulations are not met by @contact‘s NGSO application. @contact has shown that ts system will not cause unscceptable interference, sufficient tojustifythe waiver it seeks touse the upper 500 MHz of the Ka—band on a secondary basis. 70 14 a9. 5 See Letters to the Commission from TelAlaska (September 10, 2004) and Alaska Telephone Association (September, 2004) urging expeditious Commission grant of @contact‘s application, to provide the people ofAlaska the broadband services they need.

£ @CONTACT‘S APPLICATION DIFFERS TECHNICALLY AND SUBSTANTIVELY FROM ECHOSTARS DENIED APPLICATION EchoStar argues that its applications contained interference analyses "nearly identical"to those submitted by @contact and that because ts applications were denied then @contact‘s application should be similarly denied." SES Americom similarly argues that denial of EchoStar‘s application requires similar treatment for @contact‘s application. These arguments are without merit. EchoStar‘s applications, fled in August 2003, were accepted for filing and appeared on public notice. During that time EchoStar might have augmented its technical showings to demonstrate that it could avoid interfering with NGSO satellites, but it failed to do so. The Bureau then applied its processing procedures, rules and policies to correetly deny EchoStar‘s applications, concluding that "EchoStar did not submit a technical showing demonstrating it could operate compatibly with NGSO FSS systems.""" EchoSter‘s assertion that its applications were "dismissed" is simply not correct. Rather,its applications were denied. Its only option now is t file new applications that are compliant with the Bureau‘s requirement to demonstrate no harmful interference to NGSO networks. Reinstatement, mure pro func or otherwise, may be a remedy for improper dismissal butit is not the appropriate remedy for proper denial of an application based on a full and complete record. In the event EchoStar were to refile, it would need to provide a complete technical showing demonstrating thatits GSO satellites * EchoStar Petitionat 5. !* Denial Decision at 8.

could operate on a secondary basis to NGSO systems in the 18.8—19.3 GHz and 28.6—29.1 GHz bands. In any event, EchoStar‘s applications are in this regard clearly not "nearly identical" to @contact‘s application. EchoStar asserted in its applications that it would agree to "immediately cease" operations in its Earth—to—space links upon notification ofharmful interference to NGSO RSS operators."" Citing Commission precedents and policies,including the Space Station Licensing Reform Order," the Bureau stated in its Denial Decision that EchoStar failed to provide a showing that it can operate on a non—harmful interference basis to primary NGSO FSS operations."" n its Petition, EchoStar again argues that its willingness to immediately cease interference upon notifieation is sufficient to demonstrate the necessary protection to NGSO systems, and that its applications are therefore nearly identical to @contact‘s application. But the plain factis that EchoStar has failed from the beginning to make the necessary technical showings, and at no time did EchoStar cure the substantive defect that led to Bureau denial. Once again, therefore, EchoStar‘s applications are not "nearly identical"to @contact‘s application.. In addition, it is equally plain that EchoStar‘s rejected applications cannot serve as precedent for action on @contact‘s application, as SES Americom suggests. "‘— Denial Decision at 6; EchoStar Applications at 15. !*— Amendment of the Commission‘s Space Station Licensing Rules and Policies, Pirst Report and Order and Further Notice ofProposed Rulemaking in IB Docket No. 02—34, and First Report and Order in IB Docket No. 02—54, 18 FCC Red 10760 (2003) ("Space Station Licensing Reform Order®). "*— Denial Decision at 7.

in its application, @contact demonstrated how it would avoid in—line and other potential interference events to protect other NGSO systems, that during such events it would cease transmitting and utiliceits other satelltes instead, including its own HEO satelltes."" In stark contrast, EchoStar would cease providing service entirely during such times. @contact demonstrated that it met the Commission‘s existing rules and policies regarding protection of other NGSO satelltes from harmful interference but the Bureau requested additional information with regard to reentrycasualty risk assessment and 2—degree spacing, ° two showings that formerly were not clearly * @contact Amendment at $—9, Annexes. Such extensive and more rigorous showings involving milestones, power limits, and waivers transcend the requirements for a true GSO satellite proposal, demonstrating that @contact has proposed an operational NGSO network using NGSO spectrum, not a GSO network, EchoStar‘s curious footnote in its Petition that @contact‘s proposed GSO satellites would "preclude other GSO satellites from operating on the same frequencies at the same orbital locations" is irrelevant to its concomitant erroncous assertion that @contact proposes a GSO network. EchoStar Petition at 5, n19. To the contrary, @contact, an NGSO applicant, would use NGSO spectrum for all of its satellites, whereas GSO network satelltes atthe same orbital slots could use NGSO spectrum only on a secondary basis. This also counters SES Americom‘s argument regarding the Ka—band segmentation plan because @contact‘s application is for a network of NGSO satelltes in HEO and GSO orbit that operate as a unified NGSO system. It should be emphasized that @contact‘s system has been designed to prevent any noticeable interference to other satellite systems, GSO and NGSO. See @contact Amendment at 8, Technical Appendix. Indeed, t is due to the adequacyof @contact‘s NGSO non—interference demonstrations that no other NGSO applicant (SkyBridgeI1, LLC or Northrop Grumman Space & Mission Systems Corporation (NGST)) submitted a petition against @contact in this proceeding. Further, even as a "GSO® filing, the fact remains that @contact‘s proposalis fully compliant with the Commission‘s two—degree spacing policy, allowing other GSO operators to make secondary use of the non—GSO FSS primary bands at any other location. ‘*— Leter from Chicf, Satellte Division, International Bureau, FCC, to David M. Drucker, @contact, DA 04—1722, Jun. 16, 2004.

applicable to NGSO networks."" In response, @contact supplemented its application with detailed technical showings, and its application was then found acceptable for filing."" This is quite different from the record underlying EchoStar‘s applications for a GSO network using NGSO frequencies. Accordinely, EchoStar‘s assertion that ts applications are "nearly identical" to the application filed by @contact and that @contact‘s application should be similarly denied is summarily without meri, procedurally, technically and legally. SES Americom‘s argument regarding similar treatment is equally without merit 11. THEREIS NO BASIS FOR REINSTATEMENT OF ECHOSTAR‘S APPLICATIONS EchoStar argues that an alternative to the Bureau‘s summary denial of its applications is reinstatement and processing on a first—come, first—served basis."" But this ‘* @contact also provided further technical detail n support of its contingent request for a waiver of the 28 GHz Band Plan to allow it to operate GSO satellites on a truly secondary basis in the 18.8—19.3 GHz and 28.6—29.1 GHz bands. ‘"— Report No. SAT—00234 at 2, August 13, 2004. Similarly, EchoStar‘s request for a rulemaking proceeding to change the frequencyassignments of the GSO FSS band is more properly addressed in its ptition for reconsideration of the Burea‘s Denial Decision. EchoStar Petition at 8—9. ‘*— EehoStar Petition at 7—8. EchoStar‘s error was not a procedural omission of required information from its applications, but itsfailure to demonstrate compliance with (or justify a waiver of) the rules. EchoStar‘s subsidiary assertion regarding a major amendment is inapposite because the subject application is for an NGSO system. As @contact has described in detail iits Amendment, ts proposed system reduces the overall required spectrum, reduces the total number of spacecraft, causes no interference to other NGSO systems, meets EPFD standards, etc. @contact Amendment at 9—11. The Commission has held on numerous occasions that a change in the orbital architecture of a non—GSO satelltes system, which "will not increase the potential for harmful interference to existing or planned systems,"is not a "mejor" amendment under Section 25.1 16 of the rules. See, e.g., Orbital Communications Corporation, 9 FCC Red 6476, 6481 (1994); id. 7

is elearly not the proceeding in which to raisethis argument. In its Petition, EchoStar in fact has offered no justification for denying @contect‘s application, only arguments endeavoring to resurrect it own defective appliations — arguments misplaced in this proceeding. As discussed carlier, EchoStar filed to demonstrate non—interference to NGSO systems in is applications. It also failed to provide such a demonstration during the entiety ofthe pleading cycle following public notice of its applications and pendency of the Bureau‘s Denial Decision, when it was on notice ofthe need to doso."" Under these circumstances, reinstatement is not an available remedy, letalone reinstatement nune pro tunc. Inded, reinstatement of a defective application would lead to unending uncertainty in the regulatory process, a result surely of litle benefit to the industryor the public interest. Interestinely, even in its Petition EchoStar offers no demonstration that its GSO system would be capable of avoiding harmful interference to NGSO systems operating in the NGSO bands. Finally, as a procedural matter, there are no EchoStar applications currently on file seeking to use the orbital slots @contact has specified in its NGSO application because the Bureau denied EchoStar‘s applications for a GSO network based on EchoStar‘s failure to demonstrate protection to NGSO systems."" Were EchoStar to refile its applications with the appropriate non—interference showings, it would need to ‘? EehoStar Petition at 5 (claiming it needs an "opportunity® to correct its applications despite pleadings filed by NGST and Hughes raising that very issue). ** Contrary to EchoStar‘s characterization thatits denied applications and @contact‘s application are "similarly—situated," as discussed earlier herein, the Bureau in the end did not dismiss @contact‘s application but t did deny EchoStar‘s application. The applications are anything but similazly situated. EchoStar Petiion at 7; Section 1,supre. 8

protect all NGSO system satellites from harmful interference. If the Commission were to treat @contact‘s application as containing "GSO"satellites, any refiling ofEchoStar‘s applications would put EchoSter behind @contact for use of the NGSO bands atthe 83° W.L. and 121° W.L. orbitallocations and thus require dismissal of the newly filed applications. i. CONCLUSION EchoStar‘s assertion that its applications are similar to @contact‘s application forms the basis of a series of arguments that fail procedurally, technically and legally.. Unlike EchoStar, @contact has demonstrated that ts NGSO system will not interfere with other systems. Por similar reasons, SES Americom‘s Petition should be denied. More importantly, nothing in EchoStar‘s or SES Americom‘s pleading provides any justification for denying @contact‘s application. Respectfully submitted, contactMEO Commnqications, LLC / James M. Talens 6017 Woodlcy Road MeLan, Virginia 22101 Counselfor contactMEO Communications, LLC David M. Drucker, Manager contactMEO Communications, LLC 2539 N. Highway 67 Sedalia, CO 80135 303.688.5162 September 28, 2004

CERTIFICATE OF SERVICE 1, James M. Talens, do hereby certify that on this 28" day of September, 2004, copies of the foregoing "Opposition to Petitions" were served on the following parties by hand delivery or United States Postal Service (Indicated by *); James M. Talens Marlene H. Dortch, Secretary Pantelis Michalopoulos® Federal Communications Commission Philip L. Malet 445 12" Street, S.W. Lee C. Milstein Washington, DC 20554 Steptoe & Johnson LLP 1330 Connecticut Avenue, NW Thomas S. Tyez Washington, DC 20036 Satellte Division, International Bureau Federal Communications Commission Peter A. Robrbach* 236 Massachusetts Avenue, NE Karis A. Hastings Suite 110 Hogan & Hartson LLP. Washington, DC 20002 555 Thirteenth Street, N.W. Washington, DC 20004 Nancy J. Eskenazi® Vice President & Assoc. General Counsel SES AMERICOM, Inc. Four Research Way Princeton, NJ 08540 David K. Moskowite® EchoStar Satellte LLC 9601 South Meridian Boulevard Englewood, CO 80112


Document Created: 2004-10-06 17:26:17
Document Modified: 2004-10-06 17:26:17
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