Attachment app for review

app for review

APPLICATION FOR REVIEW submitted by EchoStar

app for review

2005-01-26

This document pretains to SAT-LOA-20030827-00179 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA2003082700179_414982

: ORIGINAL Before the FEbERAL communications commssiogECEIVED Washington, DC 20554 jan 2 6 2005 In the Matter of )) nemsoppnczmome* set ) EcoSrar Sareturre LL.C. ) (Pia EchoStar Satellite Corporation) ) FileNos. SAT—LOA—20030827—00179 ] SAT—AMD—20031126—00343 Application for Authority to Construct, ) ppSellSien s2402 Launch and Operate a Geostationary ) Ceiveq Satelltein the Fixed Satelite Service ) SW > Using the Allotted Extended Ku—band ) 2 ? z05 Frequencies at the 101° W Orbital Location ) Filks inerigi) Brncp ) "0halBureay ArpuicaTion ror reviEw David K. Moskowitz Pantelis Michalopoutos EchoSrar Sateture LL.C. Chung Hsiang Mah Senior Vice President and General Counsel Brendan Kasper 9601 South Meridian Boulevard Lee C. Milstein Englewood, CO 80112 Sreeros & Jonnson Lur (303) 723—1000 1330 Connecticut Avenue NW Washington, D.C. 20036—1795 (202) 429—3000 Counselfor EchoStar Satellite L.LC January 26, 2005

TABLE OF CONTENTS INTRODUCTION AND SUMMARY . QUESTION PRESENTED.. u. BACKGROUND .. IV. THE BUREAU WRONGFULLY IGNORED COMMISSION AND COURT PRECEDENT ON THE "SUBSTANTIALLY COMPLETE"STANDARD WHEN IT DISMISSED THE ECHOSTAR APPLICATION AND AMENDMENT......... wllnn 6— A.—— Under The Substantially Complete Standard, Applications That Contain Discrepancies That Can Be Resolved "Confidently And Reliably, Drawing On the Application As A Whole" Must be Accepted For Filing B. Under The Substantially Complete Standard, Applications Must Be Accepted "Even If They Contain Minor Errors Or Infractions Of Ageney Rules, So Long As Any Defects May Be Cured Without Injury To Public Or Private Interest". —10— THE BUREAU HAS FAILED TO TREAT LIKE APPLICATIONS SIMILARLY...— 13— vi. CONCLUSION.. momnd7e

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 ) In the Matter of ) ) [) EcnoSrar Sarevurre LL.C. (fa EchoStar Satellite Corporation) File Nos. SAT—LOA—20030827—00179 SAT—AMD—20031126—00343 Application for Authority to Construct, ) Call Sign $2492 Launch and Operate a Geostationary ) Satellte in the Fixed Satellite Service ) Using the Allotted Extended Ku—band ) Frequencies at the 101° W Orbital Location ) l APPLICATION FOR REVIEW Pursuant to 47 C.F.R. § 1.115, EchoStar Satelite L.L.C. ("EchoStar®) hereby requests that the Federal Communications Commission (*Commission") review the Intenational Burean‘s ("Bureau") Order on Reconsideration ("Order") released on December 27, 2004 ‘ In that Order, the Bureau wrongly dismissed EchoStar‘s Application and related Amendment for an allotted extended Ku—band satellite at 101° W.L" on the basis that they were not "substantally complete."" ‘ In the Matter ofEchoStar Satellite LL.C. (fkia EchoStar Satellte Corporation}, Order on Reconsideration, DA 04—4056 (rel. Dec. 27, 2004) ("Order"). * In this Application for Review, *Application"refersto SAT—LOA—20030827—00179 and "Amendment"refers to SAT—AMD—20031126—00343. * Order at 8 16 ("EchoStar‘s application did not contain all ofthe information required by the Commission‘s rules and thus was not substantially complete when filed.").

L INTRODUCTION AND SUMMARY The Bureau based its dismissal of EchoStar‘s Application and Amendment on two minor defects: (1) one of the tables in the Technical Annex to the Amendment incorreetly referred to frequency bands different from the frequency bands actually applied for and specifically noted in the Application and Amendment; and (2) the Amendment failed to identify which transponders would be connected to which spot beam in either the uplink or downlink directions." EchoStar seeks review ofthe Order on the grounds that the Bureau misapplied the substantially complete standard by ignoring applicable Commission and court precedent regarding that standard. What is worse, the Bureau appears to have significantly tightened the "substantially complete" standard despitethe Commission‘s express disavowal ofa ltter— perfect" standard for satellite applications.. While the Bureau protests that it did not apply a "Letter—perfect" standard in dismissing EchoStar‘s Application and Amendment, no other conclusion can be drawn in light of the triviality of the errors atissue. First, Commission precedent on the "substantially complete" standard is clear that discrepancies in an application will not render it unaceeptable for filing if the discrepancy can be resolved. "confidently and reliably, drawing on the application as a whole." Only those diserepancies that are not resolvable by looking atthe application as a whotejustify dismissal. The incorrect frequency reference in Table A.4—1 of the Technical Annex to the Amendment is precisely this kind ofresolvable discrepancy. The correct downlink frequencies in the allotted extended Ku—bands (10.7—10.75 GHz and 11.2—11.45 GHz) are mentioned no fewer than ten times throughout the Application and Amendment, including in the FCC Form 312 submitted * Order at 9% 11—12; Letter from Thomas S. Tyez, Chief, Satellite Division, FCC to David K. Moskowitz, Senior Vice President and General Counsel, EchoStar Satellite Corporation, DA 04—323 (Feb. 9, 2004) at 2—3 ("EchoStar Dismissal Letter®). See 47 C.F.R. §§ 25.112 and 25.1140(8)

with the Amendment. Moreover, the fact that EchoStar intended to apply for frequencies in the allotted portion ofthe extended Ku—band is patently clear from the inclusion of"Appendix 30B" technical information, which is only required for these frequency bands. The infirmity of the Bureau‘s Order is evidenced by the lone counter example it cites to llustrate the kind ofmistake that would not ustify dismissal —— an example involving a discrepaney that in fact is no different than the one at issue here. Second, court precedentis likewise clear that,under a "substantially complete" standard, applications must be accepted "even ifthey contain minor errors or infractions of agency rules, so long as any such deféects may be cured without injury to public or private interest." The missing information regarding which transponders are connected with which spot beams is just such a curable deféect. Contrary to the Burau‘s view, the missing technical information was not necessary for EchoStar‘s or any other user‘s interference analysis for the proposed satellte. Instead, based on EchoStar‘s proposed use ofthe satellte for irect—to—home services, other users of the band will correetly assume that there will be simultancous uplink and downlink frequency overiaps and the beams could be pointed anywhere within the service areas. Finally, in dismissing EchoStar‘s Application and Amendment, the Bureau exhibited a disturbing failure to treat similar applications consistently. On several occasions, the Bureau has permitted applicants to correct much more egregious defects in theirfirs—come, frst— serve applications, such as failures toinclude two—degree spacing analysis or "effective competitive opportunities" analysis. In defense ofits action, the Bureau first attempts to draw a distinction between "insufficient" and "non—existent.". However, such a distinction is not bome out by the facts, and even if it were, test based on such unfathomably fine differences would be a license for arbitrariness. The Bureau then makes the remarkable admission thatif it made a

mistake in its past treatment of another applicant, it should not repeat its mistake here.. While it may be truthat an agency is not required to repeat an error, unsupported claims ofprior error cannot excuse an agency‘s failure to act in a consistent fashion. In sum, the Bureau‘s Order misapplied the "substantially complete" standard to EchoStar‘s Application and Amendment and is inconsistent with Commission and court precedent. The Order cannot be upheld, because to do so would essentially give the Bureau free ein to apply any standard it wanted to judge the adequacy ofapplications, and excuse any differences in treatment by reasoning that if it made a mistake the last time, it can simply ignore that precedent. This would be a particularly prejudicial result as it would undermine the Commission‘s first—come, first—served processing guidelines. Under that system, "substantially complete" filings are to receive prioity processing rights based on the frequencies sought and the time of application, measured to the thousandth of a second. It would mock the precision of that mechanism ifcompleteness were t bejudged in an evershifting, standardless manner. The Commission should, therefore, reverse the Order and reinstate the Application and Amendment into ts proper place in the space station application processing quene 11. QUEsTION PRESENTED The questions presented in this application for review are: * Whether the Bureau acted in conflict with Commission and court precedent in applying its "substantally complete" standard for accepting satelite applications, or otherwise misapplied that standard or in fact applied a letter—perfect standard, when it dismissed EchoStar‘s Application and Amendment; and * Whether the Bureau committed prejudicial error by failing to treat like applications similarly.

111. BACKGROUND On August 27, 2003, EchoStar filed an Application to construct, launch and operate a geostationary satellite to provide Fixed—Satellite Service (FSS") using the allotted extended Ku—band frequencies at the 101° W.L. orbital location under the Commission‘s new "first—come—first—served" filing procedures. Throughout the Application, EchoStar made it clear thatit was requesting operating authority for the 10.70—10.75 GHz and 11.20—11.45 GHz (downlink) and the 12.75—13.00 GHz and 13.15—13.20 GHz (uplink) frequencies, which are part of the allotted extended Ku—band governed by Appendix 30B ofthe Intemational Telecommunication Union (‘ITU®) Radio Regulations. Indeed, EchoStar submitted TTU Appendix 30B information with its Application, which is only necessary for requests to use frequencies in this band. In November 2003, EchoStar amended its application to (1) increase the service area over which uplink transmissions, used primarily for feeder link type earth stations, may be received; and (2) add steerable uplink and fixed downlink spot beams to faciltate any needed coordination with other satellte systems in the allotted extended Ku—band.". EchoStar did not request a change in frequency bands and, in all but one table, referred always to the allotted Appendix 30B Ku—band frequencies throughout the Amendment. On February 9, 2004, the Bureau issued a leter dismissing EchoStar‘s Application and Amendment without prejudice to re—filing." The only two reasons given for dismissal were that: (1) Table A4—1 of Section A.4 ofthe Technical Annex to the EchoStar Amendment incorreetly referred to frequency bands different from the frequency bands requested elseihere in the Application and Amendment; and (2) the Amendment failed to * Amendment at1. * EchoStar Dismissal Letteat1.

identify which transponders would be connected to which spot beam in either the uplink or downlink directions." On February 10, 2004, EchoStar refiled a corrected application, but discovered that Mobile Satellte Ventures Subsidiary, LLC (°MSV) had already filed an amendment to ts pending application to request all ofthe same frequencies on February 9, 2004." On March 10, 2004, EchoStar sought reconsideration of the EchoStar Dismissal Letter." On December 27, 2004, the Bureau released its Order on Reconsideration denying EchoStar‘s petition for reconsideration and affitming the EchoStar Dismissal Letter. On reconsideration, the Bureau relied again on the discrepancy in the frequency table and the missing information as to which transponders would be connected to which spot beam to reach its conclusion that the Application and Amendment were not "substantially complete." IV. THE BUREAU WRONGFULLY IGNORED COMMISSION AND COURT PRECEDENT ON THE "SUBSTANTIALLY COMPLETE® STANDARD WHEN TT DISMISSED THE ECHOSTAR APPLICATION AND AMENDMENT A substantially complete standard for accepting satelite applications does not mean that applications must be "letter—perfect," and indeed the Bureau disclaims reliance on a "Leter—perfect" standard."" However, as explained below, while purporting to apply the substantially complete standard, the Bureau has ignored important Commission and court precedent on the meaning ofthat standard and has failed to act in a manner consistent with such precedent. " EchoStar Dismissal Letter at 23. See 47 C.BR. §§ 25.112 and 25.114(@)(5). * See SAT—AMD—20040209—00014. ° See EchoStar Petition. ‘° See Order at $ 9.

A. Under The Substantially Complete Standard, Applications That Contain Discrepancies That Can Be Resolved "Confidently And Reliably, Drawing On the Application As A Whole" Must be Accepted For Filing When it affirmed the continued use ofa substantially complete standard for accepting satellte applications in the First Space Station Licensing Reform Order,"" the Commission explained that this standard is "comparable to the ‘hard look® policy the Commission included as part ts broadcastlicense first—come, frst—served approach."" Indeed, the Commission specifically cited the FM and TVOrder, in which the Commission set out detailed guidelines on when an application would be *substantially complete" and acceptable for filing under its broadcast licensing rules."" The Commission‘s prior decisions on the application of the substantially complete standard in the broadcast context are therefore directly relevant here. The FMand TV Order includes guidelines on how applications containing visibly incorrect or inconsistent information should be treated under the substantially complete standard: If any ofthe above information is present but, on the face of the application, visibly incorreet o inconsistent, the application will be treated in accordance with the following guidelines. Jfthe needed information can be derived or the discrepancyresolved, confidently and reliabls, drawing on the application as a whole, such defect will not render the application not sufficientfor tender. ‘ Amendment ofthe Commission‘s Space Station Licensing Rules and Policies, First Report and Order and Further Notice of Proposed Rulemaking, 18 FCC Red. 10760 % 244 (2003) (*First Space Station Licensing ReformOrder") ‘* Amendment ofthe Commission‘s Space Station Licensing Rules and Policies, Notice of Proposed Rulemaking, 17 FCC Red 3847 at 493 n. 123 (2002) ("Space Station Licensing NPRM"),cited in First Space Station Licensing Reform Order at9 244. " See Processing ofFM and TV Broadcast Applications, MM Docket No. 84—750, 50 Fed. Reg, 19936 (1985) (*FM and TV Order"), cited in First Space Station Licensing Reform Order at1 244 n. 578 and Space Station Licensing NPRM at 1 93 n.123. "* See FM and TV Order at Appendix D (1985) (°FM and TV Order") (emphasis added). 35.

The Bureau simply ignores this precedent, reasoning instead that "frequency information is required to be filed because... it is one ofthe essential technical parameters that is used to determine whether an application is mutually—exclusive with a previously filed application""" and that it is not the responsibility of the agency "to select for an applicant the desired frequencies among differing frequencies provided in an application.""* EchoStar acknowledges that frequency selection is an important part of all satellite applications. However, under a substantially complete standard, even the selection of frequencies need not be "letter—perfect.". Indeed, the Bureau accepts that some incorrect frequency references, such as putting the decimal point in the wrong place (eg., specifying 5.925—6.425 MHz rather than 5925—6425 MHz or 5.925—6.425 GHz), "would be recognized immediately as a typographical error.""" But the onlreason that such an error would be "recognized immediately" as typographical presumably is because the Commission staffcan "confidently and reliably" ascertain the correct frequencies from the application as a whole, .e., it is clear from the rest ofthe application that the applicant intended to select the C—band frequencies. The incorret frequency reference in Table A.4—1 of the Technical Annex to the Amendmentis precisely the kind ofdiscrepancy that can be easily resolved. The correet downlink frequencies in the allotted extended Ku—bands (10.7—10.75 GHz and 11.2—11.45 GHz) are mentioned no fewer than ten times throughout the Application and Amendment," whereas " Order at $ 12. " 14. 7 14. n 10. "* See, eg., Application at 2 ("Specifically, EchoStar requests authority to launch and operate the following GSO FSS satellites: ... a satellte at 101° W.L. that would operate in a portion of the allotted extended Ku—band — 10.70—10.75 GHz and 11.20—11.45 GHz from space— 2g.

the incorreet reference to non—allotted extended Ku—band frequencies (10.95—11.2 GHz) appears only once in a table attached to the Amendment. Moreover, the fact that EchoStar intended to apply for frequencies in the allotted portion of the extended Ku—band is patently clear from the inclusion ofotherwise unnecessary "Appendix 30B" technical information. Inexplicably, the Bureau points toallthese other references to the correet allotted extended Ku—band frequencies in the Application and Amendment as sources of confusion," when in fact they make clear exactly which frequencies EchoStar intended to apply for in its Application and Amendment. Using the Bureau‘s own example, reference to 5.925—6.425 Mz is obviously a typographical error because it must be clear from the application "as a whole" that the requestis for C—band frequencies. On that basis, EchoStar‘s reference to frequencies in the 10.95—11.2 GHz band must similarly be viewed as a typographical error to—Earth, and 12.75—13.00 GHz and 13.15—13.20 GHe from Earth—to—space.");id. at 5 ("The payload in the allotted portion ofthe extended Ku—band at 101° W.L.. will consist of 18 transponders each of27 MH usable bandwidth covering 300 MHz in each direction (10.70— 10.75 GHz and 11.20—11.45 GHz from space—to—Earth, and 12.75—13.00 GHz, 13.15—13.20 GHz from Earth—to—space)."); id.at Exhibit 1 — A.1 ("The satelite will use the 11.2—11.45 GHz band and a portion ofthe 10.7—10.75 GHe band for downlink transmissions and the 12.75—13.0 GHz band and a portion ofthe 13.15—13.2 GHz band for uplink transmissions.");id. at Exhibit 1 — A.23 (listing the correctallotted extended Ku—band frequencies for the Sharing Analysis with Other Services and Allocations}; id.at Exhibit 2 (isting the correctallotted extended Ku—band frequencies). See also, eg., Amendment at 4 ("The use of the bands 10.7—11.7 GHz (space—to—Earth) and 12.75—13.25 GHz (Earth—to—space) by the fixed—satellite service in the geostationary—satellte orbit‘); id. at Attachment A — A.1 ("The satellite will use the 11.2—11.45 GHz band and a portion ofthe 10.7—10.75 GHz band for downlink transmissions and the 12.75—13.0 GHz band and a portion of the 13.15—13.2 GHz band for uplink transmissions (portions of spectrum ofthe ITU Appendix 30B FSS allotment band).");id. at Attachment A — A.23 (referzing to MSV‘s pending application to use the alloted extended Ku—band frequencies atthe same location}; id. at Attachment A — A.24 (referring to the correctalloted extended Ku—band frequencies). ‘* Order at 19 4—5 (teciting the many references to the allotted extended Ku—band frequencies (10.7—10.75 GHz) and the single inconsistent reference in Table A4—1 of Section A.4 of the Attachment to the Amendment, and concluding "Given these inconsistencies, the Division was unable to determine precisely which frequency assignments EchoStar was secking."). ip.

because it is clear from the EchoStar Application and Amendment "as a whole" that EchoStar always intended to apply for the allotted extended Ku—band frequencies."" Thus, under the applicable precedent on the treatment of inconsistent information under the "substantilly complete"standard, the incorrect frequency reference in Table A4—1 of the Technical Annex to the Amendment is no basis for dismissing the Application and Amendment. Moreaver, his typographical error should not be conflated with the questionofthe transponder connections. The error can easily be resolved on the face of the Application and Amendment as a whole, and onceresolved, it is no longer a source of confusion, nor is it an indication that together with additional concerns, the Application should be dismissed. B. Under The Substantially Complete Standard, Applications Must Be Accepted "Even If They Contain Minor Errors Or Infractions Of Agency Rules, So Long As Any Defects May Be Cured Without Injury To Public Or Private Interest® As noted above, a substantially complete standard does not mean a "letter= perfect" standard. In fact, the D.C. Circuit has explained that, under a substantially complete standard, applications must be accepted "even if they contain minor errors or infractions of agency rules, so long as any defects may be cured without injury to public or private interest.""" The Bureau appears to have ignored this precedent by insisting that "substantilly complete" means "providing the information which is required by the Commission‘s rules""" m and by * The isolated frequency discrepancy in this case is quite different from the scenario where an application is replete with inconsistent frequency references such that the Commission staff cannot readily ascertain which frequencies were intended to be selected. In the latter seenario, the appliation would not be acceptable forfiling. Application oMobile Phone of Texas, Inc., Memorandum Opinion and Order,5 FCC Red. 3450 (C.C.B., June 12, 1990) (Mobile Phone‘s cover lettr, the accompanying FCC Form 401, application, and enginecting statements all contained differing and conflicting frequency requests). *‘ Salzer v. FCC, 778 F.2d 869, 872 n.7 (D.C. Cir.1985) (citing James River Broad. Corp. v. FCC, 309 F2 581 (DC Cir. 1968)). * Order at 1 9. 230.

concluding that "EchoStar‘s application did not contain all of the information required by the Commission‘s rules and thus was not substantially complete when filed.""" A requirement to provide "all information required by the Commission‘s rules" is consonant with the "letter— perfect" standard refected by the Commission, but is not consistent with a substantially complete standard, which by definition must tolerate some "infractions of ageney rules.""" The missing information regarding which transponders are connected or switchable to which spot beams, though required by the Commission‘s rules, isjust the kind of minor "inffaction" that can be cured without prejudice to anyone. The Bureau claims that the missing information would "allow[] the Commission, operators and potential applicants to identify which frequencies and locations are impacted by the pending application, which ones are available and the extent to which the proposed frequency uses and locations require coordination."" In fact, the absence or presence of the missing technical information would not affect EchoStar‘s or any other user‘s interference analysis for the proposed satelliteor the orbital Tocations that it might impact.®* Given EchoStar‘s proposed use of the satellite for direct—to— home services, other users of the band must assume, correetly, that tere will be simultancous uplink and downlink frequency overlaps and that the beams could be pointed towards any part of the service area. In fact, the Amendment clearly explains in Section AS.2 of the Technical Annex that the precise pointing directions of the spot beams, and hence the channels to be assigned to each spot beam, can only be determined after coordination with the proposed MSV satellite. Therefore, by maintaining exibility in the connectivity arrangements, coordination " Id. t 16. *‘ Sulzer, 778 F.2d at 872 n.7 (citing Jumes River, 399 F.2d 581). * Order at$ 11. * See Attachment A —— Declaration of Richard Bamett (Jan. 26, 2004) ans

with other satellites isfaciliated, contrary to the Bureau‘s claims that the lack ofspecificity would impede frequency sharing arrangements with other satelltes. Any more specific information as to which transponder is connected or switchable would make no practical difference, except in the context of a coordination with a particular operator at which point the specific connectivity would have to be determined to facilitate coordination. Clearly, the changes to the proposed satelliteintroduced by the Amendment were intended to provide fexibility in coordination. Thus, allowing EchoStar to cure this omission would make no practical difference to any public or private interest. The Bureau expresses concem that "{a)!lowing applicants to cure applications after they are filed could adversely impact other applicants fling complete applications that are ‘second—in—line‘ to the first application.""" This cannot be the kind of public or private interest injury that the courts or the Commission imagined would justify dismissal under a substantially complete standard, as this kind of injury would be present in every case involving an application with a defect, no matter how minor. Taken to its logical conclusion, the Bureau‘s approach would result in every defective application being dismissed because failure to do so could impact second—in—line applicants. This would be an impermissible shift from a "substantially complete" standard to a "leter—perfect" standard. In addition,the publicinterest would not be harmed by allowing EchoStar to correct ts omission without dismissing its Application and Amendment. The processing ofthis application, as amended, could have waited for EchoStar to supplement itsfiling with the requested information. No harm to the public would have resulted from any such minimal delays. Indeed, by allowing EchoStar to re—file its application with the requested information, 7 14.uy 13. 12.

the Bureau presumably will continue to process essentially the same application. In fact, the overzealous dismissal ofapplications with inconsequential erors is likely to be a greater source ofdelay than any request to cure such applications. Thus, under applicable court precedent, the omission oftechnical information identifying which transponders are connected or switchable to which spot beam also cannot be the basis for dismissing EchoStar‘s application. v. THE BUREAU HAS FAILED TO TREAT LIKE APPLICATIONS SIMILARLY In dismissing the Application and Amendment, the Bureau has demonstrated a disturbing failure to treatlike applications similarly."" While it is true that the Bureau has dismissed quite a number ofapplications since the First Space Station Licensing Reform Order, it has also permitted on several occasions applicants to correct defects in their applications."" * See, eg., Garrettv. FCC, 513 F.2d 1056, 1060 (D.C. Cir. 1975) (‘[An agency} ‘cannot act arbitrarily nor can it reat similar situations in dissimilar ways," [] and we [have} remanded litigation to the agency when it did not take pains to reconcile an apparent difference in the treatment accorded litigants circumstanced alike." (quoting Aerbert Harvey, frc. v. NLRB, 424 F.2d 770, 780 (D.C. Cir. 1969); Henry v. INS, 74 F.3d 1, 6 (Ist Cir.1996) (‘[AJdministrative agencies must apply the same basic rules to all similarly situated supplicants. An ageney cannot merely flit serendipitously from case to case, like a bee buzzing from flower to flower, making up the rulesas it goes along."). ® See, eg., Letter from William Howden, Chief, Satellite Division, FCC, to Stan Edinger, Loral Skynet Network Services, In., SES—MOD—20030919—01302 (Oct. 16, 2003) (*Loral Stynet Oct. 16 Letter"); Letter from Robert G. Nelson, Satellite Division, FCC, to Lon C. Levin, Viee President, Mobile Satellite Ventures Subsidiary, LLC, SAT—AMD—20031 11— 00335 (Apr. 23, 2004) (*MSV Information Request Letter®); See In the Matter ofDirecTV Enterprises, LLC Application for Authority to Launch and Operate DirecTV 78, Order and Authorization, 19 FCC Red. 7754, 9 6 (2004) (*On November 17, 2003, the Satellite Division sent a letter to DIRECTV, requesting additional information required by Section 25.1 14 of the Commission‘s rules, including a Form 312 and certain technical information required by Sections 25.1 14(c) ofthe Commission‘s rules."); Letter from Thomas S. Tyez, Chief, Satellte Division, FCC to David K. Moskowitz, EchoStar Satellte Corp., SAT—LOA—20030605—00109, SAT—LOA—20030606—00107, SAT—LOA—20030609—001 13 (Feb. 12, 2004); Letter from Thomas S. Tyez, Chiet, Satelite Division, FCC to Peter Hadinger, Northrop Grumman Space & Mission Sys. Corp., DA 04—1725, Jun. 16, 2004; Letter from Thomas S. Tyez, FCC to David M. Drucker, "is—

Many ofthe defects that the Bureau has allowed applicants to correct have been much more earegious than the minor discrepaney and omission found in EchoStar‘s Application and Amendment,including the absence of any two—degree spacing analysis in satellite applications and the absence of information on "effective competitive opportunities"in applications secking authority to communicate with a foreign—licensed satellite. For example, in Loral Stynet, the Bureau gave the applicant an opportunity to correctits application to communicate with a foreign—Jicensed satellite by requesting "additional technical information and information that was missing from the original application.""" The missing information apparently included information necessary for the Bureau to conduct an "effective competitive opportunities" analysis under the Commission‘s DISCO Hf order. The Bureau ultimately dismissed the application, but only after the applicantfailed to respond to the Bureau‘s request for information. The Bureau has attempted to distinguish Loral Skynet from the present case on the grounds that the missing DISCO /I information was not missing after all, but was merely *insufficient for[the Bureaul to make a determination.""" Apparently, the applicant had made a bare assertionthat the satellite market ofthe foreign country in question was open to U.S. contactMEO Communications LLC, DA 04—1722, Jun. 16, 2004 (same) ("@contact Reversal Letter®), ® Letter from William Howden, Satellite Division, ECC to Stan Edinger, Loral Skynet Network Services, Inc., DA 03—3904, SES—MOD—20030919—01302, at 1 (Dec. 11, 2003) (dismissing Loral Skynet‘s application for failure to provide the information requested by the Loral Slynet Oct. 16 Letter, supra note 29). *‘ Loral Siynet Oct. 16 Letter at 2. See also Order at § 16 1.52 ("The December 11 Letter incorreetly referred to Loral‘s failure to supply ‘missing" information required by the Commission‘s DISCO If Order."). vi4;

satellte operators."" This is no distinction at all. In the case under review, EchoStar also provided some ofthe technical information regarding which antenna beams are connected or switchable to which transponders, as required by 47 C.FR. 25.1 14(c)(4)(ii), albeit not all ofthe requested information.. As the Bureau‘s careful review of the Application and Amendment would have revealed, EchoStar‘s proposed satellite could operate in two different modes — one involving one of two large downlink beams, and the other involving nine smaller spot beams."" When the satellte is transmiting on one of two large downlink beams, the Amendment states that "all transponders may be switched as a block between one orthe other of the two beams.""" in addition, in the Appendix 30B information submitted with the original Application, there is both (a)a note indicating that cither large downlink beam can be used with any downlink frequency assignment, and (b) a strapping table showing which uplink frequencies are associated with which downlink frequencies. Only the information regarding which spot beams are connected with which transponder is missing for when the satelliteis operating in the other mode. Thus, the Application and Amendment is not any more deficient, and is significantly more complete than, the information supplied by the applicant in Loral Skymet. The Burcau cannot dismiss the Application and Amendment in this case, while giving the similarly situated applicant in Loral Styner the opportunity to supplement or correct is application, without "‘See SES—MOD—20030919—01302, Appendix A, at A—40 ("The Kingdom of Tonga is awaiting admission to the WTO and currently enjoys "Observer" status at the WTO. China is a WTO member nation. Tongasat has confirmed that earth stations in Tonga have been authorized to communicate with U.S. lcensed satellites."); Order at 9 16 n. 52 ("To this end, Loral attached an exhibit to ts application stating that Tonga‘s satellite marketis open to U.S. satellite operators.. [TJhe staff requested additional information pursuant to 47 C.F.R. § 25.111(@) because it was not clear whether Loral had adequately shown that Tonga‘s satellite market is open to U.S. satellite operators."). ® See Amendment, Technical Annex, at 1. * Amendment, Technical Annex, at 5. lig.

reasoned explanation."" As demonstrated, the Bureau‘s explanation ofthe differences between the two cases simply does not withstand serutiny. The Bureau tries to hedge its conclusion by supgesting that "{i}n any event, if the Division failed to dismiss an incomplete application,it is a well—settled principle of administrative law that the fact that an ageney made an error in one instance does not require the agency to repeatthe erzor.""" This is hardly a justifiation for the inconsistent treatment of similarly situated applicants under the "substantially complete" standard. While it may be true that an agency is not required to repeat an error, unsupported claims ofprior error cannot excuse a failure by an agency to act in a consistent fashion."" It is far from clear that the Bureau was wrong in Loral Skymet and correct in this case. Indeed, the Bureau does not admit that it decided Loral Skynet incorrectly. If anything, the Bureau‘s suggestion that it might have been wrong in "" See Motor Vehicle Mfis. Ass‘n of United States v. State Farm Mutual Auto, Ins. Co., 463 U.S. 29, 57 (1983) ("An agency changing its course must supply a reasoned analysis."); Greyhound Corp. v. ICC, 51 F24 414, 416 (D.C. Cir, 1977) ("This court emphatically requires that administrative agencies adhere to their own precedents or explain any deviations from them."); Melody Music,Inc. v. FCC, 345 F.2d 730, 732—33 (D.C. Cir. 1968) ("We think the Commission‘s refusal at leastto explain its differential treatment ofappellant and NBC were in erzor.....[Wie think the differences are not so ‘obvious‘ as to remove the need for explanation."); Communications Control, nc. v. FCC, 374 F3d 1329, (D.C. Cir. 2004) ("The Commission‘s nse divit that CCI‘s typographical error rendered itslicense void ab inito does not [supportits decision}, especiallyin light ofthe Commission‘s practice ofcorrecting, without much ado, typographical errors such as this one. The Commission‘s departure from this practice, with no explanation, renders its ... rationale arbitrary and capricious."). * Order at* 16 n. 45. Curiously, the Bureau cites Southeast Telephone, Inc. v. FCC, 1999 WL 1215855 (D.C. Cir,) in support of ts "well—settled" principle, an unpublished opinion that has no precedential value under the rules ofthe D.C. Cireuit. See D.C. Circutr Rute 36(©)2) ("A panel‘s decision to issue an unpublished disposition means that the panel sees no precedential value in that disposition."). "‘ Chenm—Hauers, Inc. v. ICC, 565 F2 728, 730 (D.C. Ciz, 1977) (*Ift were clear that the instances cited were simply inadvertent departures from a generally uniform course of decision, we would deplore them without permitting them to derange the outcome ofother cases. ... Stll, we have before us neither the Commission‘s statement that it earer strayed nor the records adverted to, and we cannotrest on its counsel unadomed assertion [that the prior decisions were in error}.") (emphasis added). «16.

earlier cases only demonstrates the arbitrary and capricious manner in which the Bureau has been applying the substantially complete standard established by the Commission. The adverse consequences ofthe Bureau‘s doctrinal incoherence should not be bome by EchoStar Moreover, the Bureau‘s discriminatory treatment of EchoStar is underscored by itsdismissal ofboth the Application and the Amendment for defects found in the latter, while only dismissing the defective amendments filed by others and allowing their applications to remain on file. On a number ooccasions, the Bureau has dismissed an amendment it found not to be substantially complete while retaining the underlying appliation.. For instance, when MSV filed an amendment to ts application to request the same allotted extended Ku—band frequencies as EchoStar at 101° W.L., the Bureau initilly dismissed only the amendment for incompleteness." MSV‘s underlying appliation was not dismissed. Similarly, when SES Americom, Inc. (‘SES®) filed a defective amendment to it application to operate AMC—15 at 105° W.L., the Bureau dismissed only the defective amendment, and not the underlying application."" Yet in this case, the Bureau decided to dismiss both the Application and Amendment. The Bureau cannot simply treat EchoStar‘s Application and Amendment differently from the manner in which it reated the applications and amendments filed by MSV and SES, and moreover, do so without any explanation at all VL CONCLUSION For the reasons stated above, the Burean‘s dismissal of EchoStar‘s Application and Amendment was inconsistent with precedent and failed to treat like applications similarly. * See Letter from Thomas S. Tycz, Chief, Satellte Division, FCC, to Lon C. Levin, Vice President, Mobile Satellte Ventures Subsidiary LLC, DA 04—1095, SAT—AMD—20040200—00014 (Apr. 23, 2004). The Bureau later reinstated MSV*s amendment. 71 the Marter oMobile Satellite Ventures LLC, DA 04—2985, Order, SAT—AMD—20040209—00014 (rel. Sept. 15, 2004). ® See Letter from Thomas S. Tyez, Chief, Satellite Division, FCC to Karis A. Hastings, Counsel for SES Americom, Inc., DA 04—1707, SAT—AMD—20040528—001 10 (Jun. 14, 2004) 197.

The dismissal should therefore be reversed and EchoStar‘s Application and Amendment should be reinstated into their proper place in the satellite application processing quene. Respectfully submitted, David K. Moskowitz MQM[Dena Pantelis Michalopoulos Senior Vice President and General Counsel Chung Hsiang Mah EchoStar Satellite L.L.C. Brendan Kasper 9601 South Meridian Boulevard Lee C. Milstein Englewood, CO 80112 Steptoe & Johnson ur (303) 723—1000 1330 Connectiout Avenue, NW Washington, D.C. 20036 (202) 429—3000 Counselfor EchoStar Satellte L.LC. January 26, 2005 2ig.

ATTACHMENT A DECLARATION OF RICHARD BARNETT

To: tananan ragezcrs mosovas sezsas (cun rim—(2104660006 rom Rwstamen DECLARATION OF RICHARD BARNETT 1, Richard Bamett, declare under penalty of perjury under the laws ofthe United States that the following is trie to the best of my knowledes, information and belief 1. 1 am anengincer with a BSe(Hons) dearee in Electronic Engineering and a PhD dearee in the field ofCommunications Engineering. 1 have been involved in satelte ensincerine projectsfor the past 25 years and have extensive domestic US and international satellte regulatory experience. 2. At EchoStar Satellite LLC.‘s("EchoStar") request I prepared the amendment filed by EchoStar Satelite L.LC. on November 26, 2003 (SAT—AMD—20031126—00343) ("Amendment") 3. 1 understand that on February 9, 2004, the International Bureau dismissed the Amendment, along with EchoStar‘s underlying satellte application (SAT—LOA— 20030827—00179) (*Application"),because (a)certain frequencies mentioned in Table A4—1 of the Amendment was differentfrom the frequencies requested everywhere clse in the Application and Amendmment; and (b) the Amendment did not identify which transponders would be connected with which spot beam. 4. With respect to the omitted information regarding which transponders would be connected with which spot beam, it is myprofessional opinion that the absence or presence of such information would not affect EchoStar‘s or any other user‘sinterference analysis for the proposed satelite o the locations that it mightimpact,for the following reasons: (a) 2 degree compliance for the proposed EchoStar satellite is demonstrted in the Amendment. Therefore, other satelites spaced 2 degrecs or further from 10I°W do not represent an interference issuc. The main interference issue is with respect to the proposed collocated MSV satelite at 101°W. (b) The Amendment clearly states that all the transponders are switchable to either of the large area coverage beams, and this would represent the worst—case iterference sitation with respect to the co—frequency, collocated MSV satelite,which proposes to use a limited number of narrow spot beams forits feeder links, with as—yet undefined pointing directions. (¢) When the EchoStar transponders are switched from the large area coverage beams to any ofthe small downlink spot beams, the intrference situation with respect tothe collocated MSV satelite is improved, because EchoStar has committed, in the Amendment, to coordinate the pointine directions ofthe spot beams, and the channels used in each spot beam, with MSV. (d) Te inherent flexibllity in the design of the proposed EchoStar satellite, in terms ofts precise spot beam coverage and connectivity,is a deliberate feature to facilitate coordination with the proposed collocated MSV

To—danalim mageaors mosoras rezsasccum wio—taiodcs000Prom merwstanen satelite, which has undefined spot beam locations. Itis not an impediment tofrequency sharing with affected satelftes 5. Given EchoStar‘s proposed use of the satelie for direct—to—home services, and EehoStar‘s stated abilityto connect all the transponders tothe large area coverage beams, other users ofthe band will rightly assume that there could be simultancous uplink and downlink frequency overlap over the entire service area ofthe EchoStar satelite. 6. Moreover, because the uplink beams willbe steerable and the precise pointing directions ofthe downlink beams have not yet been fixed, other users ofthe band must also assume that the beams could pointtowards any part othe service areas. 7. ‘The more specifiinformation as to which transponder is connected or switchable to which spot beam would make no practical difference, except in the context ofa coordination with a particularoperator at which the point the specific connectivity would be determined to faciltate coordination. Executed:. January 26, 2005 Pu k han ts Richard Bamert TelecommStrategies Inc. 6404 Highland Drive, Chevy Chase, MD 20815

CERTIFICATE OF SERVICE 1, Chung Hsiang Mah, an attomey with the law firm of Steptoc & Johnson LLP, hercby certify that on this 26th day ofJanuary, 2005, served a true copy ofthe foregoing "Application for Review," and accompanying Declaration of Richard Bamnett, by frst class United States mail, postage prepaid, upon the following: Donald Abelson® Bruce D. Jacobs Chief David S. Konczal Intemational Bureau Shaw Pittman LLP Federal Communications Commission 2300 N Street, N.W. 445 12" Street,SW. Washington, DC 20037—1128 Washington, DC 20554 Thomas S. Tycz* Satellte Division Interational Bureau Federal Communications Commission 445 12" Street, S.W. Washington, DC 20554 a Slang Mah * By hand delivery


Document Created: 2005-01-27 12:03:39
Document Modified: 2005-01-27 12:03:39
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