Attachment app for review

app for review

APPLICATION FOR REVIEW submitted by Ondas Spain

app for review

2006-02-02

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

IBFS_SATLOA2005031100061_482191

Vinsonalkins
     Gregory C. Staple gstaple@velaw.com
     Tel202.639.6744 Fax 202.879.8944




     February 2,2006
                                                                                               FEB      - 2 2006
                                                                                      Federal Communications Commission
     VIA HAND DELIVERY                                                                          office of seem
     Marlene H. Dortch
     Secretary
     Federal Communications Commission
     445 Twelfth Street, S.W.
                                                                                          -       r*3
                                                                                                    r*
     Washington, D.C. 20554                                                                           E*+\.   ,




     Re:       Ondas Application for Review
               IBFS File No. SAT-LOA-20050311-00061

     Dear Ms. Dortch:

            Transmitted herewith, on behalf of Ondas Spain, SL (“Ondas”), is an Application for
     Review of the International Bureau’s Order and Authorization granting AfriSpace, Inc.’s
     above captioned application for authority to launch and operate a new satellite, AfriStar-2,
     located at 21” E.L. for the provision of Broadcasting Satellite Service (sound) to Europe and
     Africa using 2.6 MHz of spectrum in the 1452-1492 MHz band.

               Please direct any questions concerning this filing to the undersigned.

                                                                          Very truly yours,


                                                                         A>.&+
                                                                          Counselfor Ondas Spain, SL




     Vinson & Elkins LLP Attorneys at Law Austin Beijing Dallas Dubai   The Willard Office Building, 1455 Pennsylvania Avenue NW, Suite 600
     Houston London Moscow New ’fork Shanghai Tokyo Washington          Washington, DC 20004-1008 Tel 202.639.6500 Fax 202.639.6604
                                                                        www.velaw.com


                                  Before the
                   FEDERAL COMMUNICATIONS COMMISSION               FEB   - 2 2006
                            Washington, D.C. 20554                h m u n i carnnllscr
                                                                                ~ ~
                                                                   OfAce of set*

In the Matter of                   )
                                   1
AFRISPACE, INC.                    ) IB File No. SAT-LOA-200503 11-00061
                                   )
Application for Authority to Launch ) Call Sign: S2666
and Operate a Replacement Satellite, )
Afi-iStar-2, at 21" E.L. and to Co-locate)
It with AfriStar-1                       )


To:    The Commission




                      ONDAS APPLICATION FOR REVIEW




                                                Robert A. Mazer
                                                Gregory C . Staple
                                                Scott W. Woodworth
                                                Vinson & Elkins L.L.P.
                                                1455 PennsyIvania Ave, NW
                                                Suite 600
                                                Washington, DC 20004-1008
                                                (202) 639-6500


                                                Counselfor Ondas Spain, SL




February 2,2006


                                             TABLE OF CONTENTS

SUMMARY. ..................................................................................................                              .i

I.  HISTORY OF AFRISPACE APPLICATIONS FOR AFRISTAR-2 ANDTHE
BUREAU’S WAIVER DECISION. ...............................................................................................                 3
    A.    April 2004/July 2004 AfhSpace Applications ........................................................                             4
    B.    March 2005 AfriSpace Application ........................................................................                       4
    C.    Ondas’ Petition to Deny ..........................................................................................              6
    D.    The Bureau’s Decision ............................................................................................              7

11.  THE BUREAU’S WAIVER OF THE MODIFIED PROCESSING ROUND
PROCEDURES FOR AFRISPACE’S NGSO-LIKE SATELLITE DID NOT COMPLY
WITH THE FCC’S WELL ESTABLISHED WAIVER STANDARDS........................................ 9
     A.      The Bureau’s Finding That Circumstances Justified Waiver of the NGSO-
     like Processing Rules is Wrong and Unsupported by the Record.......................................                                   9
     B.      Assuming Arguendo That AfriStar-2 Presented A Special Circumstance,
     The Bureau’s Waiver Decision Was Still Wrong Because It Violated The
     Underlying Purpose Of The NGSO-Like Processing Rules And Accordingly Did
     Not Serve The Public Interest. .......................................................................................... 12
     C.      The Sole Precedent Cited By The Bureau To Support Its Waiver Decision
     Is Inapposite. ..................................................................................................................... 14

111. THE BUREAU’S DECISION TO WAIVE THE NGSO-LIKE PROCESSING
ROUND PROCEDURES VIOLATED THE DUE PROCESS RIGHTS OF ONDAS
AND OTHER INTERESTED PARTIES. ....................................................................................                       17

IV.       CONCLUSION .................................................................................................................   19


                                       SUMMARY

       In a January 3 , 2006, Order and Authorization, the International Bureau granted

AfriSpace, Inc. (AfriSpace) authority to launch and operate a new satellite, AfriStar-2, for

the provision of Broadcasting Satellite Service (sound) (BSS (sound)) to Europe and

Africa using 2.6 MHz of spectrum in the 1452-1492 MHz band. Ondas Spain, SL

(Ondas) is seeking review of this Bureau action because it is wholly inconsistent with the

Commission’s licensing rules for Non-Geostationary Orbit (NGS0)-like satellites, such

as AfriStar-1, which require the Bureau to invite competing license applications to use

the radio spectrum and to consider them concurrently with any initial license application.

Ondas is developing a competing satellite radio service for Europe with the support of

Michigan-based Delphi Corp., and had requested the opportunity to file a competing

application in the event that the Bureau did not classify AfriStar-2 as a replacement

satellite. The Bureau’s action cut-off that opportunity and hence prejudiced Ondas’

European development plans.

       Upon determining that AfriStar-2 could not legally be classified as a replacement

satellite for AfiiStar-1 and thus processed on an expedited basis, the Bureau should have

either: (1) held the application in abeyance and, by public notice, initiated a modified

satellite processing round to invite and concurrently consider competing applications; or

(2) dismissed Afri-Space’s application as the Bureau had done twice before due to

technical defects and the failure to request a rule waiver. Failing that, the Bureau should

have limited any grant of authority to that needed for AfiiSpace to operate a replacement

satellite for AfiiStar- 1 with approximately the same service parameters focused on

Africa, rather than granting AfnSpace vastly augmented operating rights for AfriStar-2 to

serve new markets across Europe.


        The Bureau's decision to waive its established satellite processing rules for

AfiiStar-2 was based on flawed engineering grounds, unsupported by prior precedent and

contrary to the public interest. As detailed herein, the engineering grounds asserted by

the Bureau for waiver of the FCC's standard satellite processing rules -- namely, that

interference considerations made it impractical to license any other BSS (sound) satellite

in the same frequency band -- does not bear scrutiny. However, even if the Bureau had

doubts about the ability of competing parties to coordinate a new BSS (sound) satellite

with AfiiStar-1, Commission precedent precluded the Bureau from prejudging the

international coordination process. Until now, the FCC has routinely solicited and

granted competing satellite application subject to international coordination, which is at

the applicant's risk.

        Beyond that, the Bureau's waiver decision did not meet the required public

interest test because it was both unexplained and at odds with the central purpose of the

NGSO-like processing rates. Those rules were adopted to advance the agency's goal of

licensing as many satellite systems as possible (i.e., to promote competition). The

Bureau's waiver had exactly the opposite effect.

        Finally, the Bureau's decision is unlawful because Ondas and other interested

parties were not afforded adequate public notice that the Bureau might waive the NGSO-

like processing rules for AfriStar-2 or the engineering grounds which might justify such a

waiver. This deprived Ondas of an adequate opportunity to comment on or challenge the

Bureau's proposed action and violated due process.


                                                Before the

                       FEDERAL COMMUNICATIONS COMMISSION
                                       Washington, D.C. 20554


In the Matter of                               )
                                               )
AFRISPACE, INC.                                ) IB File No. SAT-LOA-20050311-00061
                                               1
Application for Authority to Launch ) Call Sign: S2666
and Operate a Replacement Satellite, )
AfiiStar-2, at 21” E.L. and to Co-locate)
It with AfriStar-1                      1


                             ONDAS APPLICATION FOR REVIEW

           Ondas Spain, SL (Ondas)’, by its attorneys, and pursuant to Section 1.115 of the

Commission’s Rules, hereby petitions for review of the Bureau’s January 3,2006, Order

and Authorization2 in this docket granting AfriSpace, Inc. (AfnSpace) authority to launch

and operate a new satellite, AfriStar-2, located at 21” EL for the provision of

Broadcasting Satellite Service (sound) (BSS sound) to Europe and Africa using 2.6 MHz

of spectrum in the 1452-1492 MHz band.

           The AfriStar-2 Order is inconsistent with the Commission’s licensing rules for

Non-Geostationary Orbit (NGS0)-like satellites, such as AfriStar-2, which require the

Bureau to invite competing license applications to use the radio spectrum and to consider

them concurrently with any initial license application. As such, the Bureau’s ad hoc



1
  Ondas is developing a competing European digital satellite radio system in the same BSS (sound)
frequency band used by AfiiSpace and petitioned to deny the AfiiSpace application. In January 2006,
Delphi Corp., a leading U.S.-based auto equipment supplier, announced that it had made a significant
strategic investment in Ondas. See “Delphi Bets on New Satellite Market,” by Sarah McBride, Wall Street
Journal, January 4,2006, p. B5.
    AGiSpace, Inc., Order and Authorization, DA 06-4, released January 3,2006 C‘Afiistar-2Order”).



                                                         1


decision to waive those rules on its own motion, and without public notice, so as to grant

AfriSpace's application was unlawll.

       Upon determining that AfriStar-2 could not legally be classified as a replacement

satellite for AfiiStar-1 and thus processed on an expedited basis, the Bureau should have

either: (1) held the application in abeyance and, by public notice, initiated a modified

satellite processing round to invite and concurrently consider competing applications; or

(2) dismissed AfriSpace's application as the Bureau had done twice before due to

technical defects and the failure to request a rule waiver. Failing that, the Bureau should

have limited any grant of authority to that needed for AfriSpace to operate a replacement

satellite for AfriStar-1 with approximately the same service footprint focused on Africa,

rather than granting AfriSpace vastly augmented operating rights for AfriStar-2 to serve

new markets across Europe.

       The Bureau's peremptory decision to waive its established satellite processing

rules was also unsupported by the record and contrary to prior precedent. As detailed

below, the engineering grounds asserted by the Bureau for waiver of the FCC's standard

satellite processing rules -- namely, that interference considerations made it impractical to

license any other BSS (sound) satellite in the same frequency band -- was advanced for

the first time in the AfriStar-2 Order (and not by the applicant), and was never subject to

public scrutiny or comments. In fact, the Bureau's technical judgment was flawed:

geographic frequency reuse, cross-polarized signals and advanced space station antenna

designs may allow other NGSO-like satellites to operate in the same band, especially for

service to Europe. See the engineering affidavit appended as Exhibit B hereto explaining


          why a third party BSS (sound) satellite could coordinate its operations with AfriStar-1 in

          the BSS (sound) band.

                  But even if the Bureau rightly thought that the coordination of any new BSS

          (sound) satellite with Afi-iStar-1 would be difficult, that only underscores the public

          interest rationale for not allowing Afi-iSpace to preclude additional competition in this

          band by licensing AfriStar-2 to operate with a substantially greater service footprint. The

          Commission adopted modified processing round rules for NGSO-like satellite systems

          precisely because it wished to preserve the opportunities for competitive market entry in

          bands where licensing the first applicant to operate throughout the band might prevent

          entry by subsequent       applicant^.^    The Bureau’s decision to waive its NGSO-like

          processing rules for Afi-iSpace plainly undercut the rule’s primary intent and was contrary

          to the public interest.

          I.      HISTORY OF AFRISPACE APPLICATIONS FOR AFRISTAR-2 AND
                  THE BUREAU’S WAIVER DECISION.
                  At the outset, it bears noting that prior to licensing Afi-iStar-2, the Bureau twice

          dismissed applications for this satellite because the applicant had failed to meet certain

          engineering requirements or, in the alternative, request a rule waiver. In neither case did

          the Bureau find that sufficient public interest grounds existed for waiving the applicable

          rules itself. The Bureau’s acceptance of yet a third application for AfriStar-2, and its

          subsequent ad hoc decision to grant the application pursuant to a rule waiver that was

          never requested by the applicant, only underscores the arbitrary and capricious nature of

          the Bureau’s decision.

           Amendment of the Commission’s Space Station Licensing Rule and Policies, First Report and Order and
          Further Notice of Proposed Rulemaking, IB Docket No. 02-34, 18 FCC Rcd 10760 (2003) (“First Space
          Station Licensing Reform Order’>).See also Space Imaging LLC, Declaratory Order Ruling and Order
          and Authorization, 20 FCC Rcd 11964 (Int’l Bur.2005) (“Space Imaging Order”).


                                                            3

. *.. .


            A.        April 2004/July 2004 AfriSpace Applications

            AfriSpace first submitted an application to “replace” AfiiStar-1 with AfriStar-2

on April 13, 2004.4 On June 16, 2004, however, the application was dismissed because

its proposed uplink operation was inconsistent with the Commission’s technical rules and

                        On July 28, 2004, AfriSpace resubmitted its application for
no waiver was req~ested.~

AfiiSta1--2~
           but again the application was dismissed (on March 4,2005) because it was at

odds with another engineering rule (Section 25.210(c)) and AfriSpace had not requested a

waiver.I

            B.        March 2005 AfriSpace Application

            On March 1 1, 2005, AfiiSpace resubmitted its satellite application for a third time

and this time included the necessary engineering data as well as a request to waive

Section 25.210(c).’ As before, Afr-iSpace continued to maintain that AfiiStar-2 should be

treated as a replacement satellite under Part 25 of the FCC’s rules and therefore eligible

for streamlined processing, without being subjected to competing                          application^.^
AfriSpace stated that if its application was deemed to be one for a new satellite, then

good cause existed to waive the FCC construction milestone and bond requirements for

such satellites.


 See AfriSpace, Inc. Application for Authority to Launch and Operate a Replacement Satellite, AfriStar-2
at 21” East and to Collocate it with AfriStar, SAT-LOA-20040413-00082 (S2624).
 See Letter from Thomas S. Tyez, Chief, Satellite Division, Federal Communications Commission, to
Brian Park, AfriSpace, Inc. June 16,2004.
  See AfriSpace, Inc. Application for Authority to Launch and Operate a Replacement Satellite, AfiiStar-2
at 21” East and to Collocate it with AfriStar, SAT-LOA-20040728-00150 (S2634).
7
  See Letter from Fern T. Jarmulnek, Deputy Chief, Satellite Division, Federal Communications
Commission, to Brian Park, AfiiSpace, Inc., March 4,2005.
8
  See AfiiSpace, Inc. Application for Authority to Launch and Operate a Replacement Satellite, AGiStar-2
at 21” East and to Collocate it with AfriStar-1. SAT-LOA-20050311-00061 (S2666) (“AJi-istar-2
Application”) .
    Id., at Exhibit A, p. 16.


           The AfriSpace application did not address the possibility, however, that the

Bureau might treat AfriStar-2 not only as a new satellite application but also as a NGSO-

like satellite application, and hence subject to the FCC’s modified processing round rules.

AfriSpace thus did not request any waiver of the NGSO-like application rules even

though its application clearly proposed to communicate with fixed and mobile radio

receivers that typically have omni-directional antennas,” a key characteristic of a NGSO-

like satellite system.”

           Public Notice of AfriSpace’s third application for AfriStar-2 was given on

March 18, 2005.12 The Notice advised that AfriSpace had filed its application as a

satellite replacement application but had included requests for waiver of the

Commission’s bond and milestone requirements as well as requests for waiver of certain

technical provisions of Part 25 of the Commission’s rules. The Notice did not address the

lo Id., at Exhibit B, p. 1 (“The system is designed to provide digital sound, multimedia, telematics and data
broadcast.. .to new types of mobile radios in cars, trucks and other vehicles.. .”).
11
  See 47 C.F.R. Q 25.157(a), which defines a “NGSO-like satellite system” as “(1) All NGSO satellite
systems, and (2) All GSO MSS satellite systems, in which the satellites are designed to communicate with
earth stations with omni-directional space antennas.” The rules defining NGSO-like systems were
published by the FCC in May 2003, a year before the initial AfiStar-2 application was docketed. Prior to
adoption of the AfriStar-2 Order, however, the Bureau had not applied the rules to BSS (sound) satellites.
     The modified processing round procedure established by Section 25.157 are as follow:
         “(c) Each NGSO-like satellite system application that is acceptable for filing will be reviewed to
determine whether it is a “competing application,” i.e., filed in response to a public notice initiating a
processing round, or a “lead application,” i e . , all other NGSO-like satellite system applications.
                  (1) Competing applications that are acceptable for filing will be placed on public notice
to provide interested parties an opportunity to file [responsive]pleadings.. .
                  (2) Lead applications that are acceptable for filing will be placed on public notice. This
public notice will initiate a processing round, establish a cut-off date for competing NGSO-like satellite
system applications, and provide interested parties an opportunity to file [responsive] pleadings.. .
         (d) After review of each of the applications in the processing round, and all the pleadings filed in
response to each application, the Commission will grant all the applications that meet the standards of
Section 25.156(a), and deny the other applications.”
12
   Public Notice, Policy Branch Information: Satellite Space Applications Accepted for Filing, Report No.
SAT-00279 (Mar. 18,2005). Although AfriSpace filed an application for a replacement satellite, the initial
file number designation of SAT-FWL-20050311-00061 was changed to SAT-LOA-20050311-00061,
“without prejudice to the determination of its replacement status.” See id.


                                                      5


status of the proposed satellite as a GSO or NGSO like satellite. Nor did the Notice

advise interested parties that the Bureau might waive the NGSO-like processing rules if

they were found to be applicable.

           C.       Ondas’ Petition to Deny

           On April 20, 2005, Ondas filed a “Petition to Deny” the AfiiStar-2 application on

two main        ground^.'^     First, Ondas pointed out that AfiiStar-2 could not lawfully be

considered a replacement satellite because, in contrast to AfriStar-1, the AfiiStar-2

downlink service contours were centered over Western Europe not Africa. Hence, Ondas

concluded that AfriSpace’s proposal “should be treated for what it is - a new application

to provide S-DAB [Satellite-Digital Audio Broadcasting (“S-DAB”)] service to

E~rope.”’~

           Second, Ondas stated that the AfriStar-2 application for use of the 1452-1492

MHz band would adversely impact the introduction of S-DAB in Europe because it

would both extend and expand the existing spectrum priority of AfriStar-1 under the

ITU’s Radio Regulations for another 12-15 years.I5 So long as AfriSpace is able to use


l3   Ondas Petition to Deny, filed April 20,2005. (the “Petition to Deny”).
l 4 Id., at p. 3. In 1992, when the International Telecommunications Union (ITU) initially adopted a global
allocation for the 1452-1492 MHz band, the service was formally identified as the BSS (sound), and the
spectrum was allocated on a co-primary basis with terrestrial Digital Audio Broadcasting (DAB). In 2003,
the Conference of European Postal and Telecommunication Administrations (“CEPT”) designated a 12.5
MHz portion of the ITU band, namely 1479.5-1492 MHz, for Satellite-DAB (S-DAB). See ECCDecision
of 17 October 2003 on the designation of the frequency band 1479.5 - 1492 MHz for use by Satellite
Digital Audio Broadcasting Systems (ECC/DEC/(03)02). In the United States, to avoid conflict with
aeronautical test telemetry services, the ITU allocated the 23 10-2360 MHz band for a similar BSS (sound)
service known as Digital Audio Radio Satellite (DARS) and the FCC later granted two DARS licenses of
12.5 MHz each for operation in the 2320-2345 MHz portion of the band. See e.g., American Mobile Radio
Corporation, Order and Authorization, 13 FCC Rcd 8809 (Int’l Bur 1997). In everyday language, both the
S-DAB and BSS (sound) services, as well as DARS, are all commonly referred to as satellite radio
services.
I 5 Under Articles 8 and 9 of the ITU Radio Regulations (RRS8 and S9), the first GSO satellite that is duly
registered to operate at a given orbital location and transmit over a given set of frequencies has superior
rights and any subsequent GSO satellites that wishes to operate on these frequencies must coordinate its
operations with the prior satellite. See e.g., ITU Radio Regulations, (Geneva, 1998) Articles S8.1, S8.3,


                                                        6


AfiiStar-2 to bootstrap its spectrum rights, any S-DAB system based on a NGSO-like

system, such as that proposed by Ondas, would be at a legal disadvantage even though its

system could provide superior services. In addition, AfnSpace proposed to operate

AfiiStar-2 at a central frequency of 1479.5 MHz, causing half of its downlink service to

traverse the lower portion of Europe’s S-DAB band.

         In view of these facts, Ondas urged the Bureau to reject AfriSpace’s application

because it would interfere with the development of Ondas’ S-DAB. Alternatively, Ondas

stated that it “would like the opportunity to submit its own application and make the case

why its technical approach is superior” l 6 to that of AfriSpace.

         On May 3, 2005, AfhSpace filed an “Opposition” to the Ondas Petition.

AfriSpace acknowledged that AfriStar-2’s coverage exceeded that of AfriStar-1.

However, Ahspace argued that its satellite was still entitled to be treated as a

replacement because no other parties had or could be licensed to provide BSS (sound) to

theses areas (Le., its application still deserved to be processed on a first come - first

served basis).

         D.          The Bureau’s Decision

         The Bureau approved the AfiiStar-2 satellite application on January 3, 2006. In

so doing, the Bureau first rejected AfriSpace’s request to treat AfriStar-2 as a

replacement satellite. The Bureau noted that AfriStar-2 has “a substantially different
 ~              ~           ~




S9.1, S9.3, and S9.6. In addition, under the Radio Regulations, the spectrum rights of NGSO satellites may
be secondary to GSO satellites. See Id. RRS22.2. Accordingly, the h t u r e ability of Ondas to operate a
GSO or NGSO BSS (sound) satellite system to serve Europe is critically dependent on the extent to which
AhSpace can use AfriStar-2 to extend the duration and scope of the priority the ITU accords AhStar-1.
That satellite was launched in 1998 and will begin to reach the end of its operation of life in 2008. (See
AfriStar-2 Application, Exhibit A, pp. 6-7.) In 1998, when AfiiStar-1 was launched, however, it was the
first GSO satellite to be duly registered by the ITU in the BSS (sound) band with satellite beams covering
Africa and portions of southern Europe.
l6 Petition   to Deny, at 4-5.


coverage area than of AfiiStar-1,” including ‘‘territory not accessible by AfriStar-1.” l7

Consequently, the Bureau said that it would “consider AfriSpace’s application as a

request for new authority.” l 8

            The Bureau then turned to the appropriate regime for approving a new BSS

(sound) application under the agency’s amended satellite licensing rules.’’ Under the

foregoing regime, the Bureau found that even though AhStar-2 would be placed in a

GSO, it would communicate with subscriber terminals (Le., terrestrial radios) that would

have little or no direction towards the satellite. Thus, AfriStar-2 must be considered a

non-GSO (NGSO) application that “would typically be considered in a modified

processing round              where competing applications are invited and considered

concurrent~y.~’~~

            Yet, rather than follow the logic of this analysis one step further -- namely, that

the AfkiStar-2 application could not be given further consideration without inviting

competing applications in a new processing round pursuant to Section 25.157 of the

Rules -- the Bureau arbitrarily dispensed with the NGSO-like satellite processing rules

and summarily granted AfiiSpace a license. The Bureau did so on its own motion:’

stating that AfriSpace was entitled to a waiver of the NGSO-like satellite processing rules

because it was not technically possible to authorize another BSS (sound) satellite in the


     Afi-Star-2 Order, 7 8.
’*Ibid.
l9 The Bureau noted that although the 2003 space station licensing reforms did not apply to DARS licenses,
AfriSpace was not seeking a license in the DARS band (i.e. 2320-2345 MHz) and hence was not excluded
from the new policy. Id., 1 9 , n. 33.
2o   Id., 7 11
2’ As noted earlier, AfiiSpace never asked for a waiver of the Commission’s NGSO-like processing rules.
AfiiSpace only requested a waiver of other FCC rules if the Bureau elected not to treat AfriStar-2 as a
replacement satellite.


                                                     8


L-band “without resulting in an unacceptable interference to the AfiiStar-1 network.””

By contrast, the Bureau reasoned that AfiiSpace could self-coordinate the operation of

AfiiStar-2 with AfriStar-1, and therefore “we can authorize the AfriStar-2 BSS (sound)

space station.”23The Bureau also asserted that the Commission had previously waived

the modified processing round procedures for NGSO-like systems applications “when, as

a practical matter, it would not be possible to authorize a competing NGSO-like system

with the same parameters. ..,924

11.         THE BUREAU’S WAIVER OF THE MODIFIED PROCESSING ROUND
            PROCEDURES FOR AFRISPACE’S NGSO-LIKE SATELLITE DID NOT
            COMPLY WITH THE FCC’S WELL ESTABLISHED WAIVER
            STANDARDS.

           A. The Bureau’s Finding That Circumstances Justified Waiver of
                the NGSO-like Processing Rules is Wrong and Unsupported by the
                Record.
            Section 1.3 permits the Commission (or the Bureau on delegated authority) to

grant a waiver of its rules “for good cause shown.”25 The courts have held that, under

Section 1.3, a waiver is appropriate if (1) special circumstances warrant a deviation from

the general rule, and ( 2 ) a deviation would not disserve the rule’s underlying purpose, and

would better serve the public interest than would strict enforcement.26 In applying these

criteria, the Commission must “explain why deviation better serves the public interest




22   Afi-iStar-2 Order, f 13.
23 Id., 7 14.
24 Id., 7 12, citing to Mobile Satellite Ventures Subsidialy LLC, Order and Authorization, 20 FCC Rcd 479
(Int’l Bur. 2005) (“‘MobileSatellite Ventures Order”).
*’47 C.F.R. 0 1.3.
26
 See generally WAITRadio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1960); Northeast Cellular Telephone
Co. v. FCC, 897 F.2d 1164,1166 (D.C. Cir. 1990).


                                                     9


and articulate the nature of the special         circumstance^.''^^   The Bureau did not meet those

standards here.

             First, the Bureau wrongly concluded that special circumstances warranted a

deviation from the modified processing round procedures because “we could not

authorize another BSS (sound) operator’s space station in the 1457-1492 MHz band ... at

the location of an AfriStar-1 receiver without resulting in unacceptable interference to the

AfriStar-1 network.”** This conclusion was not derived from any engineering showing

filed by AfriSpace but solely from the Bureau’s own “understanding of L-band space

station antenna designs, and the large geographic coverage area of Afi-iStar-1.7’29 In the

Bureau’s view, “it would be very difficult to design an L-band space station antenna that

would be able to serve an area visible from the orbital location of AfriStar-1 and

attenuate its emissions sufficiently within the combined service area of AfriStar-1 so as

not to cause unacceptable interference to the AfiiStar-1 BSS (sound) net~ork.”~’

             Ondas disagrees. In principle, as the Bureau recognized, it is certainly possible

(though difficult) for two or more BSS (sound) services to share spectrum in the same

orbital arc. However, in the current case, coordination can likely be achieved because the

2.6 MHz assigned to AfriStar-1 appears to be apportioned among three geographically

distinct beams, as shown in Exhibit A hereto @e., only a portion of Afi-iSpace’s assigned

spectrum is used in each beam).31 It should therefore be possible to design a BSS (sound)


27
     Northeast Cellular Telephone, 897 F.2d at 1166.
     AfriStar-2 Order, 113.
29   Ibid.
30 Ibid, n.   56.
31See also, the beam patterns in the AGi-Star-1 Application, File No. CSS-90-017; IBFS File Nos. SAT-
LOA-19900723-00002; SAT-AMD-19990125-00016, Attachment 2, pp. 19-20.


                                                       10


system that is optimized for Europe by reusing those frequencies currently used by

AfriStar-1 in geographically distinct (non-overlapping) beams centered on Africa.32

Possible beam configurations are discussed in Exhibit B., Para. 9.

            Second, AfiiStar-1 is only licensed to operate in 2.6 MHz of the 1452-1492 MHz

BSS (sound) band, and specifically, only for “service to A h c a and the Middle East.”33

This affords further opportunities for frequency reuse. Third, innovative satellite design

(e.g., shaped antenna beams with steep roll off beyond the designated coverage area),

frequency polarization and signal coding techniques all provide additional scope for

resolving a potential coordination issue.34 In view of the foregoing, the engineering

considerations underlying the Bureau’s decision are, at best, incomplete and do not

justify the Bureau’s conclusion that no other BSS (sound) satellite could coordinate with

AfriSta-1.

           In any case, the Bureau erred in prejudging the results of any future international

coordination process between a second (or third) L-band BSS (sound) satellite and

                    ~ ~ precedent on this subject is clear. In other satellite services, the FCC
A f i i S t ~ - l . The

has routinely granted competing satellite licenses, subject to international coordination,



32
  The Bureau’s engineering analysis, by comparison, does not appear to take into account the scope for
geographic reuse of the AfriStar-1 fiequencies and appears to regard the interference potential of the
AfriStar-1 service footprint to be uniform throughout the AfriStar-1 service area. For example, at n. 56 of
the AfiStar-2 Order, for coordination purposes, the Bureau focuses on the problem of attenuating the
emissions of a second BSS (sound) satellite within the combined service area of AfriStar-1 so as not to
cause unacceptable interference, but if the emissions of the second satellite are not co-channel, the problem
may be non-existent or greatly reduced. On the other hand, the single Europe-N. A h c a - S. Asia spot
beams authorized for AfiiStar-2 (See Afi-iStar Order, fl 16, n. 5 8 ) will greatly reduce the option for future
coordination of a European BSS (sound) satellite.
33
  See AfriS’ace, lnc., Order and Authorization, 15 FCC Rcd 1632, TI4 (Int’l Bur., Sat. and Rad. Div.
1999) (“‘Aj?iStar-IOrder”).
34   See Exhibit B, Paras 10-11.
35 See   e.g.,AfriStar-2 Order, 7 13, n.5 6.


without passing on the outcome of the process. 36 The precedent established by those

decisions plainly undercuts the grounds for the Bureau’s waiver here and shows that

potential international coordination issues need not have precluded initiation of a

processing round.

         Beyond that, as discussed in Section 111, prior to determining whether or not

another BSS (sound) satellite could be coordinated with AfriStar-1 - the penultimate

licensing issue regarding AfriStar-2 - the Bureau should have issued a new Public Notice

and invited comments. The March 18, 2005 Notice provided no indication whatsoever

that the Bureau would dispense with the standard processing round procedures if it did

not classify AfriStar-2 as a replacement satellite.

         B.       Assuming Arguendo That AfriStar-2 Presented A Special
                  Circumstance, The Bureau’s Waiver Decision Was Still Wrong
                  Because It Violated The Underlying Purpose Of The NGSO-Like
                  Processing Rules And Accordingly Did Not Serve The Public Interest.

         Even if the Bureau believed that no other BSS (sound) satellite could be

coordinated with AfriStar-1 in the L-band, a waiver was still unjustified because it

frustrated the competitive rationale underlying the NGSO-like satellite processing rules.

Other parties, such as Ondas, should have been provided an opportunity to file and obtain

grants for competing applications, subject to international coordination.




36 See e.g., KaStarCom World Satellite LLC, 16 FCC Rcd 14322, 14330 (Int’l. Bur. 2001) (Granting GSO
application in second Ka-band processing round “subject to the outcome of the international coordination
process” and noting that “the Commission is not responsible for the success or failure of the required
international coordination”). See also Loral SpaceCom C o p . 18 FCC Rcd 16374, 16879-16880 (2003)
(“The Commission has held that it is not necessary to complete international coordination before a satellite
system can be authorized to provide service in the United States.” [citations omitted]). The Bureau also
ignored the fact that the Commission previously authorized four NGSO systems in the Mobile Satellite
Service (MSS) to share spectrum using digital transmission protocols (i.e.,CDMA) and did not first seek to
resolve practical coordination issues in granting those authorizations. See Big LEO Order, 9 FCC Rcd
5936 (1994) modified on reconsideration, 11 FCC Rcd 12861 (1996).


                                                      12


           The FCC adopted modified processing round rules for NGSO-like satellite

systems rather than a first-come7 first-served framework because “it better promotes our

goal of trying to license as many satellite systems as possible, so that there is as much

competition as possible for each satellite                        The Commission stated that if it

were to adopt “a first-come, first-served procedure for NGSO-like satellite applications,

the first qualified applicant could request authority to operate in so much of the orbit-

spectrum resource that additional market entry would be p r e ~ l u d e d . ” ~Yet,
                                                                                ~ that is

essentially what the Bureau did here by granting the AfriStar-2 application. It processed

a new NGSO-like application under a first-come, first-served approach as a result of

which the opportunity for competing parties to use the relevant BSS (sound) spectrum

was truncated.

           As stated earlier, had the Bureau properly taken into account the pro-competitive

policies underlying NGSO-like processing rules, short of dismissal, it could have denied

AfriSpace operating authority for AhStar-2 in excess of that granted to AfriStar-1. That

is, the Bureau could have converted the AfriStar-2 application into a defacto replacement

application and then, consistent with Section 25.157 of the Rules, issued a public notice

inviting AfriSpace and any other interested party to file competitive applications for BSS

(sound) systems serving other geographic areas, subject to international coordination.

           Significantly, the Bureau does not even try to address this second, crucial public

interest prong of the FCC’s waiver standard. The AfriStur-2 Order is entirely silent on




’’First Space Station Licensing Reform Order, 18 FCC Rcd at 7122, supra, note 3 .
38   Id.


the public interest rationale for the waiver.39 It rests its case solely on engineering

grounds which, as noted, are flawed. As a result, the Bureau’s decision to grant a waiver

to AfriSpace was anti-competitive and contrary to the public interest.

           C.       The Sole-Precedent Cited By The Bureau To Support Its Waiver
                    Decision Is Inapposite.

           The Bureau contends that “[tlhe Commission has                 ... waived the modified
processing round procedures for NGSO-like system applications when, as a practical

matter, it would not be possible to authorize a competing NGSO-like system with the

same parameters ...,740 However, reference is made to a single Bureau decision -- not a

Commission order -- involving Mobile Satellite Ventures (MSV)?’ and that case is

readily distinguishable.

           Mobile Satellite Ventures involved an application by the incumbent L-band MSS

license to operate a new satellite on the same frequencies previously licensed to MSV but

for service to a new geographic area, South America. The Bureau granted the application

without inviting competing applications because it concluded that any other prospective

NGSO-like system seeking to serve South America would cause harmful interference to

MSV’s current system and FCC policy precludes licensing new systems that could cause

interference to a previously licensed U.S. system.

           Mobile SuteZlite Ventures is distinguishable in three important respects. First, in

that case, the applicant acknowledged that it was seeking authority for a new NGSO-like

system and expressly requested a waiver in its application. Thus, the public notice


39 For
     this reason, the Bureau’s waiver was also invalid because it was unexplained. See Northeast Cellular
Telephone,supra, 897 F.2d at 1166.
40 AfriStar-2   Order, 7 12.

41   Mobile Satellite Ventures Order, 20 FCC Rcd 479, supra, note 24.


                                                      14


regarding MSV’s application gave interested parties adequate notice that the NGSO-like

processing rules might be waived, as well as an opportunity to comment or file a

competing application in the event the waiver was not granted. Consequently, the FCC’s

Public Notice regarding MSV’s new satellite served essentially the same purpose as a

Public Notice initiating a processing round.        Here, by comparison, the AfriSpace

application did not seek a waiver of the NGSO-like processing rules; the Public Notice

did not mention the possibility that such a waiver might be granted by the Bureau; and at

the time, neither the Commission nor the Bureau had applied the FCC’s new 2003

satellite processing rules to BSS (sound) applications.

        Second, no opposition or competing applications were filed or proposed in

response to the MSV Public Notice. Again, by contrast, the AfiriStar-2 application Notice

elicited a Petition to Deny from Ondas. And that petition expressly opposed grant of the

AfriStar-2 application without the consideration of a competing application. Ondas also

requested the opportunity to file such an application if its Petition to Deny was rejected.

       Third, the engineering basis for granting the waiver in the Mobile Satellite

Ventures Order was presented at length by the applicant and available to all interested

parties for review. Again, by contrast, no engineering case for waiver of Section 25.1 57

was provided by AfiriSpace. Instead, the engineering grounds for waiver were crafted de

novo by the Bureau and there was no opportunity for interested parties to review the

evidence, much less comment on it. Rather, the whole matter was simply presented as a

fait accompli in the AfriStar-2 Order.

       Significantly, just a few months after adopting the Mobile Satellite Ventures

Order, the Bureau waived the NGSO-like processing rules in another case which



                                              15


involved an express waiver request by the applicant and clear public notice to interested

parties.42 In that case, the Bureau found that Space Imaging had persuasively shown that

special circumstances justified waiver of the NGSO-like processing rules to permit it to

receive data from a foreign licensed NGSO satellite in the Earth Exploration Satellite

Service (EESS) because the downlink to its Oklahoma earth station would not adversely

affect co-frequency NGSO-systems. The Bureau also noted that very few U.S. licensed

EESS NGSO systems operate in the relevant band.

             In these circumstances, the Bureau concluded that a waiver of Section 25.157 was

warranted insofar as grant of the Space Imaging application on a first come - first served

basis was not anti-competitive: “[Ilt will neither preclude future systems from using the

spectrum assigned to Space Imaging nor cause harmful interference to other operators in

the band.”43

             In granting this waiver, the Bureau stressed that, while it was willing to consider

waivers of the modified processing round rules from other NGSO-like applicants, “[als

with any waiver request, such applicants must show good cause for a waiver.7744“In

particular,” the Bureau continued,

             we would expect NGSO-like applicants requesting waivers of
             Section 25.156 and 25.157 to show, as did Space Imaging, that modified
             processing rounds are not necessary to preclude an ap licant from
             unreasonably restricting further entry in that frequency band.4 P




42   See Space Imaging Order, supra, note 3.
43   Id., 7 11.
44
     Id., T[ 13.
45 Id.


           AfiSpace plainly did not meet that standard. The Bureau’s decision to waive the

modified processing round rules for AfiiStar-2 was therefore arbitrary and capricious,

and must be vacated.

111.       THE     BUREAU’S            DECISION            TO
                                                  THE NGSO-LIKE   WAIVE
           PROCESSING ROUND PROCEDURES VIOLATED THE DUE PROCESS
           RIGHTS OF ONDAS AND OTHER INTERESTED PARTIES.

           The Bureau failed to provide Ondas (and other similarly situated parties) with

notice that it might waive Section 25.157(c) of the Rules or the potential grounds for such

a waiver. This precluded Ondas from having a meaningful opportunity to comment on or

challenge the Bureau’s proposed action. The lack of notice also discouraged Ondas from

timely filing a competing application, Yet, the practical result of the Bureau’s waiver

was to award AfriSpace a service footprint that is substantially greater than that of

Afi-iStar-1. In so doing, the Bureau effectively penalized other BSS (sound) providers,

including Ondas, that might wish to operate a competing service for Europe. The

Bureau’s decision therefore violated Ondas’ due process rights.46

           The D.C. Circuit has consistently held that the FCC cannot modify a rule or

policy to the detriment of interested parties without first giving those parties notice of the

proposed decision; to so would violate a party’s due process rights.47 Thus, when a court

reviews an agency’s decision to ensure due process, it “ask[s] whether, by reviewing the

regulations and other public statements issued by the agency, a regulated party acting in

good faith would be able to identify with ascertainable certainty, the standards with




46
   See Trinity Broadcasting of Flu., Inc. v. FCC 2 1 1 F.3d 61 8 (D.C. Cir. 2000); Satellite Broadcasting Co.
v. FCC, 824 F.2d 1 (D.C. Cir. 1987); Salzer v. FCC, 778 F.2d 869 (D.C. Cir. 1985).
47   Id.


                                                      17


which the agency expects parties to            onf form.''^^   While the FCC’s interpretation of its

rules are entitled to deference, if the agency “wishes to use that interpretation to cut off a

party’s [procedural] right, it must give full notice of its interpretati~n.”~~

            In applying the FCC’s new satellite licensing rules to AfriSpace’s application -

which raised issues of first impression for a BSS (sound) applicant -- the Bureau failed to

adhere to this fbndamental principal of administrative law. Neither the FCC or the

Bureau gave the public notice that it intended (a) to classifL the AfriStar-2 satellite

application as a NGSO-like application under the new 2003 satellite licensing rules and

then (b) to waive those rules based on engineering considerations never raised by the

a~plicant.~’
           Put another way, the Public Notice regarding the AfiiStar-2 application did

not permit Ondas or any other interested party to ascertain with certainty the standard

under which the Bureau was going to license AfriStar-2. Consequently, the Bureau’s

action did not comport with due process.




48   Trinity Broadcasting, 2 11 F.3d at 628.
49   Satellite Broadcasting, 824 F.2d at 4.
50 In fact, the Public Notice announcing acceptance of the AfriStar-2 application suggested that the Bureau
was not going to waive its modified processing round rules. That Public Notice detailed other waiver
requests, but did not mention any waiver of the modified processing round rules. Thus, the public could
reasonably conclude (as Ondas did) that the FCC was only contemplating the waivers expressly listed in
the Public Notice.


                                                      18


       IV.     CONCLUSION

       For all of the reasons stated herein, the Commission should vacate the AfriStar-2

Order. Alternatively, at a minimum, the Commission should narrow the authority granted

Afi-iSpace to that required to launch and operate a replacement satellite for Afi-iStar-1 and

initiate a modified processing round for any service to Europe or other areas beyond that

covered by the Commission’s original license for AfriStar-1.




                                                       Respectfully

                                                      J




                                                       Gregory C. Staple
                                                       Scott W. Woodworth
                                                       Vinson & Elkins L.L.P.
                                                       1455 Pennsylvania Ave, NW
                                                       Suite 600
                                                       Washington, DC 20004- 1008
                                                       (202) 639-6500


 February 2,2006                                        Counselfor Ondas Spain, SL


                                  ONDAS APPLICATION FOR REVIEW
                                                               EXHIBIT A




GEOGRAPHIC COVERAGE OF AFRISTAR-1
        SATELLITE BEAMS
Source: http://www.worldspace.com/coveragemaps/afristar.htmJ
                  (Visited February 1,2006)


    w orimpace international Satellite Kaaio IUetworK - Satellite KaalO coverage                                                                    Page 1 of 1




                                                I

                 Hear                               Satellite Radio Coverage
                                                    Africa - AfriStaP


                 Shop                                                                                            Each satellite has three beams,
                                                                                                                 East, West and South. Different
                 Activate                                                                                        programs are carried
                                                                                                                 depending on the beam you
                                                                                                                 receive. See the Program
               Satellite Radio Coverage                                                                          Guide for details of broadcasts
                > r-overage Map all areas
                                                                                                                 in your location.
                : Afrilitar
                     Africa                                                                                      Please note that AfriStar and
                     Europe                                                                                      AsiaStar overlap, you may
?                    Middle East                                                                                 need to view both maps for
                z AsiaStar                                                                                       details on your coverage
                   - Asia

                   - Middle East
                                                                                                                 View Antenna Pointing Guide
                ..Antenna Guide



                                                                                                                           Afristar Program Guide


t
                                                                     Worldwide Offices I France 1 Middle East I I n d i a
                                                       About Us 1 Affiliate Program 1 Investor Relations 1 Careers I Customer Care
                                                              Contact Us I Global Data Solutions 1 Horne I Privacy Policy
                                                                          'C:2004-2005 WorldSpace, Inc. All rights reserved.




1


i
t   http://www.worldspace.com/coveragemaps/afristar.html                                                                                              2/2/2006


                 ONDAS APPLICATION FOR REVIEW
                                     EXHIBIT B




AFFIDAVIT OF DANIEL F. DIFONZO


                       AFFIDAVIT OF DANIEL F. DIFONZO

        1.      My name is Daniel F. DiFonzo, and I am the founder and President of
Planar Communications Corporation, which provides technical, consulting, and planning
services for the communications industry, including the satellite sector. I have more than
forty years of experience as an engineer and consultant, most of which is in the satellite
industry. I have represented numerous companies before the FCC on satellite matters,
and I am familiar with the FCC's rules and regulations regarding satellite applications.

       2.      I received my BEE degree from Villanova University in 1962 and my MS
degree from California State University, Northridge in 1972. From 1969 to 1988, I was
employed by Comsat Laboratories, and prior to leaving Comsat was Vice President and
General Manager in Comsat's Systems Division. In that capacity I managed Comsat's
businesses in communications engineering, satellite systems engineering and integration,
turnkey earth stations systems integration, satellite procurement and construction
monitoring, software development, network design and training. During my career at
Comsat, I also served as Vice President and Assistant Director of Comsat Laboratories
and Senior Director of Corporate Development. At Comsat, I conceived and championed
the development of a unique Flat Array Antenna for Direct Broadcast Satellite reception,
which has been a successful commercial product in Japan.

         3.     I have authored or co-authored more than thirty publications and
conference presentations, authored four book chapters (including the chapter on Satellites
and Aerospace for the CRC Electrical Engineering Handbook), and taught courses in
satellite technologies and antennas. I am the inventor or co-inventor for six patents. I was
a member of the National Research Council Panel on Assessment of National Institute of
Standards & Technology Programs and was a member of the IEEE Committee on
Communications and Information Policy. I am a Senior Member of the A I M , and a Life
Member of the IEEE Communications Society and the Antennas and Propagation
Society, having served as Chairman of the Washington, DC AP-S Chapter during 1981-
1982.

       4.      In order to provide the technical information contained herein, I reviewed
the AfriStar-2 Order and Authorization (DA 06-4), the AfriStar-2 application and related
pleadings (SAT-LOA-20050311-00061), the AfriStar-1 Order and Authorization (DA
99-2849), and the AfriStar-1 application and related pleadings (SAT-LOA-19990125-
00016).




                                             1


         5.     The FCC’s International Bureau granted AfriSpace authority to launch and
operate AfriStar-1 at 21O E.L. in December 1999. The AfriStar-1 application and the FCC
AfriStar-1 authorization specify the satellite’s service area as Africa and the Middle
East.’ The AfriStar-1 satellite utilizes three overlapping 5.8” dual circularly polarized
(LHCP and RHCP) downlink spot beams centered on northwest Africa, east central
Africa and southern Africa.’ Parts of the northwest Africa beam spill into southern
Europe. The satellite operates in 2.6 MHz of spectrum centered at 1479.5 MHz. Each
beam has one TDM QPSK carrier on each polarization for a total of six carriers. Each
carrier is capable of carrying up to 96 “primary rate carriers” of 16 kbps each for a
maximum data rate of 1.536 Mbps. In order to avoid self-interference,the 2.6 MHz of
assigned spectrum is divided among the three beams. Thus, each beam uses
approximately 850 kHz out of the total of 2.6 MHz. The maximum EIRP per carrier is 53
dBW.

        6.      On January 3,2006, the FCC’s International Bureau authorized AfriSpace
to launch and operate the AfriStar-2 satellite. This satellite also has a dual circularly
polarized downlink service beam but, unlike AfriStar-1, its highest EIRP beam contours
are centered over Europe3.AfriStar-2 is authorized for 2.6 MHz bandwidth centered at
1479.5 MHz in each of two orthogonal circular polarizations and has 53.6 dBW downlink
EIRP per carrier to receivers with G/T of -1 9.9 dBK, typical of those used today for
satellite broadcast to moving vehicles.

         7.     In granting AfriSpace authority for AfriStar-2 the Bureau waived its
standard processing rules for NGSO-like systems. The Bureau did so because“[b]ased on
our understanding of L-band space station antenna designs, and given the large
geographic coverage area of AfriStar-1, we conclude that we could not authorize another
BSS (sound) operator’s space station in the 1457-1492 MHz band and above the horizon
at the location of an AfriStar-1 receiver without resulting unacceptable interference to the
AhStar-1 network. 56” In footnote 56 the Bureau stated that “ It would be very difficult
to design an L-band space station antenna that would have to be able to serve an area
visible from the orbital location of AfriStar-1 and attenuate its emissions sufficiently
within the combined service area of AfriStar-I so as not to cause unacceptable
interference to the AfriStar-1 BSS (sound) network.” The Bureau went on to state that it
wouId therefore “waive application of the modified processing round procedure in this
instance. Further, since AfriSpace can self-coordinate the operations of AfriStar-2 with
those of AfiiStar-I, we can authorize the AfriStar-2 BSS (sound) space station.. .,’

       8.     In my professional judgment, the Bureau was technically incorrect in
concluding a priori that it would not be practical to coordinate any other BSS (sound)

1
  See Amendment to AhStar-1 application, January 22, 1999 at 1-2; Afrispace, Inc., 15 FCC Rcd 1632
(1999) at paras 1 and 14.
’ I d . at Attachment 2, 18-19.
  For example, Figures 1 and 2 of Exhibit A in AfriSpace’s Application for AfiiStar-2, show AfiiStar-1
beams for northern and central Afiica. This may be compared with Figure 3, which shows that northern
Afiica coverage for AhStar-2 is at least 6 to 10 dB below that of Europe. AhStar-2 provides substantially
no coverage of central or southern Africa. It does, however, provide some coverage of the Middle East.


                                                   2


satellite than AfriStar-2 in the 1457-1492 MHz band, based on the operating parameters
of AfriStar-1. Hence, in my judgment, there was no valid engineering rationale for
waiving the modified processing round procedure for AfriStar-2 since, in principle, it is
possible to coordinate other BSS (sound) satellites with AfriStar-1. My conclusion is
based on the following reasoning.

        9.     First, as described earlier, AfriStar-1 is only authorized for 2.6MHz of
spectrum in the 1457-1492 MHz band. Further, given that the 2.6 MHz is divided among
the three beams, it should be possible for a European optimized BSS system to use the
same frequencies as the three AfriStar-1 beams through geographical separation. For
instance, a new European BSS (sound) system could use the frequency assigned to the
AfhStar-1 southern Afhca or central Africa beams. Likewise, it may be possible for a
new BSS (sound) system to put a spot beam over Eastern Europe using the frequency
assigned to the AfriStar-1 Northwest Africa beam without impacting service to the
African service area specified in the AfkiStar-1 FCC Order.

        10.     Second, modem broadcast satellites use, or contemplate the use of, large
spacecraft antennas that are capable of forming highly shaped beams with steep roll off to
reduce their radiation patterns beyond the designated coverage region. Certainly, Ondas
Spain (and presumably others) could be expected to use such antennas for shaped beams
with rapid roll off beyond the intended area. For example, shaped beams optimized for
Europe could have sufficient pattern falloff such that interference into AfriStar-1 ’s
African coverage areas could be below harmful levels. This would almost certainly be the
case for the AfriStar-1 southern Africa beam where even co-frequency use might be
possible. For service to areas near the fringes of both coverage areas, combinations of
frequency and polarization coordination might be used.

         1 1.   Third, AfriSpace uses both polarizations. As noted in Paragraph 10 above,
at least some of the potentially interfering signals would be on the opposite polarization,
thereby further mitigating harmful interference. For example, another system’s RHCP
transmissions targeted for Europe would be generally cross polarized with the LHCP
signals from AfriStar-1. Of course, off-axis cross polarization properties of antennas are
complex and require case-by-case investigation. The key point is that multiple
possibilities exist for interference mitigation and coordination by another entity should
not be ruled out in advance.

        12.     In summary, although the Bureau’s analysis led it to conclude that only
AfiiStar-2 would be able to coordinate withAfriStar-1, it is my judgment that the space
station antenna design and frequency constraints perceived by the Bureau need not be
preclusive. To the contrary, innovative satellite antennas, geographic frequency reuse,
polarization, and signal coding techniques should make it possible for a non-AfriSpace
BSS (sound) satellite system to provide service to Europe and to be successfully
coordinated with AfriStar-1 (or a legitimate “replacement satellite” for AfriStar-1).


      The foregoing statements in this affidavit are true and correct to the best of my
knowledge and belief.


                                                  Daniel F. DiFonzo
                                                  February 1,2006


                            CERTIFICATE OF SERVICE

        I, Scott Woodworth, hereby certify that on this 2nd day of February, 2006, copies
of the foregoing “Applicationfor Review” were sent via first-class mail, postage prepaid,
to the following:

*The Honorable Kevin Martin
Chairman, Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

*The Honorable Michael Copps
Commissioner, Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

*The Honorable Jonathan Adelstein
Commissioner, Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

*The Honorable Deborah Taylor Tate
Commissioner, Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

*Donald Abelson
Chief, International Bureau
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

*Cassandra Thomas
International Bureau
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

*Fern Jarmulnek
International Bureau
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554


*Gardner Foster
International Bureau
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

*Robert Nelson
International Bureau
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

*Jim Ball
International Bureau
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

*Sam Feder
General Counsel
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

*Emily Willeford
Office of Chairman Martin
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

*Jordan Goldstein
Office of Commissioner Copps
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

*Barry Ohlson
Office of Commissioner Adelstein
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554


*Aaron Goldberger
Office of Commissioner Tate
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

Tara K. Giunta
J. Stephen Rich
Paul Hasting, LLP
875 15th Street, NW
Washington, DC 20005
(Counsel to AfriSpace, Inc.)



                                    -
                                        Scott Woodworth



* Via Hand Delivery



538449-1   .DOC



Document Created: 2006-02-07 15:43:09
Document Modified: 2006-02-07 15:43:09

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