Attachment redacted

redacted

PETITION FOR RECONSIDERATION submitted by Inmarsat

redacted

2006-05-22

This document pretains to SAT-LOA-20030827-00174 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA2003082700174_503105

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   BY HAND DELIVERY                                              HewJonny Yamegon 6
   Ms. Marlene H. Dortch
   Secretary                                                                 RECEIVED
   Federal Communications Commission                                                      4
   445 12th Street, SW, TW—B204                                                may 2 2 2006
   Washington, DC 20554                                                   revaltomntab rmmnis
                                                                                 oftcet eentay
        Re: Inmarsat Ventures Limited, Petition for Reconsideration,
            File Nos. SAT—LOA—19980702—00066 (Call Sign 52358); SAT—LOA—20030827—
            00174 (Call Sign $2487)
   Dear Ms. Dortch:
                   Inmarsat Ventures Limited submits a redacted, public version of ts Petition for
   Reconsideration in these proceedings pursuant to the Protective Order issued by the Commission
   in these proceedings (DA 06—1037, rel. May 15, 2006). A non—redacted, confidential version of
   the Petition for Reconsideration is being filed under separate cover.
                   Please direct any inquiries regarding this submission to the undersigned.
                                                  Respectfully submitted,


                                              iA
                                              Jeffrey A. Marks
                                              Counselfor Inmarsat Ventures Limited
   ce     CurTrisha Banks, Intemnational Bureau
          Bruce Jacobs, David Konezal, Tony Lin, Counselfor MSYV

   Enclosures




   vosum


                                           pusLic cory                         rECEN ED
                                         Before the            way 2 2 20
                       FEDERAL COMMUNICATIONS COMMISSION                 camus
                                  Vashii
                                Washington, DC 20554                   s
                                                         Sutust mflflmv\'m
In the mater of                                  )
                                                 )
Mobile Satellite Ventures Subsidiary, LLC ) File No. SAT—LOA—19980702—00066
                                          ) File No. SAT—LOA—20030827—00174
              Petimion ror            S              e bowgser Vextures Loarep
                Pursuant to Section 1.106 of the Commission‘s rules, 47 C.F.R. § 1.106, Inmarsat

Ventures Limited ("Inmarsat") respectfully requests thatthe International Bureau reconsider ts
determination that Mobile Satellite Ventures Subsidiary LLC (°MSV") met itsinitial milestones
for these two authorizations to Iaunch and operate MSS spacecraft at 63.5° W.L. and 101° W.L.,

with L—Band service links and Ku—Band feeder links." As Inmarsat demonstrates below, the
contract submitted by MSV does not satisfy the license condition that MSVenter into a "non—
contingent" satellite construction contrac. @R@RRRiRRRpppppeeea


RERRRRRR Sccouse the contract fails to demonstrate firmcommitment by MSV to
construct,launch and operate its two next—generation spacecraft, the Bureau should reconsider its
determination, and find that MSVhas not satisfie itsinitial milestones. Therefore, MSV‘s

authorizations to Iaunch and operate newspacecraft at 63.5° W.L. and 101° W.L. should be
deemed null and void, pursuant to the express terms of thase authorizations

                                          Intropucrion
                 On January 10, 2005 and May 23, 2005, the Bureau authorized MSV to launch

and operate two new L—Band MSS spacecraft with Ku—Band feeder links at 63.5° W.L. and 101°




!— Public Notice, Report No. SAT—00356, DA 06—918, at 2 (el. Apr. 21, 2006).


                                          puBuic cory
W.LIn doing so, the Bureau took steps to ensure that MSV did not hold "scarce orbit—spectrum

resources to the exclusion of other applicants," and that MSV was both willing and able to

proceed with its stated plans." Specifically, consistent with longstanding precedent, pursuant to
ules codified in the Space Station Licensing Reform Order," these authorizations require, among
other things, hat MSV "enter into a binding non—contingent contract to construct the licensed

satellte system," by January 11, 2006 for the spacecraft at 63.5° W.L. and by May26, 2006 for

the spacecraft t 101° W.L. On January 11, 2006, MSV submitted a contract with Bocing

Satellite Systems, Inc. for three new spacecraf (the "Bocing Contract") in an effort to
demonstrate that MSV had met its initial milestone in connection with each authorization."
               Although the public version ofthe Bocing Contract was heavily redacted, that

redacted version and public securiies flings by MSV‘s affiliate indicated that the Bocing
Contract did not appear to meet the legal standard for a "non—contingent" contract." Without
access to the redacted contract terms, it was not possible for Inmarsat, or any other interested

party, to specify the inadequacy of the Bosing Contract. Most notably, MSV had redacted
essentialterms, such as payment schedules, provisions governing termination for convenience,
and termination penalties.® As Commission precedent consistently has found, access to a non—
redacted version of a satellite construction contract is necessary to provide a "meaningful


* MSF, 20 ECC Red 479 (rel. Jan. 11, 2005) (‘MSY 63.5° W.L. Order"); (SF, 20 FCC Red 9782 (rel.
   May 23, 2008) (CMSF 107° W.L. Order").
* MS101° WL Order, 20 ECC Red at 9772 453.
* Amendment ofthe Commission‘s Space Station Licensing Rules and Polices, 18 FCC Red 10760,
   1 181—185 (2003) (‘Space Station Licensing Reform Order); 47 CER. § 25.164(@).
5: See MSY 63.5° WL Order, 20 FCC Red at 494 9 57; MS101° W.L. Order, 20 ECC Red at 9776 4 78.
* Letter rom Vice President, Regulatory Affairs, MSV, to Marlene Dortch, File No. SAT—LOA—
   1998070200066etal. (Jan. 11, 2006) (°MSV Milestone Submission").
" See Letter from Counsel t Inmarsat, to Managing Director, FCC, Mar. 24, 2006 ("Inmarsat FOIA
   Request") (iting the publicly available Boeing Contract and Motient‘s SEC Form 8—K).
* Inmarsat FOIA Request at 2.
                                                 2
vommaa


                                            PUBLIC COPY

opportunity to comment" on the legal sufficiencyof the contract." Thus, Inmarsat submitted a
Freedom of Information Act (‘FOIA") request in these proceedings in which it preliminarily
identiied issues of concem and also sought access to a non—redacted version of the Bocing
Contract." In its FOIA Request, Inmarsatpreliminarily identifed the following issues:
        First, MSV‘s down payment ofjust 0.3% of the total contract price of approximately S1. 1
       biltion is miniscule and thus appears inadequate. Second, MSV has indicated that its
        liability ifi terminates for convenience may be as lowas S3 million. Third, over the first
       year of the agreement, MSV is obligated to make payments amounting to a mere 5.5% of
       the contract price. Fourth, Motient‘s recent SEC filing indicates that MSV is not fully
       committed to completing construction of the MSV—SA satellite because MSV may
       terminate the construction of that spacecraft for convenience if certain favorable business
       conditions do not develop in the future.""
As Inmarsat noted atthe time, this publicly available information indicated that the Bocing
Contract appeared more like an option than the type ofbinding, non—contingent contract that is
required to satiy the iniial license milestones under Commission precedent.""
               On April 21, 2006, prior to making any determination on Inmarsat‘s FOIA
request, and without even acknowledging the issues Inmarsat raised, the Bureau issued a public
notice, indicating without further elaboration that MSV had met the initial milestone for each
spacecraft."" Over three weeks later, on May 16, 2006, Inmarsat was able to access additional




* See, eg. Pegasus, 20 FCC Red 14661, 146621 2 (2005); PandmSat, 17 FCC Red 4639, 4640 15
  (2002); GB American Communications, 16 ECC Red 17607, 17608 4 (2001)
© Inmarsat FOIA Requestat1
"* 14. at2 (footmotes omitted) (iting MSV Milestone Submission; Motient Corp., Form $—K at 35, 43
  (filed Mar. 13, 2006) (‘Motient Corp. Form $—K"). The data in the unredacted Bocing Contractis
  slightly differcnt from previously available public information. For example, the contractprice for
  three spacecraft appears to be                  than the S1.1 Billon specified in Motient‘s $—K
  (compare Boing Contrct at                                with Motient $K at 35), Thus, MSV‘s payment
  obligation over the first year
  “ ed by                                   Inmarsathas not beenable o reconcile this difference in fixed
  totalcontract price. The differences do not sppear to be materil under Commision precedent.
. Inmarsat FOIA Request at2.
* Public Notice, Report No. SAT—00356, DA 06—918, at 2 (el. Apr. 21, 2006)
                                               3
vesmam


                                             pusuic cory
portions of the Bocing Contract pursuant to a protective order negotiated with MSV."" This

newly available information validates the serious deficiencies in the Bocing Contract that
Inmarsatprefiminarily had identified before. Now, forthe first time, Inmarsat is able to
meaningfully comment on the Bosing Contract, and specifically substantiate its legal
inadequacy.. Inmarsat therefore secks reconsideration ofthe Bureau‘s determination regarding
the Bocing Contract.""

                                              Arcument

                The Commission recently affirmed is policy on milestones:
        Milestones are intended to ensure that licensees provide service to the public in timely
        manner,t prevent warchousing of searce orbit and spectrum resources by licensees that
        are unswilling or unable to proceed with their plans. Such warchousing could hinder the
        availability ofservices to the public at the earliest possible date by blocking entry by
        other entities willing and able to proceed immediately with the construction and launch of
        their satellte systems."*
‘The Commission has recognized that the initl lcense milestone is "especially important
because it provides an early objective indication of whether a icensee is committed to
proceeding with implementation ofits proposal."""" Most relevant here, the Commission
characterized a similarly sized down payment (as a percentage ofthe total contract price) as


!* MSV, Order to Disclose Pursuantto Protective Order, File Nos. SAT—LOA—19980702—00066, eral,
   DA 06—1037 (rl. May15, 2008
"* Inmarsat has standing because it has a vested interest in whether MSV has met is milestones and
   whether MSV will deploy its spaceoraf. Firs, Inmarsat and MSV are diect MSS competitors in the
   L—Band. FCCv. Sanders Brothers Radio Station, 309 U.S. 475, 477 (1940). Moreover, MSV has
   asserted the need to access additionalL—Band spectrum in order to implement the two satelitesthat are
   the subject ofthese milestones, claiming that MSV‘s spectrum access should come atthe expense of
   Inmarsat. See, e, MSV, Petition to Hold In Abeyance, File No. SES—MFS—20060118—00080, er al.
   (filed Mar. 3, 2006). Thus,Inmarsat is adversely affected by the Bureau‘s determination and has
   standing to pettion for reconsideration. 47 C.FR. § 1.106b)(1). Furthermore,Inmarsat‘s inabilty to
   view essential portions of the Bocing Contract priorto it release pursuant to protectve order provides
   "good reason why it was not possible"for Inmarsatto fully participate before. 1d; e also cases cited
   supra note 9 (accessto nor—redacted contract necessary to have a meaningful opportunity to comment.
!* Space Station Licensing Reform Order,18 ECC Red at 10827 § 173.
!* TMI Communications and Company, Limited Partership and TerreStar Networks Inc. Application for
  Review and Requestfor Say, 19 FCC Red 12603, 1260894 (2004) (‘TM).
                                                   a
vosmam


                                            pusuic     cory
"miniscule,"" sas and the Commission has confirmed that initil payments that are not
"significant,""" and an abilityto "cancel construction of the satelite without significant
penalty ° are indications that a satellite contract may not be suficiently "non—contingent" to
meet the construction commencement milestone. The Bocing Contractfails on all ofthese
counts,"" and thus does not demonstrate a firm commitment by MSVto construct, launch and
operate its next—generation spacecraft."

                At the outset, t is important to recognize a significant additional limitation on
MSV‘s commitment to proceedas required by its milestones. The Bocing Contract provides that




"* Applications ofMobile Communications Holdings, Ic. and ICO Giobal Communications (Holdings)
   Linitedfor Transfer of Control,18 ECC Red 1094, 110017 (2003) (CMCHTY.
"* RchoStar, 7 FCC Red 1765, 1769, 4 19 (1992). The Commission has found that the standard of review
   related to DBS due diligence requirements is also applicable t contract execution milestone
   determinations, and that DBS milestone precedent is relevant, Space Station Licensing ReformOrder,
    18 CC Red at 10831 n433
® Space Station Licensing ReformOrder, 18 ECC Red at 10831 Y 184.
   See Inmarsat FOIA Request at 2 (raising concerns related t the size of MSV‘s down payment,
   payments over the first year, and termination linbilty based on publicly available nformation, and
   stating that these three issues "make the Bocing Contract appear more like an option than the type of
   binding and non—contingent contract tat is required to satiy the inita icense milestones for MSV‘s
  two next—generation spacecraft")
  See Inmarsat FOIA Request at 2
" Bocing Contrat ,°it
"1
pesmami


                                           pusLiC cory
                As is demonstrated below, when viewed in its entirety, the Bocing Contract


oooooc<coccccocc.
MSV chooses not to proceed with Bocin, T°@NR@Rerereeemmmmmmmmmmmmmmmmngy
EooooooSSSSSilo. c 5o:.: c
... u..omc arroarsspaessin
EB0 thcrciorc docs "not demonstrate suficient commitment to proceed with
system implementation""" to satisfy the contract execution milestone requirement

               Under these cirounso—nc~s, BR»»»pppppppp
Sss cosn pasmcnand inticl payments are
inadequate under Commission precedent. In a context where a licensee did not otherwise
demonstrate a commitment to implement ts lcensed system, the Commission characterized a
down payment of less than 0.5%as "miniscule" and indicative that the contract was not

satisfactory in meeting the initallcense milestone."" x MSV*s down payment of $3 Million
amounts to RRRRRRRRRRRRIE ofthe total contract price, well belowthat 0.5% threshold.""
Commission precedent further mandates that "initial payments" under a construction contract
must be "significant,"as a percentage of total contract price, which is not the case here."" Here,
MSVis oblizated to pay only BRRRiiriireiereererrerrrrrpppppaee



* Joint Applicationfor Review ofConstllation et al,19 ECC Red 11631, 49 19, 26 (2004)
* MCHI, 18 FCC Red at1100 a 1 17 ("The down—payments were miniscule,however, relatve tothe
  total purchase price that . ach agreed to pay... More precisely,each down—payment comprised
  less than one—halfo one percent of the total purchase price specified in each contract‘)
"" See Inmarsat FOIA Requestat2 (noting that *MSV‘s down payment ofjust0.3%of the toalcontract
  price.   is miniscule and thus appearsinadequate")
"* Inmarsat FOIA Request (noting thinadequscyof MSV‘stotal payment obligation over the first year)
* Bocing Contact @@tttt
                                                 6
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                                            pusuic cory

oppopicpaoomnl1
BR o( thc total contract price could be paid over BR of a contract that
provides for spacecraft to be delivered on a four to five year time horizon."" This amount pales

in comparison to initial payments that the Commission has found adequate. For example, in
EchoStar, the Commission found payments equaling 23.87% of the total contract price over the
first 10 months of a 40—month contract to be "significant" for milestone purposes."" MSV‘s
obligation to pay BRRRRRRRIB] of the total contract price over IRRRRRRIRRRRRRRRRI] does not
even come close to that level

                These modest initil payment obligations, when viewed in light of MSV‘s [R

emss cicer the contingent neturc of
MSV‘s commitment to implement its licensed system during the earlypart ofthe Bocing
Comc. ioiapl.m nog c
tnsls
~:.————AAAllllnolill
in the event of a termination for convenience in MSV‘s discretion does not meet the requirement

that cancellation by the licensee result in a "significant penalty® to the licensee."* Specifically,

MSVis contractuallycommitted to payony @°°@N@ererererererererrerrrr




* Bocing Conteact « BR
"—
"* EchoStar Satellite Corporation, 7 FCC Red 1765, 17699 19 (1992)
®* Bocing Coom«: . ARRiippppppppooee
* Space Station Licensing ReformOrder, 18 FCC Red at 10831 1 184; Columbia Communications
   Corporation, 16 FCC Red 10867, 10871, 10872 $# 11, 15 (2001) (*Columbia®)
                                                7
vesuara


                                             PUBLIC COPY

BE ICMSVhad concelled the Bocing Contract right after signing t, RR




                ~.pmonc on


SS :004 moinsin is spccium
reservations at 1019 W.L. and 63.5° W.L. Both common sense and Commissionprecedent
dictate that a contract cannot be "non—contingent" where the licensee can terminate BWB
IRRRRRRNNRR® 1nic<<, Commission precedent recognizes that contracts that
appear to be accommodations to meet regulatory requirements are not suficient to satisty
Hicense milestones."" Motient, MSV‘s affilate, admitted in its recent SEC Form 8—K that MSV is
not, even at this early stage, flly committed to constructing the MSVsatellte lcensed for 63.5°
W.L."* Moreaver, the Commission has recognized thata construction contract will not be
sufficient where "obligations under the contract are ... contingent upon future performance of
an elective actionby the liconsce."". BR@Rppppppppppnmmmmmmmmmmmmmmmmang


         s Contrct at


* CEchoSar, 7 FCC Red at 1769 § 18 (for termination for convenience, Echostar was equired to pay
  terminationcharges up tothe toal contract cost ofthe contrac, lus the satelite manufacturer‘s direct
  and indirect costs reasonably incured foits termination and settement with vendors and
  subsontractors, plus a profit of 12.5% through month 24 and 15%thereafter). See Columbia, 16 FCC
  Red at10878 11
" TML, 19 BCC Red a 126199 43.
* Motient Corp, Form $—K at 43 (filed Mar.13, 2006) (noting that MSV may terminate for convenience
  its contract to construct this spacecraft to serve South America unless ceriain favorable business
  conditions develop in the future)
* TML, 19 FCC Red at 126064 7.
bee:


                                         pusLiC coPY


EBB 1t is not : non—contingent contract that meets the Commission‘s standards.

               The Bocing Contract maymature into a non—contingent, J@@iiiiiiiiitd

—~.———o———faavolesnt« ~—
is not relevant. The Bocing Contract did not meet that legal standard when it was filed, and it

does not meet tat standard today. A contract > @°@°Rrerierererererereerrrmmm
Ecnbc vicwd as a non—contingent contract




                                                      o be sure,c BR
payments that MSV maymake to Bocing BRWWWWRRRRRRRRRRRIII provide significant value to
MSV, and in no way can be viewed as a "penalty" for terminating. With each payment to
Bocing, MSVmay hope to extend the validityof its authorization to build its next—generation

* Bocing Contcct ,IReRiirereeem


pessam


                                          PUBLIC COPY

system, keep its reservation for scarce and valuable Ku—Band feeder—link spectrum in the
congested orbital are at 101° W.L., and thereby preclude others from using that valuable orbit—
spectrum resource in the meantime."" Viewed in this context, MSV‘s obligations under the [
RHR Bocing Contract do not constitute the type of"significant" intial payment and
termination penalty provisions that Commission precedent has recognized as essential for
purposes of defining a non—contingent contract."

                                           Concuusioy
                For these reasons, he Commission should reconsider its determination and find

that MSV did not satisfy the initial milestones for its two next—generation spacecraft at 63.5°

W.L. and 101° W.L.

                                                     Respectfully submitted,



                                                     Tolln Yanka
                                                     Jelliey A. Marks
                                                     LATHAM & WATKINS LLP
                                                     555 Eleventh Street, N.W.. Suite 1000
                                                     Washington, D.C. 20004
                                                     Telephone: (202) 637—2200
                                                     Counselfor Inmarsat Ventures Limited
May 22, 2006




© MSF 101° W.L. Order, 20 ECC Red at 97724 53.
® Inmarsat FOIA Request at 2.
                                                10
bossana


                                         PuBuic cory


                                CERTIFICATE OF SERVICE
               1, Jeffrey A. Marks of Latham & Watkins, LLP, do hereby certify that on this 22"
day of May, 2006, I caused to be served a true and correct copy of the foregoing Petition for
Reconsideration by U.S. Mail, postage pre—paid (unless otherwise noted) to the following:

CurTrisha Banks
Interational Bureau
Federal Communications Commission
445 12" Street,SW.
Washington, DC 20554
By Hand Delivery
Bruce Jacobs
David Konczal
Tony Lin
Pillsbury Winthrop Shaw Pittman LLP
2300 N Street, N.W.
Washington, DC 20037—1128



Document Created: 2006-06-01 10:56:54
Document Modified: 2006-06-01 10:56:54

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