Reply Comments 11.12

COMMENT submitted by DIRECTV Enterprises, LLC

DIRECTV REPLY COMMENTS

2009-11-12

This document pretains to SAT-LOA-20090807-00085 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA2009080700085_779093

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 hue! Nes Nenr! Nust! Nus! Nt Nust! Nus! Nus! Nus! Application of DIRECTV ENTERPRISES, LLC File No. SAT—LOA—20090807—00085 Call Sign: $2796 For Authority to Launch and Operate DIRECTV RB—2A, a Satellite in the 17/24 GHz Broadcasting Satellite Service at 103° W.L. REPLY COMMENTS OF DIRECTV ENTERPRISES, LLC DIRECTV Enterprises, LLC ("DIRECTV") hereby replies to the Comments of Ciel Satellite Limited Partnership ("Ciel") concerning DIRECTV‘s request of authority to launch and operate DIRECTV RB—2A, a geostationary 17/24 GHz Broadcast Satellite Service ("BSS") satellite to be located at the nominal 103° W.L. position.‘ Ciel argues that the Commission‘s domestic licensing authority should be rendered subordinate to the date priority of network filings at the International Telecommunications Union ("ITU"). The Commission shouldtake this opportunity to clarify its policies by definitively rejecting such an outcome. DIRECTV holds a Commission license to operate another 17/24 GHz BSS satellite at the nominal 103° W.L. location to provide service into the United States.* Similarly, Ciel has been authorized by the Canadian government to provide 17/24 GHz Satellite Space Applications Acceptedfor Filing, Report No. SAT—00636 (Int‘l. Bur., rel. Oct. 2, 2009); Comments of Ciel Satellite Limited Partnership, File No. SAT—LOA—20090807 (filed Nov. 2, 2009) ("Ciel Comments"). * DIRECTY Enterprises, LLC, 24 FCC Red. 9393 (Int‘l Bur. 2009) ("RB—2 Order") (authorizing DIRECTV to operate the DIRECTV RB—2 satellite at the nominal 103° W.L. orbital location).

BSS service into Canada from the same slot. Ciel suggests that, because Canada enjoys ITU date priority over the United States for these frequencies at this orbital location, Ciel would be entitled to blanket the entire United States with 17/24 GHz BSS transmissions "regardless of the impact on any DIRECTV customers" in the absence of coordination." This assertion is mistaken. Canada‘s ITU date priority does not give Ciel carte blanche to cause harmful interference in areas where it is not and cannot now be authorized to provide service. Canada‘s ITU date priority means simply that U.S.— licensed operators cannot interfere with Ciel‘s duly licensed operations — while Ciel itself is likewise obligated to minimize interference to licensed operators outside of its licensed area. Ciel‘s sweeping assertions to the contrary betray an erroneous understanding of the ITU coordination process for BSS systems. ARGUMENT Ciel misstates the nature of international coordination obligations and the consequences of failure to reach agreement. According to Ciel, DIRECTV is required to protect Ciel‘s operations throughout Region 2 because Canada‘s ITU date priority extends throughout the entire region." Yet when it applied for a Canadian license, Ciel represented to—Industry—Canada—that it would serve—Canada only;stating—that "[0)ne~ hundred percent of the 17 GHz BSS capacity on Ciel—6 will be made available to the Canadian Broadcast and BDU community."" Industry Canada granted Ciel‘s license for Ciel Comments at 6. Ciel also argues that any authorization issued in this proceeding should be conditioned upon the outcome of international coordination, as the Commission has done in other cases. See id. at 3—5. DIRECTV‘s application implicitly assumed that such a condition would be applied to any authorization granted in this proceeding. At one point, however, Ciel seems to assert that such a such a condition should be phrased in terms of "successful" coordination, id. at 1, but the Commission has never used such a formulation and it would not be appropriate. Ciel Comments at 6. * Applications in Reply to Notice DGRB—001—06 — Call for Applications to License Satellite Orbital Positions at 5, attached hereto as Exhibit A. 2

103 W based in part upon that representation. Nonetheless, Ciel now argues that, once it commences service, DIRECTV "will have to modify or terminate its operations as necessary to protect Ciel" in the United States, "regardless of the impact on any DIRECTV customers."" Ciel is wrong in suggesting that date priority alone determines a network‘s "relative rights to operate and to be protected from interference.""‘ To the contrary, the ITU Radio Regulations Board ("Board") states that "coordination is a two—way process," and that the intent of the date priority rules is simply "to identify to which administrations a request for coordination is to be addressed, and not to state an order of priority for rights to a particular orbital position."* ITU date priority, moreover, does not give any carrier the right to serve areas in which it not licensed. If it did, domestic licensing would be unnecessary, and the ITU would be the only regulatory body necessary for satellite authorizations. Thus, U.S.— Canada coordination at 103° W.L. will be constrained by the fact that Ciel cannot gain market access to the United States without Commission authorization" — authorization which Ciel does not have. Ciel Comments at 6. ‘ Id. at 4. ITU Radio Regulations Board, Rule of Procedure, Art. 9.6 (also providing that "no administration obtains any particular priority as a result of being first to start either the advance publication phase (Section I of Article 9) or the request for coordination procedure (Section II of Article 9)."). See Establishment ofPolicies 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 Bandfor Fixed Satellite Services Providing Feeder Links to the Broadcasting— Satellite Service andfor the Satellite Services Operating Bi—directionally in the 17.3—17.8 GHz Frequency Band, 22 FCC Red. 8842, «[ 17 et seq. (2007) ("BSS R&O") (setting forth market access standard for non—U.S. licensed space stations).

Ciel‘s argument seems to presume that it might obtain such authorization, but it is difficult to see how that could come about.‘" DIRECTV is already licensed under the Commission‘s rules to provide 17/24 GHz BSS service at 103° W.L.‘‘ Under these rules, a subsequent application will be granted only "if the proposed space station will not cause harmful interference to a previously licensed space station, or to a space station proposed in a previously filed application.”12 By contrast, "if an application reaches the front of the queue that conflicts with a previously granted license, [the Commission] will deny the application rather than keeping the application on file in case the lead applicant does not construct its satellite system."" A satellite that would require DIRECTV to "modify or terminate its operations" "conflicts" with its previously granted license. * This standard, moreover, explicitly applies to foreign—licensed satellites, which must take their place in the queue just as do U.S.—licensed satellites."" There is thus no question of Ciel legally serving the United States so long as DIRECTV holds this license. Ciel Comments at 4 (suggesting that the Commission will grant market access to a foreign licensee with ITU date priority notwithstanding a prior grant of a U.S. License for the same spectrum at the same orbital location) (citing Telesat Canada, 17 FCC Red. 25,287 (Int‘l. Bur. 2002)). "——RB—2 Oorder,T\. " 1d., 8 (citing 47 C.FR. § 25.158(b)(3)). Amendment ofthe Commission‘s Space Station Licensing Rules and Policies, 18 FCC Red. 10760, 113 (2003) ("First Come, First Served Order"). Ciel Comments at 6. First—Come, First—Served Order, 294 ("Given that we will continue to consider public interest factors in reviewing requests for market access, we must determine the procedures for reviewing Letters of Intent in conjunction with the first—come, first—served procedure for GSO—like satellite applications we adopt in this Order. We conclude that Letters of Intent should be treated the same as satellite applications. This is consistent with our WTO commitments to treat non—U.S. satellite operators no less favorably than we treat U.S. satellite operators."); BSS R&0O, [ 23 (providing that "all non—U.S— licensed satellite operators must meet the requirements adopted in this proceeding, including but not limited to bond requirements, milestone requirements, geographic service requirements, public interest obligations and spacecraft end—of—life disposal requirements"). The Telesat Canada case, cited by Ciel for the proposition that it could obtain market access to operate at 103° W.L., did not concern licensing under the "first come, first served" rules that the Commission made applicable to 17/24 GHz BSS 4

In such circumstances, DIRECTV‘s proposed space station is subject to international coordination obligations as described in its application — "with a Canadian system providing service across Canada.""" Because Canada‘s 17/24 GHz BSS ITU filing has date priority over that of the United States, DIRECTV cannot cause harmful interference to Ciel‘s licensed operations absent a coordination agreement.‘"‘ But because the system described in the instant application is composed of four independent spot beams, one of which is centered in western Texas and another of which is centered in Utah, DIRECTV has significant flexibility in accommodating Ciel‘s needs for protecting its Canadian service. Even the two remaining spot beams would protect services provided from the same orbital location over the vast majority Canada. Canada‘s ITU date priority does not permit Ciel simply to "rain" harmful interference throughout areas where it is not authorized to provide service. To the contrary, ITU Radio Regulations state that, "[iJn devising the characteristics of a space station in the broadcasting—satellite service, all technical means available shall be used to reduce, to the maximum, the radiation over the territory of other countries unless an agreement has been previously reached with such countries.""* Thus, just as ITU regulations require—DIRECTV not to interfere with—Ciel‘s Canadian operations, they also applications. Moreover, Telesat Canada did not stand for the proposition that foreign—licensed satellites can obtain market access regardless of interference to existing U.S. licensees. Rather, it explicitly provided that, under DISCO 7/ (not to mention the ECO—SAT test applicable here), "there may be cases where granting a non—U.S.—licensed satellite operator access to the U.S. market would create debilitating interference or require U.S.—licensed operators to alter their operations significantly 59 and that "[i}n that case, [the Commission] could place conditions on the foreign satellite operations to prevent harmful interference or, in cases where conditions cannot remedy the problem, deny entry." Telesat Canada, 24. Application, Narrative at 3. ‘ ITU Radio Regulations Arts. 9.6, 9.27, 11.42. * ITU Radio Regulations Art. 23.13.

obligate Ciel to minimize interference into DIRECTV‘s U.S. operations to the greatest extent possible. Were the rule instead as Ciel suggests, the Commission could be required to grant market access to satellite systems licensed by both Canada and Luxembourg, each of which has a network filing at this slot with ITU date priority over the U.S. Ciel has also recently filed comments in support of the pending application by a Netherlands— authorized operator to provide service in the U.S. from 103° W.L. —— even though the U.S. has ITU date priority over the Netherlands filing at this location.‘" The regime Ciel posits would lead to multiple authorizations at a number of orbital locations, and the resulting regulatory confusion and uncertainty would wreak havoc with an industry that depends upon long—range planning and investments of hundreds of millions of dollars."" * * * DIRECTV recognizes that it must engage in international coordination with Ciel regarding 17/14 GHz BSS operations at 103° W.L. It intends to do so diligently and in good faith, and expects those talks to be successful. Neither the ITU regulations nor the Commission‘s policies, however, permit Ciel to override the Commission‘s domestic licensing authority and cause—widespread—harmful interference—throughout—a country—Ciel is not licensed to serve to the detriment of a duly authorized licensee in that country. The Commission should take this opportunity to authoritatively reject Ciel‘s erroneous * See Comments of Ciel Satellite Limited Partnership, IBFS File No. SAT—LOI—20081119—00217 (Nov. 9, 2009). * It is also not at all clear what would happen under Ciel‘s regime if a non—U.S. licensed 17/24 GHz BSS system with ITU date priority sought market access at a non—grid location between two previously licensed U.S. systems located on—grid. Under Section 25.262(d) of the Commission‘s rules, the off— grid foreign system would be required to protect the on—grid U.S. licensees (by operating at reduced power flux—density levels and accepting interference from the on—grid operators), but under Ciel‘s theory the on—grid licensees would have to accommodate the foreign system with ITU date priority (effectively eviscerating the Commission‘s four—degree spacing policy for this band). 6

assertions as to the interplay between the international coordination process and the Commission‘s domestic licensing authority. Respectfully submitted, DIRECTV ENTERPRISES, LLC By: __/s/ Susan Eid William M. Wiltshire Senior Vice President, Government Affairs Michael Nilsson Stacy R. Fuller Vice President, Regulatory Affairs WILTSHIRE & GRANNIS LLP DIRECTV, Inc. 1200 Eighteenth Street, NW 901 F Street, NW, Suite 600 Washington, DC 20036 Washington, DC 20004 (202) 730—1300 (202) 383—6300 Counselfor DIRECTV Enterprises, LLC November 12, 2009

CERTIFICATE OF SERVICE I hereby certify that on this 12th day of November, 2009, a copy of the foregoing Reply Comments were served by first class mail, postage prepaid, upon: Scott Gibson Vice President and General Counsel Ciel Satellite Limited Partnership 275 Slater Street, Suite 810 Ottawa, Ontario, Canada K1P 5H9 Howard W. Waltzman Mayer Brown LLP 1999 K Street, NW Washington, DC 20006 Counsel to Spectrum Five, LLC /s/ Meagan Lewis


Document Created: 2009-11-12 17:39:01
Document Modified: 2009-11-12 17:39:01
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