Attachment DA 06-1220

DA 06-1220

ORDER ON RECONSIDERATION submitted by IB, FCC

DA 06-1220

2006-06-07

This document pretains to SAT-LOA-20020322-00033 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA2002032200033_504955

Federal Communications Commission DA 064220 Before the Federal Communications Commission Washington, D.C., 20564 In the Matter of ) ) Application of Pegasus Development DBS ) File Nos. SAT—LOA—20020322—00032 Corporation for Authority to Construct, Launch, ) sam—LoA—20020322.00033 and Operate a System of Direct Broadcast ) sAT—LOA—20020322—00034 Sarelites in the Broadcasting Satllte Service ) ) ) ) Order on Reconsideration Adopted: June 6,2006 Released: June7, 2006 By the Deputy Chict Itermational Bureau: 1 INTRODUCTION 1. In this Order, we deny Pegasus Development DBS Corporation‘s (Pegasus‘s) petiion for reconsideration‘ of the Intermational Bureau‘s (Bureau) December 7, 2005 dismissal of is applications for three 17 GHz satelite space stations." The Bureau dismissed the appliations, without prejudice to refiling, because Pegasus faled to amend its applications to include an orbital debris mitigation plan,as required by the Commission‘s rles." In ts Petiion, Pegasus suggests that the Bureau should waive the orbital debris mitiation plan amendment requirement and requests the Bureau to reinstte. the applications mure pro turc. We find that Pegasus has not justified a waiver ofthe Commission‘s rules and we uphold our previous decision. 1. BACKGROUND 2. On March 22, 2002, Pegasus filed an application for three satellite space stations at 110° WL, 101° W.L, and 91° W.L. in the Broadeasting Satelite Service (BSS) using the 173—17.8 GHz (downlink) and 24.75—25.25 GHz (uplink) bands." On June 21, 2004, the Commission released a Second Report and Order in ts orbital debris mitigation proceeding.*. In the Second Report and Order, the ‘ Pegasus Development DBS Corpontion, Petion for Reconsidertion, Aled Janvary 6, 2006 (Pegasus Ption). * Appleation ofPegasus Development DBS Corporation for Authoriy to Construct, Launchand Operate System of Direct Broadcast Stelits in t Broadcasting Satelite Service, Fle Nos, SAT—LOA—20020322—000323,24, e also Public Noice, DA 053152 (December7, 2008) (disnissing this appliation) (Dismissol Public Notio. * See Miiation of Orbial Dcbris, Second Report and Order,1B Docket No. 02—54, 19 ECC Red 11567 (2000) (SecondReport and Order) * Pegasus Peiion t 1. * For prposes othis Order, we referto these bands a the "Ka—band." * See generally Second Report and Order, 19 FCC Red 11567. Orbial debeis consiss ofarificial objects orbitng the Earth that arenotfunctional spacecraf. 19 FCC Red t 11568 (para. 2). The Commision found tat mtigation (contiued..)

Federal Communications Commission DA 061220 Commission, among other things, adopted a requirement that applicants disclose their orbital debris mitigation plans as part ofthe technicalinformation sbout space station networks submitted pursuant to Section 25.114 of the Commission‘s rules." The Commission also stated that partiesthat have requests for approval of space stitions pending before the Commission shallhave 30 days following publication of the Second Report and Order in the Federal Registr in which to amend their requests by filing orbitl debris mitigation plans.* ‘The deadline to file amendments was subsequently changed to 30 days aftr the effective date of the orbial debris disclosure rules" 3. Notice of the effective date othe orbialdebris disclosure rules was published in the Federal Register on October 12, 2005." On October 13, 2005, the Commission released a public notice stating that the Commission‘s orbital debris disclosure rules would take effect on Ostober 19, 2005.""— That public notice further stated thatapplications that were pending as ofOctober 19, 2008 were required to be amended by November 18, 2005 to include an orbital debri plan or would be dismissed as incomplete." 4.. Pegasus did not file the required amendment by November 18, 2005." Pegasus claims that on December 2, 2005, it verbally notified the Commission that, due to an oversight, it had failed to file the plan, it was in the process of preparing the plan, and it would request a waiver of the November deadline." On December 7, 2005, the Bureau released a public notice dismissing Pegasus‘s three Ka— band BSS applications without prejudiceto refiing."" On January 6, 2006, Pegasus filed a petition for reconsideration ofthe Bureau‘s action." (..continued from previous page) oforbital debrs serves thepublic iterest by preservingthe United Sites® continued affordabl accessto space, the continued provision of relable US.space—based srvices— including communications and remote sensing stelite services for U;S. commercial, povermment, and homeland securty purposes as wollasth continued safity of persons and property in space and on the surfce ofthe Earth. Second Report and Order,19 ECC Red at 11568 (pas. 12. " Second Report and Onter, 19 ECC Red at 11576 (para.16). "The Commission found thatdisclosure of debris mitigition plans allows the Commission and potentaly afected third partesto evaluate debris mitigation plans priot t istuance of Commission approval for communications activts in spaceand may also aid in the wider isernination of debris mitiation techniques. Without such diclosure, the Commisson is denied th opportunty to ascetain whether operitrsare in fct considering and adopting reasonable debrs mitigation practces. Second Report and Order, 19 FCC Red at11576 (par. 16). The required contets ofan orbtal debri mitiation plan for filngs subject to Part 25 of the Commision‘s riles are codified in Section 25.114(&)(14). See 47 CFR. § rsikd4. * SecondReport and Order, 19 CC Red at11577 (prs. 20) * Mitigation ofOrbital Detris, Eatum, 19 FCC Red 16233 (Aug24, 2004 " Miigation ofOrbil Debis, 70 ¥ed. Reg. S9276. " Diselosure OfOrbial Debris Mitigaton Plan, Including Amendment ofPnding Applications, Public Notic, DA 05—2698, Report No.SPB—112 (October 13, 2008) (Ordtal Debris Mirigation Public Noice. " Orbial Datris Mitgation Public Noice ° See DismissalPublc Notce. " Regasus Pettionat2. © See Dismissal Public Notce "* On April12, 2006, Pegasus refiled these three applications thticluded an orbital dbris mitigation plan. See IBFS File Nos. SAT—LOA—20060412—00042, 43, and 44. ‘This Order does not prejudice our review of these applications

Federal Communications Commission ba 064220 111. DISCUSSION Ac— Waiver Standard 5. The Commission may waive a rule or deadlineif there is good cause to do so,if special ircumstances warrant such a waiver, and a deviation from the rules would better serve the public interest than would strict adherence to the general rue."" Further, the Commission may grant a waiver only if he reliefrequested does not undermine the policy objective of the rulin question and would otherwise serve the public interest.". We ind that granting Pegasus a waiver would undermine the purpose of the rule at issue here and thatth circumstances that Pegasus outlines do not warrant deviation from the rule. B. Purposeof the Rule 6.. Pegasus assers that the purpose ofthe Orbital Debris Mitigation Public Notice is to establish a date certain for amendments to applications to enable the Bureau to act on such applications expeditiously in accord with the Commission‘s firs—come, first—serve, licensing process applicable to most spplications. Pegasus further claims that because rules have not yet been established for the service that Pegasus planned to offer, the Bureay is notin a position to act on ts spplication, even had it fled an orbital debris showing." Pegasus therefore maintains that a waiver of the orbital debris filing requirement would not frustrate Commission policy.®" We disagree 7. In ts request, Pegasus is not simply asking for a waiver ofthfiling deadline in the Orbial Debris Mitigation Public Notice, but in effect is also asking for a waiver of the Commission‘s requirement that all applictions be substantilly complete when filed. In the First Space Station Rgorm Order, the Commission adapted a firstcome, frst—served processing procedure for most applications proposing satelites that will operate in the geostationary satelite orbit, such as Pegasus‘s proposed satellites. It also adopted a requirement thatall applications must be substantially complete at thetime of filng."" This requirement is needed to discourage speculative satelite applications and to ensure that applicants do not submit incomplete applications withthe aim of obtaining "firs—in—lin"status."" Since the First Space Station Reform Order was adopted, the Bureau has strtly enforced thisrequirement," ®‘ Northeast Celider Telephone Co.v. FCC, 897 F28 1164, 1166 (Wortheost Celtar) "* IHATT Radlov. FCC,418 R2d 1183, 1159 (D.C. Cis 1969),cert.denie, 409 US. 1027 (1972); Northas Cellier,$97 F2d at 1166 " Pegasus Pertionat4 ®Pegasus Pertionat 1 *‘ Space Sation Licensing Rules and Polices,Fist Reportand Order and Further Notice ofProposed Rulemaking, 1B Docket No.02—34, 18 FCC Red 10760,10852 (para.244) (2003)(RrsSpace Staron Reform Order). 47 CER. § 25.114(b)(*The technical information for a proposed stelite system . . should be complete in all pertinent deus). "" See Frst Space Station Reform Order, 18 ECC Red at10805—06 (par. 112). We erphasize that we do not find that the Pegasus applcation is specultive, Rather, we conclude that granting a waiver of our requirement that appliations be substantlly complete would undermine th purpose ofthis requirement and open the doort fture speculitors 7 47 CER. § 25.112(@)(). See eg. Echostar Satlite LLC (R/A EchostarSatelite Corporation), Applieation for Authorty to Construct, Launch and Operte a Geostationry Satellte in the Bixed Satlite Service Using the Extended Ku—Band Prequencies atthe 101° W.LOrbital Location, Order on Reconsiderarion, 19 FOC Red 24953, 24958—59 (pre. 14) JntBur. 2004) (RehoSter Diomissol Reconsideraton Order). See aso, z. Letert James V. Hleck, Word Radio Nemwork, Ic, from Scot A. Kotlr, Chief, Systems Analysis Branch, Stelite Divison, 20 ECC Red 1919 (Intl Bur, St. Div, 2008) (James V. Heck Letter; Leter to Robert Lewis, SiyTerm (continued..) 3

Federal Communications Commission pao6—1220 stating that finding defective applications acceptable for fling is not consisent with the First Space Station Reform Order and creates uncetainty and ineflciencies in the licensing process." Allowing applicants, like Pegasus,to cure applications after they are fled could adverscly impact other applicants, including 17 GHz applicants, fling complete applications that are "second—indine" to the first application." 8. Pegasus argues, however, that because the Commission has not yet established service, technical, or licensing rules for systems such as Pegasus‘s, and thus is not in a posiion to act on Pegasus‘s applications, a waiver is warranted."". As indicated above, the purpose of the substantilly complete requirementis to discourage defective applications, and to ensure that partiesfilng defective applications do not adversely affect parties filing substantialy complete applications. Contrary to Pegasus‘s assertion, the purpose of the rule is not to expedite Commission review of applications."" Thus, regardless of whether the Commission can immediately act on Pegasus‘s applications, granting the Pegasus waiver request would undermine the purpose ofth requirement that applications be substantially complete when filed. C. Particular Circumstances 9.. Pegasus also asserts thatit had not been sufficiently notified ofthe requirement to amend its spplication to provide an orbital debris mitigation disclosure, and that dismissal ofits application would e unduly harsh since its application has been pending for more than three and a halfyears." We disagree with both assertions, and fnd that dismisal is an appropriate action. 10. First, we find that the Commission provided ample notice of the requirement to amend pending applications to include orbital debris mitigation disclosures. Contrry to Pegasus‘s assertions that it was notifed only by the Orbital Debris Mitigation Public Notice, the Commission provided public notice ofthe requirement t amend pending applications on two other occasions: (1) The Second Report and Order,released on June 24, 2004;"" (2) Federal Register Notice, dated October 12, 2005;" Any of these notifiation methods, by itself rovide Pegasus adequate notice."" Nonetheless, the Bureau took the frther extraordinary step of providing actual notice by e—mail to the contact of record ofparies (..contimed from previous page) Communication,Inc.fom Fem J Jarmulnck, Deputy Chic, Satlite Division, 20 FCC Red 21 12 (ln! Bur, Sat. Di2005)(Robert Lewis Leten. * EchoStar Dismissl Reconsideration Order,19 FCC Red at24957 (par.9) ® EchoSter Dismisel Reconsideration Order, 19 ECC Red at28958 (para. 13). * Pegasus Peiion at 4 " Pirst SpaceStaion Reform Order, 18 ECC Red at 10852 (pra.244). EchoSter DisnissalReconsideration Orde, 19 FCC Red at 24958—59 (pame 14. * Pegasus Peion at 1. "* second Report and Order, 19 ECC Red at 11577 (para. 20) ® Miigation ofOrbtelDebris, 70 ¥ed. Reg S9276. *‘ See Mullane v. Central Hanover Bank & Trust Co., 339 US, 306, 314, 70 $.Ct.652, 687, 94 L. 865 (1980) (*.... {] fundamental equirement of due process s .. otic reasonably calculated, under all tcrcurstances, to apprise interesied partes of the pendency of the action and afford them an opportinity to present thir objecions.",

Federal Communications Commission ba 06120 with pending applications that were subject to the orbitaldebris mitiation amendment requirement. Such actual notice was provided to Pegasus en days before the amendment was due". As a result, Pegasus had actual prior notice of the need to amend its pending applications by November 18, 2008, or fice dismissal. Thus, Pegasus‘s assertion that it missed the filing deadline because it did not have sufficient notice of the orbital debris mitigation amendment requirements is contradicted by: the record. Furthermore, we do not find that dismissal of Pegasus‘s applications is unduly harsh. The Commission stated in the Orbital Debris Mitigation Public Notice tat it would dismiss applications in cases where the applicant did not submit an amendment to provide an orbital debris mitigation plan."" As noted above, he Commission has consistently dismissed applications thatit has found to be incomplete," and Pegasusis free to resubmit is application without paying another filing fee." 11. Pegasus also asserts thatits original application was submitted,in part, to assisin preserving US. international coordination prioity for certain orbital locations relative to other nations under the procedures ofthe Intemnational Telecommunication Union (ITU)."* In the ITU international coordination process, member nations submitflings on behalf otheir applicants.. When a member nation submits the required filings with the TTU, it obtains "prionty" over member nations filing subsequently. This prionty gives the member nation superior status in coordinating their satellte systems with the systems oflater= filed nations, Retaining TT date—priority for Pegasus, however, does not justfy reinstatement Beginning in 1998, when the United States agreed to open its satelite market to satelltes Hcensed by other countris,"" the Commission has authorized foreign—licensed sateltes to serve U.S. customers.* Accordingly, even if the United States loses date proniy at Pegasus‘s orbital locations, it does not follow that the U.S. public will necessarily lose service from these orbitallcations.""_Thus, the Commission‘s overriding goal — delivery of service to the public — could be met even if Pegasus® application is dismissed. 12. Finally, Pegasus argues that the Bureau improperly acted before it could submit its waiver request and amendment.— As noted, the Commission provided ample notice for parties to submit the " See e—mail rom Curtisha Banks, Policy Branch, Satlfte Division, Iterational Bureau, to Scot Blank, Senior Vie President, Lepal and Corporte Affain, and Generl Counsel dated November 8, 2005. See also Leter fom Brice Jacobs, Counsel for Pegasus Development Corportion, to Marlene Dorth, Secretay, FCC, dated Apul 1, 2005, informing the Commission tht the contict person for Pegasus‘s sstellizelated Hicenses and pending appliations is Scott Blank. * see OrbialDebris MiigaionPublic Note. * RchoStar Dismissal Reconsideration Orde, 19 FOC Red at24958—39 (par. 14). See also, . James V. Heck Leter, 20 FCC Red 1919; Robert Lewis Leter, 20 FCC Red 2112. "* Asindicated above, Pegasusrefiled theseapplications on April 12, 2006. " Pegasus Pestionat2. " The resuls of the World Trade Organization (WTO) basic telecommunications services negotiations are incorporated nto the General Agreement on Trade in Services (GATS) by the Fourth Protoclt the GATS (Apri 30, 1996), 36 LLM. 336(1997). These resals, as wellas the bsic obligations containein the GATS, arerefered to as the "WTO Basi Telecom Agreement" This agreement, which took effect on January 1, 1998, opened global market,includingthat ohe United Stats,for telcommunicatons services, includingsatllite services. * Amendment ofthe Commission‘s Repulitory Poliis to Allow Non—U.S. Licensed Satelites Providing Domest and Itermatioal Service in the United States, Report and Order, IB Docket No. 96—111, 12 FCC Red 24094 (1997) (wiscon. * See VisionStarIncorporated, Application for Modifiation of Authority to Constact, Launch and Operte a Ka— Band Satelite System in the Fixed Satlite Service, 19 FCC Red 14820, 14824 (para. 11) (In‘I Bur, 2004) (FisnSiar Order, * Pegasus Petiionat45.

Federal Communtcations Commisson Da 06—1220 required amendment or request a waiver oftherequirement. Pegusus did neither. Pegasus‘s petition does not cite any provision of the Commission‘s rules or adminisrative law thatrequires the Bureau to grant, or even consider, a waiver request fild after a fling deadline has expired or to withhold action on a defective application for a certain time period."" As a result, we can find no basis for Pegasus‘s waiver request and dismiss i. 1. ORDERING CLaUsES 13. Accordingly, TT 18 ORDERED that the petiton for reconsideration filed by Pegasus Development DBS Corporation is DENIED. 14. This Order is issued pursuant to Section 0.261 of the Commission‘s rules on delegated suthority, 47 C.F.R. § 0.261, and is effective upon release. FEDERAL COMMUNICATIONS COMMISSION omn V. Giust Deputy Bureau Chicf Interational Bureau " In fit, Couts have upheld a number of prior cases in which requestsfor watver of Aling deadlines have been denied. Seetn re Burlington Cablevison, Inc., 13 ECC Red 772 (Mass Media Bur, 1999), and cases cited terein 6


Document Created: 2006-06-09 15:18:48
Document Modified: 2006-06-09 15:18:48
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