Attachment Opposition

Opposition

OPPOSITION submitted by AfriSpace

opposition

2006-03-20

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

IBFS_SATLOA2005031100061_490062

Pat astes Jneiy Matar un PaulHastings ans it Sn Nt tingto ars Wistom N251 T esede ESS178 enutistigscon Anos (202) ssi—1701 Sern dooms tariginta@paulhastings.com RECEIVED fepion tm March 20, 2006 mieson MAR 9 0 2006 5e637.00002 e Revion fedonl Communicaton Comnisson Gorcoy mome ay Hano peuvery Simes feavey hes Reca‘ved Sm Sntaries Marlene H. Dortch Sropa Secremy MA 006 Suniva e nniogon ce Federal Communications Commission 236 Massachusetts Avenue, NE Poicy Branat Suite 110 Intomational Gureau Washington, D.C. 20002 Re:—=— Opposition of AfiiSpace, Inc. to Request to Modify Bx Pate Status TBES File No. SAT—LOA—20050311—0006 Dear Madame Secreay: Transmitted herewith, on behalf of AfriSpace,Inc. (*AfiSpace"),is an Opposition to Request to Modify Fx Pare Status. In the event that the Commission or its staff should have any questions concerning this filng, kindly refer them to the undersigned counsel for AfriSpace. Respepthily submited, im K. Gitlin of PAUL, HASTINGS, JANOFSicY & WALKER LLP Counsel for AfriSpace,Inc.

Before the FEDERAL COMMUNICATIONS commISSi@ne e Washington, D.C. 20554 CEIVED MAR 2 0 2006 ) FedirlConnuncaton Com In the Matter of ) OfesotSeantay * ) AftiSpace, Inc. ) ) Application for Authority to Launch and ) SAT—L0A—2005031 1—00061 Operate a Replacement Satellite, AfiStar—2, ) at 21° E.L. and to Co—locate Itwith AfriStar—1 ) OPPOSITION OF AFRISPACE, INC. TO REQUEST TO MODIFY EX PARTE STATUS AfriSpace, Inc. (*AfriSpace") herebysubmitsits opposition to the Request to Modify Ex Parte Status (the "Request to Modify®) filed by Ondas Media, S.A. (*Ondas®) on March 10, 2006. As shown below, Ondas is secking to modify the ex parte status of this proceeding from "restrieted" to "permit—but—disclose" in order to circumvent the Commission‘s procedural requirements and manipulate Commission processes for its own competitive reasons.. Ondas‘s most recent filing reflectsits desperate attempt to pervert the Commission‘s rules and procedures in order to effect the delay it intended when it fileits Application for Review which, as set forth in our Opposition thereto, was procedurally flawed and substantively without merit. This fling is even more reprehensible in light of the fact that one of Ondas‘s founders and principals is an experienced FCC attorney‘ who has surely known all along what is required under Commission ! Whilenitesappearing beforthe Commission generally providedeailsasto thir ownership and contrl, Ondas has becn remarkably slent on these isstes other than making a vague refrence to an allepedly "signifcant® investment by bankrupt autoparts manaficturer Delphi Inerestngly, one of Ondas‘s attomeys, Robert A. Mazer, abo is a board member and co—founder of Ondas, See "Ondas Media — Board of Directos" hitp se ondasmedia.comdiretorshim (last visted March 20, 2006), and Space Nens, 10 March 206. This may explainthelenaths to which Ondas and ts atomeys are goingtoereate obstrctions for AfiSpace,since M Mazer‘srolin this proceeding goes beyand merely that ofobjectiveoutsde counsel.

rules and proceduzes if Ondas truly wished to obtain an FCC license — and knew what it was required to present to the Bureau if Ondas truly had a technical argument to make. The fact that a person with many years of experience as an FCC attorney is a principal of Ondas clearly shows that Ondas‘s actions constitute an intentional manipulation and abuse of the Commission‘s procedures for potential competitive gain, not an indvertent act byan illinformed forcign company. AfriSpace expects that the Commission will see through the so—called "public interest" considerations raised by Ondas, which are a thin disguise for Ondas‘s true motivation—namely, to abuse the Commission‘s processes and procedures for the sole purpose of potential competiive gain. Contrary to the ill—founded arguments raised by Ondas, the public interest will be served bya prompt denial of both the Request to Modify and Ondas‘s specious Application for Review (the "Review Request"). To grant the Request to Modify would encourage any entity to use the Commission as a tool for competiive reasons.. If the Commission grants the instant request, it will open the door to numerous presentations to Commission staff by competing experts over a period of several months, and would waste the resources of both AfriSpace and the Commission. A denial of the Request to Modify would serve the public interest by allowing AfriSpace to move forward with the preparation and launch of AfriStar—2 and improve service to its customers, and also would send a clear signal to Ondas and other similarly—situated. entities that would seek to undermine the integrity of the Commission‘s procedures for competitive reasons.

L. Ondas Has Not Metits Burden of Showing that a Change in Ex Parie Status is in the Public Interest The Commission has previously recognized that expanding the types of proceedings that are subject to "permit—but—disclose" procedures could "create the appearance ofunfaimess,"" and therefore requires that a party secking to change the ex parfe status of a proceeding demonstrate, by a preponderance of the evidence, that such a change would be in the public interest. In the Request to Modify, Ondas argues that the public interest will be served "if ex parte presentations are permitted by interested members of the public and their engincering consultants,"but fils to provide any eredible evidence to support this assertion.* In so doing, Ondas apparently confuses its own interests with the public interest, and woefully fails to meet its burden of proof. Ondas attempts o tieits request for treatment of this proceeding as "permit—but—disclose" to the leter that AfriSpace filed on March 6, 2006." However, AfriSpace filed that leter for the purpose of bringing to the attention of the Commission new information that had come to the attention of AfriSpace‘s counsel aftefiling the Opposition,° and AftiSpace‘s fling of its letter had no relation to the Commission‘s ex parte rules.". Further, that information was directly relevant to the legitimacy of Ondas‘s suggestion to the Commission that it might have applied for a license itself had the Commission processed the AfriStar2 application in a different * Amendnent of 47 CFR. $1.1200 t seg. Concerning Ex Parte Presentalons in Commission Proceedings, GC Docket No. 95—21, Reportand Order, 12 FCC Red 7348 (1997) " AT&T Corp w Business Telecom, Inc, EB—O1—MD—001, 16 FCC Red 18159 (2001) * Request 2 * Requesto Modify at 2, ciing Leter of AfrSpace,In. to Malene Dortch; March 6, 2006 * Oppositon of AfiSpace,Inc.to Applctionfor Reviewand Request for Expedted Review, Ailed February 17, 2006 (th "Oppostion). 7 See 47 CFR. $ 1120200 (dfining "ex partepresentation" t include a witen presenttion that is notserved on the panies to the proceeding").."The AfriSpace letr was served on counselfor Ondas_While Ondas may be considered a"part® t th proceedingforprposes ohe e part rules, his ds not mean that Ondas hassatsied the procedural olegal equirements for other prposes,such asstanding. See 47 CIR. § 1.1202(8), Note 3

manner.® Most importantly, the relevant issue was properly before the Commission, as it had been raised by AfriSpace in the Opposition.". On the other hand, Ondas now secks authority to supplement the record with factual information that has not yet been presented to the Bureau, which it was required to do so under the Commission‘s rules prior to filing it Review Request." This further demonstrates that Ondas is abusing the Commission‘s processes solely for delay. The only interest that would be served by further delaying this proceeding as requested by Ondas is Ondas‘s own competitive interest—as AfriSpace has previously noted, Ondas has no satellites, o services, and no customers;" it therefore has nothing to lose as a result of continued delays.. Further, Ondas has not attempted to rebut AfriSpace‘s showing that Ondas has no intention of secking an FCC license.. On the other hand, AfriSpace is an FCC—licensed U.S company that, together with its parent company and affilites, serves over 115,000 paying subscribers and has nearly 500 employees.. AftiSpace and its customers will suffer the adverse consequences of further delays in the AfriStar—2 proceeding, which is the reason why AfriSpace has requested expedited action by the Commission of the Review Request.". Denying both the Request to Modify and the ReviewRequest would be consistent with the predominant policy goal underlying the Space Station Reform proceeding—Le., the prompt licensing of satelites in order to bring service to the public.". Clearly, Ondas has not even come close to demonstrating that the public interest requires modifying the ex parfe status of this proceeding. * See Review Requesat 17. * See Oppostona barcrr s L130 " See Opposition at i " oppostionar2 ® See Amendment of the Conmission‘s Space Station Licensing. Rules and. Polices, N of Proposed Rulemaking, 1B Docket No,02—34, 17 FCC Red 2817¥11 2002)

I1. The AfriStar—2 Order Does Not Involve Issues of First Impression Ondas mistakenty argues that "the AfriStar—2 Order raises engineering issues of first impression.""" This is absurd. The Bureau recognized in the A/fiStar—2 Order that the engineering issues presented by the AffiStar—2 application were substantially identical to those previously addressed by the Bureau in its recent MSF Order."". Purther,as noted in AfriSpace‘s Opposition to the Review Request, the engincering case supporting the Bureau‘s actions was even more compelling in the AfStar—2 Order than in the MSYOrder.. While MSV had sought authority to provide service to an area in close proximity to its existing service area, AfriSpace sought authority to provide expanded service in an area that was largely included in its existing service area, i.e., Westem Europe."* While Ondas suggests that the AffiStar—2 Order is somehow unique in that it involves BSS (Sound), it provides no explanation of why an NGSO—like system that is providing BSS (Sound) should be treated differently from any other NGSO—like system. Similarly, Ondas raises concems about "the Bureau‘s ability to waive the processing procedures for NGSO for [sic] NGSO—like satelltes without prior public notice"" without acknowledging that the Bureau already has done so on several prior occasions, or indicating why prior public notice of such waivers should be required."" Finally, Ondas argues that the AfiStar—2 Order "may" impact the international coordination of various BSS (Sound) systems. Under this line of reasoning, any proceeding involving a satellite whose footprint extends beyond the borders ofthe 48 contiguous " Requestto Modityat1 Mobile Sarellte Vantures Subsidlry LLC, Order and Authorization, 20 FCC Red 479 (2005) @MSV Order®) * See Oppositon a1920. © See Opposiion t 10

States could be opened to a long, drawn—out process since every such satellite "may"impact the international satellite coordination process. Ondas suggests that unless the Bureau‘s actions are reversed, they "may impact the interational coordination of various (BSS Sound) systems[.J®"* However, as noted in the Opposition, the AfiStar—2 Order is conditioned on AfriSpace completing the intemational coordination process in accordance with relevant ITU rules and procedures * Therefore, it is difficult t see howthe AffiStar—2 Order would in any wayimpact the international coordination process Ondas also states, incorreetly, that "all later licensed operators will be required to coordinate with AfriStan2 as well as AfriStar—1.""" This statement evidences a lack of understanding on Ondas‘s part of the ITU intemational coordination process. Under that process, for GEO satelites, all later—intime satelite flings must be coordinated with prior—in— time filings. It is this TTU fling "quene," and not the national "licensing" quene that determines who coordinates with whom. The one exception to this rule appliesto the coordination of GEO satellites with Non—GSO satellites of the kind that Ondas purportedly wishes to launch — Le., a highly elliptical orbit ("HEO®) system.. As noted in the Opposition, a GEO system like AfriStar— 1 or AfriStar2 is not required to coordinate with a HEO system."" Instead, the TTU radio regulations simply mandate that HEO systems "shall not cause unaceeptable interference" into GBO systems." " Requestto Modifyat3. " oppostton at22, m. 71. * Requestto Modity at 3. * Oppositon at 11, m 33. " ImemationalTelecommunications UnionRadio Regulations $22.2 2001

Therefore, any negative impact on Ondas‘s ability to effect intemational coordination would result not from the AfriStar—2 Order, but on Ondas‘s own decision to pursue a satellte system configuration that must operate on a secondary basis with respect to GEO satellte systems in the same band. 11L The Precedent Cited by Ondas Is Inapposite Ondas correctly notes that the FCC has sometimes elected to treat licensing proceedings as "permit—but—disclose" proceedings for purposes ofthe ex parte rules." However, the decisions cited by Ondas do not support the proposition that an application for review proceeding—especially one in which the party secking review made no effort to present its engincering analyses to the delegated authority—may be treated as "permit—but—disclose" so as to allow the presentation of such analyses.. In fact, every single decision cited by Ondas involved bureau—level proceedings,i«, proceedings in which factual information such as engineering data may properly be presented for the first time."" AfriSpace submits thatit s not coincidental that each decision cited by Ondas that involved the need for presentations on technical matters took place at the bureau level..In fact, the decisions cited by Ondas support AffiSpace‘s previous observation that Ondas was required to present its engincering analyses to the Bureau,"" and further illustrate the blatant attempt by Ondas‘s FCC counsel and co—founder to manipulate and pervert the Commission‘s procedures, which is most decidedly nor in the public interest. As much as the Commission should disregard the precedent cited by Ondas, it also should consider the precedent that granting the Regquest to Modify would establish, Such a ®Requestto Modlify at 3—t " ue m 611. * Oppositon at14—15; see also 47 CER. § 1.115Ge) (sating that "{mlo applietion for review wll e graned if it telleson questions of ict olaw upon which thedesignated authority has been afforded no opportuniy to pass")

decision would eviscerate established procedures designed to protect the public interest by marginalizing the role of the Bureau and imposing inordinate demands on the resources of the Commissiondevel staff. Granting Ondas‘s Request to Modify would encourage partics (particularly would—be competitors) to remain on the sidelines throughout licensing proceedings, with the intent of restarting the procedure from the beginning if the result is one that they do not like or, in the case of competitors, in order to create further delay and impose additional costs of the Commission licensee. VI Conclusion Forthe foregoing reasons, AfriSpace respectfully requests that the Commission deny the Request to Modify. ffully submitted, 1. Steven Rich Paul, Hastings, Janofiky & Walker LLP 875 15th Street, N.W Washington, D.C. 20005 (202) ssi—1701 Counsel for AfriSpace, Inc. March 20, 2006

CERTIFICATE OF SERVICE 1, Tara K. Giunta, hereby certify that on this 20th day of March, 2006, copies of the foregoing "Opposition to Request to Modify Ex Parte Status®unless otherwie noted were sent via first—class mail, postage prepaid, t the following: *The Honorable Kevin Martin Chairman, Federal Communications Commission 236 Massachusetts Avente, N.E. Suite 110 Washington, DC 20002 *The Honorable Michael Copps Commissioner, Federal Communications Commission 236 Massachusets Avenue, N.E. Suite 110 Washington, DC 20002 *The Honorable Jonathan Adelstein Commissioner, Federal Communications Commission 236 Massachusetts Avenve, NE. Suite 110 Washington, DC 20002 *The Honorable Deborsh Taylor Tate Commissioner, Federal Communications Commission 236 Massachusetts Avenue, NJE. Suite 110 Washington, DC 20002 *Donald Abelson Chicf, International Bureau Federal Communications Commission 236 Massachusetts Avenue, NJE. Suite 110 Washington, DC 20002 *Cassandra Thomas International Bureau Federal Communications Commission 236 Massachusetts Avenue, N.E. Suite 110 Washington, DC 20002

*Fern Jarmulnck Interational Bureau Federal Communications Commission 236 Massachusetts Avenue, N.E. Suite 110 Washington, DC 20002 *Gardner Foster International Bureau Federal Communications Commission 236 Massachusetts Avenue, NE. Suite 110 Washington, DC 20002 *Robert Nelson Intemational Bureau Federal Communications Commission 236 Massachusetts Avenue, NE. Suite 110 Washington, DC 20002 *Jim Ball Interational Bureau Federal Communications Commission 236 Massachusets Avene, N.E. 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 ofCommissioner Copps Federal Communications Commission 236 Massachusetts Avenue, N.E. Suite 110 Washington, DC 20002 *Barry Ohlson Office of Commissioner Adelstein Federal Communications Commission 236 Massachusetts Avenue, NE. Suite 110 Washington, DC 20002 *Aaron Goldberger Office ofCommissioner Tate Federal Communications Commission 236 Massachusetts Avenue, NE. Suite 110 Washington, DC 20002 *Stephen J. Duall Attorney Advisor, Satellite Policy Branch Federal Communications Commission 236 Massachusetts Avenue, N.E. Suite 110 Washington, DC 20002 Robert A. Mazer Gregory C. Staple Seott W. Woodworth Vinson & Elkins LLP. 1455 Pennsylvania Avente, NW Suite 600 Washington, DC 20004—1008 (Counselfor Ondas Spain, SL) John T. Anderson Director, Corporate Affairs Delphi Corporation 1301 Pennsylvania Avenue, NW Suite 1030 Washington, DC 20004 K. Giunta * Via Hand Delivery


Document Created: 2006-03-22 15:00:12
Document Modified: 2006-03-22 15:00:12
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