Attachment reply to opp

reply to opp

REPLY TO OPPOSITION submitted by Ondas

reply to opp

2006-03-27

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

IBFS_SATLOA2005031100061_492572

Before the COPY reperat comunications commssionRECENVED Washington, D.C. 20554 WAR 41 2006 In the Matter of ) bnuie otCc ) AFRISPACE, 4. INC. j) 1B File No. SAT—LOA; REEENEY® 90061 Application for Authority to Launch ) CallSign: $2666 yap 4 and Operate a Replacement Satellite, ) o AfriStar—2, at 21° EL. and to Co—locate ) A Tt with AfriStar—1 3 i To: Office ofthe Secretary Attn: Commission NDAS REPLY T OPPOSITION TO REQUEST TO MODIFY EX PARTE STATUS The long and shrill Opposition filed by AfriSpace, Inc. (*AfriSpace") brings to mind a familiar refrain: "The lady doth protest too much, methinks*.‘. The Commission should ask itself why AftiSpace thought it necessary to docket an eight page pleading filled with vitriol, ad hominem charges and sour rhetoric to oppose Ondas‘ brief request to derestrict the type of satellite Hicensing proceeding that is routinely subject to ex parte presentations.. Just what is AfriSpace secking to hide from the FCC? If the application for AfriStar—2 was lawfully processed and granted by the Bureau, why should AfriSpace be overly concemed ifthe FCC — and especially those Commissioners who are new to the agency — are afforded a face—to—face opportunity to meet with interested parties and familiarizethemselves with the facts in order to pass on Ondas® Application for Review. The answer, we suspect, is that AfriSpace actually has litle faith in the underlying merits of its position. Thus, the last thing it wants is for the Commission to undertake a careful and informed review of the engineering and legal judgments made by the Bureau in granting the license for * Wiltiam Shakespeare, Hamke, Act l Sc.2, Line 242.

AfriStar2" That is also apparent from AfriSpace‘s Opposition: which carefully. avoids discussing the fundamental issue on review —— namely, Ondas‘ unrebutted engincering affidavit showing that AfriStar—2 was not the only other BSS (sound) satellite that could operate on a non— interference basis with AfriStar—1. That is why the Bureau erred in waiving the standard NGSO— like processing rules for the non—replacement satellite service proposed by AfriStar—2. AfriSpace‘s silence on this key issue coupled with its strident thetoric about peripheral matters is telling. Itis clear that AfiSpace wants to prevent the Commission from Tearning anything more about the facts of this case lest that jeopardize the iregular license it was granted for AfriStar—2 which, as noted, authorized AfriSpace to provide a new (Le., non—replacement) European satellite radio service outside of the FCC‘sstandard NGSO—like licensing process. The Commission should not accommodate AfriSpace‘s wishes. Rather it should grant Ondas‘ Pending Request and, as in past satellitelicensing dockets, permit all interested parties to meet with the Commission and its staff so that the ageney has a frst hand opportunity to review relevant information." 1. Ondas has met the Standard For Modifying the Ex Parte Status of this Proceeding. Under Section 1.1200(@) of its Rules, the Commission is authorized to modify the ex parte status ofa proceeding "[wJhere the public interest so requires."* While there is no formal test for what constitutes the "public interest,"" the Commission itself (or through a Bureau) regularly modifics the ex parte status of satellite licensing proceedings like this because they AfriSpace, Ic, Order and Authoriation, 21 FCC Red 17, DA 06—4, releaed Januory 3, 2006 (ritar—2 Order) > See,e@. Sobridge LLC., 13 ECC Red 11076, 11076 (InI Bu. 1998); RehoSter Stelite Corp., 15 FCC Red 12707 (nct Bur, 2000) hi #7 CiuR s 112000 4 AfrSpace ertoncously assets ht a party secking to derestrit a procecding must show that the public interest will bserved by "a preponderancof the evidence." However,thecase cied by AfriSpace, AT&T Corp. 1 Business Telecomn, Ic. 16 FCC Red 18159(2001), does not stand for that propositon. There, the agency declined to derestrcta docket laely because it mvolved a frmal complaint proceeding. See note 11 info

"vaise complex policy and technical issues."* Significantly, a recent review of the FCC‘s records by undersigned counsel reveals that between January 25, 2006 and March 22, 2006, the Bureau derestricted approximately 30 satellte licensing dockets in order to facilitate resolution of the complex issues involved." Ondas has clearly demonstrated that this docket is analogous. The Bureau‘s grant of the AfriStar—2 application raises interrelated procedural, legal, and policy questions concerning i) the Bureau‘s authority to waive the processing procedures for NGSO or NGSO—like satellites without prior public notice; (i ) the engineering standard for determining whether a proposed BSS (sound) system will interfere with a previously licensed BSS (sound) satelite; and whether the Bureau‘s decision not to invite competing applications in the AfriStar2 docket prejudged the intermational coordination process."— These issues extend beyond the current ee, . Public Noic, Rep. No. SAT—00125 (InI Bur, Oct, 30, 2002)(modifying expart satus for CO and Lockheed Martin proceedings; Public Notice, "Lockbeed Martn Com, Repulu, LLC, ComsatCorp, and Comsat Govermment Servies,Inc. Seck FCC Consent for Transactons," Rep. No. SPB—139 (IBur Oct, 23, 1998); Public Notie, "Applications and Leters of Intet Filed by Nine Parties to Launch and Operate Systems to Provide Moble Satelite Service in the 2 GHtz Band,"Rep. No. SPB—132(In‘I Bur., July 29, 1998) (modifying ex parte staus of 2 GHHz MSS lcense applications to permitbucdiclose} Public Notice, Rep. No. SES—00390 (InC1 Bur. March 25, 2004) (modifying the ex parte satas of DIRECTV‘s Hanket Receive Only Earth Station Applicaon to provide DBS serviceto the U.S. market in BSS spectrum); Public Narice, Rep. No. SAT—00201 (In‘! Bur. March 19, 2004)(modifyingth ex parte status of DIRECTV‘s STA requestorelocate the DIRECTV 5 srlite). Public Noice, DA 06377 (OET Febrmary 17, 2006)(modifying the ex parte siatus of Inmarsar‘s applcation for a new station in the Experimental Radio Service); Sbdridge £LC, 13 FCC Red 11076,11076 (ltBur. 1998); EchoSer Surelite Co., 15 ECC Red 13797 (it‘ Bor,2000) * See PublicNotice, Report No SES—00805 (March 22,2006);Public Notice, Report No SES—00803 (March 15, 2006);Public Notice, Report No. SES—00794 (Febmary 15, 2006);Public Notie, Report No. SES« 00793 (Pcbriary8, 2006); Public Noic, Report No. SES—00789 (Jamary 25, 2006) * in resard to the iterational coordination isww, AfriSpace confises the main poit previously made by Ondas. The Afrisar—2 Onder prejudicd Ondas fr at leasthree reasons. Firs, ny Ondas BSS (sound) system must now avoid inerfering with he augmented AfriSr:2 service footprnt rather than merely a replacement footprint equivalent to that of AfrSta—1. Secand, the Bureau‘s action prevented Ondas from secking a US. license to operte a European satlite radio service in the same band for the non— replacementservice area roposed by AfriStar2,even though AfiSpace apparenty will use bat one—third of thspectram t has requested in Europe. As a resulit also appears hat he abilty ofOndas to operate a Spanish Heented HighlyElipteal Orbit (HEO) BSS (sound) system for Europe willbe adversly impacted. That is because the US. may now contend, in informal coordination talks or othervise, that any such sutelite willinerfere with AfrStar2 whereas, in fict, the two systems can coenst by, for cxample, eperating on difeent frequencies (1e, there is no valid engineerng ground for the US. to protect AfriStar—2‘s operitions acrossth full 452—1492 Mitz BSS (sound) band).

proceeding and it is important that the Commission provide an adequate opportunity for all interested parties to explain their position before it makes its decision. AfriSpace, however, ignores the substantial precedent cited by Ondas and instead argues that Ondas only cited Bureau level cases." This argument is merely a distraction. It is commonplace for the Commission to derestrict proceedings before it by permitting the Bureau to do so on delegated authority and this is routinely done by a grant—stamp.. For example, in March of 2003, the Commission (through the Bureau) derestricted a satelite Hicensing proceeding that was in front of the Commissioners on an Application for Review. ‘° The derestriction was accomplished by grant—stamp because it was not controversial and it gave the Commission the opportunity to familiarize itself with the complex and novel issues involved."" 1. Derestricting This Docket Need Not Delay Any FCC Action And Is Essential To Familiarize New Commissioners With The Complex Satellite Licensing Issues Involved. AffiSpace is also wrong in suggesting that permitting exparte submissions in this docket will unfairly delay the Commissioner‘s deliberations. On the contrary, given the complex issues involved, ex parte presentations are much more likely to faciltate Commission action than to postpone it. This is especially so given that two of the five Commissioners who are likely to act on Ondas® appliation will be new to the Commission and may not be familiar with the case law or procedures upon which the Bureau‘s decision is predicated. Surely AfriSpace is not Opposiion atp.7 % itee Request to Modify Ex Part Status filedby TMI Communications and Company, Linited Partership and Terrar Networks,Inc. on March 28, 2003.This request was gramed by the Commision (through the Bureau) on April $, 2003 (IBES Nos. SAT—LOF—19970926—0016; SAT—AMD—20001 103—00158; SAT« wob20021 n+.0037; sar—asc—20021211—0030) AfriSpace cluims that this proceeding should not be detesticted, bt it only ctes one case where the Commission denieda derestiction request See AT&T Corp. . Business Telecom, Inc., 16 FCC Red 18189 (2001) This case, howeer, ditinpuishable becaus i nvolved a formal complait proceeding (ic, an adjudiction docket) whichare almost alvays restricted and th isues inolved were also beinTtignted beforethe Court of Appeals. Hence,the FCC was obviousy cancemned that changing the eparte satus of the docket might prejudice one or more paries.. Satelite licensing dockets, in cantrast, are rotinely derestricted. See notes 6 and 7 spre

surgesting that these new Commissioners and their staffs should be barred from having the type of one—on—one presentations which all of their fellow Commissioners have invited from satellite particsfor several years. In any case, if Ondas® application to derestrict this proceeding is granted, Ondas will use its best efforts to promptly complete its own ex parte presentations, subject. to the Commissioners® schedules. Assuming AfriSpace does likewise, the docket should be ripe for decision by June or July 2006 atthe ltest. IHI. AfriSpace‘s Ad Hominem Attack Must be Stricken. Finally, the Commission should disregard the wholly unsupported ad hominem attack on Ondas‘ non—executive Director, Robert Mazer, who also serves as one ofthe firm‘s FCC lawyers. The bald assertion that Mr. Mazer‘slink to Ondas "clearly shows that Ondas‘s actions constitutes an intentional manipulation and abuse of the Commission‘s procedures for potential competitive gain""" has no factual basis. Indeed, it is libelous and secks to maliciously defame Mr. Mazer by falsely implying that Mr. Mazer has sought unlawfully to manipulate the FCC‘s processes for personal gain." The foregoing statement by AfriSpace‘s counsel has no place in AfriSpace‘s pleading. Far from casting any doubt on the character of Mr. Mazer, who has been a member in good * Oppositionatp.2. * AfriSpace appears to believe that Ondas® Application for Review constiies an abuse of the FCC‘s procedires and is intended solely to delaythe lainch of the AfriStan2 system because() Ondas docs not intend to filan FCC licenses application fr a competing BSS (sound) system; and (b) Ondas had an cbligation to present any technial objections t granting AfriStr2 to the Bureau. Neitherallegation is vlid. Whether ornot Ondasintendstoseck a FCC icensefor BSS (sound) sytem, which has not been decided, he enlarged (ron—replacement footprin) of AfriStar2 may adversely affct the abilty of any furure U.S. or non—U.S. BSS sytem to co—exist wth AfriSpace. That plainly gave Ondas lepal sanding to filits Applicaton for Review. Second, prior to grating the Afritar—2 Order, Ondas had no reason to believe that the Bureau would unilteally decide, on is on motion and without public notie,that no other BSS system could operate on aninterfrence—fee basisto AfriStr—1. Hence, Ondas had no reason to submit additional technical nformation, Indeed, as explained in Ondas® Application for Review, had the Bureau properlyfllowed the NGSO—like processing rules and given Public Notice of theactionit was contemplating, Ondas would have submited thesame technicalinformation to the Burcau

standing ofthe local bar for over 25 years, AfriSpace‘s allegation onl dishonors its authors and their client IV. Conclusion. For all of the above reasons, the Commission should reject AfriSpace‘s: pernicious attempt to keep the Commission in the dark about the merits of Ondas‘ Application for Review. The ex parie status of this docket should be changed forthwith so that all the FCC‘s Commissioners and their staff have a full opportunity freely to discuss the underlying facts and aw in this proceeding with all interested parties. Respectfully Submitted, Gregory C. Staple Scott W. Woodworth Vinson & Elkins LL.P. 1455 Pennsylvania Ave, NW Suite 600 Washington, DC 20004—1008 (202) 639—5500 Counsel to Ondas Media, $4. March 27, 2006 se 100c

CERTIFICATE OF SERVICE 1, Scott Woodworth, herchy certify that on this 27th day of March, 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 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 Intemational Bureau Commission Federal Communications Commission 445 12th Street, SW 445 12th Street, SW Washington, DC 20554 Washington, DC 20554 *The Honorable Jonathan Adistein *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 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 Chief, International Burcau 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 +Femm 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 Office ofCommissioner Tate John T. Anderson Federal Communications Commission Director, Corporate Affairs 445 12th Street, SW Delphi Corporation Washington, DC 20554 1301 Pennsylvania Avenue, NW Suite 1030 Tara K. Giunta Washington, DC 20004 J. Stephen Rich Paul Hastings, LLP 875 15th Street, NW Washington, DC 2000 (Counsel to AfriSpace, Inc.) {lnt" * Via Hand Delivery Scott Woodworth


Document Created: 2006-03-30 13:03:14
Document Modified: 2006-03-30 13:03:14
© 2024 FCC.report
This site is not affiliated with or endorsed by the FCC