Attachment request

request

REQUEST submitted by Intelsat

request

2004-12-02

This document pretains to SAT-LOA-20000119-00028 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA2000011900028_408615

COPY w Wiley Rein & Fielding us anexsmeem November 24, 2004 Received ert W. Rein wsmnone oc mss 202.710.7000 now annvzon DE 0 2 200 breingurt.con m ainnioe Thomas S. Tycz Poliey Branch in ance rermational Bureau ms ons sumer on Chief, Satellite Division surt ns International Bureau nowwanee now mssam Federal Communications Commission m masam 445 Twelfth Street, SW Washington, D.C. 20554 weuntcon Re: Request for Technical Corrections to License Conditions; SAT—A/O— 20000119—000002 to SAT—A/O—20000119—000018; SAT—AMD—20000119— 00029 to SAT—AMD—20000119—00041; SAT—LOA—20000119—00019 to SAT—LOA—20000119—00028; SAT—ASG—20030728—00138/00139 Dear Mr. Tyez: We are wrting on behalf of Intelsat LLC and Intelsat North America LLC (collectively, "Intelsat") to request that the Federal Communications Commission ("FCC" or "Commission") conform the conditions on Intelsat‘s space station licenses to a recent amendment to Section 621(5) ofthe Open—Market Reorganization for the Betterment of Intemnational Telecommunications Act (‘ORBIT Act" or "Act‘)." Intelsat‘s licenses are conditioned on, among on things, a Commission finding that Intelsat has conducted an initial public offering (‘IPO®) in accordance with Sections 621(2) and 621(5)(A)G) of the ORBIT Act. Congress, however, recently amended the Act to provide that Intelsat may either conduct an TPO in accordance with Sections 621(2) and 621(5)(A)() or, under Section 621(S)FYG), certify that it has achieved substantial diution of former signatory ownership, eliminated former signatory control, and has no intergovernmental organization ownership. Therefore, Intelsat respectfully requests that the Commission revise Intelsat‘s icense conditions so that the licenses are conditioned on either a Commission finding thatIntelsat has conducted an IPO consistent with Sections 621(2)and 621(5)(A) or a Commission determination that Intelsatis in compliance with ts Section 621(S)F)G) certification. Prompt approval of this request will serve the publicinterest by ensuring U.S. consumers® access to an additional, competitive choice for DTH, DBS, and services in the Ka— and V—bands & Oper—Market Reorganization fr theBeterment oInernational Telecommunications Act, Pub.L No: 106—180, 114 Stt 48 (2000),as amended, PubL. No. 107—233 (2002), as anended. Pub. L. No.108—228 2006as amended,Pub.L. No. 106—371 (2008.

WileyRein & Fielding ue Thomas S. Tyez November 24, 2004 Page 2 immediately upon a Commission determination that Intelsat is in compliance with its Section 621(S))G) certification. £ BACKGROUND Congress passed the ORBIT Act in 2000 to "promote a fully competitive global market for satellite communications services ... by fully privatizing the intergovernmental satellite organizations, INTELSAT and Inmarsat."". Since that time, the Commission granted space station authorizations to Intelsat LLC® and approved the assignment of satelite licenses from Loral Satellite,Inc. (Debtor—in Possession) and Loral SpaceCom Corporation (Debtor—in—Possession) (collectively, "Loral") to Intelsat North America LLC.*. At the same time, however, the Commission conditioned Intelsat‘s licenses on fulfiling its remaining obligations under the Act. Specifically, Intelsat‘s satellite authorizations are "subject to a future Commission finding that Intelsat, Ltd., has conducted an TPO consistent with the requirements of Sections 621(2) and 621(5)(A)G) of the ORBIT Act and any actions the Commission may take in view of this finding under Section 601(b)(1)(B) ofthe Act."* In addition, Intelsat North America‘s authorizations also contain a condition * ORBET Act, §2. To this end.Sections 621 and 622 of he Act require INTELSAT or is suecessor entity o, among otherthings,"operatas (an] independent commercia entify}",‘have a pro—competiive ownership strcure", forgo al former IGO *privlepes and immunites* *convett) to a) stock corporation(]® "conductaniniial pablic offering" (TPO), and conduct technical coordinaton . under Intrnational Telccommunication Union procedures." 1. 5§ 621, 622. a iee Applications of Intlsat LLC; For Authorit to Operate,and to Further Construc, Launch, and Operare C:band and Kxband Satlites hat For a Global Comnunicaions System in Geostarinary Orbi, Memorandam Opinion Order and Authorization,15 FCC Red 15460, 15319 4 160 (2000) (Licensing Order"), econ. denied, 15 FCC Red 25234 (2000); Applicarions ofIwelsar LLC; For Authoriyto Operate, and to Further Constrect Lennch and Operate Cband and Kieband Sereltesthat Form a Global Communications System in Geostationary Orbi, Memorandam Opinion Order and Authorizaion, 16 FCC Red 12280, 12207, 12302, 9951, 71 2001)(°ORBITAcr Conpliance Order®. w Loral Sutelite,In. (Debto—in—Possession) and Lorel SpaceCom Corporation (Debto—in Passesson), Assignarsand Imelsat North America, LLC, Assignce, Applicationsfor Consen to Assignments ofSpace Station Authorizations and Petiionfr Declaratory Ruling Under Sction 310b¥4) ofthe Communications Actof1934, Order and Authorization, 19 FCC Red 2404, 2430 (2000 ClnreatLoral Order") & ORBIT Act Compliance Order,16 CC Red at 12303, 1 76 (applying th conditonto IntelstLLO);ItelsaLoral Order, 19 FCC Red at 242272 Gapplying th condition to Intlst North America)

y Rein &Fielding us Thomas S. Tycz November 24, 2004 Page3 that "prohibits Intelsat North America from providing additional services until successful completion of the IPO process as required by the ORBIT Act."* In the text ofthe IntelsarLoral Order, the Commission noted that Section 602 ofthe ORBIT Act prohibits expansion into "additional services" prior to privatization and expressed its view that "in order to meet the ORBIT Act‘s requirements for privatization, Intelsat, Ltd. must complete its TPO procedures."" Effective October 25, 2004, Congress amended the Act to provide an alternative to the IPO requirement. Intelsat may conduct an IPO in accordance with Sections 621(2) and 621(3¥A)G). Or, under Section 621(5)(B),Intelsat may forgo an IPO and public listing of securities i it otherwise achieves substantial dilution of former signatory ownership, eliminates former signatory control, and has no intergovernmental organization ownership. Section 621(S)(P) states: a successor entity may be deemed a national corporation and may forgo an initial public offering and public securities listing and stll achieve the purposes of this section if— (i) the successor entity certifies to the Commission that— (D the successor entity has achieved substantial dilution of the aggregate amount of signatory or former signatory financial interest in such entity; (11) any signatories and former signatories that retain a financial interest in such successor entity do not possess,together or individually, effective control of such successor entity; and § AntelsalLoral Order, 19 FOC Red at 2429, 963. Section 6B1(12X(B) of t Act deines "addional srvices" to mean "or INTELSAT, diectto—home (DTH) o diectbroadcaststellte (DBS) video services,or services ithe Ka or V bands." AnnelsatLoral Orde, 19 FCC Red R 2427—28,99 56—59. This condition apples oly to Intesat Nort Ameria. See id, 19 RCC Red at 2420 63

Wiley Rein &Fielding us Thomas S. Tyez November 24, 2004 Page4 (111) no intergovernmental organization has any ownership interest in a successor entity of INTELSAT or more than a minimal ownership interest in a successor entity of Inmarsat; (i)the successor entity provides such financial and other information to the Commission as the Commission may require to verify such certification; and (}i) the Commission determines, after notice and comment, that the successor entity is in compliance with such certiication." In light of this amendment, Intelsat plans to file a certification pursuant to Section 621(®B)G). It. THE COMMISSION SHO RRECT INTELSAT‘S LICENSE NDITH NFOR THE REQUIREMENTS OF THE ORBIT ACT, AS AMENDED: The Commission should correct Intelsat‘s icense conditions to conform to the requirements of the amended ORBIT Act. ‘The licenses granted to Intelsat reflect the then—existing ORBIT Act requirement that Intelsat conduct an TPO and publicly list ts securities. Today, however, the ORBIT Act no longer mandates an TPO and public isting of securities. As noted sbove, Congress, in Section 621(S)F) of the Act, provided a "certification" alternative to the IPO requirement. The prior imposed license conditions, therefore, no longer accurately reflect Intelsat‘s current statutory obligations. The need for corrective action created by this change in law is plain. Intelsat intends to satisfy ts remaining ORBIT Act obligations by certifying thatit has complied with Section 621(5)(F). Thereafter, Intelsat expects the Commission to determine that Intelsatis in compliance with such certification upon consummation of Intelsat‘s pending transaction with Zeus Holdings Limited. At such time, Intelsat would have fulfilled its remaining ORBIT Act obligations. Nonetheless,Intelsat‘s Hicenses would remain conditioned on completion of an PO, which at that point, + orai is§ 16.

WileyRein &Fielding us Thomas S. Tyez November 24, 2004 Page S would be statutorily superfluous. A technical correction, therefore, is necessary to conform Intelsat‘s outdated license conditions to current law. Specifically, Intelsat requests that the Commission revise Ordering Paragraph 76 of the May 29, 2001 ORBIAct Compliance Order toinclude the italicized lenguage: TT IS FURTHER ORDERED that the authorizations issued in the Licensing Order [short citation is italicized in the original] are subject to either a future Commission finding thatIntelsat, Ltd. has conducted an IPO consistent with the requirements of Sections 621(2) and 621(5)(A)G) ofthe ORBIT Act and any actions the Commission may take in view of this finding under Section 601(b)(1)(B) ofthe Act, or a Commission determination, after notice and comment, that Intelsat, Lid. is in compliance with its certification under Section 621(SXFY() ofthe ORBIT Act. Relatedly, Intelsat requests that the Commission revise Ordering Paragraph 77 of the May 29, 2001 ORBIT Act Compliance Order toinclude the italicized language: TT 1S FURTHER ORDERED that ifintelsar, Ltd. holds an IPO in satisfaction of Ordering Paragraph 76 ofthis order, Imelsat LLC shall file with the Commission 30 days after conduct of ts IPO a demonstration that the IPO is consistent with Section 621(2) and 621(S)(A)G)of the ORBIT Act."" In addition, Intelsat requeststhat the Commission update Ordering Paragraph 72 of the Intelsat/Loral Order to read: 4 ORBIT Act Compliance Order976. To thextet necessry, Itelsat also requests thatthe FCC updatesimilrsttements, for example, in paragraphs 19,25—27, and 33 regrding the statwory requirementto hold an TPO. * 1. §77. To th extent necessary, Itelsat lso requests thatthe FCC updat imilar statements, for example,in pragraph 27 reparding th demonstation requirement.

WileyRein & Ficlding us Thomas S. Tycz November 24, 2004 Page 6 TT IS FURTHER ORDERED that,the authorizations granted to Intelsat North America herein are subject to either a future Commission finding that Intelsat, Ltd. has conducted an TPO consistent with the requirements of Sections 621(2) and 621(5)(A)G) of the ORBIT Act and any actions the Commission may take in view of thisfinding under Section 601(b)(1)(B) of the Act, o a Commission determination, after notice and comment, that Antelsar, Ltd. is in compliance with its certification under Section 621(SY(F)() of the ORBIT Act." Intelsatfurther requests that the Commission revise Sections IV.B.c and IV—B.d of the Intelsar/Loral Order to clarify that Intelsat may provide "additional services"" upon a Commission determination, after notice and comment, that Intelsat North America is in compliance with itscertification under Section 621(5)F)G)of the Act. For example, the Commission should change the last sentence of paragraph 63 to read: Except to the extent discussed below pursuant to Special Temporary Authority, our grant of authority to Intelsat North America prohibits Intelsat North America from providing additional services until successful completion ofthe TPO process as required by the ORBIT Act, or wnil the Commission determines after notice and comment, that Intelsat, Lid. is in compliance with its certification under Section 621(SNFY(i) ofthe ORBITAct. This change to the text of the Antelsatoral Order would clarify that Intelsat, consistent with Ordering Paragraph 75, will "no longer be subject tothe prohibition f Antelsaoral Order,§72. To the extent necessary, Inrlsat also equest thatthe FCC updatesimilr statements, for examplein pragraphs 6 and 53.55 regarding thesututory requirement to hold an PO and th demonstation requirement

WileyRein &Fielding us Thomas S. Tyez November 24, 2004 Page 7 under the ORBIT Act for providing such additional services" following the Commission‘s determination that Intelsat has complied with ts certiication."" The requested corrections to conform to current law would be consistent with Commission precedent. For example,in a Supplemental Order released March 4, 2004, the Commission granted Intelsat North America‘s Request for Technical Correction of Ordering Paragraph 76 of the Intelsar/Loral Order in order to prevent customer confusion regarding the timing and nature of Intelsat‘s authority to provide "additional services".." The Commission, on its own motion, also amended Ordering Paragraph 75 to clarify the effective date for Intelsat‘s Special Temporary Authority to provide "additional services"."" Similarly, the Commission has amended license conditions, on its own motion, to reflect rule changes," where an alternative approach would better achieve its original objective,"" or where the amendment would serve the public interest by providing licensees with greater Nexibility."" Granting this request will erve the public interest by remedying the current disparity between Intelsat‘s obligations under the ORBTT Act and itslicense conditions, which the Commission always intended to mirror Intelsat‘s statutory obligations. Such action also would eliminate any uncertainty regarding Intelsat‘s authority to provide a full range of services in the United States following its compliance with amended Section 621(5) of the ORBIT Act. Moreover, prompt action by the Commission to conform these conditions to the Act will provide U.S. consumers access to additional, competitive choice for DTH, DBS, and services in * 1. §75. To the extent necessary,Intelsa also requests thatthe FCC updatesimilar strements, fo example in pragraphs 58,59, 64 and 66 regardingthestatuory requrementto old an P0 i Loral Satlite, Inc. (Debtor—in—Possession) and LoralSpaceCom Corporetion (Debtor—in— Possession) Assignors and Intesat North Americe, LLC, Asignce, Applicationfor Consent to Asvintent ofSpace Staion Authorizations and Petiionfor Declaratory Ruting Under Section 410(b¥4) ofthe Communications Act of1934, Supplemental Order, 19 FCC Red 4029, 4031,9 10 (2000 (Supplemental Order®, i u. * See,eBlack Hils Video Corp; For Renewal of the Licensefr Station KARE2, Memorandm Opinion and Order, 1 RC.C.24 1030, 1037.389 12 (1965) See,ex.Applications ofGeneral Telephone and Elecrcs Corporation to Acquire Contol ofTelenet Cory and ts Wholl—Owned Subsidiary Telenet Communications Cory., Memorandurn pinionand Order, 72 C.C.2d 516,518 16 (1979) C See, . Par 68 Waiver RequesofAlameda Eng‘s, Order on Reconsidertion, 15 FCC red 1ess, 16613 (1999).

WileyRein & Fielding us Thomas S. Tycz November 24, 2004 Page 8 the Ka: and V—bands immediately upon the effective date of a Commission determination that Intelsatis in compliance with its Section 621(S)()G) certifiation. Grant ofthis request, therefore, would serve the public interest. IHI. CONCLUSION Intelsatrespectfully requests that the Commission expeditiously revise Intelsat‘s icense conditions as proposed herein to conform the conditions to the ORBIT Act, as amended. Sincerely, Busg oR Bert W. Rein Amy E. Bender Counsel for Intelsat LLC and Intelsat North America LC cc:— Donald Abelson, FCC Roderick Porter, FCC JoAnn Lucanik, FCC Nancy Eskenazi, SES AMERICOM, Inc. Phillip L. Spector, Counsel for SES AMERICOM, Inc. Patrick S. Campbell, Counsel for SES AMERICOM, Inc. Brett M. Kitt, Paul, Counsel for SES AMERICOM, Inc. David K. Moskowitz, EchoStar Satelite Corporation David R. Goodiriend, EchoStar Satellite Corporation Pantelis Michalopoulos, Counsel for EchoStar Satellte Corporation Chung Hsiang Mah, Counsel for EchoStar Satellite Corporation Kenneth J. Wees, StarBand Communications, Inc. Earl W. Comstock, Counsel to StarBand Communications,Inc. John W. Butler, Counsel to StarBand Communications, Inc. Laurence D. Atlas, Loral Space and Communications Ltd. Philip L. Verveer, Counsel for Loral Space and Communications Ltd.


Document Created: 2004-12-02 16:04:23
Document Modified: 2004-12-02 16:04:23
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