Attachment reply

This document pretains to SAT-LOI-20050312-00062 for Letter of Intent on a Satellite Space Stations filing.

IBFS_SATLOI2005031200062_437831

Before the FEDERAL CoMMUNICATons comsston RECEIVED Washington, D.C. 20554 JUN — 8 2005 j Foteal ConmuniatorsConnison Offen t Serniny n the Matter of ) ) Seecrim Five uc ) File Nos. SAT—LOL—20050312—00062 ) SAT—LOT—20050312—00063 Petition for Declaratory Ruling ) To Serve the U.S. Market Using ) Rece{ved BSS Spectrum from the 114.5° W.L. ) Orbital Location ) JUN 1 4 2005 n 6 IntePoll y matinaBran cy l Bureay REPLY OF DIRECTV ENTERPRI SES, LLC In itsinitial Opposition,‘ DIRECTV Enterprises, LLC (‘DIRECTV®) demonstrated that the operations fom a new Direct Broadcast Satellite ("DBS") slot at 114.5° W.L. proposed by Spectrum Five LLC in the above—captioned Petition for Declaratory Ruling ("$5 Petition‘) would cause harmfulinterference to the service provided by DIRECTV to millions ofAmerican subscribers. Spectrum Five responds, curiously, both that DIRECTV fziled to present a technical analysis ofthe specific system proposed and that DIRECTV presented a misleading technical analysis In any event, Spectrum Five concludes that potential interference issues can be casily resolved during coordination, and that the Commission should grant its petition based on this assumption — this despite having failed to so much as call DIRECTV to initiate discussions in more ‘— Opposion ofDIRECTV Enterprise, LLC, File Nos. SAT—LOL:20050312.00062/63 (May 16,2005) (‘DIRECTY Oppositon‘) ConsoliatedResponse of Spectrim Five LLC, File Nos. SAT—LOI20050312—00062(3 June 1, 2005) (‘SS Response")

than seven months since the Netherlands fled for modification of the Region 2 Plan to create a slot at 114.5° W.L. None of Spectrum Five‘s claims are correct. Contrary to Spectrum Five‘s assertions, DIRECTV not only incorporated materials from prioproceedings that respond directly to the SS Petition, but also used Spectrum Five‘s own analysis to highlight the magnitude ofthe interference challenge created by its proposal. Moreover, Spectrum Five‘s confidence in the coordination process appears to be based upon such "readily available" mitigation techniques as increasing the size of DIRECTV‘s subscriber antennas — te,, retrofitting millions ofDIRECTV dishes nationwide. Not surprisingly, the Commission has wisely declined to place the cart before the horse, as it has never granted market access to a non—U.S—licensed DBS system that had not completed coordination with U.S. operators. Given the obvious harmfil interference potentil of Spectrum Five‘s proposal, there is no reason for the Commission to make an exception to this policy in this case. A. DIRECTV Addressed the Technical Merits of the S5 Petition Because Spectrum Five‘s proposal is very similar to other proposals to use short— spaced DBS slots to serve the U.S. market, DIRECTV incorporated by reference the voluminous technical analysis it has submitted to the Commission on the interference ereated by such "tveeners."" But after doing so, DIRECTV also discussed the particular > See DIRECTV Oppositon at2.

technical showing in the SS Petition.". Spectrum Five argues that DIRECTV has failed to "substantiate" its interference concemns." Section 25.114(b) ofthe Commission‘s rules provides that an application for satellite authorization "must constitute a concrete proposal for Commission evaluation."" In addition, Section 25.114(d)(13)() requires that an applicant whose DBS system parameters differ from the Region 2 Plan must provide a technical showing sufficient to demonstrate that "the proposed system could operate satisfactorily if all assignments in the [Region 2 Plan] were implemented."" Thus, Spectrum Five has the burden to demonstrate thatits system as propased — not as it might be revised in the future as a result ofcoordination — could operate harmoniously with DBS systems already in the Region 2 Plan. Accordingly, contrary to Spectrum Five‘s implied assertion, DIRECTV does not have the burden to show that there is no conceivable way in which Spectrum Five could operate that would adequately reduce interference levels. Rather, Spectrum Five must present system with characteristics that demonstrably satisfy the Commission‘s requirements. Given this threshold issue, DIRECTV simply pointed out the obvious conclusion evident on the face of the S5 Petition: that interference levels resulting from Spectrum Five‘s proposed operations would result in harmful interference to existing U.S. DBS systems. DIRECTV did so by identifying the large number of very high equivalent protection margin ("EPM®) degradation values shown in the Technical Appendix tothe 5o Seeid 25 5 5 Responseati * arom® prsiiet). * meacgasata@000).

S5 Petition:® In response, Spectrum Five asserts that "[{Jhe single, narrow purpose of [the EPM figures generated by} MSPACE is to identify areas for negotiation in inter—system coordination."" While this may be true as far as it goes, it ignores the obvious fact that the larger the EPM degradation values, the more difficult coordination is likely to be. While Spectrum Five attempts to explain away a few select instances where EPM degradation is especially high, it has not even attempted to deal with all ofthe instances (cited by DIRECTV) in which the SS Petition‘s own data show degradation of 5 dB to 10 dB, or more." While belitting the utlity ofits own MSPACE analysis as an indicator of potential interference, Spectrum Five asserts that the proper analysis would involve consideration of the cartier—to—interference ratio ("C/1")." Yet nowhere does Spectrum Five— which has the burden of demonstrating non—interference in the first place — actually present such an analysis. DIRECTV has preliminarily conducted such an analysis.. Not surprisinely— and just as one would expect based on the MSPACE analysis — the C/1 values resulting from Spectrum Five‘s proposed system are far worse than even Spectrum Five has identified as acceptable. As shown in the table below, in the 10 cities used as examples in SS * See DIRECTV Opposition t 24. 55 Response at 9 * See DIRECTV Oppositon at3 oting thatthereare2beams that would experience degradation of more than 10 dB and many more of betweenS iB and 10 dB) 5* See, eg., SS Respanse, Technieal Appendix at1 (*The basic issue is whether thresuling Gts asa consequence onterfetenc from thSpectrur Rive networl arereasonible and do not cause unreasonable levels ointerfrence")

Petition‘s Technical Appendix,"" the C/I values for DIRECTV 6 operating at 110° W.L. and DIRECTV 78 operating at 119° W.L. would be below 15 dB in many cities, including such major markets as New York, Los Angeles, Chicago, and San Francisco. ra Ny |ma] se sea mm cHt rago pat now pirecrvé na ass |ior| us is iss us mma iss mas pmecrvist 7 s |irs i2a ise m| mo 17 184 ise * CONUS beam C/t Values for S§ Proposed Operations Even the paradigm offered by Spectrum Five (%e.,the protection values used in replanning the BSS band in Regions 1 and 3) required C/1 protection ratios of 21 d8."" Spectrum Five‘s proposed operations would reduce DIRECTV‘s C/I levels well below this minimum safeguard — in fact, by at least a factor of four in the markets discussed above. In light of these figures, there can be litle doubt why Spectrum Five failed to include the C/I analysis it purports to favor."* Moreover, Spectrum Five fils to recognize other aspects ofthe Region 1/3 replan, such as the hard limit established for power flux—density (‘PED") levels created by modification to the Plan. ‘This level, which cannot be exceeded in Regions 1 and 3, has been set at ~103.6 dBW/m*27 MHz, or approximately 58.8 dBW EIRP."* Because Region 2 has no such limits, Spectrum Five proposes to operate a power levels that would exceed this PFD limit in halfofthe cities !* See 85 Pettion, Technial Annex at 9 (Tables 7 and 8 Seeid. tisimporiantto notethatthe Repions 1 and 3 replan was based on a C/Iof 21 dB in the aggregate, Thesingle—cnir value was 26 dB 5* t is also worth notin that DIRECTV responded directlyto the SS Ption‘s asserion hatthe provision ofBSS from satelites spaced substantill ess than ninedegrees spart is already common in Europe,incorponatingbyrefrence an analysisubmited n another proceoding that demonstrated the falsty ofhis laim, See DIRECTV Oppositon t 4—5. Neither Spectum Five nor SES Americom has attemped to rebut DIRECTV‘sshowing. !* See TT Radio Repultions, Appendix 20, Annex 1, Sectin 1.

offered as examples i its petiion for SPSK operations."® Once again, even the paradigm Spectrum Five urges on the Commission undercuts its position: B. Coordination With U.S. Operators Must Precede Market Access Spectrum Five encourages the Commission to grant market access without waiting to see whether its system can be coordinated successfully with U.S. systems already serving millions of viewers. This would truly put the cart before the horse in a way that the Commission has never done before. Spectrum Five‘s attempis to square its request with past Commission precedent are erroncous. Moreover,the coordination strategies it hypothesizes would greatly disrupt DBS service in the U.S. and impose huge costs on U.S. operators. Spectrum Five asserts that, because the Commission "routinely grants applications by U.S. DBS operators prior to completion ofintemational coordination and successfil modification of the Region 2 Plan," the Commission should also grant landing rights to non—U.S—licensed DBS operators in the same situation."" However, one ofthe key attributes of a U.S. DBS slot that does not depend upon successful coordination is the right to serve the U.S. market. Non—U.S. slots do not share this attibute — unless and until they have been successfully coordinated and placed into the Region 2 Plan. Ata minimum, therefore, completion of the agreement—secking process with U.S. operators is a necessary precursor toa grant of U.S. market access from a foreign slot — a conclusion ©*— See S5 Petiion, Technical Appendix at 9 7 os Responseat$

reflected in the fact that the Commission has never granted market access from a non— U.S. DBS slot absent such coordination."" Spectrum Five secks support in a selective citation to the Commission‘s statement in the DBS Rules Order that the intemational coordination process and Commission rules "should provide adequate protection of U.S. DBS systems."" However, that quotation is pulled from the Commission‘s decision not to adopt DBS receive earth station antenna performance criteria. There is nothing in that discussion to indicate that the Commission contemplated granting market access to non—U.S. systems before the "adequate protection" provided by coordination with U.S. systems had been successfully completed. As discussed above, the Commission‘s rules require a sufficient showing by a new entrant thatits proposed system can operate within the confines established by existing systems in the Region 2 Plan. The Commission should not allow Spectrum Five to bypass this important safegward where its own analysis demonstrates the likely difficulty of coordination. Based on the contents of Spectrum Five‘s filings in this proceeding, the Commission should find no reason to assume that such a coordination effort would be successfil. Moreover, the mitigation techniques proposed by Spectrum Five include "minimal increases (e,g., merely three centimeters)" in the size ofDIRECTV subscriber antemnas."" Ofcourse, DIRECTV has many millions ofsubscriber antennas already Spectrum Fie‘s ciation ofFSS casesin which the Commission grated markeaccess whie interationl courtintion remained outstanding iconsistent wit this precedent ince U.S. coordination had beencompleted. See, eg., Telesat Conada, 15 FCC Red. 24828, 4833 (InI Bur 2000), Telesia Mn‘ LLC, 13 ECC Red. 10074, 10078 (t‘ Bur,1997). 55 Response at 5 (iting Polices and Rulsfor the Diect Broadeast SarelteService, 17 ECC Red 11331 (2002)(‘DBS Rules Order") * 85 Response at 13 ting Technical Appendixat4)

deployed, making replacement with larger units a huge inconvenience for subscribers and a monumental expense for DIRECTV. Yet even after this expensive and time—consuming process, DIRECTV subscribers apparently would experience a 10% increase in service outages due to Spectrum Five‘s operations."" Needless to say,it would not be reasonable for the Commission to anticipate that DIRECTV would reach a coordination arrangement based on such an approach. Spectrum Five further asserts that its Petition should be granted to "ensure those {coordination] negotiations are pursued prompily.""" However, in more than seven months since the Netherlands filed for modification of the Region 2 Plan to create a slot at 114.5° W.L., Spectrum Five has never attempted to initite discussions with DIRECTV. Moreover,although the Commission has officiallyinvited operator—to— operator negotiations and provided a DIRECTV contact point, Spectrum Five has still failed to initiate any form ofdiscussions in the three weeks since thatinvitation was sent." in addition, Spectrum Five is but one ofa growing number ofproposals that would create new BSS orbital locations with less than nine—degree spacing from existing U.S. DBS slots. Faced with the prospect of attempting to coordinate with each ofthese operators — and trying to accommodate the potentially conflicting needs and approaches of each — DIRECTV petiioned the Commission to initite a rulemaking to examine whether such "tweeners" can be accommodated, and if so under what circumstances. 8 ue 7. 85 Responseat6. > See Leter from Kathryn O‘Brien, FCC,to Head Frequency Planningand Coordination Section, Radiocommunication Agency Netberlands (May 19, 2009)

Essentially, this approach would accomplish "coordination by rule" much as the Commission has done through its blanket lcensing rules in the Ka band."* 1 successful, such an approach would create greater predictability and greatly streamline the entry process. Spectrum Five has offered no reason for the Commission not to proceed in this manner rather than through a series of individual and possibly conflicting coordination negotiations. * Seed] CRR §25.138

If Spectrum Five truly believes that coordination should not be difficult, it is surprising that it has not yet attempted to initite that process with DIRECTV. Only after that process has been successfully completed will Spectrum Five be in a position to propose a system with parameters that demonstrably could co—exist with other U.S. filings in the Region 2 Plan, and thercby satisfy the requirements of Section 25.114(c)(13)0). In the absence of a "coordination by rule" regime, the Commission should, consistent with its approach to date, defer granting market access absent successful coordination with all U.S. DBS operators. Accordingly, the 85 Petition should be denied. Respectfully submitted, DIRECTV Enterpnises, rie Michael D. Nilsson Hamms, Wiursume & Grmus tur 1200 Eighteenth Street, N.W. Washington, DC 20036 202—730—1300 Dated: June 8, 2005 10

ENGINEERING CERTIFICATION The undersigned hereby certiies to the Federal Communications Commission as follows: ® I am the technically qualified person responsible for the engincering information contained in the foregoing Opposition, (@ 1 am familiar with Part 25 ofthe Commission‘s Rules, and (0) T have either prepared or reviewed the enginecring information contained in the foregoing Opposition, and it is complete and accurate to the best of my knowledge and belicf Signed: i David Patilo June 8, 2005 Date

CERTIFICATE OF SERVICE hereby certify that, on this 8th day ofJune, 2005, a copy ofthe foregoing Reply of DIRECTV Enterprises, LLC was sent by U.S. mail, postage prepaid, o: Richard E. Wiley Todd M. Stansbury Wiley Rein & Fielding LLP 1776 K Street, N.W. Washington, DC 20006 Peter A. Rohrbach Karis A. Hastings Hogan & Hartson LLP 555 Thirteenth Street, N.W. Washington, DC 20004 Pantelis Michalopoulos Philip L. Malet Brendan Kusper Steptoe & Johnson LLP 1330 Connecticut Avenue, NW. Washington, DC 20036 Jennifer Anstlmo


Document Created: 2005-06-20 15:31:02
Document Modified: 2005-06-20 15:31:02
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