Attachment opposition

opposition

OPPOSITION submitted by Mobile Satellite Ventures

opposition

2005-02-10

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

IBFS_SATLOA2003082700179_417984

DUPLICATE RECEIVED Before the Federal Communications Commission Fee 1 0 2005 Washington, D.C. 20554 Teiews Sunis In the Matter of ) tmerntteatie ) Echostar satELLE LLC ) File Nos. SAT—LOA—20030827—00179 (fi/a EchoStar Satellite Corporation) ) SAT—AMD—20031126—00343 ) Call Sign S2492 Application for Authority to Construct, Launch and ) aecSiVCC Operate a Geostationary Satellite in the Fixed ) Satelite Service Using the Extended Ku—Band ) Frequenciesat the 101° W.L. Orbital Location ) OPPOSITION TO APPLICATION FOR REVIEW Bruce D. Jacobs Lon C. Levin David S. Koncral Vice President SHAW PTTMAN LLP MOBILE SATELLITE VENTURES 2300 N Street, N.W. sUBSIDIARY LLC Washington, D.C. 20037 10802 Park Ridge Boulevard (202) 6e3—2000 Reston, Virginia 20191 (703) 300—2700 Dated: February 10, 2005

Summary in 2003, the Commission established a new first—come, first—served procedure for Hicensing satellites. The Commission explained that this new licensing procedure would expedite service to the public by establishing operating rights clearly and quickly. To expedite processing, the Commission instructed the Intemational Bureau to reject any applications that are not "substantially complete" as filed. Soon after these new procedures were established, EchoStar submitted an application that failed to specify the frequencies it soughtto use, including the geographic areas in which it would use certain frequencies,all in violation ofspecific requirements in the rules. This was one ofnine applications that EchoStar filed simultaneously; this particular application proposed a system that required a number ofother waivers of the Commission rules and seemed unlikely ever to be built. n response to EchoStar‘s failure to specify the frequencies it proposed to use (and without addressing various other flaws), the Satellite Division dismissed EchoStar‘s application as not "substantially complete.". After a challenge from EchoStar, the Bureau upheld the Division‘s decision. EchoStar here repeats itsargument that the admitted flawsin its application are insignificant. As the Bureau has found before, however, EchoStar‘s failure to properly identify the frequencies it proposes to use is as fundamental as any flaw can be in a satellite application, particularly in a first—come, first—served environment. By making it impossible to know what frequencies EchoStar proposed to use and where they proposed to use them, other potential applications for those frequencies were precluded, which is unfair and counter—productive. EchoStar argues that the decision to dismiss its application was a deviation from precedent. The cases EchoStar cites, however, are easily distinguished, since they all involve

applications that were incomplete onlbecause ofambiguities in the Commission‘s own rules. Here, quite to the contrary, the rules—and EchoStar‘s failure to comply with them—are clear. Finally, EchoStar makes another new argument, that the decision to dismiss its application was flawed because it filed to distinguish between defects in its original application and defects in a subsequent amendment. This argument ignores the fact that both the application and the subsequent amendment contained at least one ofthe flaws that was the basis for dismissing EchoStar‘s application. 1t also ignores the other flaws in the original EchoStar application (which the Commission has not yet addressed), including at least one that was the basis for dismissal of another EchoStar application filed the same day as the one at issue here. Moreover,this new argument is woefully untimely; the rules prevent EchoStar from raising this issue now. MSV has relied on the Division‘s decision in amending its own application and in developing its next—generation system. In designing its system architecture and negotiating with satellte manufacturers, MSV has reasonably assumed that it will have access to all 500 MHz of Planned Ku—band feeder link spectrum. A decision to reinstate EchoSter‘s application would not only violate Commission rules and policy,it would be prejudicial to MSV‘s efforts to deploy a next—generation MSS system. in

Table of Contents Summary. Table of Contents.. Background. Discussion T. The Bureau Properly Applied the "Substantially Complete"Standard... A. The EchoStar application failed to provide required information that was material The EchoStar application was inconsistent as to what frequencies it was proposing to use The Division and the Bureau were not required to provide EchoStar an opportunity to supplement or clarify its application; such an opportunity would undermine the new licensing procedures.. The decisions ofthe Division and the Bureau are fully consistent with precedent; in the other cases EchoStar cites,the Bureau permitted supplementalflings only because the rules were ambiguous.. The Division and the Bureau properly decided to dismiss both the original application and the subsequent amendment. 1 Commission Review Must Be Fair to MSV . A. The Commission must consider the deficiencies MSV raised in its 2003 Petition to Deny . The Commission must treat any amendment by EchoStar as a major amendment. The Commission should not penalize MSV for relying on the dismissal ofEchoStar‘s application in amending its own application.. Conclusion ...

Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) ECHOSTAR SATELLITE LLC ) File Nos. SAT—LOA—20030827—00179 (k/a EchoStar Satellite Corporation) ) SAT—AMD—20031126—00343 ) Call Sign 82402 Application for Authority to Construct, Launch and ) Operate a Geostationary Satelite in the Fixed ) Satellite Service Using the Extended Ku—Band ) Frequencies at the 101° W.L. Orbital Location ) PPOSITION TAPPLICATION FOR REVIEW Mobile Satellite Ventures Subsidiary LLC ("MSV*) hereby files this Opposition to the Application for Review filed by EchoStar Satellite LL.C. ("EchoStar®) ofthe decision ofthe International Bureau ("Bureau") upholding the Satellite Division‘s ("Division‘") dismissal of EchoStar‘s application to launch and operate a satellite at 101°W.". EchoStar provides no basis for reversal of the Bureau‘s conclusion that the Division appropriately applied the "substantially complete" standard in dismissing EchoStar‘s application based on its fundamental failure to include relevant, required information regarding the frequencies t proposed to use. As both the Bureau and Division found, these were material errors which prejudiced other applicants and potential applicants, thus warranting dismissal. Background First—Come, First—Served Licensing. In April 2003, the Commission decided to climinate its processing—round approach for considering satellite applications and replaced it with a new ‘ See EchoStar Satellite L.L.C., Application for Review, File Nos. SAT—LOA—20030827—00179, SAT—AMD—20031126—00343 (January 26, 2008) (*EchoStar AFR").

first—come, first—served licensing policy for geostationary (*GSO®) satelltes.* The Commission explained that this policy would serve the public interest by enabling it to act on satellite applications more quickly and efficiently than under the processing—round procedure. SSLR Order § 4,7, 74. The Commission explained that this would benefit consumers by ensuring they receive service faster. Jd. Moreover, the Commission stated that the first—come, first—served. approach will lead to more efficient spectrum usage because it will educe the amount oftime spectrum lies fallow. 1d. The Commission also affirmed that satellte applications must be "substantially complete"as filed. 14. 1.244. The Commission explained that any lesser standard would encourage speculative applications. 1d. MSV‘s interest in thisproceeding. MSV is the entity authorized by the Commission in 1989 to construct, launch, and operate a United States Mobile Satelite Service (‘MSS") system in the L—band." MSV‘s current satelite was launched in 1995 and operates at 101°W, In July 1998, MSV filed an application tlaunch and operate a higher—power, replacement satellite with substantially greater capacity.* To accommodate this greater capacity, MSV subsequently requested authority to use an additional 300 MHz ofPlanned Ku—band spectrum for feeder links beyond the 200 MHz for which MSV is already licensed." MSV has firs—in—line status for these frequencies. * Amendment ofthe Commission‘s Space Station Licensing Rules and Policies, First Report and Order and Further Notice ofProposed Rulemaking, TB Docket No. 02—34, FCC 03—102 (rel. May 19, 2003) ("SSLR Order"). * Order and Authorization, 4 FCC Red 6041 (1989); remanded by Aeronautical Radio, Inc. v. FCC,928 F24 428 (D.C. Cir. 1991); FinalDecision on Remand, 7 FCC Red 266 (1992); affd, Aeronautical Radio, Inc. v. FCC, 983 F.2d 275 (D.C. Cir, 1993);see also AMSC Subsidiary Corporation, Memorandum Opinion and Order, 8 ECC Red 4040 (1993). * See Application of AMSC, File No. SAT—LOA—19980702—00066 (July 2, 1998). * See Application of Motient Services Inc., SAT—AMD—20001214—00171 (December 14, 2000 Specifically, MSV‘s replacement application requested the following Planned Ku—band

Procedural History ofEchoStar Application. On August 27, 2003, EchoStar filed an application for authority to launch and operate a satellite at 101°W using 250 MHz ofPlanned Ku—band frequencies for which MSV had already applied as well as the remaining 50 MHz of Planned Ku—band frequencies (Ze., 10.70—10.75 GHz and 13.15—13.20 GHz) for which no entity at that point had applied.® EchoStar was thus second—in—line behind MSV with respect to 250 MHz ofthe 300 MHz it requested and first—inline with respect to the remaining 50 MHz. This application was one ofnine applications EchoStar filed that day. in itsapplication, BchoStar claimed thatits receive terminals would be able to co—exist with terrestrial operators that share the Planned Ku—band downlink "while maintaining an acceptable quality ofservice." EchoStar August 2003 Application at 20, Exhibit 1 at 19. EchoStar did not address what impact the massive deployment ofreceive terminals will have on the suitability ofthe Planned Ku—band downlink for fature terrestrial operators. EchoStar‘s proposal would have required new terrestrial operators to coordinate with thousands if not 1millions of EchoStar‘s receive terminal,thus rendering the Planned Ku—band downlink unsuitable for terrestrial services. EchoStar also proposed to offer a two—way service which would entail unlimited deployment of transmitting earth stations in the Planned Ku—band uplink. 1d., Exhibit 1 at 1,8,10. EchoStar never addressed the coordination burden this proposal would place on CARS, BAS, and other licensees sharing the Planned Ku—band uplink. frequencies at 101°W: 10.75—10.95 & 11.2—11.45 GHe (downlink) and 12.75—13.15 & 13.20— 13.25 GHe (uplink). Throughout this Opposition, references to the amount of spectrum refer to its use in both the uplink and downlink direction. On February 9, 2004, MSV filed an amendment toits pending application to request the 50 MHz of Planned Ku—band frequencies at 101°W for which it was not lcensed and had not previously requested (10.70—10.75 GHz and 13,15—13.20 GHz). See MSV, Amendment, File No. SAT—AMD—20090209—00014 (filed February 9, 2004) ("MSY February 2004 Amendment"). * See Application of EchoStar, File No. SAT—LOA—20030827—00179 (filed August 27, 2003) ("BchoStar August 2003 Application").

MSV challenged the EchoStar application on the grounds that, among other things, the application proposed to provide domestic service without requesting a waiver ofthe rules limiting use of the requested frequencies to intemational systems." The Commission has never acted on this Petition. On November 26, 2003, EchoStar amended its pending application to try to correct the deficiencies identified by MSV." On February 9, 2004, however, the Division dismissed EchoStar‘s amended application as incomplete and otherwise not in compliance with the Commission‘s rules. The Division cited two independent reasons." First,the Division ruled that EchoStar‘s application did not comply with Section 25.1 14(¢)(4)(ii) of the rules because it failed to indicate which transponders will be connected to which spot beam in either the uplink or downlink direction, thus making it impossible to tell where EchoStar intended to use various frequencies. EchoStar Dismissal at 2. Second, the Division cited EchoStar‘s failure to clearly identify the downlink frequenciesit was requesting. 14. at 1—2. Specifically, in one table containing a detailed listing ofts frequency plan, EchoStar specified downlink frequencies in the 10.95—11.2 GHz band. EchoSter November 2003 Amendment, Attachment A, Section Ad, Table A4—1. In two other sections of ts amended application, however, EchoStar mentioned downlink frequencies in the 10.70—10.75 GHz band. See id, Attachment A, Section A1, p.1—2 and Section A24, p. 26. In a third part ofthe document, EchoStar provided a Channel Frequency Plan showing no transponders operating in the 10.70—10.75 GHz band. As a result,the Division ruled " See Mobile Satellite Ventures Subsidiary LLC, Petition to Deny, File No. SAT—LOA— 2003082700179 (filed November 17, 2003) (*MSYPerition to Deny"). * See EchoStar, Amendment, File No. SAT—AMD—20031 126—00343 (November 26, 2003) ("BchoStar November 2003 Amendment"). * See Letter from Thomas S. Tycz, FCC, to David K. Moskowitz, EchoStar, File Nos. SAT— LOA—20030827—00179, SAT—AMD—20031 126—00343 (February 9, 2004) ("EchoStar Dismissal‘).

that it was unable to determinc the precise frequencies for which EchoStar was applying. EchoStar Dismissal at 2.° EchoStar‘s initial challenge to the dismissal ofts application. On March 10, 2004, EchoStarfiled a Petition for Reconsideration ofthis decision."" In its Petition, EchoStar did not dispute thatits application contained the errors and omissions identified by the Division. Rather, BchoStar argued that these errors and omissions were minor and is application was "substantially complete" taken as a whole. EchoStar Recon Periion at 2. MSV opposed this Petition, noting that EchoStar‘s failure to specify clearly the frequencies it was requesting was material in thatit prejudiced other applicants and potential applicants."" MSV also explained that EchoStar‘s failure to indicate which transponders would be connected to which spot beam deprived MSV ofinformation that would have been useful in determining whether EchoStar‘s coordination proposalis technically feasible. MSV Opposition to EchoStar Recon Petition at 7. The Bureau‘s rejection ofEchoStar‘s challenge. On December 27, 2004, the Bureau released a decision upholding the Division‘s dismissal of EchoStar‘s application."" The Bureau ‘° On February 10, 2004, EchoStar refiled an application for the 300 MHz of Planned Ku—band frequencies it previously requested in its November 2003 Amendment. See Application of EchoSter, File No. SAT—LOA—20040210—00015 (February 10, 2004). This application is second— incline behind MSV‘s February 2004 amendment. The Bureau subsequently placed EchoStar‘s application on Public Notice. See Report No. SAT—00203 (March 26, 2004). In its Comments on the application, MSV has explained that the Bureau must defer action on EchoStar‘s application until after MSV*s firs—in—line application is processed and granted. See Comments of MSV, File No. SAT—LOA—20040210—00015 (April 26, 2004) ("MSY Comments"); Response ofMSV, File No. SAT—LOA—20040210—00015 (May 21, 2004) ("MSFResponse"). ‘" See EchoSter, Petition for Reconsideration, File Nos. SAT—LOA—20030827—00179, SAT— AMD—20031126—00343 (March 10, 2004) (*EchoSter Recon Perition"). ‘* See MSV, Opposition to Petition for Reconsideration, File Nos. SAT—LOA—20030827—00179, SAT—AMD—20031126—00343 (March 24, 2004),at 5—7 ("MSY Opposition to EchoStar Recon Perition"). "" See EchoStar Satellite LLC, Order on Reconsideration, DA 04—4056 (International Bureau, December 27, 2004) (‘Bureau Decision").

tejected EchoStar‘s contention that the Division applied a "letter—perfect"rather than a "substantially complete" standard in reviewing EchoStar‘s application. Bureau Decision 19. The Bureau explained that under a "substantially complete" standard, a typographical or similar obvious error would not constitute a sufficient basis for dismissal, as would be the case ifthe Division applied a "letter perfect" standard. /. 110. The Bureau explained, however, that EchoStar‘s errors were not merely typographical nor were they minor. 14. First, the Bureau noted that EchoStar failed to disclose which antenna beams are connected or switchable to each transponder and TT&C function, which is mandated by Section 25.1 14(¢)(4)(ii) ofthe Commission‘s rules. 14. § 11. The Bureau noted that this information allows the Commission, existing 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." 7d. Second, the Bureau noted that EchoStar‘s application contained discrepancies in requested frequency assigaments. 14. J 12. The Bureau explained that frequency information is "one ofthe essential technical parameters that is used to determine whether an application is mutually—exclusive with a previously fled application." 1d. The Bureau also explained that requiring applications to be substantially complete when filed is an important part ofthe new first—come, first—served satellie licensing procedures. Bureau Decision § 13. The goal ofthis new licensing procedure is to establish operating rights "clearly and quickly, and as a result,allow[] lcensees to provide service to the public much sooner than might be possible under [the] previous licensing proceduze."" 14. 49. The Bureau. noted that allowing applicants to cure defects after they are filed "could adversely impact other applicants filing complete applications that are ‘second—in—line.""" 4.4 13. Moreover,allowing

applicants to correct deficiencies would encourage applicants to file incomplete, intemnally inconsistent applications, which would delay service to the public. 2. Finally, the Bureau explained how dismissal of EchoStar‘s application was consistent with precedent. 14. 9 14—16. EchoStar‘s current challenge. On Junuary 26, 2005, EchoStar fled the instant Application for Review of the Bureau‘s decision. See EchoStar AFR. EchoStar again admits thatits application contained the erzors and omissions identified by the Bureau but repeats ts arguments thatits application nonetheless met the "substantally complete" standard. EchoStar also claims that the Bureau has failed to treat similar applications consistently. . at 13—17. BchoStar contends that on several occasions the Bureau has allowed applicants to correct deficiencies, rather than dismissing them outright. It, at 13—14. For the first ime, EchoStar also argues that the Bureau cannot dismiss both its amendment and its underlying application without an explanation as to how this is consistent with precedent. 1. Discussion + THE BUREAU PROPERLY APPLIED THE "SUBSTANTIALLY COMPLETE® STANDARD As the Bureau properly concluded, EchoStar‘s application failed to clearly identify () the manner in which its transponders and spot beams are to be connected and (i) the downlink frequencies thatitis requesting. Bureau Decision at 1—2. EchoStar admits that it made these omissions. ZchoStar AFR at 5,15. Its only claim is that these omissions were "minor infractions.". As the Bureau correeily decided, these omissions were material errors which prejudiced other applicants and potential applicants, thus warranting dismissal. Bureau Decision qyua2.

A. The EchoStar application failed to provide required information that was material The Bureau acted properly in upholding the dismissal ofEchoStar‘s application because EchoStar violated an unambiguous Commission rule when it failed toidentify which transponders will be connected to which spot beam. 47 C.ER. § 25.114(c)(4)(ii); see Bureau Decision § 11. While EchoStar now tries to offer a number of reasons for whythis information may not be relevant to ts application, EchoStar is not at liberty to disregard a Commission rule because it deems the rule to be inconsequential. EchoStar AFR at 11—12. ‘To the extent EchoStar believes Section 25.114(c)(4)(ii) was irrelevant, it should have asked the Commission to eliminate it or, at the very least, request a waiver. See Bureau Decision n.$. But EchoStar never made such a request or filed a timely showing, and it is too late to try to do so now."" In any event, EchoStar fails to demonstrate thatinformation conceming which transponders will be connected to which spot beams is irrelevant in itscase. BchoStar AFR at 11—12. As the Bureau properly noted and as MSV explained previously, thiinformation would have been useful in determining which frequencies and locations are impacted by EchoStar‘s application and whether EchoStar‘s coordination proposal is technically workable."" Thus, given the harm caused to other applicants, EchoStar‘s failure to demonstrate which transponders will be connected to which spot beam cannot be consider immaterial. As such, EchoStar‘s "* The Bureahas explained that information provided in a Petition for Reconsideration of a decision dismissing an application cannot be used to reinstate an intial application. PandmSar Licensee Corp, Order on Reconsideration, DA 03—3633 (rel. Nov. 13, 2003), at 17. ‘* See Bureau Decision 1 11; MSV Opposition to EchoStar Recon Petiion at 7. EchoStar claims that the precise pointing ofits spot beams could only be determined after coordination with MSV. EchoStar AFR at 11. Even ifthis claim was accurate, it does not excuse EchoStar‘s failure to provide precise pointing ofts spot beams for the 50 MHz of Planned Ku—band frequencies for which it was the only applicant prior to the dismissal ofts application (Le., 10.70—10.75 GHz and 13.15—13.20 GHz) and for which co—frequency sharing was not applicable.

application was not "substantially complete" asfiled, and the Bureau acted properly in upholding the decision to dismiss it. B.— The EchoStar application was inconsistent as to what frequencies it was proposing to use The Bureau acted properly in upholding the dismissal of EchoStar‘s application because EchoStar‘s application was internally inconsistent with respect toits requested frequency assignments. See Bureau Decision 9 12."" Given the inconsistent frequencies listed in EchoStar‘s application,it appeared that EchoStar was applying for frequencies in the 10.95—11.2 GHz band, though it was impossible to determine with certainty given the references to both the 10.95—11.2 MHz and the 10.70—10.75 GHz band. Clear and accurate specification offrequencies requested in an application is essential so that potential applicants have unambiguous notice as to which frequencies are available for assignment,thereby avoiding prejudice to other potental applicants."" The frequencies EchoStar was requesting could not be "easily resolved" by looking ‘* See 47 C.F.R. § 25.114(c)() (requiring application tolist radio frequencies requested); 47 C.F.R. § 25.112(@)(1) (listing internal inconsistencies as grounds for dismissal of an application). ‘" Bureau Decision § 12 (noting that frequency information "is one of the essentil technical parameters thatis used to determine whether an application is mutually—exclusive with a previously filed application‘). EchoStar in its AFR also "acknowledges that frequency selection is an important part ofall satelite applications." EchoStarAFR at 8. The Commission has previously recognized that inconsistencies in the precise spectrum requested cannot be considered a mere clerical error because ofthe potential for prejudice to other applicants. Mobile Phone ofTexas, Inc., Memorandum Opinion and Order, 5 FCC Red 3459 (Chief, Common Carrier Burea, June 12, 1990). In Mobile Phone, in response to a Public Notice establishing a 60—day cut—off window for Public Land Mobile Service frequency 152.15 MHz, Mobile Phone filed an application that was intemally inconsistent as to whether it was requesting frequency 152.15 MHz or 152.09 MHz. Mobile Phone later filed a letter clarifying that it intended to apply for frequency 152.15 MHz. The Mobile Services Division ("MSD") deemed this leter to be a major amendment causing Mobile Phone‘s application to be fled outside ofthe 60—day eut—offwindow. The MSD thus dismissed the application. Mobile Phone filed a Petition for Reconsideration ofthe MSD‘s action secking reinstatement ofts application arguing that is etter was merely intended "to clarify ambiguous information in its imely filed application." 14. $5. The Common Carier Bureau rejected Mobile Phone‘s Petition because

at the application as a whole, as EchoStar contends. EchoStar AFR at 8. While EchoStar now states that it was applying for frequencies in the 10.70—10.75 GHz band and not the 10.95—11.2 MHz band (id. at 9—10),there was no way for the Commission or potential applicants to divine EchoStar‘s intentions given the intemal inconsistencies in its application.‘". EchoStar‘s post hoo clarification cannot cure the defects in ts application as filed. In this case, due to the ambiguities in EchoStar‘s application, potential applicants were prejudiced because they were forced to consider whether to expend resources preparing an application for the 10.70—10.75 GHz band that might ultimately obtain only second—in—Line status if EchoStar in fact was ultimately deemed to have applied for these frequencies. reinstating its application would be unfair to other applicants by increasing the number of mutually exclusive applicants and would harm the public interest by delaying service to the public. 14. 48. Moreover, while the Common Carrier Bureau recognized thatit had been the practice ofthe MSD to request corrections regarding minor technical data, it explained that "this practice is not utilized to correct frequency errors.". . n.14. EchoStar‘s attempt to distinguish Mobile Phone is unavailing. EchoSter AFR at 10 n.20. Even if Mobile Phone‘s application was "replete"with inconsistent frequency references, as EchoStar alleges, nothing in Mobile Phone states or implies that t is the number of inconsistent frequency references that renders an application unaceeptable for filing. Rather, Mobile Phone stands for the basic proposition that an inconsistent frequency reference in an application must be considered more than just a mere clerical error because ofthe prejudicial impact on other applicants. Similar to Mobile Phone, the Commission has held that an application for a broadcast station will ‘be dismissed ifthere are internal inconsistencies regarding the coordinates proposed for the transmitter site. Coachella Valley Wireless Corp., Memorandum Opinion and Order, 7 PCC Red 4252 (July 2, 1992). Among other things, such information is crucial for determining the distance from the proposed siteto other proposed or existing broadcast facilities and to the community of icense necessary to determinations ofmutual exclusivity and compliance with spacing rules. Ocean Waves Broadcasting, Hearing Designation Order, 3 ECC Red 4637 (Chief, Audio Services Division, August 3, 1988). "* as the Bureau noted in upholding the Division‘s dismissal, it is not the responsibility of the Commission "to select for an applicant the desired frequencies from among differing frequencies provided in an application."" Bureau Decision § 12. 10

C.._ The Division and the Bureau were not required to provide EchoStar an opportunity to supplement or clarify its application; such an opportunity would undermine the new licensing procedures As the Bureau properly concluded, EchoStar‘s assertion that the Bureau should have requested that EchoStar provide the missing information and clarify the ambiguities in its application undermines the intent ofthe new first—come,first—served policies. EchoStar AFR at 12; see Bureau Decision 1 13. Under EchoStar‘s view, an applicant could file an incomplete and ambiguous application and wait fr the Bureau to request any missing information and to clarify any ambiguities." Ifthe Bureau were to adopt such a policy, however, the public interestin expedited licensing, service to the public,and use ofavailsble spectrum would be disserved while the Bureau takes time to investigate what an applicant intended to request in its application. The Commission adopted first—come,frst—served to expeditesatellte licensing. This goal would not be served ifthe Bureau continued past policies ofrequesting applicants to clarify materially deficient applications.®" D. ‘The decisions of the Division and the Bureau are fully consistent with precedent; in the other cases EchoStar cites, the Bureau permitted supplemental filings only because the rules were ambiguous EchoStaris wrong when it argues that the Bureau deviated from precedent in dismissing its application while in other cases it has simply requested clarifying information from applicants rather than dismissing the application. ZchoStar AFR at 13—16. The cases EchoStar cites are ‘* As the Bureau explained, "allowing applicants to ‘cure" defects, ofthe type noted herein, after filing could encourage applicants to file incomplete, intemally inconsistent, or otherwise defective applications to receive ‘first—inine" status. This is patently inconsistent with the tationale underlying the ‘first—come, frst—served? procedure, which is designed to expedite service to the public." See Bureau Decision § 13 (emphasis in original). ® See PandmSat Licensee Corp, Order on Reconsideration, DA 03—3633 (rel. Nov. 13, 2003), at 1 6 ("PanAmSat‘s argument that dismissal ofts application as incomplete is inconsistent with previous practices is not convincing ... Finding incomplete applications acceptable for filing is not consistent with the rules and policies adopted by the Commission in the [SSLR] Order and only serves to create uncertainty and inefficiencies in the licensing process."). 11

inapposite because none involved intemally conflicting requests for frequencies or failure to identify which transponders will be connected to which spot beam. Rather, they all involved at most an applicant‘s filure to comply with an ambiguous rule."" In such an instance, it is normal *‘ See Bureau Decision § 14 ("In those unusual instances where the Commission‘s satellite information requirements have not been clearly set forth in a Commission rule, Order or Public Notice, we issue Public Notices to clarify the rules, but do not dismiss applications that do not contain the relevant information ifthey were filed before the release ofthe Public Notice.") See Letter from Robert Nelson, Satellite Division, FCC, to Lon C. Levin, Vice President, Mobile Satellte Ventures Subsidiary LLC, File No. SAT—AMD—2003111$—00335 (April 23, 2004)and Letter from Thomas S. Tyz, Chief, Satellite Division, FCC, to Lon C. Levin, Vice President, Mobile Satellite Ventures Subsidiary LLC, DA 04—1095, File No. SAT—AMD—20040209—00014 (April 23, 2004). In these cases, the Bureau had issued a Public Norice in December 2003 clarifying an ambiguity in its rules regarding the need for a two—degree spacing analysis. See December 2003 Public Notice. Consistent with this Public Notice, h Bureau dismissed an amendment filed by MSV filed after December 2003 without this analysis but asked MSV to file a supplemental analsis in connection with an application that was filed prior to December 2003. Given the ambiguity in the Commission‘s requirements,it was appropriate for the Bureau to require MSV to supplement rather than to dismiss the application filed before the issuance ofthe Public Notice clarifying the ambiguity. Conversely, in EchoStar‘s case, there is no ambiguity in the requirements it failed to mect. EchoStar also cites DirecZV Enterprises LLC, Order and Authorization, 19 FCC Red 7754 (2004). See also Letter from Thomas S. Tycz, Chief, Satellite sion, FCC to David K. Moskowite, EchoStar Satellite Corp., File Nos. SAT—LOA—20030605—00109, SAT—LOA~ 20030606—00107, SAT—LOA—20030609—001 13 (Feb. 12, 2004).. Inthese cases, the Bureau had issued a Public Notice in January 2004 clarifying that, although DBS applicants are not subject to first—come, first—served processing, they are nonetheless subject tothe same "substantially complete" standard adopted in the SSLR Order for other satellite applicants. See DBS Public Notice, 19 FCC Red 1346 (2004). The Bureau requested the DBS applicants to supplement applications filed prior to January 2004 with certain information. Given the ambiguity in the Commission‘s requirements pertaining to DBS applicants, it was appropriate for the Bureau to require the DBS applicants to supplement rather than to dismiss the applications filed before the issuance of the Public Noice clarifying the ambiguity. Conversely, in EchoStar‘s case, there is no ambiguity in the requirements it filed to meet. Finally, EchoStar cites two additional cases, Letter from Thomas 8. Tyez, FCC, to Peter Hedinger, Northrop Grumman Space & Mission Systems Corporation, File No. SAT—AMD— 20040312—00032 etal, DA 04—1725 (June 16, 2004) and Letter from Thomas S. Tyez, FCC, to David M. Drucker, contactMEO Communications, LLC, File No. SAT—AMD—20040322—00057 etal, DA 04—1722 (June 16, 2004). In these cases, the Bureau had issued two Public Notices in June 2004 clarifying ambiguities in its rules regarding () the need for a two—degree spacing analysis when there are no satellites using the same frequencies within two degrees of the proposed orbitallocation, and (i) the information required for a casualty risk assessment. See 12

and appropriate for the Bureau to permit the applicant to supplement its application rather than have it dismissed. EchoStar places significant weight on an unchallenged Branch—level decision allowing an applicant to file supplemental information. See EchoStar AFR at 14—17 (citing Loral Slymet)." This case, however, is fundamentally different than the case here because the application in that case included allthe information required by the Commission‘s rules. Bureau Decision 16. The Bureau later requested the applicant to simplify the technical information provided and to verify certain assertions made, but it never challenged the completeness of the application."" In a case where an applicant complies with the Commission‘s rules, it is appropriate to request clarifications rather than to dismiss the application."* Unlike the applicant in that ease, however, EchoStar failed to comply with two unambiguous Commission rules when it 6) omitted information regarding the manner in which itstransponders and spot beams are to June 2004 Public Notice; Public Notice, SPB—208, DA 04—1724 (June 2004). Given the ambiguity in the Commission‘s requirements, it was appropriate for the Bureau to reinstate applications dismissed prior to the release of the Public Notices for failing to provide the information as clarified. Conversely, in EchoStar‘s case, there is no ambiguity in the requirements it filed to meet. "" See Letter from William Howden, Chief, Systems Analysis Branch, Satellite Division, Interational Bureau, FCC, to Stan Edinger, Loral Skynet Network Services, Inc. File No. SES— MOD:20030919—01302 (October 16, 2003) ("Loral Styner®). ® The Bureau acknowledged thatit had not defined the showing required for an "effective competitive opportunities" analysis, thus making it appropriate for the Bureau to reguire the applicant in Loral Skyner to provide supplemental information in connection with this analysis rather than dismissing its application. See Bureau Decision n.52 (noting that the "Commission‘s 1ules do not require the applicant to provide specific documentation to affirm market access"). * EchoStar places particular emphasis on a footnote in which the Bureau stated that, even ifthe Systems Analysis Branch erred in failing to dismiss the application in Loral Skymet, the Bureau need not repeat the error here. EchoStar AFR at 17 (¢iting Bureau Decision 16 n.45). While accurate, thisstatement is nonetheless dicta and thus has no decisional significance here. Moreover, the Bureau did not state that it made a mistake in Loral Symet. In fact, the Bureau clearly explained why it was proper to request supplemental information in Loral Skynet (because the applicant complied with all Commission rules and requirements) and inappropriate in this case (because EchoStar violated two unambiguous Commission rules which resulted in prejudice to the public and potential applicants). Bureau Decision $ 16. 13

be connected and (i) filed to precisely identify the downlink frequencies that it was requesting."". Moreover,unlike in the present case, there was no evidence in the case EchoStar cites that other applicants or the public were prejudiced by the Bureau‘s having requested clarifiations rather than dismissing the application."" * Ifthe Commission were to reinstate EchoStar‘s application, fundamental faimess would dictate that the Bureau re—evaluate and potentilly reinstate the approximately twenty other applications that have been dismissed since the beginning offrst—come, first—served processing for failing to provide information mandated by unambiguous Commission rules and policies. In none of these cases did the Bureau afford applicants the opportunity to supplement their applications given the clear requirements ofthe Commission‘s rules. See, e.g., Letter from Fem 1. Jarmulnek, Deputy Chief, Satellte Division, InL. Bur., FCC to Mr. Robert Lewis, SkyTerra Communications Inc., DA 05—274, File Nos. SAT—LOA—20041029—00205, SAT—AMD— 20041202—00215 (February 3, 2005) (dismissing application for faling to include downlink link budgets and appropriate antenna contour diagrams}; Letter from Thomas S. Tyez, Chief, Satellite Division, Intl. Bur., FCC to Mr. Brign Park, AfriSpace, Inc., DA 04—1719, File No. SAT—LOA— 20040413—00082 (June 16, 2004) (dismissing application for failure to specify sufficient cross— polarization isolation};Letter from Thomas S. Tyez, Chief, Satellite Division, IntL. Bur., FCC to Mr. Koichio Matsufuji, Space Communications Corporation, DA 04—730, File No. SAT—PPL— 20040120—00006 (April 22, 2004) (dismissing application for failure to provide technical information); Letter from Thomas S. Tyez, Chief, Satellite Division, Int‘L. Bur, FCC to Mr. Vieente Rubio Carreton, Hispamar Satelltes, S.A., File No. SAT—PPL—20040106—00001 (Feb. 24, 2004) (dismissing application for failure to provide technical information}; Letter from Thomas S. Tyez, Chief, Satellite Division, Int‘l. Bur., FCC to David K. Moskowitz, EchoStar Satelite Corp. DA 03—3893, File No. SAT—LOA—20030827—00170 (Dec. 8, 2003) (dismissing an application for failing to request a waiver to use proposed frequencies); Letter from Thomas S. Tyez, Chief, Satellite Division, IntL. Bur., FCC to Kalpak Gude, PanAmSat Licensce Corp., DA 03—3313, File Nos. SAT—LOA—19951012—00165, SAT—AMD—19960202—00016, and SAT—AMD— 20030827—00284 (Oct. 22, 2003) (dismissing application and amendment for failing to provide gain contours). * See Bureau Decision T 12 (stating that information concerning which transponders will be connected to which spot beam *allows the Commission, existing 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"); see also MSV Opposition to EchoStar Recon Petition at7 (noting that EchoStar‘s failure to identify which transponders will be connected to which spot beam deprived MSV ofinformation that would have been useful in determining whether EchoStar‘s sharing proposalis technically feasible};id. at 5—7 (noting that EchoStar‘s failure to specify which frequencies it was requesting prejudiced potential applicants by foreing them to consider whether to risk expending resources preparing an application for the 10.70—10.75 GH band that might ultimately obtain only second—in—line status if EchoStar in fact was ultimately deemed to have applied for these frequencies). 14

E. The Division and the Bureau properly decided to dismiss both the original application and the subsequent amendment EchoStar is also wrong when it argues that the Bureau deviated from precedent by dismissing its August 2003 application in addition to its November 2003 amendment. SchoStar APR at 17. This argument ignores the fact that both its original application and its subsequent amendment contained the same failure to identify the connections between the spot beams and transponders. It also ignores the fact that the failure ofthe original application to seck a waiver of NG104 was the basis for the dismissal of another EchoStr application filed the same day.*" MSV challenged the original application on this ground, among others, and this issue must be addressed before the Commission‘s gives any consideration to reinstatement ofEchoStar‘s application. Finally, EchoStar never raised this argument before the Bureau in ts Petition for Reconsideration, and it is thus barzed from raising this issue in its Application for Review. 47 CBR§ 11150 *" See Letter from Thomas S. Tyez, Chief, Satellite Division, FCC to David K. Moskowitz, EchoStar Satellite Corp., DA 03—3893, File No. SAT—LOA—20030827—001 70 (December 8, 2003). *‘ The two cases EchoSter cites to support its claim are inapposite. In the MSV case, the Bureau issued a Public Notice in December 2003 clarifying an ambiguity in its rules regarding the need for a two—degree spacing analysis. See December 2003 Public Notice. Consistent with this Public Notice, the Bureau dismissed an MSV amendment that was filed after December 2003 without this analysis but asked MSV to file a supplemental analysis in connection with the underlying application that was filed prior to December 203. See Leter from Robert Nelson, Satellte Division, FCC, to Lon C. Levin, Vice President, Mobile Satellite Ventures Subsidiary LLC, File No. SAT—AMD—20031118—00335 (April 23, 2004) (requesting supplemental information for application filed prior to December 2003) and Letter from Thomas S. Tyez, Chief, Satellite Division, FCC, to Lon C. Levin, Vice President, Mobile Satellite Ventures Subsidiary LLC, DA 04—1095, File No. SAT—AMD—20040209—00014 (April 23, 2004) (dismissing amendment to same application filed after December 2003). Given the clarification of the ambiguity in the Commission‘s requirements, it was appropriate and consistent with established policy for the Bureau to keep MSV‘s underlying application on file while dismissing its amendment. MSV‘s amendment was subsequently reinstated because the Burcau found that itsrequirements were ambiguous. See MSYReinstatement Order. 15

I1. COMMISSION REVIEW MUST BE FAIR To MSV A. The Commission must consider the deficiencies MSV raised in ts 2003 Petition to Deny Before the Commission permits EchoStar to amend its application to correct ts errors, it must also address the deficiencies raised in MSV‘s 2003 Petition to Deny.. See MSYPerition to Deny, supra note 7. As discussed above, these include at least one deficiency —— the failure to request a waiver ofthe prohibition on the use ofthe frequencies for domestic service —— that has already been the basis for dismissal of another application EchoStar filed simultancously."" In the SES case, te applicant included an analog emission designator for the firstime in an amendment but failed to provide required technical information for this type of service. See Letter from Thomes S. Tyez, Chief, Satellite Division, FCC to Karis A. Hastings, Counsel for SES Americom, Inc, DA 04—1707, File No. SAT—AMD—20040528—001 10 (June 10, 2004). The original underlying application, however, was substantially complete as filed and thus was not dismissed. Moreover, unlike in the MSV and SES cases, the Division found that EchoStar‘s amendment subsumed its original application. ZchoStar Dismissal at 1. The Division acted consistently with established precedent in dismissing EchoStar‘s original application and amendment based on the finding that the amendment subsumed the original underlying application. See Letter from Thomas S. Tyez, Chief, Satellite Division, Int‘. Bur., FCC to Kalpak Gude, PanAmSat Licensee Corp., DA 03—3313, File Nos. SAT—LOA—19951012—00165, SAT—AMD—19960202— 00O16, and SAT—AMD—20030827—00284 (Oct. 22, 2003) (dismissing both application and amendments based on finding that original application was subsumed by subsequent amendments) see also Letter from Thomas Tycz, FCC, to Peter Hadinger, Northrop Grumman Space & Mission Systems Corporation, File No. SAT—LOA—19970904—00081 et al (May 18, 2004) (dismissing an underlying application based on a deficient amendment because amendment replaced technical information in underlying application}. In the MSV case, the Bureau properly did not make a finding that MSV‘s February 2004 amendment subsumed its original application. MSV stated that ts amendment was filed solely to request an aditional 50 MHz of feeder link spectrum. MSYFebruary 2004 Amendmentat 1. While MSV amended and restated the Technical Appendix from its November 2003 application "for the convenience of Commission staf""(id. at1—2), MSV never stated or implied that this amendment was intended to replace the November 2003 application in its entirety. ®* See Letter from Thomas S. Tyez, Chief, Satellite Division, FCC to David K. Moskowitz, EchoStar Satellite Corp., DA 03—3893, File No. SAT—LOA—20030827—00170 (December 8, 2003). 16

B. The Commission must treat any amendment by EchoStar as a major amendment EchoStar asked the Bureau toreinstate its application and stated that after reinstatement it would fle a further amendment correcting the errors in its application. EchoStar Recon Perition at 11. This would require EchoStar to change the frequencies t is requesting in one ofthe conflicting sections of its application. The Commission‘s rules, however, specify that any "change‘" in the frequencies requested in a pending application is a major amendment. 47 C.FR. § 25.116b)2)."" A major amendment to a pending application causes the application to be considered newly filed. SSR Order $ 139. Thus, even if the Bureau reinstates EchoStar‘s application, it must be considered as filed at the time EchoStar files ts further major amendment. €. The Commission should not penalize MSV for relying on the dismissal of EchoStar‘s application in amending its own application Even before EchoStar‘s application was dismissed, MSV was firs—in—line relative to EchoStar for 250 MHz. Since the dismissal, and in reliance on it, MSV submitted an amendment requesting the additional 50 MHz, for which it is now also first in line. Moreover, MSV has relied on the availability of these frequencies to design and develop its next—generation system, including negotiations with satellite manufacturers. A decision now to reinstate EchoStar‘s application thus has the potential to be extremely prejudicial to MSV. Should the Commission nonetheless reinstate EchoStar‘s application mumepro fune as filed on November 26, 2003, the Bureau should ensure ata minimum that EchoStar does not assume firs—in—line status with respect to the 250 MHz of Planned Ku—band spectrum for which MSV originally filed in December 2000 (11.2—11.45 GHz band (downlink) and 12.75—13.00 GHz ® See also Mobile Phone (holding that a letter purporting to correct a "clerical error" as to which frequency was requested constitutes a major amendment that caused the application to be considered newly filed). 17

band (uplink)). In MSV‘s February 2004 Amendment, MSV merely requested the additional 50 Mz of Planned Ku—band spectrum for which it did not previously apply in December 2000 (10.70—10.75 GHz (downlink) and 13.15—13.20 GHz (uplink)}. The Bureau‘s dismissal of EchoStar‘s application clarified any ambiguity as to whether EchoStar in fact had an application on file for frequencies in the 10.70—10.75 GHz band. Based on this dismissal, MSV was able to amend its application to add these additional frequencies and obtain first—in—line status. To obtain first—in—line status, MSV had no choice but to file this amendment immediately upon dismissal ofEchoStar‘s application before any other potential applicant submited an application and before a challenge ofthe Bureau‘s decision became final."" EchoStar has agreed that MSV should retain firs—in—line status for the 250 MHz ofPlanned Ku—band frequencies for which MSV originally filed in December 2000."" *‘ IfMSV had waited until a challenge of the Bureau‘s decision became final to fle this amendment, MSV would have been prevented from obtaining firs—in—line status by EchoStar refiing its application at any time while ts challenge was pending. Indeed, EchoStar did precisely this by simultancously challenging the Bureau‘s decision and refiling a corrected application. ®* See EchoStar, Reply, File Nos. SAT—LOA—20030827—00179, SAT—AMD—20031 126—00343 (April 5, 2004), at 9 ("EchoStar accepts that upon reinstatement ofits application it should not assume first—in—line status for the frequencies originally requested by MSV."). 18

Conclusion MSV requests that the Commission act consistently with the views expressed herein. Respectfully submitted, S# 4e . C o Bruce D. Jacobs Lon C. Levin David S. Konczal Vice President SHAW PITTMAN LLP MOBILE SATELLITE VENTURES 2300 N Street, N.W. SUBSIDIARY LLC Washington, D.C. 20037 10802 Park Ridge Boulevard (202) 663—3000 Reston, Virginia 20191 (703) 390—2700 Dated: February 10, 2005 19

CERTIFICATE OF SERVICE 1, Sylvia A. Davis, a secretary with the law firm of Shaw Pittman LLP, hereby certify that on this 10® day of February 2005, served a true copy ofthe foregoing "Opposition to Application for Review" by first class United States mail, postage prepaid, upon the following: Chairman Michael K. Powell* Commissioner Kathleen Q. Abcrnathy* Federal Communications Commission Federal Communications Commission 445 12® Street, S.W. 445 12" Street, S.W. Washington, DC 20554 Washington, DC 20554 Commissioner Michasl J. Copps* Commissioner Kevin J. Martin® Federal Communications Commission Federal Communications Commission 445 12® Street, S.W. 445 12° Street, S.W. Washington, DC 20554 Washington, DC 20554 Commissioner Jonathan 8. Adelstein® Bryan Tramont* Federal Communieations Commission Office ofChairman Powell 445 12® Street, SW. Federal Communications Commission Washington, DC 20554 445 12® Street, S.W. Washington, DC 20554 Shery!J. Wilkerson® Jennifer Manner® Office of Chairman Powell Office ofCommissioner Abernathy Federal Communications Commission Federal Communications Commission 445 12° Street, S.W. 445 12° Street, S.W. Washington, DC 20554 Washington, DC 20554 Paul Margic® Sam Feder® Office of Commissioner Copps OfficeofCommissioner Martin Federal Communications Commission Federal Communications Commission 445 12° Streat, S.W. 445 12° Street, S.W. Washington, DC 20554 Washington, DC 20554 Bary Ohlson® Don Abelson® Office ofCommissioner Adelstein International Bureau Federal Communiations Commission Federal Communications Commission 445 12° Street, S.W. 445 12° Street, S.W. Washington, DC 20554 Washington, DC 20554 Thomas S. Tyer* Robert Nelson® International Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 12® Street, SW. 445 12° Street, S.W. Washington, DC 20554 Washington, DC 20554

Andrea Kelly* David K. Moskowitz International Bureau Senior Viee President and General Counsel Federal Communications Commission EchoStar Satelite LLC. 445 12® Street, S.W. 9601 South Meridian Boulevard Washington, DC 20554 Engleweod, CO 80112 Pantelis Michalopoutos Chung Hsiang Mah Brendan Kasper Lee C. Milstein Steptos & Johnson LLP 1330 Connecticut Avenue N.W. Washington, D.C. 20036 Counsel for EchoStar Satelite LLC *By hand delivery


Document Created: 2005-02-16 14:13:42
Document Modified: 2005-02-16 14:13:42
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