Attachment reply

reply

REPLY TO OPPOSITION submitted by EchoStar

reply

2005-02-24

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

IBFS_SATLOA2003082700179_420185

Before the RECEIVED FEDERAL COMMUNICATION IMISSION 2 00 Washington, DC zoigg&flvedo Fee 4 Aws In the Matter of watuo d oo. ons ncrtins isien EcnoSrar Sarevurre LL.C. Poicy e FileNeraboa88t—1.0A—20030827—00179 SAT—AMD—20031126—00343 Application for an Allotted Extended Call Sign 82402 Ku—band Satellite at 101° W.L. REPLY TO OPPOSITION TAPPLICATION FOR REVIEW Pursuant to 47 C.F.R.§ 1.115(d), EchoStar Satellite L.L.C. ("EchoStar") hereby replies to the opposition filed by Mobile Satellte Ventures Subsidiary LLC(*MSV") on February 10, 2005, in the above—referenced proceeding." Contrary to MSV‘s contention, not every inconsistency or mistake in frequencies is grounds for dismissing an application for not being substantially complete. The decisions cited by MSV are not authorty to the contrary, and the Bureau did not rely upon them to support its decision.® In fact,the Bureau itself provides an example of a frequency error that would not warrant dismissal. As EchoStar has pointed out, the Commission has explained how inconsistencies and discrepancies are to be treated under a substantally complete standard in the ‘ Opposition to Application for Review of Mobile Satellite Ventures Subsidiary LLC, (filed Feb. 10, 2005) (*MSV Opposition"). * With respect to Mobile Phone ofTexas, Inc., 5 FCC Red 3459 (C.C. Bur, 1990), it is unclear whether that case involved the substantially complete standard, but even if it di, t is casily distinguishable. The multiple inconsistenciesin that case were such that they could not be resolved "confidently and reliably" from the application as a whole. See Processing ofPM and TV Broadcast Applications, 50 Fed. Reg. 19936, Appendix D (1985) (°FM and TV Order®). Coachella Valley Wireless Corp., 7 ECC Red 4252 (1992), did involve the substantially complete or "hard look" standard in the broadcast context but, contrary to MSV‘s contention, the decision confirms that resolvable discrepancies do not render an application unacceptable for filing. 1d. at 4252—53 ("The Commission has made a commitment ... to resolve tenderability defects i the necessary information can be derived confidently and reliably from the face of the application. Although a coordinate discrepancyis considered an acceptability defeet, the staff will, within reason, nonetheless attempt to resolve any discrepancies found in an application."). Ultimately, Conchella is distinguishable on its facts because the coordinate discrepancies in that case could not be resolved. Ocean Waves Broadeasting, 3 FCC Red 4637 (Audio Serv. Div. 1988) is distinguishable for the same reason.

FM and TV Order —— if the "discrepaney[can be] resolved, confidently and reliably, drawing on the application as a whole, such defect will not render the application not sufficient for tender."" In this case, itis clear from the Application and Amendment "as a whole" that EchoStar intended to apply for the allotted extended Ku—band frequencies. MSV‘s claim that it is "impossible" to resolve the one incorrect frequeney reference by looking atthe multiple references to the correct frequencies in the rest of the appliation severely underestimates the competence and ability of the Commission‘s staff? MSV argues that information about which spot beams are connected or switchable to which transponder 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."" In fact, as EchoStar‘s expert has declared," such information would make no practical difference and MSV has made no attempt to show otherwise. Inded, EchoStar‘s coordination proposalis based on spatial separation between the small number of MSV feeder link earth stations and the spot beams on EchoStar‘s proposed satellite. Assuming that MSV will be using all ofits assigned frequencies in each ofits feeder link beams, the question of which transponder is connected with which spot beam is not relevant to such a sharing proposal. * FM and TV Order at Appendix D. * MSV further contends that "potential applicants were prejudied [by the discrepancy} because they were foreed to consider whether to expend resources preparing an application for the 10.70—10.75 GHz band that mightultimately obtain only second—in—line status..." EchoStar hereby incorporates by reference its response to this argument in ts earlier reply. See Reply 19 Opposition to Petition for Reconsideration at 6—7 (filed Apr. S, 2004). * 1d. at8. * See Application for Review at Attachment A (Declaration of Richard Bamnett),iled /n the Matter ofEchoStar Satellite LLC, SAT—LOA—20030827—00179, SAT—AMD—20031 126— 00343, Call Sign $2492 (filed Jan. 26, 2005). a%.

MSV also accuses EchoStar of failing to specify the precise pointing directions of its spot beams." However, the International Bureau ("Bureau") did not dismiss EchoStar‘s Application® and Amendment® on this ground, and rightly so. As noted above, EchoStar‘s sharing proposal is based on spatial separation between EchoStar‘s spot beams and MSV‘s feeder link earth stations. But, because the precise location of MSV‘s feeder link earth stations is also uncertain,it is not possible to determine ex ante the optimum pointing directions of EchoStar‘s spot beams that would also protect MSV‘s earth stations. EchoStar expects that the precise pointing directions will be determined after any necessary coordination with licensed collocated satellites. MSV attempts o refute EchoStar‘s claim ofunequal treatment by distinguishing the present case from Loral Skymet."" MSV contends that Loral Stynet was different because the Bureau "never challenged the completeness of the [Loral) application.""". Not so. In Loral Skynet, the Bureau dismissed Loral‘s application only after it failed to provide *additional technical information and information that was missing from the original application,""" as previously requested by the Bureau.. While the Bureau in this case has attempted to back away from this rationale," it is clear from the original leter to Loral requesting additional information that the DISCO II information in the appliation was *insufficient for [the Bureau] to make a determination.""" This is clearly a challenge to the completeness of the application.. In any " MSV Opposition at 8 n.15. * SAT—LOA—20030827—00179 (filed Aug. 27, 2003) ("Application") * SAT—AMD—20031126—00343 (filed Nov. 26, 2003) (°Amendment®). ‘" Leter fom William Howden, FCC to Stan Edinger, Loral Skynet Network Services, Inc., DA 03—3904, SES—MOD—20030910—013202 (Dec. 11, 2003). *‘ MSV Opposition at 13. 5 1d. u1. " Order at 5 16 .52 ("The December 11 Letter incorreetly referred to Loral‘s filure to supply ‘missing" information required by the Commission‘s DISCO H/ Order:"). "* Leter fom William Howden, FCC to Stan Edinger, Loral Skynet Network Services, Inc., SES—MOD—20030019—01302, at 2 (Oct. 16, 2003). 23:

event, as EchoStar has shown,"" the Application and Amendment in the present case is not any more deficient, and is significantly more complete, than the information originally supplied by the applicant in Loral Skymer. Accordingly, the Bureau should not have dismissed the Application and Amendment but instead should have requested additional information from EchoStar, as it did in Loral Skymer. MSV also contends that the Bureau properly dismissed both the Application and Amendment because both failed to identify the connections between the spot beams and transponders. This is inaccurate. The Application did not contain information about spot beam— transponder connectivity because the satellite as originally proposed did not have spot beams. The operation of the proposed satellie in a spot beam configuration was introduced by the Amendment. The omission ofthe connectivity information is therefore an alleged defect in the Amendment only. Moreover, the disparity in treatment did not become apparent until after the pleading eyele for EchoStar‘s petition for reconsideration had closed. EchoStar filed its reply in the proceedings below on April S, 2004, while the Bureau‘s dismissal ofdefective amendments without also dismissing the underlying applications did not occur until April 23, 2004 and June 10, 2004," MSV raises the absence of a request for a waiver of footnote NG1O4 as an alternative basis for dismissal. In faet, such a waiver was requested in the Amendment." Moreover, the Bureau did not rely on the absence ofthe waiver in the original application as a ground for dismissing the Application and Amendment, which indicates that the waiver request in the Amendment was enough. In connection with footnote NG104, MSV also raises the !* EchoStar Application for Review at 14—16. ‘* See Application for Review at 17 n.38 & 39. To the extent that EchoStar needs a waiver of 47 C.FR. § 1.115(c)t raise this issue now, it hereby requests such a waiver. There is good cause for such waiver because the argument is based on events that occurred after the close ofthe pleading eycle and so could not have been raised before the Bureau, !" Amendment at 4—5.

question ofcoordination with terrestril services. However, that question ultimately goes to the merits of the application and not the acceptability ofthe Application and Amendment for filing. In any event, EchoStar has said that the primary use to which the satellte will be putis the provision of one—way, direct—to—home ("DTH") service.." The Commission has already accepted the possibility ofco—existence between receive—only DTH terminals and terrestrial services in the non—allotted extended Ku—band,!" and similar co—existence should also be feasible in the allotted extended Ku—band. The possibility of providing two—way services by means of the proposed satellte was always subject to successful coordination.®" Finally, MSV contends thatifEchoStar‘s Application and Amendment were to be reinstated, then any curative amendment permitted by the Commission should be treated as a major amendment, which would have the efféct of relegating EchoStar‘s Application and Amendment to the bottom ofthe satellite processing queue."‘ This argument is misconceived. Reinstatement ofthe Application and Amendment would mean that the errors were (by definition) minor and therefore correctable with a request for additional information under 47 CcBRgasiln. Respectfully submitted, David K. Moskowite ichalopoulos Senior VicePresident and General Counsel Chung Hsiang Mah EchoStar Satellite LL.C. Steptoe & Johnson Lip 9601 South Meridian Boulevard 1330 Connecticut Avenve, NW Englewood, CO 80112 Washington, D.C. 20036 (303) 723—1000 (202) 429—3000 Counselfor EchoStar Satellite L L.C. February 24, 2005 !* See Amendment at 2, 11; Application at 1, 8. ‘ See In the Matter ofEchoStar SatelliteLL.C., DA 043163, SAT—LOA—2003121 1— 00350 (rel. Sept. 30, 2004); /n the Mater ofEchoStar Satellie L L.C., DA 04—3164, SAT—LOA— 20031215—00355 (re. Sept.30, 2004). "°See Amendment at2, 11, 14; Application at 1, 8, 10. "" MSV Opposition at 17. i%.

CERTIFICATE OF SERVICE 1, Chung Hsiang Mah, an attomey with the law firm of Steptoe & Johnson LLP, hercby certify that on February 24, 2005, I caused a true copy of the foregoing to be served by hand (where indicated by *) or first class mail, postage prepaid, upon the following: Bruce D. Jacobs Lon C. Levin David S. Konezal Vice President Shaw Pittman LLP MobilSatellite Ventures Subsidiary LLC 2300 N Street, N.W. 10802 Park Ridge Boulevard Washington, DC 20037—1128 Reston, VA 20191 Commissioner Kathleen Q. Abemathy® Chairman Michael K. Powell® Federal Communications Commission Federal Communications Commission 445 12" Street, S.W. 445 12" Street,SW. Washington, DC 20554 Washington, DC 20554 Commissioner Kevin J. Martin® Commissioner Michael J. Copps* Federal Communications Commission Federal Communications Commission 445 12" Street,SW. 445 12" Street,SW. Washington, DC 20554 Washington, DC 20554 Sheryl Wilkerson® Commissioner Jonathan S. Adelstein® Office ofChairman Powell Federal Communications Commission Federal Communications Commission 445 12" Street, SW. 445 12" Street, S.W. Washington, DC 20554 Washington, DC 20554 Paul Margie® Jennifer Manner® Office of Commissioner Copps Office ofCommissioner Abemathy Federal Communications Commission Federal Communications Commission 445 12" Street, S.W. 445 12" Street, SW. Washington, DC 20554 Washington, DC 20554 Barry Ohlson* Sam Feder® Office of Commissioner Adelstein Office of Commissioner Martin Federal Communications Commission Federal Communications Commission 445 12"Strect, S.W. 445 12"Street, S.W. Washington, DC 20554 Washington, DC 20554

Thomas S. Tyez* Donald Abelson* Intemational Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 12" Street, S.W. 445 12" Street, S.W. Washington, DC 20554 Washington, DC 20554 Andrea Kelly* Robert Nelson® Interational Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 12" Street, S.W. 445 12° Street, S.W. Washington, DC 20554 Washington, DC 20554


Document Created: 2005-03-02 16:11:05
Document Modified: 2005-03-02 16:11:05
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