Attachment 2004TMI TerreStar-re

This document pretains to SAT-LOI-19970926-00161 for Letter of Intent on a Satellite Space Stations filing.

IBFS_SATLOI1997092600161_842904

                                                                  EX PARTE op
                                                                              LATE FILED

                                                 RECEIVED
                                                  JAN 1 2 2004
                                             Federal Communications Commission
                                                      Office of Secretary
                                                                                      January 12, 2004



              .                                                                  szcsived
                              sel
John A. Rogovin, General Coun
Linda I. Kinney, Associate General Counsel                                 JAN 1 3 2004
Federal Communications Commission
445 12th Street, S.W.                                                       Policy Branch
Washington, D.C. 20554                                                   International Bureau
               Re:      File No. 189—SAT—LOI—97
                       IBFS Nos. SAT—LOI—19970926—00161
                                 SAT—AMD—20001103—00158
                                 SAT—MOD—20021114—00237
                                 SAT—ASG—20021211—00238

Dear John and Linda:

               On January 8, 2004, you graciously met with Jon Blake about the above matter.
The thrust of the discussion was whether the facts in this case meet the standard, not for
determining whether the International Bureau‘s decision is a reasonable interpretation of what
the milestone requirements should mean, but whether notice of this interpretation was sufficient.
Although the Court of Appeals has used various formulations as to what constitutes sufficient
notice when the Commission actions are punitive —— in this case the death penalty —— the notice
here fell far below any of those formulations. This makes the Bureau‘s decision highly
vulnerable on appeal, which is why the discussion on Thursday focused on the notice issue as a
matter of particular concern to the Office of General Counsel.

               The emphasis of the discussion was on the guidance, or lack of guidance, publicly
available to TMI and TerreStar at the time of the milestone deadline. But since then, the Bureau
has decided another case, which has now become a final order, KaStarCom, DA 03—3428,
Oct. 27, 2003.‘ On judicial review of our case, the Commission may be called upon to reconcile
that decision with ours. This issue is not unrelated to the adequacy—of—notice point. For it seems
inconceivable that a reasonable person could have examined the state of the law on July 17, 2002
(the date of the first milestone here) or November 1, 2002 (the date of the first milestone in the
KaStarCom case) and could have concluded that TMI‘s authorization would be canceled and
KaStarCom‘s upheld.


‘ The discrepancy between KaStarCom and our case was brought to the Commission‘s attention
in time for it to review KaStarCom on its own motion, but it chose not to do so.




                                                                             No. of Copies rec‘dl“[/’ z
                                                                             List ABCODE


              In simplified terms, here is a comparison of the two situations at the time of the
two milestone deadlines:

                                                            TMI/TerreStar


                                                     TMI         —}f———————————      satellite
                                            y ~——A                                   authorization
                                    //
                                /                                  26%
                               1
                           I/                                   MSV
                           1
                                                                    — 100%

         contract (1) to transfer                               TerreStar
         and (2) to enter
         construction contract



                                                           construction
                                                           contract




                                                           KaStarCom/WB

                                                                                           tellit
                                        y
                                            _———| KaStarCom            |}—————————       satelte   _
                                                                                         authorization
                                    /
                                /
                        /
                       1
                       1
                      1


                contract to
                transfer




                                                     construction
                                                     contract


                The similarities between the two cases are striking. At the time of the first
milestone in both cases, (1) the construction contract with the satellite manufacturer was held by
an entity different from the authorization holder, (2) the authorization holder intended to transfer
the authorization to the entity that held the construction contract, and (3) most critically, the
construction contract was non—contingent, conformed to the specifications of the authorization,
was being performed in a timely manner by both parties and was being sustained by prompt
payments under the contract. The decision in KaStarCom consists of a single finding in a single
sentence: "We conclude that the contract entered into by WB satisfies KaStarCom‘s first
milestone. .. .‘ The IB decision in the TMI case should also have been resolved by the finding:
"We conclude that the contract entered into by TerreStar satisfies TMI‘s first milestone. . . ."

                There are three, inconsequential differences between the two cases. But they
don‘t justify the death penalty for TMI and a clean bill of health for KaStarCom. If anything,
they justify the reverse.

               First, at the time of the milestone, TMI had a 26% ownership interest in TerreStar
and an agreement requiring TerreStar to enter into a compliant satellite construction contract.
The IB decision in KaStarCom cites no comparable agreement or ownership relationship
between KaStarCom and WB. Though one may have existed, it was not mentioned or relied on.
And the contract between KaStarCom and WB, if there was any contract at all, was for satellite
sharing, not satellite construction. This first difference, therefore, shows TMI to be more
deserving than KaStarCom.

                Second, in KaStarCom, the satellite contract predated, by a full two years, the
grant of the authorization to the licensee. In our case, TMI, through its affiliate TerreStar,
arranged for a new construction contract specifically for the design and construction of the
satellite covered by the Canadian and FCC 2 GHz authorizations. It retained control over design
and construction of the satellite until the transfer to TerreStar would take place. And under its
contractual obligation to TMI, TerreStar committed itself to a contract calling for it to make
payments of $380 million, phased in over the various construction stages for the satellite. Like
the first, therefore, this second difference also shows TMI to be more deserving than
KaStarCom.

               Third, nine days before the deadline, KaStarCom and WB filed an application to
transfer the license from KaStarCom to WB, as the party on the construction contract, whereas




* In the preceding paragraph, the IB decision stresses that "the Commission has consistently
required /icensees to execute non—contingent satellite construction contracts," which is exactly
the kind of language the Wireless Carriers have relied on to argue that the Commission has made
clear that third party contracts will not suffice. The same paragraph emphasizes "strict
enforcement" —— another prop that the Wireless Carriers have relied on. Yet in the very next
paragraph, just a few sentences later, the IB held that the milestone had been met, though the
licensee had not itself entered the construction contract. This demonstrates the complete fallacy
of the Wireless Carriers® reliance on such language in other cases.


TMI and TerreStar did not take this step until five months after the milestone deadline." For this
last distinction to matter, the Bureau and the Commission would need to ignore completely their
repeated statements that milestones should be enforced on the operative facts on the date of the
milestone deadline. Moreover, it would ignore that the Bureau was apprised that TMI would
transfer the authorization to TerreStar when appropriate, and that nothing in the Commission‘s
rules, the Bureau‘s orders, or the Bureau‘s dealings with TMI and TerreStar indicated that it
would be relevant when the transfer application was filed. Can it possibly be lawful, right, or
fair that this difference should be the difference between license cancellation and license
validation, between extinction and survival?

                TMI and TerreStar do not believe that any of the three differences matter. They
believe that a fair reading of the holdings of the relevant cases, the 2 GHz order, and the TMI
authorization shows that the decisive issue is whether a satellite construction contract existed at
the time of the milestone, whether it conformed to the authorization in question, and whether it
was noncontingent and current. The IB‘s decision in KaStarCom —— which we again emphasize
has become final —— could not be clearer that that is the dispositive fact. TMI and TerreStar ask
only for the same treatment.

                               Respectfully submitted,



  Pu Wheyy                             4Hittslast                            Lo: doud
GregoryC. Staple —                   Alfred E. Motfur                     yfénathan D. Blake
VINSON & ELKINS, L.L.P.              BROWNSTEIN HYATT & FARBER             CoOVINGTON & BURLING
1445 Pennsylvania Ave., NW.          1615 L Street, NW.                    1201 Pennsylvania Ave., NW.
Washington, D.C. 20004               Washington, D.C. 20036                Washington, D.C. 20004
Telephone: (202) 639—6500            Telephone: (202) 296—7353             Telephone: (202) 662—6000
Counselfor TMI                       Counselfor Mobile Satellite           Counselfor TerreStar
                                     Ventures


cc: File No. 189—SAT—LOI—97
    IBFS Nos. SAT—LOI—19970926—00161, SAT—AMD—20001103—00158,
     SAT—MOD—20021114—00237, SAT—ASG—20021211—00238
    Chairman Michael K. Powell
     Commissioner Kathleen Q. Abernathy
     Commissioner Michael J. Copps
     Commissioner Kevin J. Martin
     Commissioner Jonathan S. Adelstein



* In KaStarCom, the IB granted the transfer application five months later and relied on the
transfer as mooting, for example, whether the KaStarCom/W sharing agreement satisfied the
construction contract requirement. The IB could have and should have acted similarly with
respect to the TMI/TerreStar transfer application.


Bryan Tramont, Esq.
Sheryl Wilkerson, Esq.
Jennifer Manner, Esq.
Paul Margie, Esq.
Sam Feder, Esq.
Barry Ohlison, Esq.
Mr. Donald Abelson
Mr. Roderick Porter
Kathryn A. Zachem, L. Andrew Tollin, Craig E. Gilmore, Wilkinson Barker Knauer, LLP
Douglas I. Brandon, AT&T Wireless Services, Inc.
John T. Scott, III, Charla M. Rath, Cellco Partnership (d/b/a Verizon Wireless)
J.R. Carbonell, Carol L. Tacker, David G. Richards, Cingular Wireless LLC



Document Created: 2019-04-11 01:44:32
Document Modified: 2019-04-11 01:44:32

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