Attachment opposition

opposition

OPPOSITION submitted by AfriSpace

opposition

2005-05-03

This document pretains to SAT-LOA-20050311-00061 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA2005031100061_432941

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 gecevn& In the Matter of AftiSpace, Inc. Application for Authority to Launch and SAT—LOA—20050311—00061 Operate a Replacement Satellite, AfriStar—2, at 21° EL. and to Collocate it with AfiStar—1 Received MAY 0 6 2005 Policy Brench Intermational Bureau OPPOSITION OF AFRISPACE, INC. TO PETITION TO DENY TorsK. Giunta 1. Steven Rich Poul, Hstings, Janofiky & Walker LLP 875 15th Street, NW. Washington, D.C. 2000 (202) ssi—1701 Is Atorneys Date: May 3, 2005 woesssost

summMary As AfiSpace demonstrites in its Application, the AfriStar—2 satellte should be treated as a replacement satelite in accordance with the Commission‘s policies as artiulated in the First Space Station Reform Order. AfriStar—2 will be located at the same orbital location and operate on the same frequency bands as AfriSter—1.. While AftiStar—2 will have a greater coverage area then AfiStar—1, this does not preclude the Commission from treating AfriStar—2 as a replacement satelite because no other satelite operators have been licensed to provide Broadcasting Satelite Service(Gound) services in the area in question, and the Commission has expressly stated that it will consider replacement satelite applications under such circumstances. The Petition to Deny filed by Ondas Spain SL relies on a highly selective, misleading use of facts and blatant misrepresentation of FCC policies. Importantly, Ondas mischaracterizes the FCC‘s replacement satelite policies by equating the Commission‘s statement that a satelite operator will not have a replacement expectancy for an expanded coverage area with a policy that precludes an application for such a coverage area from being treated as a replacement satelite, despite the clear statement by the Commission to the contrary. In short, Ondas is a disgruntled wouldcbe competitor that would suddenly like to capitalize on the development of a satlliteradio market by WorldSpace and others over the past fifleen years. Without any sense of irony or, more importantly, any legal or factual support, Ondas disingenuously argues that the FCC lacks jurisdiction to grant the AfriSpace application while asking for the chance to submit its own application. For these reasons, the Commission should deny the Petition to Deny and grant the Application. wnormens

TABLE OF CONTENTS Page THE AFRISTAR—2 APPLICATION 18 CONSISTENT WITH THE FCC‘S REPLACEMENT SATELLITE POLICTES A. Ondas Shows Litle Regard for the Facts . B. Ondas Mischaracterizes FCC Policies Concerning Replacement Satelites. THE FCC CAN AND SHOULD GRANT THE APPLICATION. u. THE AFRISPACE SERVICE 18 CONSISTENT WITH BOTH TTU SPECTRUM ALLOCATION PRINCIPLES AND COMMISSION POLICIES SUPPORTING THE ISSUANCE OF LICENSES TO BONA FIDE OPERATORS . CONCLUSION wnorsseois 3

Before the FEDERAL COMMUNICATIONs CoMMiSs Washington, D.C. 20584 In the Matter of Cc — MAILROOM AftiSpace, Inc. Application for Authority to Launch and SAT—LOA—20050311—00061 Operate a Replacement Satelite, AfriStar2, at 21° E.L. and to Collocate it with AfriStar—1 OPPOSITION OF AFRISPACE, INC. To PETITION To DENY AfriSpace, Inc. (*AfriSpace") hereby submitsits opposition to the Petition to Deny (the "Petition") filed by Ondas Spain, SL ("Ondas") against the above—referenced application (the "Application‘). As shown below, the Petition presents a mishmash of selferving, inconsistent arguments predicated on misstated and misconstrued facts. Despite the il—founded arguments of Ondas to the contrary, AfriSpace‘s Application for a replacement satellite fully comports with the policies of the Federal Communications Commission ("FCC" or "Commission®), and a decision by the Commission to grant the Application is both within the FCC‘s authority and flly warranted here. AfiSpace therefore respectfully urges that the Commission deny the Petition for the foregoing reasons and as described more fully below. L The AfriStar—2 Application is Consistent with the FCC‘s Replacement Satellite Policies Ac— Ondas Shows Litle Regard for the Facts The Commission will undoubtedly reach its own conclusion concerning the numerous wnoameais

factual misstatements made by Ondas, most of which do not even mert serious discussion Nevertheless, AfriSpace takes this opportunity to larify the record so thatthe Commission has a clear and accurate basis for ts decision." Even before launching into its selfserving arguments, Ondas demonstrates, at best, a highly selective use offacts. For example, in an attempttojustifyits view that AfiStar—2 should be treated as a new satelite, Ondas characterizes the Application as a request to provide Satelite—Digital Audio Broadcasting (‘S—DAB") services to Burope.* In fact, as clearly stated in the Application, AffiSpace is secking a license for a replacement satellite that will cover the same region as the satellte it is replacing — a region that covers far more than just Burope. Specifically, AffiSpace secks a license for its AfriStar2 satelite, which will be collocated with AfriStar—1 at ts current orbital location of21° E.L. and which will also operate in the frequency band allocated to Broadcasting Satellite Service (Sound) (‘BSS(Sound)") for Region 1." This is all in accordance with allocations by the International Telecommunication Union (‘ITU®), and the U.S. Government, through the Commission, has sent a notifiation to the ITU to commence coordination of the AfriStar—2 satellite.* AfriStar—2 will in fict, provide service over a vast * AfriSpace additionally notes for the record that it was never served with a copy of Ondas‘s Petition to Deny. Only through diligent follow—up with the Commission did AfriSpace identify that a petition had indeed been filed. While clearly in violation of Section 25.154(@)(5) of the Commission‘s Rules, nonethcless AfriSpace provides this comprehensive response to Ondas‘s Perition. * Perition at 1. * See Tuble of Frequency Allocations, Intemational. Telccommunications Union Redio Regulations (2001). * See Application at 1, 3. wnoameais

geographic area that includes significant portions of northem Affica, the Middle Bast, and Europe — and not just Europe. Ondas similarly mischaracterizes the procedural history of the AftiStar—2 application in stating that the "FCC determined that the gain contours for AfiStar—2 were quite different than AfriStar—1." While the Commission previously assigned. the AfiStar2 application an administrative "LOA® file number reflecting a preliminary determination that AfriStar—2 would be a new satellite, the Commission returmed the AfriStar—2 application wihouprjudice on an extremely minor technical violation—which had no relstion to its status as a replacement satelite—and without making any determination on that point.® Ondas cleverly fils to mention that the Public Notice to which it is responding now indicates that the FCC has assigned a similar file number to AftiStar—2 "without prejudice to ts replacement status or waiver request."" Further, with an astonishing disregard for the facts, Ondas tries to contrast the service provided by AftiStar2 with that provided by AfriStar—, arguing that AfiStar—1 has "some limited spillover into southem Europe:"" In fact, AfriStar—1 already provides coverage over substantial portions of Burope. As shouwn in the Appliation, the —8 dB contour of AfriStar—1 includes all of Spain, Portugal, Italy, France, and Switzerland, and partially covers other countries." Moreover, the dB contours only tell prt ofthe story. As a result ofthe outstanding technological advancements developed by WorldSpace, AfriSpace‘s parent, in concert with the Fraunhofer Institute of Germany, the WorldSpace receivers are capable of recciving the * See Letter to Brian Park, AftiSpace, Inc., from Fem J. Jarmulnck, Deputy Chief, Satelite Division, DA 0—601 (March 4,2005). * Public Notice, Report No. SAT—00279 (March 18, 2008) * Perition at2. * Application at 8. wnossneens

satelite‘s signals beyond what the satelite‘s coverage pattem would imply.. In fact, AftiSpace curently serves the United Kingdom through its afflite, WorldSpace UK Ltd. Therefore, the AfriStar—1 satelite is already covering, and its receivers are picking up the satellte‘s signals from, substantial portions of Burope. In adition, AfiSpace has fully coordinated its operations with all administrations within its coverage arca, including Burope, and has received no reports of interference. Thus, while Ondas states that the Application is "designed to control S—DAB spectrum over Europe"" and is "nothing more than an attempt by AftiSpace to use the FCC to get a foothold in Europe,""" the factis that, through AfriStar—1, AfiSpace already has its fet firmly planted in Europe and has had them there for more than five years.. In fact, WorldSpace and AftiSpace can and should be credited with making the business and technical case for BSS(Sound) globally— the case that Ondas is now trying to benefit from, while attempting to use the Commission‘s procedures to hamper AftiSpace in order to advanceits own commercial ends. Ondas similarly argues that the Application should be denied because AfriStar—2 has only "limited Aftican covernge," and states that it is somchow "confounding" that the launch of AfriStar2 will enable AfriStar1 to conserve power and extend its useful lie." Ondas‘s purported inability to understand the reason for the AfriSta—2 application is nothing more than a further attemptto obfuscate. As clearly described in the Application, these are the facts: the * WorldSpace UK operates pursuant to License No. $120, issued by the Radio Authority (predecessor to Ofcom) on May 25, 2001. !° Petition at 2. "‘ Petition at 3. "* Petition at 2. wnonseis

AftiStar—1 satellte is dying. In order to preserve ts ife and continue service to Afica and the Middle East, AfiSpace needs to shut down one or more transponders in order to feed power to the remaining transponders." Under AfriSpace‘s two—phase replacement strategy, it can extend the useful life of AftiStar—1 thereby benefiting from the substantial investment in that satelite, while preserving service to all of the service areas covered by AftiStar—1: Affica, the Middle East, and Burope."*. In the second phase of AftiSpace‘s two—phase replacement plan, a third replacement satellite, AfriStar—3, will be launched before AfriStar—1 is fully retired from service, in order to provide service to the areas covered by the northeastem and southem beams of AfriSter—1." As shown in the Application, AfriSpace fully intends to continue providing coverage to its entire service region. B. ndas Mischaracterizes ECC Policies ing Replacement Satelltes Relying on a citation that is taken out of context and presented in a misleading fashion, Ondas makes a weak attempt at arguing that AfriStar—2 is not a replacement satelite. However, as explained in the Application, treating AftiStar2 as a replacement satelite is entirely consistent with FCC policiesarticulated in the First Space Station Reform Order."" * We note that XM Radio recently received authority to Taunch and operate a replacement satelite due to similartechnical diffculties in its existing satelites. See XM Radio, Inc., Order and Authorization, File No. SAT—MOD—20040212—00017, 2008 ECC LEXIS 387 (2005) (XM Order"). !* Application at 10. "ri ‘* See Amendment of the Commission‘s Space Station Licensing Rules and Policies, First Report and Order and Further Notice ofProposed Rulemaking, TB Docket No. 02—34, 18 FCC Red 10760 (‘First Space Station Reform Order®),para. 258. 34 wocnsion

The FCC‘s policy on replacement satelltes has been that "when an orbit location remains available for a US. satellite with the technical characteristics of the proposed replacement satellite, it will generally authorize the replacement satelite at the same location.""" The Commission has clarified that, while it requires replacement satellites to be "technically consistent with the satellies they are replacing," it does "not require replacement satelltes to be technically identical to the existing satelite.""" In accordance with the Commission‘s requirements for replacement satelites, AfriStar—2 will be located at the same orbital location and operate on the same frequency bands as AfriStar." Additionally, while generally consistent with that ofAfiStar—1, the coverage area ofAffiStar—2 is expanded.®" Ondas puts undue focus on this atter point,alleging that the Application should not be treated as a replacement satelite application because the coverage area of AftiStar2 will be greater than that of AftiStar—1.. However, the FCC stated in same paragraph of the First Space Station Reform Order cited by Ondas that it "will consider replacement satellite applications that request greater coverage areas and/or extended band suthority, but only if no other applicants have been Hicensed to provide those services.""" Ondas ignores this statement and !* Amendment ofthe Commission‘s Space Station Licensing Rules and Policies, First Order on Reconsideration and Fifth Report and Order, 1B Docket No. 02—34, FCC 04—147 (2004), para. 5. "* Amendment of the Commission‘s Space Station Licensing Rules and Policies, Notice of Proposed Rulemaking and First Report and Order, 1B Docket No. 02—34, FCC 02—45 (2002), pars. 257 (emphasi in origina. ‘* See Application at Exhibit A, p.12; ee also 47 CER § 25.165(c) ® See Application at pp. 89. "" Pirst Space Station Reform Order, para. 258 (emphasis added). wnosseis

tries to "spin" the FCC‘s determination that a satelite operator has no replacement expectancy for an expanded coverage area, into a policy purporting to require the treatment of such an application as an application for a new satelite.. The Commission has made clear that it will consider replacement satellte applications that request greater coverage areas if no otker applicants have been licensed to provide those services. Here, not only has no one been licensed to provide these services as required by the Pirst Space Station Reform Order, no one has even applied to provide such service."". AfiSpace should not be penalized because others, including Ondas,faled to file an application in a timely manner. To do so would undermine the first—come, first—served policy and procedures established by the Commission in the First Space Station Reform Order, and equally undermine the Commission‘s long—held policy of faciltating the efficient and effective use of spectrum. TL. The FCC Can and Should Grant the Application In its Petition, Ondas suggests that, if the FCC grants the Application, this will be tantemount to the FCC exercising jurisdiction over services provided in Burope."" Ondas argues, without any legal or factual support, that liensing AfiStar—2 "would essentially putthe RCC in a position of making choices regarding European S—DAB implementation without a full record" and *will reate significant jurisditional issues between the U.S. and Europe resulting in the delay ofthe introduction ofthi important new service to European listeners.""" This is patently "" See id ® See, eg. Petition at 2 (stating that"the development and implementation of European S—DAB service should be governed by European regulators not the FCC). * Perition at 4. wnesson

absurd. As Ondes has acknowledged, the TTU, based on input from all Member States including those from Euzope, has already made the decision to allocate the frequencies used by AfriStar—1 and AfiStar—2 to BSS(Sound). A decision by the FCC to license AfriStar—1 in 1999 (and now AfriStar—2) in the BSS(Sound) frequencies for Region 1, is fully consistent with that decision. Further, Ondas‘s argument overlooks the basic fact that FCC authorization of a satellie to serve foreign countries does not equate to FCC regulation of the services provided in those countries, jurisdiction which is both recognized by the Commission and specifically accommodated in its Licensing process." As Ondas is undoubtedly aware, FCC authorization of the launch and operation of AftiStar—2 in no way relieves AfriSpace of its obligation to provide service in compliance with applicable laws and regulations of the European Union and national governments.. n fact, the AftiStar—1 license is expressly conditioned on this requirement®" and AftiSpace fully anticipates, indeed welcomes, a similar condition in its AfriStar2 license. Action by the Commission to Hicense the AfriStar—2 satelite, similar to the AfiStar—1 satelfte, will in no way dimminish the ® See, eg., AfriSpace, Inc., Order and Authorization, File Nos. CS§—90—017, SAT—LOA— 19900723—00002, SAT—AMD—19990125—00016, 15 FCC Red 1632, 1637 (1999) ("AfriSpace Order") (ordering AfriSpace to "comply with the applicable laws, regulations, rules, and Hieensing procedures for those countries it roposes to serve"). "* See id; see also E—SAT, Inc., Order and Authorization, File Nos. 26—SAT—P/LA—95, 11—SAT— AMEND—98, 13 FCC Red 10859, 10873 ("E—SAT Order®) (stating that the Commission would "retain jurisdiction to require E—SAT to meet its intemational obligations,"but that "(alll authorizations and approvals required by another country in connection with the operation of E— SAT‘s Little LEO system . . {would remain solely within the host country‘s jurisdiction"); Mobile Satelite Ventures Subsidiary LLC, Order and Authorization, File No. SAT—LOA— 20030827—00174, 2005 ECC LEXIS 172, 46 (2003) (‘MSV Order®) (requiring MSV "to comply with the applicable laws, regulations, rules, and licensing procedures of any countries it proposes toserve‘). wnossons

tight of national regulators in its service aree, including Europe, to regulate the provision of BSS(Sound) service within their respective jurisdietions. Ondas also erroneously states that "the Afristar—2 application presents the FCC with a novel issue" because AfriStar2 will not serve the United States:"" Given the history of SDARS/BSS(Sound), it is curious that Ondas considers the AfriStar—2 application "novel." Even if the FCC had considered the issue novel in the 1990s when it licensed AfriStar—1, established precedeat—not the least of which is the AfiStr—1. authorization—now supports such action. In an argument that defies logic and demonstrates a findamental misunderstanding of both intemational and U.S. law, Ondas suggests that the FCC should not consider the Application because WTO and DISCO 17 obligations do not apply to BSS(Sound). However, neither.DISCO II nor U.S. obligations under WTO Agreement on Basic Telecommunications Services affect the manner in which the FCC should tret the Application nor does it impede the Commission‘s jurisdiction over AfriStar—2."" The reason is simple: AfriStar—1 is a U.S—licensed satelite, and D/SCO 1f pertains to the manner in which the Commission authorizes non—ULS. licensed satelltes to provide service in the United States in accordance with WTO obligations. Even if the FCC had no obligation to consider a BSS(Sound) application filed by a foreign— Hicensed. entity secking to provide service in the United States, that is not the case before the Commission. *" Perition at 6. "* See generally Amendment of the Commission‘s Regulatory Policies to Allow Non—US. Licensed Space Stations to Provide Domestic and International Satelite Service in the United States, TB No. 970223, 12 FCC Red 24094 (1997) (emphasis added); see also World Trade Organization, Fourth Protocol to the General Agreement on Trade in Services, $/L/20 (30 April 1999 wnosson

Interestingly, and as a window into its true intentions, Ondas states that it would like the opportunity to submit ts own application"if the FCC finds that it has jurisdiction. This reveals the selfserving nature of Ondas‘ Petition.. Clearly, the only reason why Ondas opposes the Application is because it did not manage to file its own application first.. AfriSpace and its parent company, WorldSpace are well—known to the Commission and the Commission‘s jurisdiction was clearly established in 1999 and is beyond question. What is equally beyond question is Ondas‘s purpose in submitting its Petition: to try to use the Commission in an anti— competitive manner o slow AfiSpace down in order to frther its own commercial objectives. Ondes also states that the "FCC does not have any information on the service requirements, technical requirements or market needs in Burope to make a determination as to which is the superior technology.""" However, Ondas misunderstands the industrial policies of the United States and the Commission, namely that there i no industrial policy.. As former FCC Chairman Michael K. Powelrecently said with respect to the development ofmobile broadband, "fwle must allow the competitive market to determine the technology standards . ... . Our decision not to mandate a particular technology standard for wireless voice has facilitated remarkable success ... compared to other countries where governments set the standard through industrialpolicy:""" Clearly, the FCC‘s approach is to lt the marketplace decide. Such a hands— offapproach is reflected in the WorldSpace experience.. WorldSpace has been working for many * 14. * Remarks ofMichael K.Powel, Chairman, Federal Communications Commission at the CTIA Wireless LT, & Entertainment Convention, San Francisco, CA, Speech, 2004 FCC LEXIS 6078 (Oct. 26, 2004); see also, eg., Establishment of Rules and Policies for the Digital Audio Radio Service in the 2310—2360 Mz Frequency Band, Report and Order, Memorandirn Opinion and Order and Further Notice ofProposed Rulemaking, TB Docket No. 95—91, 12 FCC Red 5754, 5795 (1995) (stating that "{i}n general, it is our policy to avoid mandating the use of one form of technology [and] [wJe conclude thatit is appropriate to follow that policy here because it will allow Rexibility for satelite DARS licensees in designing their satelite DARS systems"). —10— wnoasies

years to establish its technology as the superior technology — but that choice was made by the marketplace, not by a regulator. Sound policy reasons also justify the Commission‘s continued support of AfriSpace and authorization of AftiStar—2.. As the Commission has previously recognized, the benefis of the AftiSpace service include *increas(ing] the variety of programming available in arees that already have service and . provid{ing] service to ural areas that have previously had no programming available.""" AfiStar—2 will bing the same benefits to its lsteners as has AfriStar— 1* I1L. The AfriSpace Service Is Consistent with both ITU Spectrum Allocation Principles and Commission Policies Supporting the Issuance of Licenses to Bona Fide Operators As Ondas acknowledges in the Petition, the ITU Radio Regulations give priority to geostationary satelites over. non—geostationary. satelites, such as the system purportedly proposed by Ondas.Therefore, even if the FCC were to grant Ondas Petition and deny the AfriStan2. Application, the Ondas service would still be sccondary to any Iater—authorized geostationary BSS(Sound) service.. Even more importantly, Ondas would be required to operate on a nor—interference basis with AfiStar—1, which, as noted above, has been fully coordinated with no reports of interference, and which already provides service over much of the coverage * AfriSpace Order, supra note 25at 1632. "" See Application at 9. * See Petiion at 4; see also Intemational Telecommunications Union Radio Regulations §22.2 (2o0n). Aye wosseons

area that the proposed Ondas service would cover."". Ondas has not shown whether it could provide its service in a manner that would not cause interference to AffiStar—1, and indeed its fervent arguments against any additional coverage in Europe by AfriStar—2 suggest that such operation is not possible. The FCC has repeatedly emphasized the importance of issuing licenses to entities with a genuine commitment to prompily and efficiently using scarce spectrum to provide service to the public® AfriSpace and its parent WorldSpace, Inc. have been at the forcfront of the development of BSS(Sound) since the early 1990 and have been providing such services since 1999.". WorldSpace already owns a substantially—constructed satelite, which is in storage and will soon be reconfigured, that it plans to launch pursuant to the authority sought in the Application. ‘The Commission has established a licensing regime under which such Hicenses are issued on a frst—come, firstserved basis. o credit Ondas‘s arguments here and permit Ondas to file a satelfite application now would both frustrate and undermine the Commission‘s new satelite lcensing regime. To add insultto injury, while Ondas argues that the FCC has no jurisdiction to grant the Application, it then secks to benefit from the Commission‘s jurisdiction by requesting that the Commission deny the Application in order to permit Ondas to submit one! The Petition is clearly devoid of any merit on either legal or policy grounds. * See Application at 8 (demonstrating —8 dB contours over Spain, Portugal, France, Italy, and Switzerland, and —10 dB contours over vast additional portions of Westem Europe); see also IFIC No. 2534, Interational Telecommunications Union (stating that the proposed "SPAINRADIO® service would cover, inter alio, Spain, France, Italy, Portugal, and Switzeriand). * See, eg., Space Station Reform Order at 10827. * See Application at3. se wncssens

IV.— Conclusion For the foregoing reasons, AfiSpace respectfully requests that the Petiion be denied and. that the Commission promptly. grant the Application for the launch and operation of a replacement satellte, AfriStar2. Respectflly submitted, Taia K. ta Counsel to AffiSpace, Inc. Paul, Hastings, Janofoky & Walker LLP 875 15th Street, N.W. Washington, D.C. 20008 (2o2)sst—t791 May 3, 2005 age wnosseons

CERTIFICATE OF SERVICE Thereby certify that he foregoing Opposition ofAfriSpace, Ic.to Petition to Deny, was served upon the party isted below by U.S. Fist—Class Mail prepaid, this 3rd day ofMay, 2005. Celso Azevedo President & CEO Ondas Spain, SL Cascanueces 10F Madrid 28043 SPAIN Cirmel 0. Mills, Legal Secrctary Paul, Hastings, Janofsky & Walker LLP wnormens


Document Created: 2005-05-10 15:06:11
Document Modified: 2005-05-10 15:06:11
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