Attachment DA 06-865

DA 06-865

MEMORANDUM OPINION AND ORDER submitted by IB,FCC

DA 06-865

2006-04-14

This document pretains to SAT-LOA-20030827-00185 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA2003082700185_496943

Federal Communications Commission ba 06—se5 Before the Federal Communications Commission Washington, D.C. 20564 In the Matter of EchoStar Satelite LLC Petition for Reconsideration File Nos. SAT—LOA—20030827—00180 saT—LOA—20030827—00182 Application for Authority to Construct, saT—LoA—20030827—00185 Launch and Operate Geostationary Satelites SAT—LOA—20030827—00187 In the Fixed—Satelite Service Using the Ka And/or extended Ku—bands at the 83° W.L CallSigns: $2493; S2495; 2498; $2500 105° W.L., 113° W.L. and 121° W.L. Orbital Locations Petition for Reconsideration MEMORANDUM OPINION AND ORDER Adopted: April 14,2006 Released:. April 14,2006 By the Chief, Interational Bureau: L INTRODUCTION 1.. By this Order, we deny EchoStar Sateite LLC‘s (EchoStar) Petition for Reconsideration ofthe Satelite Division‘s decision denying the above—referenced applications in part, and dismissing the remaining portion as incomplete. EchoStarfuled to show that the Denial Order was erroncous." Consequently,we affitm the Division‘s underlying order and deny EchoStar‘s requestto reinstate is applications or,atemativel, to dismiss the applications without prejudiceto rfiling. 1. BACKGROUND 2. In August 2003, EchoStar fled four applications to operate four Ka—band geostationary satellite orbit(GSO)sateltes to provide a vaiety oservices including supplemental services now provided by EchoStar‘sdirect—broadcasting satllte (DBS) system." In two ofts applications, EchoSar proposed to operate GSO sateltes atthe 83° WL. and 121° WL. orbitl locations using Ka—band spectrum designated ‘ EehoStr SateliteLLC, Application for Authorityto Constmct, Launch and Operate Geostationay Sateites in the PixedSatelite Serviceusing Ka and/or Extended Ko—bands at the 83° WL., 105° W.L, 113° W.L, and 121® W.L orbitllcations, Memorandum Opinion and Order,19 FGC Red 7846 (Sat. Div.T1 Bur. 2003)(Denial Onder) * The erm ‘Ka—band" generallyrfers t he space.to—Earth (dowlink) frequenciesin the17.7—20.2 GHte and corresponding Barttospace(upink) fequencis at 27.5—30.0 Gitz.

Federal Communications Commission DA 06—865 for non—geostationary orbit (NGSO)fixed—satelite services (FSS), either exclusively or on a primary basis to ather services in the band." In the other two applications, EchoSter proposed to aperate GSO sateltes at the 105® W.L. and 113° W.L. orbitl locations using the same NGSO FSS Ka—band frequencies,as well as certain extended Ku—band frequencies.* In all four applications, EchoStar requested a waiver of Section 2.106 of the Commission‘s riles, prticularly fomote NG 165,to permit the operation ofGSO sateltes in a band thatislimited, domestcall, to NGSO FSS use only The applications were placed on public notice® Three entities filed comments in response to the EchoStar applications,to which EchoStar filed a reply‘ 3. In April 2004, the Intermational Bureau‘s Satelite Division denied the applications in large part, and dismissed the remaining portions as incomplete. As sated in the Demial Order, the Division reviewed EchoStar‘s GSO FSS applications consistent with other applications secking to operate in frequencies where other services have primary status. Specifielly, the Division examined the applications to determine whether EchoStar‘s proposed system could operat in a manner that would not cause harmfulinterference to any NGSO FSS systems." EchoStar proposed uplinks in 28.6—29.1 GHzfrequency band, which is designated to NGSO FSS on a primary basis and GSO FSS on a secondary basis. Consistent with Commission precedent,the Division denied EchoStar‘s request because it did not submit a technical showing demonstrating that it could operate on a non—interference basis to NGSO FSS systems." Further, the Division rejected EchoStar‘sassetion that it would "immediately cease" operations upon notifcation of harmfil interference from NGSO FSS operators, noting that was insulficient,by tsel, t protect primary services from secondary or non—conforming operations.EchoStar also proposed downlinks in the 18.8— 19.3 GHt frequency band. GSO FSS use othis band is prohibited."" The Division concluded that EchoStarfailed to demonstrate that a waier ofth rule, which assigned spectrum for NGSO FSS systems on a primary besis, was warranted."" Finally, the Division rejected EchoStar‘s assertion that the NGSO FSS * Space stitions operating in primary srvices are protected against intrferencfrom stations osecondary services. Sations operating in the secandary servicecanocause harmfl ineference o orclaim protetion from harmfil ntrferencefrom stations oaprimary service. Co—primary services have equa rights to operte in paricula fequencis. 47 C.FR. $§ 2.104(d)and 2.105(5). I bands designated for exclusive use,nonconforming services may anly be provided on a onhammfulinrference basistoany lcensed service provided in accordance with the Table ofAllocations,and may not claim interfereace profectio from ather authorized services. * Echotar proposed opertionsin th extended Ku—band, using the 10.95—11.2 GHt and 11.45—11.7 GHiz (opace— to—Eart) and 13.75—14.00 GHt (Rartho—space)fequency bands. ‘arcrR. 5210. ° Pubic Nore, Policy Branch Information, Report No. SAT—0016S (Sept 24, 2003). " Pettions and Comments were file by: Nortrop Grumman Space Technology and Mission Systems Com. Hughes Elctronics and Hughes Network Syatems, Ic.(cllctively Hughes), and New Skies Satelite NV. * Derial Order, 19 FCC Red a 7851. * Denial Orter, 19 FCC Red at7851. "* Denial Order, 19 FCC Red at 7851 "a7 CrR.52.106, m NG 16s. " DenialOrder, 19 ECC Red at 7853.

Federal Communications Commission Da 06—865 spectrum would remain fllow ifit were not permitted to operate, noting there were three pending NGSO ESS applications." 4. In it two applications proposing hybrid Kwa band sateltes, EchoStr also requested authority to use spectrum in the extended Ku—band frequencies, 10.95—11.2 GHe, 11.45—11.7 GHe (space—to—Ran and 13.75—14.00 GHz (Earth—to—space)." The Division denied this ortion of the application due to EchoStar‘s failure to requesta waiver ofthe Commission‘srules. Section 2.106, footmote NG 104, and Setion 25.202(s)(1), footote 2,allow a U.S—licensed sateiteto provide downlink services t the United States and its possessions in the 10.95—11.2 GHz or 11.45—11.7 GHz frequency bands only ithe uplinks originate outside ofthe United States and its possessions. EchoStar‘s roposed uplinks originate from earth stations in the United Sttes.. The remaining portion of EchoStar‘sapplication, requesting the 13.75—14.0 itz band for ts uplink operations, was dismissed because use ofonly these frequencies id not allow for a viable satelite system * 5. EchoStar filed a Petition for Reconsideration ofthe Satelite Division‘s Denial Order."* According to EchoStar,it applications included a showing that ts proposed satelites would not cause interference to the proposed NGSO systems in the Ka—band. Specifically, EchoStar laims that ts proposed Equivalent Power Hlux Density (EPFD) limits would allow NGSO FSS systems to operate while maintaining an acceptable interference leve." Italso assertsthat ts showing i based on th likeihood that no NGSO FSS systems will be operating in the near term."* Furthe, because it agreed to cease operations upon notifiation ofharmfulinterference, EchoStar states there was "no need." t submit a detailedtechnical analysis.". EchoSta asserts that granting ts appliations would be consistentwith Commission precedent in whichHeenses have been granted on secondary or non—harmfil nterference basis with conditions requiring cessation ofservice upon a determination ofharmful nterference." 6. Inthe altemativ, EchoStar asserts that the Division should have requested an interference analysis for is proposed Ka—band operations, and should now reinstate he applications and allow such a filmg before denying or dismissing the applications"" EchoStr statesthis would be consistent with e " Devial Order, 19 FCC Red at 7853, !* Echoar Stelte LLC,application File Nos. SAT—LOA—20030827—00185 and SAT—LOA—20030827—00187, to peratea hybid GSO sateliusing Ka—band and extended Ko—band frequencies atthe105° W.L.and 113° WL orbtal ocations respectvely. Denial Order, 19 FCC Red a 7884 ‘* RchoStarStelite LLC, Pettionfor Reconsidertion,fled Jie1, 2004 (EchoStar Pettion]. EchoSa‘s pettion incoreetystates thatthe "terational Bureau" denid ts appleations. The Denial Order was adopted and released by the Bureau‘s Stelite Division. " EchoStor Poitionat 6. " Echosiur Pettion, u6 " EchoSter Poitionat7. * EctoSter Petton, at8 * EchoSterPetion, at9

Federal Communications Commission pa o6—868 trestment afforded other applications. It would also,EchoStar state, be consistent with a December 2003 Public Notiee addressing the Commission‘s two degree interference analysis, which allows certain applicants o submit additional nformation."" 7. EchoStar Iikewise assers that the Commission should have requested additonal information pertainingto ts proposed extended Ku—hand use before processing it applications. EchoStr sates thatits applications were "sibstantially complet," and do not have t be "leter perfect"to be accepted for processing.". An applicant‘s fullure to request a waiver, EchoStar maintains,is a matter that can be remedied without denying an application" According to EchoStar, the Division‘s order departs from Commission and judicial precedent ofroutinely requestingthat applicants correct more serious errors or omissions." 8. EchoStar argues further thatthe Division should have dismissed, rather than denied, the applications. EchoStar states thatthe defciencies cited by the Division were procedural erors and "such a finding is akin to not accepting the applications for fling.""" And, to the extent the Division reconsiders other portions ofthe applications, EchoStar asks that t also reconsider ts decision to dismiss th uptink eperations in the Ku—band because the remaining frequenciesdid notallow for a viable system 9. Northrop Grumman opposes EchaStr‘s peition on three grounds. Firs, it states thatthe EPFD Himits that EchoStar elies on are designed to protect GSO FSS networks from NGSO FSS iterference, and not to protect NGSO FSS systems fom GSO FSS interference, as EchoStar claims. Second, Northrop Grumman states the Division was correctthat EchoStar was required to submit a technical showing that it could aperate on a non—harmfil nterference basis to NGSO FSS systems, 1t asserts EchoStar‘s promiseto cease operationsimmediately upon notifieation ofharmful iterference to NGSO operators is insuffiient without this showing."" t also notes that the cases EchoStar cits involve instances where the applicants proposing secondary or non—conforming operations have submited analyses demonstrating that they could operate without eausing harmfulinterference to primary operations, Third, Northrop Grumman statesthat EchoStaris not"similarly stuated" with applicants that were asked to provide information missing from a two—degree interfeence analysis and that the Division corretly denied the applications.®" Northrop states, however, that it does not object to EchoStar filing the applications with a technical demonstation thatits GSO systems can operate without causing harmful iterference to NGSO systems. " EchoSter Peition, at9,10 Rnote 21. ® EchoStar Peitionat 10. * EchoSter Petion, at 13. ® RchoSter Poitionat 12 * RehoSter Petion, at 13. " EchoSter Ptionat 16—17. "" Northrop Grumman Oppositon, at 3. Nerthrop Grumman Opposition,at4.

Federal Communications Commission w o6—s65 111. DISCUSSION 10, We note,firs, that EchoStar erroncouslyclaims that the Division denied the Ka—band portion of its applications forfulie to submit an analysis showing that GSO and NGSO satelites can operate in the requested bands without "objectionable interference.""" The Division seperately addressed EchoStar‘s proposed uplink and downlink Ka—band operations, and denied EchoStar‘srequests for separate reasons.. Firs, as explained in the Denial Order,the 28.6—29.1 GHz Ka—band frequencies are designated on a primary basis to NGSO FSS and to GSO FSS on a secondary basi. The Division denied EchoStar‘s proposed use ofthese frequencies based on EchoStar‘s filure to provide a showing (hat ts proposed GSO FSS system could operate on a non—harmful nterference basis to primary NGSO ESS operations in this portion of the band. In the proposed downlink, 18.8—19.3 GHz frequency band, GSO FSS use is prohibited under the Commission‘s rules, and a waiver of the rulejustifying non= conforming uses is equired. ‘The Division denied EchoStar‘s proposed downlink frequencies because EchoStr failed to justify a waiver oftherule" 11. EchoStar asserts that it did demonstrate thatits proposed satllites would not cause objectionsbleinterference to NGSO FSS Ka—band systems.. EchoStar pointstoits proposed EPFD limits as proofthatits GSO system would not eause objectionable interference to proposed NGSO FSS operations." As EchoStar itself notes, hese proposed EPFD limits are based on Intemational Telecommunication Union (FTU) Radio Regulations that apply in adjacent bands, not the bands at issue.". Further, the specified limitsare designed to protect GSO systems from NGSO systems and EchoStar assertsthe opposit is rue. Neither the TTU or the Commission has established EPFD limits to protect NGSO systems from GSO operations. Tt is premature to acceptthese limits here without further evidence that NGSO FSS systems operating in the 286—29.1 GHe band willbe adequately protected. EchoSta did not submit any such evidence. 12. Further, we disagree with EchoStar‘s argument that it did not need tosubmit such evidence because it suid it would cease operations upon notifcation ofa concrete risk of harmfulinterference EchoStar statesthat the Division regularly grants suthority for secondary or non—conforming operations subjectt the condition thatth liensee cease operations upon notification ofharmfil interference. While we agree that the Division includes such conditions in authorizationfor secondary or non— conforming uses,it does so in cases where the applicant provides a technical demonstraion that it can " EchoStar Petion, at. *‘ Denial Order,19 FCC Red at7853 I denying EchoSar‘s request t operate GSO FSS downlins n the18.8— 19.3 Gite fequency band, th Divison stted,in pat, tht EchoStar‘sspeculation that tNGSO spectrum will ‘remain fillow" when there were threeapplications pending was not good cause for a watver. While circumstances have changed since the release ofthedenial order,applicanssecking to use GSO FSS downlnks in NGSO FSS spectrurs mustsillrequesta waierofthe ruledemonstrating "special cioumstances" warrantng a deviation from the general ulandthasuch deviation is n the publcinteres. We nottat Northrop Grimman, an applicant for a NGSO FSS system tht includes he usofNGSO ESS Kacband spectrum, does not oppose *approprite GSO operations"in NGSO ESS spectrum, provided th operations protet NGSO sytems. Nortirap Grumman Oppostion 5. " EchoSter Petion, at 6. " EchoSur Application,File No. SAT—LOA—20030827—00182, Atachment A, Technial Description, at29—30.

Federal Communications Commission Da o6—865 protect other users ofthe spectrum.""Indeed, in Qualcomn, Irc, cited by EchoStar in ts pition, the Commission explicily stated thatit was necessary to determine whether proposed operations would cause harmfil nterference to primary services or secondary services with superior status before any grant. The Commission stated that while Qualcom "would be required to cease trnsmissions immediately ifi system interfered with {other services}, we seck to avoid disruptions to these services and will permit Qualcomm to operate only if ther is litle potentialforinterference.""" Furthermore, the Commission has consistently rejected applications similar o EchoStar‘s fo faling to submit a technical showing that proposed operations would not interference with primary services." Quite simply, EchoStar filed to comply with Commission policy and precedent which requires it to demonstrate that ts proposed operations would not cause interference to NGSO FSS systems, which have primary status i the 28.629.1 GHz frequency band. The Division correetly concluded that EchoStar‘s willingness to cease operations upon notifiation ofa concrete isk ofharmfulinterference by NGSO RSS systems did not discharge its obligation to submit an interference analysis. 13. We also reject EchoStar‘salterntive argument that the Division should have asked EchoStato provide an interference analysis fo ts proposed GSO operations and a waiver request for its proposed Ku—band operations before denying the applications." While the Commission may request additional information from any part atany time concerming an application, t is not the Commission‘s duty to perfect a materialy deficient application * With the adaption ofthe First Space Station Reform Order, the Bureau has stretly enforeed its Part 25 rules, which require the Bureau to retum as unacceptable any appliation that is "defective with respect to completeness of answers to questions, informational showings, [or]internal inconsistencies.""" 14. EchoStar‘s relianceon a December 3, 2003 Public Noticein support of ts argument that the Division should have asked it for information is misplaced. In unusual circumstances where the Commission‘s satelite information requirements have not been clearly set forth in a Commission rule, * See. eg.Bocing Company, Order and Auhorization, 16 FCC Red 5864 (It1 Bur, OET 2001) (Bocingrequest to use spectum allocated on a primary basi tothe Fixed Satliteservice supported with a showing that it could profect thes serviees}; Qualcon, In., Merrorandurs Opinion, Order and Authorization, 4 ECC Red 1543 (1989) * Qualcom Inc. 4 CC Red at184. Seealso Bocing Company, Order and duthorization, 16 FCC Red 22048 (IntBur, 2001), als cited by EichoStar. EehoSter Petion at $. Tn that Order,the Dureau authorized a non— conforming us for AMSS operation in the 14 GHtz band based on th analyses ofpotentl intrference fom AMSS opertionsand on the fict hat partiesto the proceeding reached a consensus on the approprite measures for AMSS sytems o profectprimary FSS operations. In addition, Boeing‘s authorization was conditioned to equie operations on a non—harmfil interference bsis o all uthorized usersof th band. Boing Company 16 FOCRed 22692. "* See e, Astrolink Intemational LLC, Order and Authoriation, 16 FCC Red 20124 (In Bur, 2001)(rjcting Astrolink‘s proposalto cease transmisionsto and from ts GSO sielites operatingin NGSO Ka—band spectum, and noting that GSO FSS systems cannot operate on a secondary bsis o NGSO FSS systems without establishing an spproprit inerfence profection level for NGSO FSS opentions) * EchoSter Pition, 9 "a ore srsiin *« cR grs i1200

Federal Communications Commission Da o6—465 Order, or Public Notie, we issue Public Notices to claify these requirements n doing so, we do not dismiss pending applications that do not contain the relevant information. Rather, we provide applicants an opportunity to supplement their applications consistent with the clarification. Thus,in December 2005, we issued a Public Noticeclarifying the information requirements for te interference analysis required to be submitted as an attachment to all GSO FSS applications This interference analysis is intended to demonstrate that a proposed GSO FSS space station is compatible with the Commission‘s tswo—degree orbital spacing framework. In the Public Notice, we specified three methods applicants could use to make this demonstration.. We also afforded applicants who had already submitted an interference analysis an opportunity to supplement that analysis pursuantto one of these three methods. In contrast, EchoStardid not submit a technical analysis at all ootherwise attempt to demonstrate that ts proposed space station could operate on a non—interference basisto primary NGSO FSS operations, Rather,it asserted only that it did not need to submit an analysis because it had agreed to cease operations in the event ointerference. ‘Thus, EchoStar cannotrely on the December 2003 Public Noticeto support ts assertion that the Division should have asked EchoStar to supply the missing analysis and waiver request before taking action on its application. 15. We also disagree with EchoStar‘s claim that ts applications should not have been denied, but dismissed without prejudice.". An application may be deemed acceptable forfiling upon iniil review. Once accepted,the Commission will grant GSO—like applications upon a finding thatthe applicant is legally, tchnically, and otherwise qualified, that the proposed facilities and operations comply with all applicablerules,regulations, and policies, and that grant ofthe appliation will serve the publi iterest, convenience, and necessity.® The Division denied EchoStar‘s application because it was not consistent with the Commission‘s rules and policies, and filed to support the necessary waivers.. The Denial Order correetly set forth reasons why BchoStar‘s applications did not satisfy these requirements. In any event, whether dismissed or denied, this action is without prejudice to EchoStar reflingan application for any ofthe availsble Ka—band orbitallocations atany time. 16. Einally, we consider EchoStar‘s equest that the Division reconsider the dismissal ofits proposed uplink operations in the extended Ku—band because "the use othe uplink frequencies only does notallow for a viable satelite system.". EchoStar merely requeststhat the Division reconsider this portion ofthe application in the event it reconsiders the other portions. Based on our decisionto deny EchoStar‘s requestforreconsideration consemingits proposed Ka—band and Ku—band downlink operations, we deny this request for reconsideration as wel. 1V. CONCLUSION AND ORDERING CLAUsE 17. Based on the foregoing, we affim the Satellte Division‘s decision, and fnd it consistent with applicable precedent. We therefore deny EchoStar‘spettion for reconsideration of this decision. EchoStar may, ofcourse,refil ts applications. If it electsto do so,the applications willbetreated as nevwlyfiled and considered under the "first—come, firs.served"licensing process. "° EchoStar Satlite LLC, Order on Reconsideration, 19 ECC Red 24953, 24958 (InI Bur. 2004). "* Public Notice,Inermational Bureas,Satlite Division Information: Clarifeation of47 C.F.R § 25.140@)2), Space Sution Application Interfrence Anabysis, 18 FCC Red 25099 (IBur. 2003) © RehoSterPetion, at 10 ® arore 5251500

Federal Communications Commission Da 06—865 18, According, IT 1S ORDERED, that he Petitin for Reconsideration filed by EchoStar Satellite LLC, File Nos. SAT—LOA—20030827—00180, SAT—LOA—20030827—00182, SAT—LOA— 20030827—00185 and SAT—LOA—20030827—00187, is DENIED. FEDERAL COMMUNICATIONS COMMISSION Je Chief D2 International Bureau


Document Created: 2006-04-14 14:49:47
Document Modified: 2006-04-14 14:49:47
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