Attachment request

request

REQUEST submitted by Ondas Media S.A.

request

2006-03-10

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

IBFS_SATLOA2005031100061_488103

t/ U Eefore the RECEIVED FEDERAL COMMUNICATIONS CoMmMIssION Washington, D.C. 20584 mar 1 0 2006 Fatia CommunictonsComnisser To the Matiic of ) Otes t Secriny ) AFRISPACE, INC. ) 1B File No. SAT—LOA—20050311—00061 ) Application for Authority to Leunch ) Call Sign: 52566 and Operate a Replacement Satelite, ) Rena: AftiStar—2,at 21° EL. and to Co—locate ) ec@fl/eg Tt with AfriStar—1 ) Mar ; 3 20; To: Office ofthe Secretary nardt a, Attn: Commission "#lragget a, REQUEST TO MODIFY EXPARTE STATUS Ondas Media, S.A. (‘Ondas"), by its attomeys, hercby requests that the Commission modify the ex parte status of this proceeding from "restrited" o "permit—but—disclose"pursuant to Section 1.1200(a)so that Ondas and other interested parties may present their views directly to the Commission and its staf. The non—discriminatory application of the Commission‘s processing rules for Non— Geostationary Orbit (NGSO)—like satellites and the potential impact of the FCC‘s decision on the intemational coordination process for the Broadcast Satellte Service (BSS) sound (BSS sound) aise important public ssues which extend well beyond the current case. Derestriction is also warranted because the AfriStar—2 Order® raises engineering issues of first impression regarding the coordination of competing satellites that are more likely to be fully understood by the FCC ! 47 CER.§ 1.1200() (*Wherethe public inerestso equires, the Commisson and ts staffretainthe disction to modify the applcable ex parteriles by order, leter, or public notice. . . 5.. Because this proceeding is not contained in theliss ofexempt and pernitbu—disclose proceedings, it is conidered restcted proceoding. See 47 CER. § 11208; Amendment of 47 CF.R. $ 1.1200 ut 00. Concerning Ex Parte Presentations in Conmission Proceedings, Report and Order, 12 ECC Red 7348, 7352, 913 (197) * AfiSpace, Inc, Order and duthorization, 21 ECC Red 17, DA 064, released Jannary 3, 2006 ("Afristar—2 Order®)

and its stafF if ex parte presentations are permitted by interested members ofthe public and their engineering consultants. Indeed, on March 6, 2006 AfriSpace, Inc. (‘AfriSpace") sought to augment the record by asking for a rule waiver in order to docket a leter outside of the ordinary pleading eyele so as to clarify its views on these issues." L. Background. In the January 3, 2006 AfriStar—2 Order, the Bureau granted AfriSpace authority to launch and operate a new satellite, AfiStar—2, for the provision of BSS (sound) to Europe and Aftica using 2.6 MHz of spectrum in the 1452—1492 MHz band. This action was wholly inconsistent with the Commission‘s licensing rules for NGSO—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 inital license application. Ondas is developing a competing satellite radio service for Burope with the support of Michigan—based. Delphi Corporation ("Delphi), and had requested the opportunity to file a competing application in the event that the Bureau did not classify AfriSta—2 as a replacement satellte. The Bureau‘s decision cut—off that opportunity, and prejudiced Ondas‘ European development plans and the interational coordination process for Ondas‘ own (BSS sound) system. Accordingly, on February 2, 2006, Ondas filed an Application for Review ofthe AfriStar—2 Order.* L. Modification of the Ex Parte Status in this Proceeding in the Public Interest. The current case raises several issues that have important implications beyond the grant of the AfriStar—2 application.. These issues include interrelated procedural, legal, and policy * n his leer, AfrSpace requested a waiver ofSetion 145 of the Commision‘s mies. Ondas does not bjectto this waiver request so long as the Commission grants Ondasinstant Requestto Modify the Ex Parte Statusso that all interested parties can present their views diectlyto the Commisson and it sta. * AfiSpace Aled an Opposiion on Febriary 17, 2006 and Ondas file a Reply on February 27, 2006. Delphialso Hied a Reply on Februry 27,2006 in support of Ondas® Applicaton for Review. ssiee1 00c 2

questions conceming (i)the processing procedures that apply to (BSS sound) applications, (i) the Bureau‘s ability to waive the processing procedures for NGSO for NGSO—like satellites without prior public notice, and international coordination of satellte applications. The Bureau‘s decision to waive the NGSO—like processing rules based on alleged interference considerations and to grant the AfriStar—2 application not only impacted Ondas but all other parties subject to the NGSO—like processing rules that were implemented in the First Space Station Licensing Reform Order. This is so because, unless reversed by the Commission, the Bureau‘s action may provide a precedent for rule waivers based on ad hoc interference standards established by the Bureau that have never been subject to prior public notice and comment. In addition, the Bureau‘s actions may impact the international coordination of various (BSS sound) systems beyond that of Ondas and AfriStar—2 because again, unless the decision is reversed, all later licensed operators will be required to coordinate with AfriStan2 as well as AfriStar—. Under Section 1.1200(a) of its Rules, the Commission is authorized to modify the ex parte status of a proceeding "[wJhere the public interest so requires."" This standard is plainly met here given the broad satellite processing, intemational coordination, and complex technical issues involved. The FCC has frequently found that satelite Hicensing dockets,® including F7cRR$ 11200. * See, e,Publc Notic, Rep. No. SAT—00125 (In‘I Buz. Oct, 30, 2002) (modifying ex artestatus for 1CO and Locktheed Marin proceedings}; Public Note,"Lockheed Marti Com, Repulus, LLC, Comsat Corp, and Comsat Government Services, Ic. Seek FCC Consent for Transactions," Rep. No. SPB—139 CBur. Oct, 23, 1998); Public Notie, "Applications and LettrsofIntent Filed by Nine Parties to Launch and Operte Syatemsto Provide MobilSatllte Servie in the 2 GHz Band," Rep. No. SPB—132 (It Bur.July 29, 1998) (modlifying ex parte status of 2 GHtz MSS icenseapplieatins to permit—but—disclos). ssien1noc 3

satellite radio proceedings such as the instant proceeding," provide strong public interest reasons for modifying the exparte status ofa proceeding. This is particularly true where, as here, complex engincering matters are being disputed and hence, ex parte presentation may serve to clarify the position ofeach side. For example, the Office of Engineering and Technology recently derestricted a satelite licensing procceding because it raised "policy and complex technical issues:"*. This is consistent with other satellite proceedings that have been derestricted because of complex technical,legal, and policy issues, "making it ssential that the Commission obtain the most current information available."" Another case thatis analogous to this proceeding involves York County, Pennsylvania‘s request for a waiver of certain rules applicable to UHF frequencies." There, the Wireless Telecommunications Bureau found that, "because of the policy implications and potential impact of this proceeding on persons not parties to the waiver request, we believe that it would be in the public interest to treat this case as a permit—but—disclose proceeding.""" Here, as explained above, the review of the Bureau‘s decision to waive the NGSO—like processing rules for AfriStar—2 impacts not only AfriSpace and Ondas but also other parties that may wish to file (BSS sound) applications as well as other parties subject to the NGSO—like processing rules. * See eg, Public Notice, Rep. No. SES—00590(In‘l Bur. March 25, 2004) (modifying the ex partesatus of DIRECTV‘s Blanket Receive Only Earth Sution Aplication to provide DBS serviceto the U.S. murket in BSS spectrur); Public Notike, Rep. No. SAT—00201 (In‘1 Bur. March 19, 2004) (modifying the ex parte status of DIRECTV‘s STA requestto rlocate the DIRECTV 5 sateite) * Public Notee, DA 06377 (OET Febmary 17, 2006) (modifyingthe xpartstatus oInmansar‘s applcation for a new station i he Experimental Radio Servico. * See, eg.Sbridge LLC, 13 FCC Red 11076, 11076 (II Bur. 1998); RchoStar Satelite Corp, 15 FCC Red 13797 (ln‘lBur. 2000 © Wirdess Telcommunications Bureau Seels Comment on Request for Waiver by the County of York Pannsylhania19 FCC Red 12313 (WTB July7,2004 " u. ssien1 noc a

IHI. Conclusion. For all of the reasons stated above, the Commission should change the ex parte status of the AfriStar—2 proceeding to permit—but—disclose so that the FCC has the benefit of the most complete and current information available to it in deciding the legal and technical issues raised by Ondas‘ Application For Review. Respectfully Submitted, Robert A. Mazer Gregory C. Staple Scott W. Woodworth Vinson & Elkins LL.P. 1455 Pennsylvania Ave, NW Suite 600 Washington, DC 20004—1008 (202) 630—6500 Counsel to Ondas Media, $A. March 10, 2006 ssien1noc ssiee1 noc s

CERTIFICATE OF SERVICE 1, Seott Woodworth, hereby certify that on this 10th day of March, 2006, copies of the foregoing "Request" unless otherwise noted were sent via first—class mail, postage prepaid, to the following: *The Honorable Kevin Martin *Gardner Foster Chairman, Federal Communications International 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 Interational Bureau Commission Federal Communications Commission 445 12th Street, SW 445 12th Street, SW Washington, DC 20554 Washington, DC 20554 *The Honorable Jonathen Adelstein *Jim Ball Commissioner, Federal Communications Interational Bureau Commission Federal Communications Commission 445 12th Street, SW 445 12th Street, SW Washington, DC 20554 Washington, DC 20554 *The Honorable Deborsh 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 Chief, 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 Thomes *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 *Femn Jarmulnck *Berty 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 ssies_1noc

*Aaton Goldberger John T. Anderson Office ofCommissioner Tate Director, Corporate Affairs Federal Communications Commission Delphi Corporation 445 12th Street, SW 1301 Pennsylvania Avenue, NW Washington, DC 20554 Suite 1030 Washington, DC 20004 Tara K. Giunta J. Stephen Rich Paul Hastings, LLP 875 15th Street, NW Washington, DC 20005 (Counsel to AfriSpace, Inc.) * Via Hand Delivery { lnt Seott Woodworth ssiee1000


Document Created: 2006-03-13 15:28:23
Document Modified: 2006-03-13 15:28:23
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