Petition for Reconsideration PETITION by EchoStar Corporation SAT-LOA-20090528-00060 85W Petition for Rec

85W Petition for Rec

PETITION submitted by EchoStar Corporation

Petition for Reconsideration

2010-08-30

This document pretains to SAT-LOA-20090528-00060 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA2009052800060_837351

Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554

)
In the Matter of )
)
ECHOSTAR CORPORATION ) File No. SAT-LOA-20090528-00060
) Call Sign S2791
Application to Operate a C-Band )
Geostationary Satellite Orbit Satellite in the )
Fixed-Satellite Service at the 84.9 W.L. )
Orbital Location )
)

To the International Bureau

PETITION FOR RECONSIDERATION

Jeffrey H. Blum Pantelis Michalopoulos
Senior Vice President L. Lisa Sandoval
& Deputy General Counsel STEPTOE & JOHNSON LLP
EchoStar Corporation 1330 Connecticut Avenue, NW
1110 Vermont Avenue, NW, Suite 750 Washington, D.C. 20036
Washington, D.C. 20005 (202) 429-3000
(202) 293-0981 Counsel for EchoStar Corporation

August 30, 2010

SUMMARY

EchoStar Corporation (“EchoStar”) respectfully petitions the International Bureau to

reconsider its Memorandum Opinion and Order1 dismissing the above-captioned application to

launch and operate a new C-band satellite at the 84.9º W.L. orbital location. In light of the

significant legal and policy concerns raised in this petition, and particularly based on the

additional information submitted herein, EchoStar requests that the Bureau reverse its Order and

continue to process its application. In particular, EchoStar requests that the Bureau find that (1)

EchoStar is not subject to the presumption of speculation established in Section 25.159(d) of the

Commission’s rules, 47 C.F.R. § 25.159(d); (2) if EchoStar is found to be subject to the

presumption, it has successfully rebutted the presumption; or (3) EchoStar qualifies for a waiver

of the rule based on the circumstances of this case.

In finding that EchoStar is barred by the presumption from filing additional applications,

the Bureau has mistakenly taken into account EchoStar’s Reverse Band Working Broadcasting-

Satellite Service (“RBW BSS” or “RDBS”) licenses. In fact, Section 25.159(d) of the rules, 47

C.F.R. § 25.159(d), was never meant to apply to Direct Broadcast Satellite (“DBS”) applications

or licenses at all. The First-Come, First-Served Order itself, which promulgated the rule, states

this clearly: “[N]one of the rules adopted in this Order are applicable to DBS . . . applications,

including but not limited to the licensing procedure rules.”2 DBS licenses using the 17 GHz

band in the reverse mode are no less “DBS” or “BSS” than 12/17 GHz DBS satellites. Indeed,

1
EchoStar Corporation, Memorandum Opinion and Order, DA 10-1401 (rel. July 29,
2010) (“Bureau Order” or “Order”).
2
Amendment of the Commission’s Space Station Licensing Rules and Policies;
Mitigation of Orbital Debris, First Report and Order and Further Notice of Proposed
Rulemaking in IB Docket No. 02-34, and First Report and Order in IB Docket No. 02-54 18
FCC Rcd. 10760 at 5, n.4 (2003) (“First-Come, First-Served Order”).

when the Commission subsequently promulgated service rules for RDBS satellites, it pointedly

made these satellites subject only to specifically listed safeguards against speculation from the

First-Come, First-Served Order, not including Section 25.159(d). Among other implications,

this means that unbuilt RDBS satellites should not count in determining if an entity has two or

more pending applications or licensed-but-unbuilt satellites. The presumption therefore should

not bar applications by EchoStar unless and until EchoStar has two pending applications for

Fixed-Satellite Service (“FSS”) satellites, or two licensed-but-unbuilt FSS satellites.3

The Bureau’s decision that EchoStar has been unable to rebut the “speculative purposes”

presumption moreover is based on an incorrect interpretation of the term “speculation” as this

term is used in the Commission’s First-Come, First-Served Order. The Bureau’s Order states:

“Applying for licenses for multiple satellites, and later deciding to build some, but abandon

others, is exactly the type of speculation the rule was meant to prevent.” 4 In fact, the term

“speculation” as used by the Commission has a different meaning. The First-Come, First-Served

Order intended “speculator” to mean someone who obtains a license in order to turn around and

sell it to someone else to make a profit. The Commission adopted the milestone schedule for

satellite licenses to “reduce the profits a speculator can make from its sale,” and thereby

3
The Bureau Order also misapplies the 33% attribution standard to conclude that DISH’s
missed milestones should be attributed to EchoStar for the purposes of determining whether the
presumption of Section 25.159(d) is triggered. But that attribution standard, under the terms of
the Commission’s rules, applies only to the five-satellite limit, and not to the presumption of
Section 25.159(d). Without guidance from the Commission, the Bureau’s Order has
transplanted this attribution standard to Section 25.159(d), on the ground that it would have made
sense for the Commission to do so. For the purpose of construing a punitive provision, such as
this presumption against speculation, DISH and EchoStar, two separate publicly listed
companies, should be treated as separate entities.
4
Bureau Order ¶ 14.

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“discourage some speculation.”5 The Commission further explained that “applicants are unlikely

to purchase a license from a ‘speculator’ because they can simply apply for one.”6 EchoStar has

never once speculated in the sense in which the First-Come, First-Served Order used the word.

The Bureau’s Order also would appear to disserve the Commission’s policy, mandated

by Congress, of promoting competition in the FSS markets.7 In a related vein, the Order appears

uninformed by the worst economic crisis this nation has experienced since 1929. Launching

satellites into space is a high-cost, high-risk enterprise in the best of times, let alone in the

current business environment. High barriers to entry mean that those few companies with the

proven record of launching satellites and the wherewithal to launch more should be given

encouragement, and should certainly not be barred from future undertakings.

EchoStar has both the pedigree and (with $1.2 billion in current assets) the financial

capability to continue to participate in the satellite business. EchoStar has a record that stands

very respectably alongside those of its larger satellite competitors.8 EchoStar is not a speculator,

and the Bureau should avoid the chilling implications of the Order for the entire satellite

industry.

5
Id. ¶ 216.
6
Id.
7
Allocation and Designation of Spectrum for Fixed-Satellite Services in the 37.5-38.5
GHz, 40.5-41.5 GHz, and 48.2-50.2 GHz Frequency Bands, FCC 97-85, IB Docket No. 97-95 ¶
8 (rel. Mar. 24, 1997).
8
EchoStar submits as Appendix 1 additional information on its satellite construction
record that may not have been fully evaluated by the Bureau. That information includes a listing
of its satellite achievements; a description of the many satellites that, while not licensed to
EchoStar, would not have been built and launched but for EchoStar’s investment in them; and a
description of EchoStar’s watershed contributions to spotbeam satellite deployment.

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TABLE OF CONTENTS

Page

SUMMARY ................................................................................................................................. i

ARGUMENT...............................................................................................................................1

I. Introduction and Background .......................................................................................2

II. EchoStar Has Not Triggered the Presumption ............................................................3

A. The Bureau Incorrectly Attributed DISH’s Surrendered Licenses to
EchoStar...............................................................................................................3

B. EchoStar’s Licensed RDBS Satellites Should Not Be Included in the
“Licensed-But-Unbuilt” Calculation in Section 25.159(d) ..............................5

C. EchoStar Did Not Engage in “Speculation,” as the Term is Used
by the Commission..............................................................................................7

III. EchoStar Hereby Provides Additional Information of Its Record of
Innovation Which Would be Stunted by the Bureau’s Order .....................................9

IV. EchoStar Should Not Be Branded a Speculator as a Matter of Commission Policy12

V. Conclusion .....................................................................................................................14

- iv -

Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554

)
In the Matter of )
)
ECHOSTAR CORPORATION ) File No. SAT-LOA-20090528-00060
) Call Sign S2791
Application to Operate a C-Band )
Geostationary Satellite Orbit Satellite in the )
Fixed-Satellite Service at the 84.9 W.L. )
Orbital Location )
)

To the International Bureau

PETITION FOR RECONSIDERATION

ARGUMENT

Pursuant to Section 405 of the Communications Act of 1934, as amended, 47 U.S.C.

§ 405, and Section 1.106 of the Commission’s rules, 47 C.F.R. § 1.106, EchoStar Corporation

(“EchoStar”) respectfully petitions the Bureau to reconsider its Order dismissing EchoStar’s

application to launch and operate a C-band satellite at 84.9 W.L. orbital location.1 EchoStar is

also submitting additional information relevant to the Bureau’s evaluation of these matters. In

light of the analysis found in this petition, and particularly based on the additional information

submitted here, EchoStar requests that the Bureau find that (1) EchoStar is not subject to the

presumption of speculation established in Section 25.159(d) of the Commission’s rules, 47

1
Bureau Order ¶ 1.

C.F.R. § 25.159(d); (2) if EchoStar is found to be subject to the presumption, it has successfully

rebutted the presumption; or (3) EchoStar qualifies for a waiver of the rule.2

I. Introduction and Background

On July 29, 2010, the Bureau dismissed EchoStar’s application to operate a GSO FSS

space station using the C-band frequencies at the 84.9º W.L. orbital location.3 The Bureau held

that “[i]n an almost three-year period, from December 2006 through September 2009, EchoStar

did not implement five of its licensed satellites,”4 triggering the presumption of 47 C.F.R. §

25.159(d) that EchoStar has obtained one or more of these licenses for speculative purposes.

That presumption, standing alone, is not enough to bar acceptance and grant of future

applications. For the bar to “spring” to life, the license in question must also have two or more

satellite applications pending, or two licensed-but-unbuilt satellite systems of any kind. But the

Bureau held that this prerequisite, too, is satisfied here. In the Bureau’s view, the bar applies

because EchoStar does have two or more licensed-but-unbuilt satellites – its five licensed RBW

BSS satellites.5

The Bureau also rejected EchoStar’s argument that its affiliate, DISH Network

Corporation (“DISH”), was responsible for surrendering some of the relevant licenses because

the Bureau found that EchoStar has an attributable interest in the licensee that missed the

2
EchoStar reserves the right to request a new waiver of the presumption, based on an
additional showing of good cause for such a waiver, at an appropriate point in the future.
3
See File No. SAT-LOA-20090528-00060 (filed May 28, 2009) (“85 W.L.
Application”).
4
Bureau Order ¶ 1.
5
Bureau Order ¶ 3 (“[A]t that time, EchoStar had five pending applications for satellites
in the Broadcasting-Satellite Service (BSS)”).

-2-

milestones, EchoStar Satellite Operating L.L.C., a subsidiary of DISH. Moreover, the Bureau

rejected EchoStar’s argument that neither it nor its affiliate, DISH, missed any milestones

because the licenses were surrendered before the milestone had been reached.6 The Bureau

declined to accept EchoStar’s evidence of its past success at bringing satellite assets into use as

sufficient to rebut the presumption, stating that “EchoStar’s overall status in the industry does

not, in itself, provide evidence that EchoStar did not engage in speculative activity in applying

for certain satellite licenses.”7 Lastly, the Bureau held that EchoStar had not provided adequate

evidence that it is likely to construct all of its licensed satellites and the proposed C-band satellite

at 85 W.L., thereby denying EchoStar’s request for a waiver.8

II. EchoStar Has Not Triggered the Presumption

A. The Bureau Incorrectly Attributed DISH’s Surrendered Licenses to
EchoStar

The Bureau incorrectly applied the attribution rule set out in Section 25.159(c) to

attribute licenses surrendered by EchoStar’s affiliate, DISH, to EchoStar to trigger the Section

25.159(d) presumption. The attribution rule applies only when calculating the number of

pending applications and licensed-but-unbuilt satellites maintained by the applicant.

Specifically, the attribution rule set forth in 47 C.F.R. § 25.159(c), which precedes Section

25.159(d), applies only “for purposes of the limits on the number of pending space station

6
Id. ¶¶ 10-12.
7
Id. ¶ 14.
8
Id. ¶ 19.

-3-

B. EchoStar’s Licensed RDBS Satellites Should Not Be Included in the
“Licensed-But-Unbuilt” Calculation in Section 25.159(d)

In finding that EchoStar is barred by the presumption from filing additional applications,

the Bureau has mistakenly taken into account EchoStar’s licensed RDBS satellites. In fact,

Section 25.159(d) of the rules does not apply to DBS applications or licenses at all. The First-

Come, First-Served Order itself, which promulgated the rule, states this clearly: “DBS licensees

will continue to be required with the due diligence requirements of Section 25.148(b) rather than

the milestone requirements we adopt in Section VII.C below.”14 DBS licenses using the 17 GHz

band in the reverse mode are no less “DBS” than 12/17 GHz DBS licenses. The 17.3–17.8 GHz

band is allocated to BSS downlinks, exactly as the 12.2-12.7 GHz band is.15

RDBS satellites continued to be beyond the scope of Section 25.159(d) after the

Commission issued its initial order establishing licensing rules for satellite operations in the

17/24 GHz Broadcasting-Satellite Service. It applied to RDBS applications specific safeguards

set out in the First-Come, First-Served Order.16 The specific safeguards were limited to filing a

bond, meeting the milestones set out in Section 25.164, and the general limitations imposed on

FSS applicants to five pending or licensed-but-unbuilt satellites.

Here is what the Commission said:

In the NPRM, the Commission noted that the First Space Station
Licensing Reform Order adopted a package of safeguards designed

14
First-Come, First-Served Order at 5, n.4.
15
See 47 C.F.R. § 2.106 (Table of Frequency Allocations).
16
The Establishment of Policies and Service Rules for the Broadcasting-Satellite Service
at the 17.3-17.7 GHz Frequency Band and at the 17.7-17.8 GHz Frequency Band Internationally,
and at the 24.75-25.25 GHz Frequency Band for Fixed Satellite Services Providing Feeder Links
to the Broadcasting-Satellite Service and for the Satellite Services Operating Bi-directionally in
the 17.3-17.8 GHz Frequency Band, Report and Order and Further Notice of Proposed
Rulemaking, 22 FCC Rcd. 8842 ¶¶ 12-16 (2007) (“RDBS Order”).

-5-

to discourage speculative applications and to ensure that licensees
remain committed and able to proceed with system implementation
in a timely manner. Applying these safeguards to the 17/24 GHz
BSS would require licensees to post a $3 million bond with the
Commission within 30 days of license grant and construct and
launch the satellite consistent with the milestone schedule specified
in Section 25.164 of the Commission’s rules. The bond becomes
payable if a licensee fails to meet a milestone, rendering the license
null and void. Further, GSO-like applicants are limited to a total of
five pending applications and/or licensed but unlaunched satellites
in a particular frequency band at any one time, and must submit
substantially complete applications or face dismissal, and cannot
sell their place in the processing queue.17

Thus, the Commission pointedly omitted the presumption of Section 25.159(d) from the

list of safeguards incorporated by reference. Moreover, paragraph 10 of the RDBS NPRM, to

which the RDBS Report and Order cited, is similarly silent:

Our first-come, first-served approach for processing space station
applications contains a package of safeguards to ensure that licensees
remain committed and able to proceed with system implementation in a
timely manner. Our rules require all GSO-like applicants awarded a
license under this procedure to post a $3 million performance bond with
the Commission within 30 days of license grant. They also require
licensees to construct and launch the satellite consistent with a specified
milestone schedule. If the licensee fails to meet an implementation
milestone, the license becomes null and void and the bond is executed.
The rules also limit applicants to a total of five pending applications and
licenses for unbuilt satellites in a specific frequency band at any one time.
If we decide to include 17/24 GHz BSS in the processing rules and
requirements of the Space Station Licensing Reform Orders, we propose
to apply these accompanying safeguards, including applying the standard
milestone schedule in Section 25.164 of the Commission’s rules to 17/24
GHz BSS systems.18

17
Id. ¶ 12.
18
The Establishment of Policies and Service Rules for the Broadcasting-Satellite Service
at the 17.3-17.7 GHz Frequency Band and at the 17.7-17.8 GHz Frequency Band Internationally,
and at the 24.75-25.25 GHz Frequency Band for Fixed Satellite Services Providing Feeder Links
to the Broadcasting-Satellite Service and for the Satellite Services Operating Bi-directionally in
the 17.3-17.8 GHz Frequency Band, Notice of Proposed Rulemaking, 21 FCC Rcd. 7426 ¶ 10
(2006) (internal citations omitted).

-6-

The conclusion is difficult to escape. The presumption of Section 25.159(d) could not

have been made applicable to RDBS satellites sub silentio. While the Commission cited to

Section 25.159 in its discussion of the limit on pending applications and unbuilt satellites, it

specifically noted only the general limit of five GSO applications or unbuilt satellites.19 In light

of this evidence, the meaning of the phrase “two or more satellite applications pending, or two

licensed-but-unbuilt satellite systems of any kind,” as used in Section 25.159(d), becomes clear.

That phrase refers to satellites of any kind covered by the rules (e.g. geostationary or non-

geostationary, FSS satellites operating in different bands). It does not refer to DBS satellites,

including RDBS satellites.

Unbuilt RDBS satellites should thus not count in determining if an entity has two or more

pending applications or licensed-but-unbuilt satellites. The presumption should not bar

applications by EchoStar until and unless EchoStar has two pending applications for FSS

satellites, or two licensed-but-unbuilt FSS satellites. Neither is the case.

C. EchoStar Did Not Engage in “Speculation,” as the Term Is Used by the
Commission

The Bureau’s decision that EchoStar has been unable to rebut the “speculative purposes”

presumption is moreover based on an incorrect understanding of the term “speculation” as this

term is used in the Commission’s First-Come, First-Served Order. The Bureau’s Order states:

“Applying for licenses for multiple satellites, and later deciding to build some, but abandon

others, is exactly the type of speculation the rule was designed to prevent.”20 Not so.

Speculation as used by the Commission has a different meaning. The First-Come, First-Served

19
RBDS Order ¶ 12.
20
Bureau Order ¶ 14.

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nor any of its cognates is used by the First-Come, First-Served Order in this manner. Rather, the

Commission presumed that such a licensee obtained the licenses in hopes of selling them and

failed to do so. There is no suggestion in the Bureau Order that EchoStar ever tried to assign or

transfer control over any surrendered licenses.

III. EchoStar Hereby Provides Additional Information of Its Record of Innovation,
Which Would Be Stunted by the Bureau’s Order

The Bureau was incorrect to find that EchoStar has not adequately rebutted the

presumption if it indeed is found to apply. The Commission’s First-Come, First-Served Order

makes clear that the presumption is not meant to be a draconian sanction, and it is not to be

applied in a manner that discourages applications for innovative satellites. The Commission

noted: “This stricter limit should enable us to address instances of warehousing, while also

addressing [the Satellite Industry Association’s (“SIA’s”)] and Intelsat’s concern about

discouraging parties from applying for satellite licenses regardless of their intent to proceed with

their business plans.”25 As the Order further explained, SIA had voiced concerns “that imposing

penalties other than the loss of the license in question on licensees that fail to meet their

milestones could discourage applicants from filing licenses for new or innovative satellite

systems.”26 Intelsat has also opposed limits on applications in the same frequency band if a

milestone was missed because “such a penalty would discourage licensees from taking necessary

risks and could overly penalize such licensees.”27 Yet the Bureau Order has precisely the effect

that the First-Come, First-Served Order intended to avoid – to penalize innovative plans in the

25
First-Come, First-Served Order ¶ 200.
26
Id. ¶ 198.
27
Id.

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absence of any speculative (i.e. trafficking) intent and to apply the presumption in a draconian

manner indeed.

As an initial matter, the specific licenses that were ultimately returned by DISH, were not

obtained for speculative purposes. DISH contributed substantial funds to the progress of the

satellites, including the posting of the required bonds and meeting a number of the milestones.28

Furthermore, EchoStar has demonstrated that it is not a speculator. As described in its

application, EchoStar has made great efforts to bring satellite spectrum into commercial use,

including construction, leasing or buying state-of-the-art satellite capacity, and purchasing assets

of failing satellite companies.29 As EchoStar stated in its application, EchoStar is a satellite

industry leader that “remains one of the most active companies in bringing satellite projects to

fruition for the benefit of U.S. consumers.”30

The Bureau did not dismiss the relevance of this information, but discounted it as

insufficient standing alone.31 Accordingly, EchoStar hereby submits additional evidence about

its accomplishments in several respects. First of all, EchoStar’s record can be evaluated more

28
DISH posted one bond and met two milestones for its Ka-band license at 117º W.L., its
Ku-band license at 109º W.L., and its Ku-/Ka-band license at 121º W.L. See File Nos. SAT-
LOA-20030827-00177; SAT-MOD-20041008-00196; SAT-MOD-20041208-00218 (Call Sign
S2490) (117º W.L.); SAT-LOA-20031211-00350; SAT-MOD-2005-0930-00195; SAT-AMD-
20051118-00249 (Call Sign S2607) (109º W.L.); SAT-LOA-20031215-00355; SAT-MOD-
20041102-00206; SAT-MOD-20050617-00127 (Call Sign S2609) (121º W.L.). DISH posted its
bond and met its third milestone to commence construction for its Ku-band license at 113º W.L.
See File No. SAT-LOA-20040803-00154; SAT-MOD-20070323-00055 (Call Sign S2636).
Lastly, EchoStar posted its bond and met its third milestone to commence construction for its
Ka-band license at 97º W.L. See File No. SAT-LOA-20030827-00186; SAT-AMD-20031203-
00345; SAT-MOD-20050308-00059 (Call Sign S2499).
29
See 85 W.L. Application at 6-7.
30
Id.
31
Bureau Order ¶¶ 13-14.

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meaningfully if, instead of being viewed in a vacuum, it is placed alongside that of other much

larger satellite operators. License surrenders are not an uncommon phenomenon for even the

largest satellite operators. Intelsat, for example, surrendered four RBW BSS licenses in 2009.32

DIRECTV, for its part, surrendered one RBW BSS license at the nominal 107º W.L. orbital

location in 2009,33 and withdrew its application for authority to launch and operate another RBW

BSS satellite system at the nominal 119º W.L. orbital location in 2008.34 This is not to say that

Intelsat or DIRECTV are speculators. They are not, any more than EchoStar is. Certainly,

EchoStar should be treated by the Bureau the same as similarly situated Commission licensees.

Second, EchoStar’s accomplishments have been obscured and unduly minimized by an

accidental characteristic of the transactions through which it has purchased or leased its satellites.

32
See Letter from Jennifer D. Hindin, Counsel to Intelsat North America LLC to Marlene
H. Dortch, Secretary, FCC (dated June 24, 2009), File Nos. SAT-LOA-20050210-00030, SAT-
AMD-20051118-00239, SAT-AMD-20080114-00009, SAT-AMD-20080617-00124, SAT-
AMD-20080701-00137 (Call Sign S2661); Letter from Jennifer D. Hindin, Counsel to Intelsat
North America LLC to Marlene H. Dortch, Secretary, FCC (dated July 14, 2009), File Nos.
SAT-LOA-20050210-00028, SAT-AMD-20080701-00134, SAT-AMD-20080617-00126, SAT-
AMD-20080114-00011, SAT-AMD-20051118-00241 (Call Sign S2659); Letter from Jennifer D.
Hindin, Counsel to Intelsat North America LLC to Marlene H. Dortch, Secretary, FCC (dated
Aug. 27, 2009), filed in File Nos. SAT-LOA-20050210-00029, SAT-AMD-20051118-00240,
SAT-AMD-20080114-00012, SAT-AMD-20080617-00125, SAT-AMD-20080701-00135 (Call
Sign S2660) (surrendering the 99.10º W.L. license); Letter from Jennifer D. Hindin, Counsel to
Intelsat North America LLC to Marlene H. Dortch, Secretary, FCC (dated Aug. 27, 2009), File
Nos. SAT-LOA-20050210-00031, SAT-AMD-20051118-00238, SAT-AMD-20080114-00008,
SAT-AMD-20080617-00123, SAT-AMD-20080701-00138 (Call Sign S2662) (surrendering the
90.90º W.L. license).
33
See Letter from William M. Wiltshire, Counsel for DIRECTV Enterprises, LLC to
Marlene H. Dortch, Secretary, FCC (dated Aug. 27, 2009), File Nos. SAT-LOA-19970605-
00049, SAT-AMD-20051118-00226, SAT-AMD-20080114-00015, SAT-AMD-20080321-
00078 (Call Sign S2242).
34
See Letter from Letter from William M. Wiltshire, Counsel for DIRECTV Enterprises,
LLC to Marlene H. Dortch, Secretary, FCC (dated Dec. 9, 2008), File Nos. SAT-LOA-
19970605-00051, SAT-AMD-20051118-00224, SAT-AMD-20080114-00017, SAT-AMD-
20080321-00080, SAT-AMD-20080908-00166 (Call Sign S2244).

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Specifically, while EchoStar operates a number of satellites (EchoStar 3, 4, 6, 8, 9, 12, and 15)

under its own licenses, it leases or has bought all of the satellite capacity on satellites licensed to

others. Thus, while AMC-15, AMC-16, and Anik F3 are licensed to SES and Telesat, none of

these satellites would be in operation today if all or substantially all of this capacity had not been

acquired by EchoStar. The same is true of the Ciel 2 satellite at 129º W.L. EchoStar requests

that the Bureau take into account these facts in evaluating EchoStar’s record.

Finally, EchoStar submits additional information on its watershed investment in, and

successful deployment of, spot beam capacity. Spot beam satellite architecture is hugely

complex and expensive, and did not exist except on paper for the most part of the 1990s. Its

deployment was pioneered by only three companies – EchoStar, DISH, and DIRECTV. It has

redounded to the benefit of consumers across the nation. It is thanks to these investments that

competition to cable television operators has been made possible for the first time. Many of

these benefits would not have come to pass without the creativity, resources, and risk-taking of

EchoStar. Appendix 1 describes in greater detail EchoStar’s investment in spot beam capacity

and in the FSS industry.

IV. EchoStar Should Not Be Branded a Speculator as a Matter of Commission Policy

As a policy matter, too, the Bureau’s Order would appear to disserve the Commission’s

policy, mandated by Congress,35 of promoting competition in the satellite markets.36 In a related

vein, the Order appears uninformed by the worst economic crisis this nation has experienced

35
Communications Satellite Act—Amendment, Pub. L. No. 109-34, 119 Stat. 377 § 404
(2005), codified at 47 U.S.C. § 744.
36
Allocation and Designation of Spectrum for Fixed-Satellite Services in the 37.5-38.5
GHz, 40.5-41.5 GHz, and 48.2-50.2 GHz Frequency Bands, Notice of Proposed Rulemaking,
FCC 97-85, IB Docket No. 97-95 ¶ 8 (rel. Mar. 24, 1997).

- 12 -

since 1929. Launching satellites into space is a high-cost, high-risk enterprise in the best of

times, let alone in the current lean years. High barriers to entry mean that these few companies

with the proven record of launching satellites, and the wherewithal to launch more, should be

given all appropriate encouragement and should certainly not be barred from future undertakings

in the area.

EchoStar has both the pedigree and (with $1.2 billion in current assets) the financial

capability to continue to launch and operate satellites. While a smaller company than several of

its competitors, EchoStar has a record that stands very respectably alongside those of its larger

competitors. As discussed above, other satellite companies have similarly been forced to change

their business plans and surrender licenses during this economic recession. To exclude any of

them from filing satellite applications would discourage investment and encourage a flight to

other licensing administrations.

What is more, of all the companies operating FSS satellites in the United States today,

EchoStar is the only U.S. company. U.S. policymakers have been increasingly and justifiably

concerned about the depleting treasure chest of U.S. expertise in the satellite industry. In its

recently completed study, the Center for Strategic and International Studies emphatically notes

this problem. In the report’s words, “[i]n the global commercial communications satellite

market, where the United States had a technical and qualitative lead over the international

competition in the 1990s, global competitors have closed the gap in the last decade.”37 The U.S.

Congress is also sensitive to the issue of promoting American know-how in general, as

evidenced by the Buy American provisions in the American Recovery and Reinvestment Act of

37
Ctr. for Strategic and Int’l Studies, National Security and the Commercial Space
Sector: An Analysis and Evaluation of Options for Improving Commercial Access to Space 26
(July 2010).

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2009.38 Barring the one U.S. satellite operator from future FSS applications and leaving the field

to foreign operators exclusively would only entrench this problem more deeply.

V. Conclusion

For the foregoing reasons, the Bureau should reconsider and set aside its Order as

suggested above.

Respectfully submitted,

/s/
Jeffrey H. Blum Pantelis Michalopoulos
Senior Vice President L. Lisa Sandoval
& Deputy General Counsel STEPTOE & JOHNSON LLP
EchoStar Corporation 1330 Connecticut Avenue, NW
1110 Vermont Avenue, NW, Suite 750 Washington, D.C. 20036
Washington, D.C. 20005 (202) 429-3000
(202) 293-0981 Counsel for EchoStar Corporation

August 30, 2010

38
Pub. L. 111-5, § 1605 (2009) (“None of the funds appropriated or otherwise made
available by this Act may be used for a project for the construction, alteration, maintenance, or
repair of a public building or public work unless all of the iron, steel, and manufactured goods
used in the project are produced in the United States.”).

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Document Created: 2010-08-30 19:25:48
Document Modified: 2010-08-30 19:25:48

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