Attachment opposition

opposition

OPPOSITION submitted by AfriSpace

opposition

2006-02-17

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

IBFS_SATLOA2005031100061_484109

PaulHastings anomars i TeonM memaeteons aslHising: Jinaiy a Yatarue Higto te 51 T0 > esd te 5 1706 + enpatistogscon ::“’; (202) S51—1791 ts tarigintr@paulhastings.com fegies RECEIVED Tagm February17, 2006 see37.00002 lir‘es FEB 1 7 2006 OoreConn By HAND DELIVERY mokte Feden Comunatons Connison ;:fimm Offee o Secntay Sntme Marlene H. Dortch c Secretary tave Federal Communications Commission Pewelt 236 Massachusetts Avenue, N.E Sute 110 Washington, D.C. 20002 Re: Opposition ofAfiSpace, Inc. to Application for Review IBES File No. SATSOA—20050311—00061 Dear Madame Secretay: Teansmited herewith, on behalf of AfrSpace, Inc. ("AfriSpace‘), is an Opposition to Ondas Spain,SL‘s Application for Review. In the event that the Commission or it staff should have any questions concerning this filing, kindly refer them to the undersigned counsel for AfriSpace. Respectfully sul é// Tam K. Gibta of PAUL, HASTNGS, JANOFSicY & WALKER LLP Counsel for AfiSpace,Inc.

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 RECEIVED FEB 1 7 2006 redenl Conmicatot Comnimion ) Oftect Sn In the Matter of ) ) AfriSpace, Inc. ) ) Application for Authority to Launch and ) SAT—LOA—20050311—00061 Operate a Replacement Satelite, AfriStar—2, ) at 21° EL. and to Co—locate It with AfriStar—1 ) iinnnnrmeinnncccmmctoa To: The Commission OPPOSITION OF AFRISPACE, INC. TO APPLICATION FOR REVIEW AND REQUEST FOR EXPEDITED REVIEW Tara K. Giunta J. Steven Rich Paul, Hastings, Janofiky & Walker LLP 875 15th Street, NW Washington, DC 20005 (202) ss1—1700 Counsel for AftiSpace, Inc. February17, 2006

TABLE OF CONTENTS SUMMARY... L BACKGROUND . 1t THE COMMISSION SHOULD DISMISS ONDAS‘S REVIEW REQUEST FOR LACK OF STANDNG . A.—— Ondas Has Not Demonstrated Any Injury.. B. Ondas Did Not "Participate" in the Proceeding.... un THE BUREAU DID NOT VIOLATE ONDAS‘S DUE PROCESS RIGHTS. IV. THE TECHNICAL ARGUMENTS MADE BY ONDAS RELY ON FLAWED PREMISES AND ARE PROCEDURALLY DEFICIENT .. A.— The Bureau Correetly Found That Other BSS (Sound) Systems That Might Serve Europe Would Be Incompatible With AfriStar—1 B. The Technical "Solutions" Proposed by Ondas for Minimizing Interference Are Based on Flawed Assumptions and, as a Procedural Matter, Should Have Been Presented to the Expert Bureau for Review... THE BUREAU‘S WAIVER OF THE PROCESSING ROUND 1 FULLY CONSISTENT WITH ESTABLISHED PRECEDENT AND JUSTIFIED IN THIS CaSE A. The Burean‘s Decision Was Consistent With FCC Precedent and Policies B. The FCC Acted Within its Authority in Choosing to Waive the NGSO— Like Processing Round Procedures on Its Own Motion... vi CONCLUSION...

summMaRry On January 3, 2006, the International Bureau (the "Bureau") of the Federal Communications Commission (the "FCC" or "Commission") granted AfriSpace, Inc. (*AfriSpace") authority to launch and operate the AfriStar—2 satellite (the Afri8tar—2 Order®). Ondas Spain SL (*Ondas") filed an application for review (the "Review Request")asking the full Commission to reverse the Bureau‘s decision, which decision was consistent with applicable FCC precedent and policies. The Review Request lacks any credible basis to justify reversal of the AfriStar—2 Order, and is nothing more than a last—ditch attempt by a disgruntled would—be competitor to misuse the Commission‘s processes for potential financial gain. Ondas clearly lacks standing to request review by the Commission of the AfriSter—2 Order. Ondas has failed to show any direct and concrete impairment of its economic interests, and alleges only that it is "developing" a competing Broadcasting Satellite Service (Sound) ("BSS (Sound")) system to serve Europe. However, based on the record, Ondas has no satelltes, no services, and no customers. Such a speculative and hypothetical "injury" does not give Ondas standing as an entity that has been "aggrieved" by the AfriStar—2 Order. Moreover, Ondas failed to "participate" in the earlier stages ofthis proceeding as that term is defined by Commission precedent, and has failed to acknowledge—much less explain— its reasons for not doing so, as required by the Commission‘s rules. Specifically, Ondas filed a procedurally—deficient so—called "petition to deny" that the Bureau could only consider as an informal objection under applicable rules. Commission precedent establishes that an informal objection does not confer party status for purposes of filing an application for review. While Ondas claims that ts due process rights were violated., it fls to establish which, if any, ights were implicated by the Bureau‘s issuance ofthe 4f—iStar—2 Order.. Ondas has not filed an application with the FCC during the 15 years that AfriSpace has been in existence, nor i

has it provided any reason to believe that it intends to do so in the near future. While Ondas alleges that the Bureau‘s action "discowraged Ondas from timely filing a competing application," Ondas fails to explain why it did not do so in the past 15 years. Ondas fails to cite any cases that would grant it any due process rights. Ondas cites two cases relating to the due process rights of parties whose license applications were denied, but fails to explain how these cases are relevant to an entity that has filed no such application. Further, the cases that Ondas cites regarding lack ofnotice relate to instances in which the FCC deviated from ts published rules and procedures. There is no basis to argue here that the Bureau acted in a manner that was anything but consistent with prior decisions and established procedures and processes. Ondas argues that the system it purportedly plans to construct would be compatible with the AfriStar—1 system. However, the so—called "engineering affidavit" supplied by Ondas relies on flawed assumptions regarding the authorized bandwidth and geographic coverage area for AftiStar—1 and therefore cannot be considered reliable. Further, as a procedural matter, Ondas was required to present the questions of fact contained in its Review Request to the Bureau. Finally, Ondas contends that the Bureau‘s decision is inconsistent with prior precedent. However, the well—reasoned AfiStar—2 Order properly relied in part on the Bureau‘s prior MSY Order, which involved substantally identical factual and legal issues. Specifically, the Burcau waived the NGSO—like processing round where an applicant sought authority to operate on the same frequencies as the applicant‘s already—licensed satelite. The AfriStar—2 Order also is fully consistent with FCC policies, including the fundamental goal that underlay the Space Station Reform proceeding, ie., the expeditious grant ofsatellite applications in order to facilitate the efficient use of spectrum and prompily bring services tothe public. i

Before the FEDERAL COMMUNICATIONS COMMISsION Washington, D.C. 20554 ) In the Matter of ) ) AfriSpace, Inc. ) ) Application for Authority to Launch and ) sAT—LoA—20050311—00061 Operate a Replacement Satellite, AfriStar—2, ) at 21° E.L. and to Co—locate It with AfriStar—1 ) ratstnntmmiecncmaciononle OPPOSITION OF AFRISPACE, INC. TO APPLICATION FOR REVIEW REQUEST FOR EAX‘\IJ’II)ZDITED REVIEW AftiSpace, Inc. (*AfriSpace") hereby submits ts opposition to the Application for Review (the "Review Request") filed by Ondas Spain, SL (*Ondas")‘ of the decision by the International Bureau granting the above—referenced application for AfriStar—2.". As was the case in the so—called Petition to Deny (the "Petition")" filed by Ondas against issuance ofthe AfriStar— 2 license, the Review Request relies on tortured arguments predicated on misstated and misconstrued facts and is devoid ofany credible legal or regulatory basis to justify reversal ofthe AfriStar—2 Order. The Interational Bureau (the "Bureau‘") of e Federal Communications Commission ("FCC" or "Commission") properly authorized AfriSpace to launch and operate the AfriStar—2 satellite in a decision that was based on a solid legal and factual foundation, was fully supported by established precedent, and reflected informed, expert and sound judgment. AftiSpace therefore respectfully urges that the Commission deny the Review Request. ‘ Ondas ApplicatioforReview, 1B Fle No. SAT—LOA—20050311—00061 (Rled Febray 6,2006) " Afipace,Inc. Order and Authorizaion, DA 06—4, 2006 FCC LEXIS 10 (200)(he "Afritar—2 Order®) ? Pettionto Deny, 1B Fil No. SAT—LOA—20050311—00061 (iled April 18, 2005) (th "Pertion®).

AfriSpace respectfully requests that the Commission consider the issues raised in this proceeding on an expedited basis and dismiss the Review Request as soon as is reasonably practicable, and within a period ofno more than 45 days if at all possible. The Review Request is elearly nothing more than a delay tactic by a would—be competitor. A protracted dispute before the FCC could jeopardize AfriSpace‘s abilty to provide continued service to ts customers because the useful life ofthe AfriStar—1 satellte has been shortened due to a power degradation problem. AfriSpace cannot prepare the AfriStar—2 satellite for launch until the AfriStar—2 authorization is final. The delay caused by Ondas‘s specious Review Request will cause real and immediate economic injury to AfriSpace, unlike the purely hypothetical harm that Ondas claims it might one day suffer if the Commission upholds the Bureau‘s correct and well— reasoned decision in the friStar—2 Order. 1. BACKGROUND AfriSpace is a wholly—owned subsidiary of WorldSpace, Inc. ("WorldSpace‘), a Delaware company that began publicly trading itssecurities on NASDAQ in August 2005. WorldSpace is lrgely credited with launching the digitalsatllite radio industry when, in 1990, it filed an application with the FCC to construct, launch, and operate its AfriStar—1 satelite to provide broadcast satellte sound service (°BSS (Sound)") to Africa and the Middle East. When AfriSpace filed its initil application in 1990, there was no SDARS or BSS (Sound)industry. The Commission granted AfriSpace an experimental license under which it developed the technology for both the satellite and the radio receivers, developed a commercially achievable business plan, obtained financing, launched and started operating its satellte system, and began providing service. On December 17, 1999, the FCC granted AfriSpace a full ten—year license for AfriStar—1 at 21° EL

AfriStar has been fully coordinated for service throughout its service area, which includes not only the Middle East and Africa, but also portions of South Asia and Westem Europe. Therefore, on April 8, 2004, AfiSpace notified the FCC that it intended to provide service to all regions within the satellite‘s footprint.* On February 7, 2006, the TT registered the AFRIBSS satellte network in the MIFR. Under current ITU spectrum priority rules, AfriStar—1 has a period ofvalidity ofthinyyears, through October 2028." As a result, AfriStar—1 has priority for use of the relevant radio frequencies and the associated orbital position. On April 13, 2004, AfriSpace submitted an application (the "AfriStar—2 Application") to the FCC to launch and operate AfriStar—2 in the same frequency band as, and co—located with, AfriStar—1.5 As discussed in the AfriStar—2 Application, the useful ife of AfriStar—1 has been shortened due to a power degradation problem caused by a darkening of the cover glass of the solar arrays‘ cells. AfriSpace already has a constructed satellite in storage that it intends to launch and commence operations once the AfriStar—2 authorization is final. On April 21, 2004, the FCC submitted a request to the ITU for coordination with respect to AriStar—2. The AfriStar—2 Application was dismissed twice without prejudice to refiling due to two minor technical problems. The final application was filed on March 11, 2005. On April 18, 2005, Ondas submitted the Petition, in response to which AfriSpace filed an Opposition." Ondas " Leter rom Tara K. Giuna,counsel for AfriSpace, Inc, to Marlene H. Dorch, Seeretay, CC (April8,2004). * See MU—BR—IFIC 2562 (dated Fobruary7, 2006). Ondas‘s starement that the Afrtar—2application would "extend and expand th existingspectrum prioriy of AfriStr—1 ... for another 12—13 years,"Review Requesat6 has no basi in fctor law. Infist, Afra—2 has no bearingwhatsoever on AfiStr—1‘s 30.yearprio of valdiy. Separately, AfriSpace hs requestedand expectstoreceve,a 30year perid of valdity for AfiSar2. *AfiSpace,Inc. Applicationfor Authoriy to Launch and Operate a Replacement Satellte, AfStar2,at21° EL and to Colleate iwithAfrSter—1, File No. SAT—LOA—20050311—00061 (iled March 11, 2005 " Opposition of AfrSSpac,In. to Petton to Deny (Red May 3, 2005)(‘Oppositon"). Ondas id not srve the Pettionon AfrSpace or AfiSpace‘s counsel. Therefore, such filing was classifed bythe Commission as an informal objection. 47 CJR, § 25.151(b¥(). Nonetheess,as notedabove, AfriSpacesubmited a substanive, detiled Oppostion to th Pettion.

did notfile a reply or otherwise respond tothe Opposition, and the ECC issued the AfriStar—2 Hicense on January 3, 2006. In accordance with its satellite licensing procedures and established precedent, the Bureau treated the AfriStar—2 application as a non—GSO—like system, waived the processing round, and granted the license. The Bureau also waived the bond requirement, but required that AfriSpace bring AfriStar—2 into operation before it decommissions AfriStar—1. The Applicant here, Ondas Spain SL, has not provided any information as to ts ownership, officers, or directors, or any other substantive information as to its bonafides other than a footote indicating that it is planning to develop a European BSS (Sound) system. We have not been able to identify any publicly—available information conceming Ondas Spain SL, but have located a website ofa company called Ondas Media, which indicates that Ondas Media was formed in Madrid, Spain in 2004 — a year prior to the date of Ondas‘s Petition (which, as we note, was submitted by Ondas Spain SL). While one mightinferthat Ondas Spain is related to Ondas Media since the President of Ondas Media, Celso Azevedo, is the individual who signed the Petition on behal of Ondas Spain SL, Ondas provides no information to link itself to Ondas Media. It is therefore not clear what relationship,if any, exists between the two entities. Thus, Ondas may or may not be the same company that purportedly plans to offer BSS (Sound) service in Europe. The Review Request states that Delphi Corp. made a "significant strategic investment" ofan undisclosed amount in "Ondas."" Ondas Media‘s website indicates that Delphi is an investor, so perhaps this is the entity in which Delphi invested? Delphi filed for bankruptey protection in October 2005." * Review Requestat 1, . 1. **Delphi Corporation,"/w delphideckatcomdelai (astvisted Feb12, 2006)

It. THE COMMISSION SHOULD DISMISS ONDAS‘S REVIEW REQUEST FOR LACK OF STANDING Ondas lacks standing before the Commission to file an application for review contesting the AfriStar—2 Order. The Commission should therefore decline to consider Ondas‘s Review Request A«— Ondas Has Not Demonstrated Any Injury Under the Commission‘s rules, "[aJay person aggrieved by any action taken pursuant to delegated authority may file an application requesting review ofthat action by the Commission.""° The FCC has interpreted the term "aggrieved" to require applicants to prove "a direct and concrete impairment of [the applicants‘] economic interest(s] . .. resulting from the grant." In PandmSat, International Relay, Inc. (IRI®)had filed an application for review of a waiver granted to PanAmSat that allowed PanAmSat to begin construction of ts satellit, TRa "potential" competitor, made allegations concerning "competitive injury" that it would allegediy suffer as a result ofthe FCC‘s action."" The Commission determined that IRI‘s allegations concerning potential competitive harm were "speculative and unsupported by evidence."" Based on IRI‘s failure to show "a direct and concrete impairment of ts economic interest in both the earth station and space segments resulting from the grant," the Commission denied TRI‘s claim that it had been "aggrieved" and held that TR lacked standing."" ©47 CFR $ 1.1180) (emphasisadded) " in The Mater OfPan American SatellteCorporation, 60 Rad. Reg. 2(P & F) 398 (May 21, 1986) ((PanamSat); see alsoeg., Applications OfWDNY,Inc. (ssignor)and WGUL—FM Inc, (Assignec), 14 ECC Rea. 2052 (1999) "* PandniSa t 6,50—52. P udse "1

Here, Ondas has not identified any tangible economic interest that would or could be directly and concretely impaired by the grant ofthe AfriStar—2 Application. Ondas has not alleged that it has any satellites or infrastructure, thatit offers any services, that it has an application on file with the FCC, or thatit has any customers. In fact, Ondas makes onlya passing reference to working with the Spanish government to license a HEO system to provide service to Europe without providing any substantive information validating this claim. Clearly, Ondas currently not a competitor or even an imminently prospective competitor of AfriSpace. Even if it were a competitr, as directly addressed by the Commission in PandmSat, that role by itself does not demonstrate a "direct and concrete impairment of an economic interest.""" B. Ondas Did Not "Participate® in the Proceeding Unider the Commission‘s rules, "{aJny person filing an application for review who has not previously participated in the proceeding shall include with his application a statement... showing why it was not possible for him to participate in the earlier stages ofthe proceeding.""* In order to have "participated in the proceeding," the person must have filed a "valid petition to deny against the person whose grant the petitoner now seeks to have reconsidered.""" The Petition was not a valid petition to deny.. First,the Petition failed to meetthe requirement thatthe Petition be served on AfriSpace and its counsel,as required by Sections 1.47 and 25.154(@)(3)ofthe Commission‘s rules,"" which deficiency was noted in AfriSpace‘s ® See PardniSar $ 52 !*47 CE R§ 1.113@. Ondas does no acknowlede, much less explainis filretoparticipate, ©" Applications of Vodafane AirTouch, plc and Bel AlantiCorporaton, Memorandum Opivionand Orde, 20 FCC Red 6439,¥91G—17 (2008) (‘Vodafone") (dismissing applcation for review ofTimethy E. Welchon thaltemative grounds hat hispro se pleading uled to meetthepleadingrequirementsforpettion o deny). "arcr® s 17 2s1900)

Opposition."" Second, Ondas failed to "allege facts sufficient to demonstrate" that grant of the AfriStar—2 application would eause Ondas injury, or that te injury would be prevented or redressed by denying the AfriStar—2 application."" Ondas alleged no facts whatsoever, but made only an unsupported claim that "Commission grant ofthe Afrispace [sic] application may have a devastating impact on Ondas {and] (t}he net effect of an FCC decision granting the Afristar—2 [sic] application could be to preclude implementation of the Ondas system.""" Further, Ondas did not present any arguments—much lessfaets—to show how the grant of the AfriStar—2 license would cause Ondas any injury, since the Petition gnored the question ofwhether Ondas could successfully coordinate with AfriStar—1. Unless Ondas could do so, there would be no way for Ondas to obtain its own FCC license, and no injury could result rom the AffiStar—2 Order. Third, Ondas failed to include a certificate of service with the Petition, as required by Section 25.154(@)(5) of the Commission‘s rules."" The Commission‘s rules plainly state that any pleading not filed in accordance with the procedural requirements will be classified as an informal objection,"" and the Bureau evidently treated the Petition as such. Commission precedent clearly establishes that an informal objection cannot be considered a valid petition to deny for purposes ofestablishing standing in later stages of a proceeding."" Therefore, Ondas did not "participate" in this proceeding and has no standing to request review now. " oppositon at2, m. 1 " See Vodafone Order§ 17 (ntermal ciations omited, emphasis added) * Pertionat4 (emphasis added) " se 7 CBR 55 25.154@00) P arorn 52s 1540). "" See,eg, Uniersiy ofNorthCarolina, Memorandim Opinion and Order. 4 FCC Red 2780 (1989)(dimissing peitin for reconsidertion file by groupsthat had Aied only an informalobjection)

111. THE BUREAU DID NOT VIOLATE ONDAS‘S DUE PROCESS RIGHTS Ondas contends that the Bureau failed to give Ondas adequate notice that it might waive Section 25.157(c)ofthe Commission‘s rules, and that this lack of notice violated Ondas‘s due process rights because it "precluded Ondas from having a meaningful opportunity to comment on or challenge the Bureau‘s proposed action ... [and] also discouraged Ondas from timely filing a competing application: """ This argument cannot be taken seriously. As an initil matter, Ondas fails to identify exactly which of its due process rights were violated. Ondas cites two cases relating to due process, but they involve appeals of denial of Hicense and renewal applications, not challenges thereto by third parties. In this case, there is no Ondas application atall—Ondas alleges only that the grant "iscouraged Ondas from timely filing a competing application.""" Further, nothing in the Review Request (or in the Petition, for that matter) suggests that Ondas has any real intention of seeking an authorization from the FCC However, even if Ondas intended to file with the Commission,it has not, in fact, done so despite the fact that AfriSpace has been in existence for over 15 years. Moreover,in its Petition and on the Ondas Media website, Ondas continues to tout the alleged superiority of its HEO system that it ostensibly intends to license in Spain. Even if Ondas did intend to submit an application with the Commission, intentions do not rise to the level of cognizable interests or establish due process rights. In any event, the Commission has always discouraged *frivolous or speculative" applications, and Ondas provides no evidence thatits hypothetical application would have been " Review Requestat 17. * IfOndas camot mustr the enthusism necessary to imely file an application, ts dificul t imagine how Ondas will mustersuffcient enthusiasm,letaloneresource, t buld an ntemationalsatelite network and develop advanced telecommunications services

anything other than frivolous or speculative."" Further, Ondas had a "meaningful opportunity"to comment on the AfriStar—2 application even though it chose to squander that opportunity by fling a procedurally—defective so—called "petiion to deny"full of factual misstatements and tortured legal arguments, and also has had multiple opportunities to submit an application to the FCC had it traly desired to do so. For example, if Ondas trily believed thatit could offer a BSS (Sound) service in Burope that would be compatible with AfriStar—1, it could have filed such an application before AfriSpace first submitted the AfriStar—2 appliation in April 2004. In its Review Request, Ondas attempts to relyon the fact that the AfriStar—2 application was dismissed twice for minor deficiencies without prejudice to refiling. However, their lack of action at the time ofthose dismissals belies their ate—announced urgeney. Where was Ondas‘s urgency when the first and second AfriStar—2 applications were dismissed due to minor technical errors in June 2004 and March 2005, respectively? Why didn‘t Ondas file an application at one of those times? The stunning question is: why did Ondas wait afill year after the AfriStar—2 Applieation was fit filed before making any filing tothe Commission? Tellingly, that filing was not an application, but a procedurally—defective and baseless so—called "petiion to deny." The fact pattem described above, Ondas‘s specious Petition, and baseless Review Request,all underscore the fact that Ondas has no real interestin obtaining an FCC license and is merely trying to manipulate the Commission‘s procedures toits own advantage. In light of Ondas‘s failure to demonstrate any bonafide intention to file an application with the FCC, it is only logical to assume that the Review Request was filed for the purpose of delay or extracting a "" See,eg, Amendenofthe Conmission‘s Space Staton Licemsing Rules nd PoliesTB Docket No. 02.34, Frs Reporand Order18 FCC Red 10760 (*Frst Space Sution Reform Order®)at 226.

profit from settlement."" As such, the Commission should sanction Ondas for abuse of process. Ondas‘s arguments concerning lack of notice are equally specious. The cases cited by Ondas involved cases where the FCC had deviated from its published rules and policies. Here, on the other hand (and as described further below), it would be absurd to argue that the Bureau had acted in a manner that was anything but consistent with prior decisions. In fact, the Bureau had elected not to apply the NGSO—like processing round procedures when they would otherwise at least arguably apply on several other occasions prior to the AfriStar—2 Order."" Iv. THE TECHNICAL ARGUMENTS MADE BY ONDAS RELY ON FLAWED PREMISES AND ARE PROCEDURALLY DEFICIENT A.— The Bureau Correeily Found That Other BSS (Sound) Systems That Might Serve Europe Would Be Incompatible With AfriStar—1 Ondas spills a great deal of ink asserting, but not substantiating, that the Bureau erred in the AfriStar—2 Order when it found that no other BSS (Sound) system could provide service to Wester Europe without causing interference to AfriStar—1 and that circumstances therefore Justified a waiver of the Bureau‘s NGSO—like processing rule."" Ondas further contends that it would be possible for two or more BSS (Sound) systems to share spectrum in the same orbital are. As shown below, this argument rests on flaswed technical premises and should be disregarded in favor ofthe expert analysis ofthe Bureau. * See Leter to Keth E. Lamonica, Exg, 2006 WL 305864 (Feb.9, 2006)(*The Commission‘ abuse ofprocess policesaredesigned to preventth fln ofnon—bonafidepleadings or applcationsfor purposes of delay or extactnga profi from serlement") "" See, e , Mobile Satelte Venture Subsidlary LLC, Order nd Authorization, 20 ECC Red 479 (2008) CMSV Order‘);Locheed Martin Corporaton, Order and Auborization, 20 FCC Red 11023 (2005)(Lockheed Marin Orde‘). Not that nether ofthePublc Notics reling o these applicaions mentined the fct thatth applcants sought walver ofhe NGSO—lkeprocesinground rules, and htin any event, Ondas presents no leglbsis for ts apparentassumption thatall waiverequests mustbeinclude in a public notice " Review Requestat 9. 10

The Bureau correctly found that it would be impossible to authorize any separate BSS (Sound) satellite (GSO or HEO) in Europe due tointerference with systems previously licensed by the FCC, i. AfriStar—1. Significantly, the HEO system purportedly planned by Ondas®" would ereate even more interference problems than would most other systems. There are at least two insurmountable problems with such a system from an FCC perspective."" First, it is highly unlikely that Ondas‘s proposed BSS (Sound) system could avoid causing harmful interference to Mobile Aeronautical Telemetry Service (°MATS") in the United States. MATS is ofvital importance to homeland security, defense, and civil aviation, as this service is used for the flight testing of aircraft, missiles, and major components thereof._ As the Bureau is aware, tissue of MATS interference is the reason why AfriStar—1 is now located at 21° E.L. rather than ts originally—proposed orbital location at 12° W.L. At the original orbital location, AfriStar—1 could not avoid MATS interference problems even though it was to operate as a GSO system that had no intended coverage at all of North America. The sidelobes ofa BSS (Sound) satellite,ata location in space that is visible to U.S. MATS test sites, yet which serves territories farremoved from the United States, such as Europe, will stll cause harmful interference to U.S. MATS operations. The high altitude and northerly latitude ofa HEO orbit apogee means that a HEO satellite providing high elevation BSS (Sound) service over Europe "" See Pettionat ; see also"Technology & Systems Overview," hitp: wwondasmedia com technologys overview hm (last visted Feb. 8, 2006) "" AfriSpace frthr notes that unde th rulesofthe Intemational Telecommunications Union (*TTV®), any non— qcostationary satellte in th 1452—1492 MLHe band opertesefectvely on a secondary bass v—i—vis postationry sateftesregardlessofthe relatve dateson which the stelitesareauthorized. See ntematioal "Telecommunications Union Radio Regulations §22.2 (2001). While the Commisiondoes mt prejudasthe resuts ofintemationl eoordination, it has thdaty t act in the public intres. Consequentl, AfriSpacerespctfily requessthatthe Commisiontake noticof the likelood that thesystem proposed by Ondas could be dislacedat any time by an operator ofan exiting orfitre eosttionary stelit. On the otherhand,theAfrSta—1stelitis fully coortintedanis lready providingservice,and the AfrSta—2satelite would have prioiy oveany ter Hiled geostionary satlites—and overall non—peostionary satlites, whether later—fled or not. 11

would be visible to the US MATS testsites, and would cause harmful interference to MATS operations by virtue ofthe sidelobes ofthe satellite antenna radiating unwanted energy toward these sites in a dynamic manner, by *sweeping" over these US MATS test sites three times a day." The other insurmountable problem that would prevent the FCC from licensing the system by which Ondas allegedly plans to provide BSS (Sound) over Europe (whether GSO or HEO) is that such a system would not be able to avoid interference to AfriStar—1. Ondas clearly understands this, which is why its Review Request focuses more on AfriStar—1 than AfriStar—2 — the subject of the grant. As noted above, AfriStar—1 occupies that portion ofthe L—Band allocated for BSS (Sound) globally and provides service throughout Africa,the Middle East, and most of Westerm Europe. This would make even a GSO system with European coverage highly problematic from an interference perspective, let alone a HEO system B. The Technical "Solutions" Proposed by Ondas for Minimizing Interference Are Based on Flawed Assumptions and, as a Procedural Matter, Should Have Been Presented to the Expert Bureau for Review Ondas alleges that various technical solutions could be used to allow another BSS (Sound) licensee to serve Westem Europe. As discussed above, this argument relies on Ondas‘s erroncous and misleading assumptions. Ondas attaches a so—called "affidavit" that purportedly supports itsarguments."" Under even the most charitable reading ofthe "affidavit," however, it is clear that the engineer retained by Ondas made no more than a cursory review ofthe AfriStar— 1 application. In fact, t is not clear that he bothered to read the AfriStar—1 application or the " See Recommendation ITU—R M.1459 (addresing shoring between GSO BSG and MSS systems visvis MATS aperations) * Review Requestat 11 (uoting LStar—" Orderat ¥14) (emphasis added). AfriSpace notefr threcord thatthe *afidaitis not anaffdavia all butinsteais an unswomn statement. Nor doostheso—clled"afidavit" conform 10 the Commission‘srequirements concerning unswom declantions. See 47 CR § 1.16. 12

AfriStar—1 Order atall." For example, Mr. DiFonzo states that "AfriStar—1 is only authorized for 2.6 MHof spectrum in the 1457—1492 MHz band."" In fact,the AfriStar—1 Order authorizes AfriSpace to operate AfriStar—1 in the /452—7492 MHz frequency band,"" and the AfriStar—1 Order does not limit AftiStar—1 to a particular band segment or a specific amount of bandwidth. Not onlis Ondas simply wrong in its assertion regarding AfriStar—1‘s authorized frequencies, but Ondas‘s weak attempt toinfer a limitation to AfriStar—1‘s coverage area to serve "only" Africa and the Middle Eastissimilarly flawed. While the AfriStar—) Order authorizes AfriSpace to provide service to Africa and the Middle East, nowhere does this order indicate that AffiSpace is "only"authorized to provide services tothese areas. Rather, the AfriStar—/ Order plainly states that AfriSpace is authorized to operate AfriStar—1 "in accordance with technical specifications set forth in ts application and consistent with our rules.""" Both the AfiStar—1 application and the ITU fling that covers the operation of the AfriStar—1 satelit indicate service contours that cover much of Westem Europe,including —8 dB contours over all of Spain, Portugal, laly, France, and Switzerland, and parts of other counties."" As AfriSpace has previously noted. AfriStar—1 actually provides service throughout its—8 dB coverage area and beyond due to the greater—than—expected sensitivity of the AfriSpace receivers."" AfriStar—1 has been fully eoordinated for service throughout is service region, which includes not only the Middle East and Africa, but also portions of South Asia and Western Europe. Consistent with the DISCO / Report and Order, AfriSpace is authorized to serve any * AfrSpace,Inc. Order andAutorizaton, 15 ECC Red 1632 (1999)(4iStar—1 Order") * Am i oDanielF.Difonzo,atached to Application for Review as ExhbitB,at 3. " AfiStar—1 Order " AfiSiar—1 Orderat 314 * Review Requestat . * Afristan2 Applicaion, Exhibit A,at 4. 13

market within AfriStar—1‘s footprint, provided thatthe international obligations ofthe United States to coordinate the spacecraft are satisfied."" Further, on April 8, 2004, AfriSpace notified the FCC thatit intended to provide service accordingly.*" The assertion that the AfriStar—1 authorization includes "only" Africa and the Middle Easti therefore specious at best,if not deliberately misleading. Given that the purported "engineering analysis" submitted by Ondas relies on fawed premises concemning both the bandwidth and geographic coverage area for which AfriStar—1 is authorized, the Commission should disregard this "analysis."Instead, the Commission should rely on the expertise and experience ofthe Bureau. The Bureau fully considered the engineering data for both AfriStar—1 and AfiStar—2, and correctly concluded that no further BSS (Sound) systems could be authorized over Burope in the 1452—1492 MHz band without causing harmful interference to AfriStar—1 Ondas‘s technical arguments ignore the key technical point: because AfriStar—1 blankets its coverage area in its stipulated frequency bands, Ondas cannot coordinate a BSS (Sound) system to provide service in Europe. While AfriStar—2 may extend the coverage area, Ondas still is unable to coordinate any such European system with AfriStar—1. Moreover, as a procedural matter, Ondas‘s technical arguments rely on questions of fact that should have been presented to the Bureau if Ondas truly believed that they had any technical merit. Section 1.115(c)ofthe Commission‘s rules clearly states that "nJo application for review © See Amendimentto the Commission‘s Regulatory Policies Governing DomestiFived Sateltes nd Separete Inmernational Satelite Systens, B Docket No.95—41, 11 FCC Red 2429 (1996) © Letterfrom Tara K. Giznt, counse forAfriSpace,Inc. to Marlene . Dortch, Secetary, FCC (Apri8, 2004) (sating thatAfriSar—1 had been fully coordinatedfosrvice hroughout ts srviceregion ... whichincludes not only the Middle Easand Afrs, butalso porions ofSouth Asi and Westem Ewrope"). Note that the operations of AfriS@r—1 comply withthdecisions ofthe European Conference of Postland Telecommunications Admiisations (°CEPTY)governing Satelitand Terestial Digial Audio Broadeastng servics. 14

will be granted if it relies on questions offact olaw upon which the designated authority has been afforded no opportunity to pass."*" w0 This is consistent with the Commission‘s traditional reliance upon the expertise and experience ofthe Bureaus with respect to technical and other matters thatlie within their purview."" Ondas did not present any of ts technical "solutions" to the Bureau, and its entire Review Request relies on the efficacy ofsuch solutions. If Ondas cannot coordinate with AfriStar——as the Bureau properly concluded—then it cannot even demonstrate a potential, hypothetical injury as a result ofthe AfiStar—2 Order. v. THE BUREAU‘S WAIVER OF THE PROCESSING ROUND IS FULLY CONSISTENT WITH ESTABLISHED PRECEDENT AND JUSTIFIED IN THIS CaSE A. The Bureau‘s Decision Was Consistent With FCC Precedent and Policies Ondas argues that the Bureau‘s decision was "unsupported by prior precedent" and that it "was at odds with the central purpose ofthe NGSO—like processing rules.""" As shown below, the Bureau acted in a way that was not only consistent with applicable precedent, but was also in full accordance with the policies underlying the Space Starion Reform proceeding. in 2002, the Commission commenced the Space Station Reform proceeding with the primary purpose ofstreamlining and expediting its procedures for licensing satellite systems, which the Commission observed had typically resulted in long delays in censing new satellite ®arcrr 130. **See, eg Inplementation OfSetions 3090 And 337 Of The Communications dt Of1934 4s Amended,1S ECC Red 22709 (2000) C{Wie deferto the Burea‘sexperise and experiencein makingsuch determinations"); Applications ofAgape Broadcasing Foundation,Inc, 2 FCC Red $191(1987) (TW}ebeleve thatthis no—outine engineering matter should be procesed bythe Media Bureau, upon whose techncalexpertis he Commisson elies in mattersofthis nature") Applications ofDigal PagingSitems Ofhiladelpha, Inc, 2 FCC Red 7226 (1987) (referring to "theBureau, the Commission‘s designated experts on technical mattes") ® Applicaton ai. is

systems."* In so doing, the Commission sought to avoid the type of delays encountered under the prior processing round procedure, which had imposed "economic costs on society.""" The Commission determined that "good spectrum policy demands completion oflcensing as rapidly as possible,in order to expedite the use of scarce spectrum resources by licensees or the reassignment ofspectrum returned to or reclaimed by the Commission."*" Finally, the ‘Commission reiterated its commitment to "improving its procedures whenever possible to further the public interest."" In the First Space Station Reform Order, the Commission adopted a two—tiered process for liensing satellites. It adopted a "first—come, first—served" processing for "GSO—like" satellite systems and a processing round procedure for non—GSO—like satellite systems. Non—GSO—like satelltes include "GSO satellites communicating with earth stations with omni—directional antennas.""" The First Space Station Reform Order did not alter the Commission‘s established policy that "(wJhen the Commission receives NGSO—ike applications that seek to use the same frequencies for which that applicant is already licensed, it processes that request immediately without instituting a modified processing round.""" The Commission concluded that these "* Amentmentofe Commission‘s Space Station Licensing es and Policis, Noice ofPrposed Rulemaking, 1B Docket No. 02:34, 17 FCC Red 3847, 411 (2002)(‘Space Suation Reform NPRNMY " e w n1 "11 "1 " First Space Saion Reform Order atN21. For purposes of t censingprocedurs, the Commission defied "GSO—like" as °OO satelites communictingwth earth sutions wth non—omni—directona antennas." /4 or 448 °* AGSH Order t 18 (citng EarthMatch nc Order and Authorization, 12 ECC Red 21637 (1997)(*RarhWatch Order‘). 16

procedures would allow it to act much more quickly on satellite applications than it had been able to do under the previous procedures." In the AfriStar—2 Order, the Bureau relied in part on its earier MSY Order, in which it had authorized MSV to launch and operate an L—band Mobile Satellte Service (°MSS") satellite, MSV—2, that would provide service within South America and between South America and the United States:" MSV‘s request did not include a license to use any additional frequencies, but was limited to the same frequencies on which its existing satellite—AMSC—1—was licensed."" The Bureau found that "als a practical matter, any NGSO—like satelite serving South America in the bands licensed to AMSC—1 is likely to cause harmful interference to AMSC—1‘s North American operations."" In support of this finding, the Bureau explained that"the large North American and South American coverage areas are in close proximity to each other and, indeed, are likely to overlap. Thus, geographic separation is not sufficient tolimit co—frequency interference between multiple NGSO—like systems serving each of these areas.""° Ondas also contends that the MSV Order is inapposite, by which it apparently means "distinguishable." However, Ondas apparently considers any two orders involving different parties and even trivial differences in facts—but identical lgal principles—"distinguishable.". n so doing, Ondas focuses on three immaterial differences between the two decisions: (1) "the public notice 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 o file a * The Commission also notedthat"we expectthat thefrstcome,fistserved procedure willbe ister than the modified procesinground we adopt in this order above." rst Space Staton Rgorm Order t 74. ® ASY Order, supranote 29. °* ASY Order at$8,AfiSar2 Applcation, ExhbitA,at 7 * MV Order 18 *1 17

competing application in the event the waiver was not granted," and MSV had expressly requested a waiver ofthe NGSO—like processing round procedures so that other parties had an opportunity to object; (2) no other parties did. in fact object; and (3) MSV had included an engineeting analysis in support of its request to waive the NGSO—like processing round rules."" As with the other arguments raised in the Review Request, these arguments sink to the level of smoke and mirrors and nothing more. First, Ondas flatly misstates the Public Notice in the MSV case. That public notice made no mention of MSV‘s request for a waiver ofthe processing round procedures, but only stated that the appliation had been accepted forfling and listed some of the orher waiver requests made by MSV."" Moreover, the fact that MSV affirmatively requested a waiver, while the Bureau chose to grant a waiver sua sponte in the AfriStar—2 Order makes no difference from a legal standpoint since the FCC‘s waiver standards are identical whether an applicant requests a waiver or the FCC grants a waiver on its own motion.® Second, the fact that no party fled an objection to the MSV application is irrelevant since there is no reason to believe that had someone in the MSV proceeding filed a specious objection such as the one filed by Ondas in this proceeding then the Commission would have reached a different resultin the MSF Order. ‘The Bureau observed in the MSF Order that the Commission "will not consider applications for new systems where the new system‘s operations would cause interference to licensed systems." In light ofthe Bureau‘s finding that "any NGSO—like satellte serving South America is likely to eause harmful interference to AMSC—1‘s North * See Review Requestat 115. * Public Notie, Report No. SAT—00164, Polcy Branch Information; Space Station Applcaions Acceptedfor Filing, t 2 (rel. Sept. 12,2003) " See inboSection IV.B. " AGOrder at$8. 18

American operations(.)"the MSV Order left no room for the possiblity that the Bureau would have reached a different conclusion ifa disgruntled would—be competitor had claimed that it might, at some point, attempt to construct an incompatible system.°" Third, Ondas claims that there are substantive differences between the level of engineering data and analyses provided by AfriSpace versus that provided by MSV — in an attemptto infer an inability ofthe public to substantively evaluate the AfriStar system. This claim is patently false and intentionally misleading. In itsapplication, MSV provided full technical details concerning the operations of MSV—2, as would any applicant for authority to leunch and operate a new space station. However, MSV did not devote any part of ts engineering analysis to the specific issue of its request to waive a processing round. AfriSpace provided technical information regarding AfriStar—2, just as MSV provided such data in the MSV—2 application. The engineering data and analyses supporting the applications for AftiStar— 1 and AfriStar—2 are publicly available, so thallegation that "there was no opportunity to review"the enginecting data relied upon by the Bureau in the A/iStar—2 Order has no basis and can only be viewed as a subrerfuge for the real purpose underlying Ondas‘s Review Request — to attempt to impede a perceived competitor by manipulating the Commission‘s procedures. The Bureau properly relied upon the ASY Order in deciding to waive the NGSO—like processing round procedures for AfriStar—2. As was the case with MSV, AfriSpace requested authority to "operate on the same frequencies as the applicant‘s already licensed NGSO—like satelite.""" In fact, the case for waiver in the AfriStar—2 Order was even stronger than in the MSVOrder—in the case of MSV, the operations ofthe existing satellite were largely confined to " Seeid © 4fiiar—2 Order ati2 19

North America. However,as the Bureau noted in the AfriStar—2 Order, AfriSpace already serves large portions of Southern and Westem Europe via AfriStar—1. Thus, the Bureau was correct in finding that it "could not authorize another BSS (sound) operator‘s space station in the 1457 — 1492 MHz band and above the horizon at the location ofan AfriStar—1 receiver without resulting unacceptable interference to the AfriStar—1 network." Other precedent also supports the AffiStar—2 Order.®" For example, in RarthWatch Incorporated, the Bureau authorized EarthWatch to modify its license to allow the construction, launch, and operation of two additional low—earth orbit satelites in the earth exploration—satellte service.® The Bureau did so without a processing round in light ofthe fact that EarthWatch was secking authorty to operate two new LEO satellites in the same frequencies in which is Iicensed satelltes already operated.* This policy predates the Space Starion Reform Order, but is cited, and is specifically relied on, in the SVOrder (released in 2005) clearly reaffirming the policy, and Ondas has presented no rationale in support of abolishing this policy. AftiSpace, like EarthWatch, requested authority to operate a new satellte in its currently—licensed frequencies. Such a scenario does not implicate the policy considerations that led to the NGSO—like modified processing round procedures, and Ondas has failed to provide a single example where the Bureau found that a processing round was appropriate for a satellite such as AfriStar—2. Ondas argues that the Bureau‘s decision was inconsistent with the policy goals underlying the First Space Station Reform Order. However, the Bureau‘s AfriStar—2 decision 9 AfiStar—2 Order ifi3 * See, e , Lockheed Martn Corp, Orderand Authorization, DA 05—1747 (rel.June 23, 2005)(anod causefund for walver ofNGSO Jike processing round rule n lightofthefct that icensed systems aready operted in the relevant requency band) ® see Eartarch Order. "1 20

clearly comports with the fundamental purpose and policy of the Space Station Reform proceeding: to expedite the licensing of satellites. Notably,the Bureau licensed AfriStar—2 within nine months of the date of application—a timeframe that was unheard—of under the prio Hicensing regime. On the other hand, in the single NGSO—like processing round that has been announced since adoption ofthe First Space Station Reform Order, the public notice was issued more than six years after the original cutoff date, which had preceded adoption of that order After the inordinate amount oftime that lapsed in the licensing process, all 14 ofthe applications involved in that processing round were either denied or dismissed. Significantly, by focusing the processing round procedure on those services justifying such a time—consuming procedure, the Bureau is able to act on applications that are timely filed or that are—like AfriStar—a request to "operate on the same frequencies as the applicant‘s already—licensed NGSO—like satellit." Ondas also contends that the Bureau‘s decision to waive the NGSO—like satellte processing rules was unjustified because it frustrated the competitive rationale underlying the NGSO—like satellite processing rules."*"" In the next sentence Ondas indicates thatits morive is to file a competing application. In other words, Ondas apparently sees the rationale underlying the NGSO—like processing round procedures as a policy of giving would—be competitors a foothold in frequency bands that are already licensed by the Commission and in use. Were Ondas to prevailin this strategy, then every single U.S. satellite censee would be alarmed to learn that their satellite licenses were meaningless — that once their icensed satellites needed to be replaced ortheir satellite systems augmented, they had absolutely no assurance that they would be able to do so even if they remained within their established technical and operating parameters 9 Review Requestat 12. 21

Further, Ondas assertsthat "the Bureau erred in prejudging the results of any future intemational coordination process,"" apparently based on the Bureau‘s statement in the AfriSfar— 2 Order 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 ofan AfriStar—1 receiver without resulting in unacceptable interference to the AfriStar—1 network."*" Displaying what could best be described as *creative" logic, Ondas disingenuously argues that authorizing AfriStar—2 "will greatly reduce the option for future coordination of a European BSS (sound) satellite.""" Ondas has thoroughly conffised two separate principles in arguing that the FCC has somehow "prejudged" the international coordination process. The first principle, which Ondas correetly articulates, is that the FCC will not prefudge the international frequency coordination process,and that space station licensees bear the risk for any failure to coordinate their satellites. The Bureau indieated as much in the AfriStar—I and AfiStar—2 Orders."" Under the second principle, which is fully consistent with the first, the FCC wll not consider applications for new systems where the new system‘s operations would cause interference to censed systems.""" Consistent with the frst principle described above, the Commision should disregard Ondas‘s argument that authorizing AfriStar—2 would harm the coordination of future European BSS (Sound) systems. This is a red herring. As noted above, AfriStar—1 is fully coordinated and registered, and AfriStar—2is in the process of being coordinated. Under Ondas‘s reasoning, * Review Requestat 11 © See AfriSter—2Order at913. ® Review Requestat 11, m 32. " See Afitar—2 Order t 341 (notingthat"no protction from inerference caused by radio stations authorize by ather adminstations is aranteed unless coordination and notication procedires are tmely completed or, with 1espectt individua administations, by successfll completng coortination agreements"). * See MobileSatelte Venture Subsidary LLC, Order and Autrorization, 20 FCC Red 479, 482 (2008) CMSV Order"(emphass added) (cting First Space Staion Reform Order t §113) 22

apparently the Commission should prejudge the international coordination process tothe extent required to make a finding that authorizing AfriStar—2 would interfere with the process of establishing BSS (Sound) in Europe. On the other hand, Ondas would have the Commission ignore the effect ofthe allegedly proposed Ondas system on previously—licensed and operating systems. Such an approach defies logic and tums well—established Commission policy on its head. To give credence o this argument would, in fact, prejudge the international process because it would require the Commission to make assumptions concerning fature, hypothetical actions by European regulators and/or satellite operators. Contrary to Ondas‘s assertions, the Bureau‘s statements concerning the impossibility of authorizing multiple BSS (Sound) systems in the coverage area and frequencies covered by AfriStar—1‘s license relate t the second principle noted above, £e., interference between systems that the FCC has already licensed. This has nothing to do withfuture international eoordination. ThBureau‘s consideration of the effect on FCC—licensed systems ofthe FCC authorizing further BSS (Sound) systems in the same frequency band and geographic area served by AfriStar—1 was therefore fully consistent with established Commission policy. B. The FCC Acted Within its Authority in Choosing to Waive the NGSO—Like Processing Round Procedures on Its Own Motion Pursuant to Section 1.3 of the Commission‘s rules, the FCC has the authority to waive "(a}y provision ofthe rules ... on its own motion... if good cause therefor is shown." The tightofthe FCC to exercise this authority is only limited by the necessity to show good cause. In the AfriStar—2 Order, the Bureau explained that an NGSO—like satellitesystem like Afristar—2 "would typically be considered in a modified processing round where competing applications are 23

invited and considered concurrently.""" The Bureau noted, however, that it has previously waived the modified processing round procedure when an applicant‘s proposed satellite "was able to operate on the same frequencies as the applicant‘s already licensed NGSO—like satellte.""" The Bureau concluded that it "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 [in] unacceptable interferences to the Afristar—1 network.""" Based on this conclusion, the Bureau determined to waive the modified processing round procedure and awarded AfriSpace the authority to construct and launch Afistar—2."" Through this analysis, the Bureau clearly sets forth the "good cause" underlying its decision to waive the modified processing round procedure for AfriStar—2. In a different proceeding, the FCC articulated the same rationale in support ofa sua sponte order: "[CJertainly this agency has the power to take [the action in question] on its own motion, even in the absence of complaint. To hold othersise would be to negate our power to act in the public interest t further the more effective use of radio.""" Having satisfed the "good cause" requirement, the Bureau acted consistent with ts authority in waiving the proceduze sua sponte. Ondas also accuses the Bureau ofhaving acted in an "arbitrary and capricious" manner."" Generally, the "traditionally deferential" arbitrary and eapricious standard only requires agencies "to examine the relevant data and articulate a satisfactory explanation for[their] action(s}, " Orderac¢11. "he w2 " 1e is * " Amendment Of The Rules With Respect To Hows OfOperation OfStandard Broadcast Stations,$ ECC2d 698 (19en, * Application at 17 24

including a rational connection between the facts found and the choice made.*"" The Bureau did far more than merely examine the relevant data and articulate a satisfactory explanation. The Bureau‘s decision reflected detailed analysis and a decision based on established precedent and well—reasoned logic. Based on this evidence, the Bureau concluded that it should grant AfriSpace the authority to construct and launch Aftistar—2. The Bureau‘s decision is well~ supported by the facts on the record, and is eminently logical and reasonable. V CONCLUSION For the foregoing reasons, AfriSpace respectfully requests that the Commission deny the Review Request on an expedited basis. 875 15th Stret, N.W. Washington, D.C. 20005 (202) s1—1791 Counsel for AfriSpace, Inc. February 17, 2006 " Pettion For Forbearance From E911 Aecuracy Standards,18 ECC Red 24648 2003 25

CERTIFICATE OF SERVICE 1, Tara K. Giunta, hereby certify that on this 17th day of February, 2006, copies of the foregoing "Opposition to Applicationfor Review" were sent via hand delivery to the following: The Honorable Kevin Martin Chairman, Federal Communications Commission 236 Massachusets Avene, N.E. Suite 110 Washington, DC 20002 The Honorable Michael Copps Commissioner, Federal Communications Commission 236 Massachusetts Avenue, NE. Suite 110 Washington, DC 20002 The Honorable Jonathan Adelstein Commissioner, Federal Communications Commission 236 Massachusetts Avenue, N.E. Suite 110 Washington, DC 20002 The Honorable Deborah Taylor Tate Commissioner, Federal Communications Commission 236 Massachusetts Avenue, NE. Suite 110 Washington, DC 20002 Donald Abelson Chicf, International Bureau Federal Communications Commission 236 Massachusetts Avenue, NE. Suite 110 Washington, DC 20002 Cassandra Thomas International Burcau Federal Communications Commission 236 Massachusetts Avenue, NE. Suite 110 Washington, DC 20002

Fem Jarmulnck International Bureau Federal Communications Commission 236 Massachusetts Avenue, NJE. Suite 110 Washington, DC 20002 Gardner Foster International Bureau Federal Communications Commission 236 Massachusetts Avenue, NJE. Suite 110 Washington, DC 20002 Robert Nelson International Bureau Federal Communications Commission 236 Massachusetts Avenue, NJE. Suite 110 Washington, DC 20002 Jim Ball International Burcau Federal Communications Commission 236 Massachusetts Avenue, NE. Suite 110 Washington, DC 20002 Sam Feder General Counsel Federal Communications Commission 236 Massachusetts Avenue, NE Suite 110 Washington, DC 20002 Emily Willeford Office of Chairman Martin Federal Communications Commission 236 Massachusetts Avenue, NE. Suite 110 Washington, DC 20002

Jordan Goldstein Office of Commissioner Copps Federal Communications Commission 236 Massachusetts Avenue, N.E. Suite 110 Washington, DC 20002 Barry Ohison Office of Commissioner Adelstein Federal Communications Commission 236 Massachusetts Avenue, NE. Suite 110 Washington, DC 20002 Auton Goldberger Office of Commissioner Tate Federal Communications Commission 236 Massachusetts Avenue, N.E. Suite 110 Washington, DC 20002 Robert A. Mazer Gregory C. Staple Scott W. Woodworth Vinson & Elkins LL.P. 1455 Pennsylvania Avenue, NW Suite 600 Washington, DC 20004—1008 (Counselfor Ondas Spain, SL)


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