Attachment reply

reply

REPLY TO OPPOSITION submitted by Ondas Spain SA

reply

2006-02-27

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

IBFS_SATLOA2005031100061_484922

Vinson&Elkins @ © PY GreoC.Sugle poase@rtameon Termssoeree reemsenroonce RECEIVED February 27, 2006 res 2 7 2006 via HaNb peLIvERY Fedenl commurcaton Comnisn Marlene H. Dortch artenstSecnt Secretary Federal Communications Commission 445 Twelfth Street, S.W. Washington, D.C. 20554 Re: Ondas Reply to AfriSpace Opposition to Application for Review IBFS File No. SAT—LOA—20050311—00061 Dear Ms. Dortch: Transmitted herewith, on behalf of Ondas Spain, S.A.(‘Ondas"), is a Reply pleading which responds to the February 17, 2006 "Opposition" ofAfriSpace, Inc.,in this docket Previously, on February 2, 2006, Ondas filed an Application for Review of the Interational Bureau‘s Order and Authorization granting AfriSpace, Inc.s above captioned application for authority to Iaunch and operate a new satelite, AfriStar—2,for the provision of Broadcasting Satellte Service (sound) to Europe and Africa in the 1452—1492 MHz band. The Application and Reply explain why, in authorizing AfriStar—2, the Bureau erred in waiving the established processing rules for Non—Geostationary Orbit (‘NGSO®)like satellites services 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 id not classify Afi—Star—2 as a replacement satellite. The Bureau‘s action cut—off that opportunity and also potentially placed a greater interational coordination burden on Ondas by according a higher ITU prionity to AfriStar—2 as well as AfriStar—1. Upon determining that AfriStar—2 could not legally be classified as a replacement satellite for AfriStar—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) \invon & EXins 4P Adomysate Anin Bepeg Ouas tw TreUuctOfeeBuiany455 Pavonpana Areve it Sutetco HeatonLandon Meseow New‘Yah Srgs Toyn Wastegon winigon o attoeio Taliedconico reemonssoctot mentmecom

V&E Mareret Oorch Fabnan z0e Page2 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 AftiStar—1 with approximately the same service parameters focused on Affica, rather than granting AfriSpace vastly augmented operating rights for AfriStar—2 to serve new markets across Europe. Please direct any questions conceming this fling to the undersigned. mBre v Slaple Counselfor Ondas Spain, SA. ssiis100c

Before the FEDERAL COMMUNICATIONS CoMMISSION Washington, D.C. 20554 In the Matter of AFRISPACE, INC. 1B File No. SAT—LOA—20050311—00061 Application for Authority to Launch Call Sign: $2666 and Operate a Replacement Satellite, AffiStar.2, at 21° E.L. and to Co—locate Itwith AfriStart ONDAS REPLY TO AFRISPACE OPPOSITION This Reply is filed on behalf of Ondas Media, S.A. (‘Ondas") in response to the Pebruary 17, 2006 "Opposition" of AfriSpace, Inc. ("AfriSpace"). The main premise of Ondas‘ Application for Review is unchallenged by AfriSpace. The Opposition does not rebut Ondas® showing that a second BSS (sound) satellite, even at 21° E, need not interfere with the operations of AfriStar—1 because, inter alie,the majority of the 2.5 MHz used by this satellite is divided between two spot beams focused on Affica and the Middle East, thus affording sufficient geographic separation for the reuse of this spectrum by a second system in Europe. Curiously, AffiSpace also fails to explain why a second BSS (sound) satellte could not be coordinated for Europe within the 94% ofthe spectrum (37.5 MHz) in the 1452—1492 BSS (sound) bandnot occupied by AfriStar—1. Accordingly, Ondas reiterates that it was arbitrary for the Bureau to waive the NGSO—like processing rules and approve AfriStar—2 without notice and soliciting competing applications. Instead of addressing these issues, AfriSpace contends that: (1) Ondas is not a bona fide satellite radio competitor; (2) Ondas has not been aggrieved and lacks standing; (3) Ondas has misunderstood the scope of the AfriStar—1 authorization; (4) the Bureau‘s waiver is justified by past precedent; and (5) no Ondas satellite could be coordinated with the Mobile Aeronautical Telemetry Service (MATS).. Ondas is wrong on all counts.

L. Background on Ondas. Ondas Spain, S.L. was incorporated in Madrid, Spain in May 2004 and changed its name from Ondas Spain to Ondas Media, S.A. in late 205.‘ Ondas is planning to be the first and premier pan— European satellite radio provider of subscription—based multiingual music, news, sports, video, telematics and other data services. Though still a development stage business, Ondas has already raised significant capital, established a world—class management team, entered into strategic industrial partnerships," and established a detailed technical program. Ondas currently plans to launch four satelites into Highly Elliptical Orbit (°HEO®) starting in 2008 In Ondas‘ view, the quality of radio services that may be provided by this system architecture cannot be achieved by geostationary orbit ("GSO") systems in Europe. (owever, Ondas has not ruled out an application for GSO service in some marketsIn the Summer of 2004, Ondas submitted an application to the Spanish regulatory authorities for its HEO system. That led the Spanish government to initiate a coordination process at the ITU.® In 2005, Ondas completed the process under Spanish law for obtaining the appropriate authorizations to implement its system. 11. Ondas Participated Below and Has Standing. The AfriStar—2 Order acknowledged that Ondas participated below by filing a timely Petition to Deny the AfriStar2. Application." The Bureau treated Ondas‘ fling as a Petition to Deny and, notwithstanding Ondas‘ inadvertent lack of service, AfriSpace had actual notice of the Petition to Deny and thus was in no way prejudiced. Further, even if Ondas‘ pleading was not a formal Petition to Deny, Ondas still has standing to file an Application for Review because Section 1.115(2) only requires a party E Undesigned counsel had not been informed ofthis name change and idvertently fle the Appliction for Review in the name ofOndas Spain SL * in December 2005, Ondas entered io a comprehensive strtegic pariership with a U.S. equipment leader, Deiphi AutomotiveSystems, LLC, Flestonics & Safety Diviion (‘Delph®) forthe development ofrecever and antenna technology fr the European markt. See eg., "Deiph Bets on New Satlite Market®by Sarah MeBride, Wall Sreer Journal, Janwary 4, 2006,p. BS * ee ITU SNS No. 104540502 submited by the Kingdom of Spain, September 9, 2004, WIC 2534, December 14, 2004 & AfriSpace, lc, Order and duthorization, 21 ECC Red 17, DA 06—4, released Janury 3, 2006 ("Afritar—2 Order") In addion torefrencing Ondas‘ "Petionto Deny"throughoutthe Order(se, z. SctionF of the Order capioned "Pettion to Deny‘), the Bureau, in the Ordering Claes,denied th "Pettionto Deny"file by Ondas. 2

to have "participated"" below. Ondas met this standard under the Vodafone case" because, in contrast to the petition in Vodafone, Ondas directly challenged the merits of the AfriStar—2 application. That qualified Ondas as a participant even if ts Petition were to be classified as an Informal Objection. As a bona fide competitor in the Buropean satellite radio market, Ondas is unquestionably aggrieved by the Bureau‘s decision to grant AfriSpace a significantly larger footprint over Europe.® The Bureau‘s decision (a) effectively foreclosed competing applications at the FCC for the non—replacement footprint of AfriStar2, and (b) raised new hurdles to coordination because a later licensed Spanish (or other) operator will be required to coordinate with AfriStar—2 as well as AfiStar—1.. In other words, even assuming arguendo that any Ondas ITU filing will be secondary, Ondas will be agarieved by having to also coordinate with a second non—replacement AfriSpace satellte." 11. AfriSpace Has Not Rebutted Ondas‘ Technical Showing. AfriSpace has not rebutted the interference analysis presented by Ondas.®. Rather, AfriSpace says that Ondas has (s) misunderstood the bandwidth and geographic coverage authorized for AfriStar—1; and (b) raises new facts on which the Bureau has been afforded no opportunity to pass. These arguments are both inconsistent and wrong. First, despite AfriSpace‘s claims, AfriStar—1‘s current authorization is Himited to a small portion — approximately 2.5 MHz — of the 1452—1492 MHz band." Likewise, the Bureau expressly authorized AfriStar—1 to serve "Africa and the Middle East"" and thus ruled that : Vodefone AirTouch, ple and BellAlantic Corporation, 20 FCC Red 6138, CC 05.52 2005) (‘Yodafone"). + Contrat HINY, Inc, 14 FCC Red 2032 (1998) and Pan American Sarellte Corporation, 60 Rad. Reg, 2d 298 (1986), which are both cited by AfriSpace. Unlike the applicant in NY Inc, Ondas has aleady filed a compoting applicaton with the Spanish govemment which may be impacted if it also must be coordinated with AfiSar2. PandnSat is also distinguishable because, unlike here,the applicant was not a party to the underlying licensing proceeding and was not requesting review ofth lcensing proceeding. * See eg. Opposiion, p 11, n32; *... the AfrStac2 satlite would have pronty over any Intecfled geostaionry atelites—and over all non—seostationary stlites, whether ate:fled or not." * See Ondas Application, pp 10—11, and Exhibit B, t O—11.. See also the Supplementry Engineering Affidavi appended as Extibit A,here * ie AffSpace, Inc, Order and Authorizaton, 15 ECC Red 1632, §14 (Intl Bur, 1999) (WhiSta—1 Order"), authorizing AfriSar—1 t operite in the 1452—1492 MHtz band "inaccordance wth technical pecificationsset foh in it appleations and consistent with our rle, unlessspecifcaly condined or uaived herin" Ataciment 2 t the AtiStar—1 Applicatio, ided "System Technical Description," expresly statesat page 1 hatthe "AfiStar wystem is uilizing approximately 2.5 Mz of ratio frequency (‘RF") spectum.". AfriSar2 is authorized to use 2.6 MiHz. AfriSar2 Orde, 433 * AfiSar—1 Order§ 14.

AftiSta—2 was not a "replacement satelite" because "the footprint of AfriStar—2 is centered over Burope {not Affica or the Middle East] and would permit greater signal strength into Europe, as well as the western parts of Russia, than that currently provided by AfiStar—1.""" AfriSpace is therefore wrong in claiming that (Opposition, p.14) "because AfriStar—1 blankets its coverage area in it stipulated bands, Ondas cannot coordinate a BSS (sound) system to provide service in Burope:"" AfriStar—1 does not ‘blanket its coverage area in it stipulated bands." The satellite operates in just 6% of the 40 MHz BSS (sound) band, and this comparatively small swatch of spectrum (2.5 MHz) is divided between three geographically distinct spot beams, so that only approximately 850 kHz is assigned to the North African beam which spills out into Europe.. In these circumstances, the Bureau could not a priori determine that any other BSS (sound) satellite for the same orbital are would automatically interfere with or fail coordination given that the ITU Constitution (Art. 44) requires states to use the minimum essential spectrum for a service and totry and accommodate other systems during coordination. (See e.g. RR $9.51 and $9.52) AffiSpace is also wrong in arguing that the Commission cannot rely upon the foregoing analysis because the underlying facts were unavailable to the Bureau. ‘The operating parameters for AffiStar—] — frequencies, spot beams, service foot prints — were docketed more than six years ago in the AfiStar—1 application. And the Burcau cited these parameters in concluding — albeit wrongly — that it could not authorize another BSS (sound) satellite in the 1452—1492 MHz band. " IV.— The Bureau‘s Waiver Is Not Supported By Prior Cases. The AfriStar—2 waiver is not supported by the Bureau‘s prior decision to waive the NGSO—like processing rules in considering MSV‘s application for a co—frequency South American Mobile Satellte Service (MSS) system."" The MSV waiver stemmed from the Bureau‘s finding that there would be * AfiSiar—2 Order88. * 1. t 13; In so doing, th Bureaualso violated the notie provision ofSection 309 of the Communications Act and Section 22.157 of the Rules by granting the application based on a previously unannounced and unpublished interferencestandard that no nterested paty had a chance to comment upon: * Mobil Satlite Ventires Subsidary LLC, Order and Authoriaton, 20 FCC Red 479 (IntI Bu, 2005) a

insufficient geographic separation between the service area of any South American MSS satellite and MSV‘s North American operations to permit frequency reuse. Here, by contrast, as shown in AfriSpace‘s own service map,"" there is a large territorial separation between Ondas‘ proposed European market and the Aftican/ Middle East spot beams of AfiStar—1."" The EarthWatch case, also cited by AfriSpace, was decided in 1995 before the FCC had adopted formal rules for processing NGSO satelites and hence, there were no rules to waive. In addition, the Bureau‘s grant to EarthWatch did not have a preclusive effect; the use of LEO downlink spectrum by EarthWatch "must be on an equial status to all other authorized primary users of the frequency band.""" Likewise, in Lockheed Martin, the Bureau waived. the NGSO—like processing rules only because Lockheed‘s system had been coordinated with the co—frequency U.S. GPS System and would not reduce the ability ofany future licensee to operate in the relevant bands, .c., the decision was pro—compatitive."" v. The MATS Is not Relevant To This Proceeding. Whether Ondas or any new BSS (sound) system may interfere with the U.S. Mobile Aeronautical Telemetry Service (°MATS®)‘* is wholly irrelevant to the Application For Review. The Bureau concluded that no new BSS (Sound) satellite could be authorized in the 1452—1492 MHz band solely because it would cause interference to AfriStar—1 not to U.S. MATS operators. MATS is not even mentioned in the Bureau‘s decision; nor was it raised below by AfriSpace and its attempt now to provide the Bureau with a post hoc rational for its action, based on arguments never presented to the Bureau, * ‘See Application for Review, Extibit A. f In addtion, in the BSS (sound), unlike the MSS, there is no need to coortinte a network of twoway (ransmitieceive) terminals s EarthWaich, Inc, 12 ECC Red 21627,411 (1997). $ Loctheed Martin Corporation, 20 ECC Red 11023 2005 $ See Opposiion, pp 11—12. The L—Band MATS is used in confurction with 23602385 Mite to provide data communication lnks for fightteting of manned and unmanned aieraf, missles and space vehicles,as wellas for associted communicaions (weather, chase ircrit). s

cannot be accepted. Respectfully submitted, C. Stople Scott W. Woodworth Vinson & Elkins LLP. 1455 Pennsylvania Ave, NW Suite 600 Washington, DC 20004—1008 (202) 639—6500 Counselfor Ondas Media, SA. February 27, 2006 ssine.inoc See 1.115(). Absent a carefil fequency and faciitics specife inerfirence analysis it is not possbleto detemine the extent to which this band may be shared as therelevant TU Recommendation (TTU—R M.1459) makes clear. Moreaver,the Recommendtion citedby AfrSpace only containsstandard fo the protection of MATS system from geostationary orbir ("GSO®)stlites it does not address he potenial interfrence from HEO and other non—GSO BSS (sound)sytem. 6

ONDAS REPLY EXHIBIT A AFFIDAVIT OF DANIEL F. DIFONZO

AEEIDAVIT OF D 1. My qualifications are a matter of public record. T previously filed an affidavit in this proceeding and Paragraphs 1 to 12 are hereby incorporated by reference and should be considered as if they were restated herein under penalty ofperjury. 2. In order to provide this second affidavit, again reviewed the AfriStar2 Order and Authorization (DA 06—4), the AfiStar—2 application and related pleadings (SAT—LOA— 20050311—00061), the AfriStar—1 Order and Authorization (DA 99—2849), and the AfriStar— application and related pleadings (SAT—LOA—19990125—00016). 3. 1 also reviewed the Opposition of AffiSpace, Inc. filed on February 17, 2006. The foregoing Opposition does not provide any new technical information regarding the AfriStar—1 or AfriStar—2 satellite systems. The Opposition also does not contain any separate engineering statement. In view of the foregoing, and after reviewing my prior affidavit, I am confident that the conclusions reached in my prior affidavit were correct. It is stil my professional view therefore that it is possible to coordinate other BSS (sound) satelites with AfriStar—1 for the reasons specified in paragraphs 9—12 of my first affidavit. 1 declare under penalty of perjury that the foregoing statements in this affidevit are true and correct to the best of my knowledge and beliet 0 7 Daniel F. DiFonzo February 24, 2006 Sworn to and subscribed before me this 24th day ofFebruary, 2006. Kgren M Mut Notary Public, State of laware W% /&mdmmmlssm Expires 5—09—07 ghh og Pu— t Nmary Public 7 My commission expires 4/9/p7

CERTIFICATE OF SERVICE 1, Scott Woodworth, hereby certify that on this 27th day of February, 2006, copies of the foregoing "Reply® unless otherwise noted were sent via first—class mail, postage prepaid, to the following: *The Honorable Kevin Martin *Gardner Foster Chairman, Federal Communications Interational Bureau Commission Federal Communications Commission 445 12th Street, SW 445 12th Street, SW Washington, DC 20554 Washington, DC 20554 *The Honorable Michael Copps *Robert Nelson Commissioner, Federal Communications International Bureau Commission Federal Communications Commission 445 12th Street, SW 445 12th Street, SW Washington, DC 20554 Washington, DC 20554 *The Honorable Jonathan Adelstein *Jim Ball Commissioner, Federal Communications International Bureau Commission Federal Communications Commission 445 12th Street, SW 445 12th Street, SW Washington, DC 20554 Washington, DC 20554 *The Honorable Deborah Taylor Tate *Sam Feder Commissioner, Federal Communications General Counsel Commission Federal Communications Commission 445 12th Street, SW 445 12th Street, SW Washington, DC 20554 Washington, DC 20554 *Donald Abelson *Emily Willeford Chicf, International Bureau Office of Chairman Martin Federal Communications Commission Federal Communications Commission 445 12th Street, SW 445 12th Street, SW Washington, DC 20554 Washington, DC 20554 *Cassandra Thomas *Jordan Goldstein International Bureau Office ofCommissioner Copps Federal Communications Commission Federal Communications Commission 445 12th Street, SW 445 12th Street, SW Washington, DC 20554 Washington, DC 20554 *Fem Jarmulnck *Barry Ohlson International Bureau Office of Commissioner Adelstein Federal Communications Commission Federal Communications Commission 445 12th Street, SW 445 12th Street, SW Washington, DC 20554 Washington, DC 20554

*Aaron Goldberger Tara K. Giunta Office of Commissioner Tate 1. Stephen Rich Federal Communications Commission Paul Hastings, LLP 445 12th Street, SW 875 15th Street, NW Washington, DC 20554 Washington, DC 20005 (Counsel t AfriSpace, Inc.) * Via Hand Delivery ssize_1noc


Document Created: 2006-02-28 15:43:05
Document Modified: 2006-02-28 15:43:05
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