Attachment Mod Appl SAT-MOD-20011025-00090

Attachment Mod Appl

This document pretains to SAT-MOD-20011025-00090 for Modification on a Satellite Space Stations filing.

IBFS_SATMOD2001102500090_236235

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

____________________________________
)
In the Matter of )
) EXPEDITED CONSIDERATION
EchoStar Satellite Corporation ) REQUESTED
)
Application for Authority to Make ) File No. 74-SAT-P/L-96;
Minor Modification of ) File No. DBS-88-02;
Direct Broadcast Satellite Authorization ) File No. ______________
____________________________________)

To: The International Bureau

APPLICATION FOR MINOR MODIFICATION OF DBS AUTHORIZATION

EchoStar Satellite Corporation (“EchoStar”) hereby submits this application for

authority to make certain minor modifications to the above-captioned Direct Broadcast Satellite

(“DBS”) authorization. Specifically, EchoStar seeks authorization to relocate the EchoStar 2

satellite from the 119° W.L. orbital location to 148° W.L. and operate the satellite over the eight

even-numbered channels that are already licensed to EchoStar at that location. EchoStar has a

license for a total of 24 channels at 148° W.L. Another EchoStar satellite, EchoStar 1, has

already moved to 148° W.L. and operates over the 16 odd-numbered channels that are licensed

to EchoStar at that slot. EchoStar 2 is currently not operational, but rather is positioned at the

119° W.L orbital location as an in-orbit spare. Other EchoStar satellites will continue to use

fully the 21 channels assigned to EchoStar at 119° W.L.1

1
Concurrent with this Application, EchoStar has filed a request for Special Temporary
Authority (“STA”) to operate the EchoStar 2 satellite over the 16 even-numbered channels and
(Continued …)

EchoStar currently operates a DBS system consisting of six DBS satellites located

at the 61.5° W.L., 110° W.L., 119° W.L., and 148° W.L. orbital positions, and recently applied

for Commission authorization to launch and operate a new spot beam satellite, EchoStar 7, at the

119° W.L. location. With these satellites, EchoStar has the capacity to offer numerous digital

video, data and audio channels of programming, including local networks, educational and

informational programming, and high-definition television, to more than six million households

throughout the United States. The exigencies of the must-carry requirements, however, which

commence on January 1, 2002, will create an unprecedented strain on EchoStar’s satellite and

spectrum resources. As the Commission is aware, EchoStar must carry all qualified broadcast

stations in each and every market where EchoStar now offers local network stations and in every

new market that EchoStar may want to start serving. These rules necessitate EchoStar activating

as much satellite capacity as possible.

Relocating EchoStar 2 will optimize EchoStar’s satellite deployment, thereby

serving the public interest. EchoStar 2 is not needed at 119° W.L. except as an in-orbit spare.

This application will move it from its now “dormant” status to operational status. The instant

request will therefore result in the use of currently unused DBS channels at a western orbital

location, to the benefit of U.S. consumers. In addition, the move is essential to EchoStar’s

efforts to provide local broadcast service to as many cities as feasible.

the unassigned channels at the 148° W.L. orbital location for a period of 180 days while the
Commission considers this modification request. The STA was requested to allow EchoStar to
immediately address the exigencies of the must-carry requirements, which commence on January
1, 2002 and will create an unprecedented strain on EchoStar’s satellite and spectrum resources.

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The Technical Annex attached hereto shows that the EchoStar 2 satellite will not

cause harmful interference to any authorized user of the DBS spectrum. Indeed, EchoStar 2 and

EchoStar 1 are technically identical DBS satellites, and the Commission has already found that

EchoStar 1 will not cause harmful interference from the 148° W.L. orbital location.

I. INTRODUCTION AND BACKGROUND

In 1989, the Commission granted EchoStar and Directsat (a predecessor in

interest of EchoStar) conditional permits to provide DBS service from “two or more satellites

delivering 11 channels to each half of the United States, or from one or more satellites delivering

11 channels to the continental United States.”2 In 1992, the Commission assigned 11 channels to

EchoStar to provide service from 119° W.L.3 In 1993, the Commission assigned 10 channels to

Directsat, also at 119° W.L., for the same purpose.4

EchoStar launched its first satellite, EchoStar 1, to the 119° W.L. orbital location

in December 1995,5 and since May 1996 has provided continuous DBS service to customers

throughout the continental United States. Directsat launched its first satellite (now known as

EchoStar 2) to the 119° W.L. orbital location in September 1996, which allowed EchoStar, upon

2
Continental Satellite Corporation, 4 FCC Rcd. 6292, 6300 (1989).
3
EchoStar Satellite Corporation, 7 FCC Rcd. 1765, 1770 (1992). EchoStar was assigned
the odd-numbered channels 1-21.
4
Directsat Corporation, 8 FCC Rcd. 7962, 7964 (1993). Directsat was assigned the
even-numbered channels 2-20 at 119.05° W.L.
5
See EchoStar Satellite Corporation, 11 FCC Rcd. 3015, 3015 (1996).

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acquiring Directsat, to integrate the two satellites into an offering of about 125-130 video

channels.6

EchoStar subsequently deployed two additional satellites, EchoStar 4 and 6, to the

119° W.L. orbital location to join EchoStar 1 and 2, and shifted all programming services

provided from 119° W.L. to EchoStar 4 and 6, relegating EchoStar 2 to in-orbit spare status at

that orbital location.7 This shift allowed EchoStar to move EchoStar 1 from 119 ° W.L. to 148°

W.L., the location at which EchoStar DBS Corporation acquired 24 channels in a Commission

auction in January 1996.8 (The remaining eight channels at 148° W.L. are unassigned.)

EchoStar operates 16 of the 24 channels assigned to it at 148° W.L. using EchoStar 1’s sixteen

transponders.9

As a result, EchoStar currently operates three satellites at the nominal 119° W.L.

orbital location: EchoStar 4 at 118.9° W.L. and EchoStar 6 at 119.05° W.L., while EchoStar 2 is

located at 119.35° W.L. as an in-orbit spare, where it provides only telemetry, tracking and

control functions from its storage orbit location.10

6
See Directsat Corporation, 11 FCC Rcd. 10575, 10577 (1996); see also Directsat
Corporation and EchoStar Communications Corporation, Application for Commission Consent
to Transfer of Control, 10 FCC Rcd. 88 (1995).
7
See generally EchoStar Satellite Corporation, 15 FCC Rcd. 23636 (2000); see also
EchoStar Satellite Corporation, Directsat Corporation, EchoStar DBS Corporation, 13 FCC
Rcd. 8595 (1998).
8
See EchoStar DBS Corporation Wins 24 DBS Channels at the 148 Degree Orbital
Location With a High Bid of $52,295,000, FCC Press Release (Jan. 26, 1996).
9
See EchoStar Satellite Corporation, Directsat Corporation, EchoStar DBS Corporation,
13 FCC Rcd. at 8609.
10
On August 10, 2000, the Commission granted EchoStar special temporary authority to
relocate EchoStar 2 from 119.05° W.L. to 119.35° W.L. See Letter to David K. Moskowitz,
Senior Vice President and General Counsel, EchoStar Satellite Corporation, from Thomas S.
(Continued …)
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Additionally, as previously noted, EchoStar plans to launch a new “spot beam”

satellite, EchoStar 7, to the 119° W.L. orbital location.11 The EchoStar 7 spot beam (as well as a

second planned spot beam satellite, EchoStar 8) is specifically intended to provide limited

spectrum reuse and additional localized programming capacity for EchoStar’s existing DBS

system. EchoStar 7 will significantly enhance the efficiency of EchoStar’s spectrum use at 119°

W.L. compared to the current configuration of satellites located there. Among other things,

EchoStar expects the satellite to improve service to Alaska and Hawaii from 119° W.L.

compared to the service that is provided (or, in the case of EchoStar 2, can be provided) from the

current satellites at 119° W.L.12

The proposed relocation of EchoStar 2 is part of a broader effort on EchoStar’s

part to comply with the must carry rules. That effort includes the launch of EchoStar 7 and

EchoStar 8. Circumstances beyond EchoStar’s control, however, could delay the launch of

EchoStar 7. Out of an abundance of caution, EchoStar seeks to realign its fleet to ensure

compliance with the must carry rules. Consequently, EchoStar can no longer afford to maintain

an in-orbit spare at 119° W.L., and requests authority to move the EchoStar 2 satellite to the 148°

Tycz, Chief, Satellite and Radiocommunication Division, International Bureau, FCC (dated Aug.
10, 2000). On November 24, 2000, the Commission granted EchoStar permanent authority for
EchoStar 2 to remain at 119.35° W.L. EchoStar Satellite Corporation, 15 FCC Rcd. at 23639.
11
See Application of EchoStar Satellite Corporation for Minor Modifications of DBS
Authorization, Launch and Operating Authority for EchoStar 7, File Nos. DBS 88-01, DBS 88-
02, and SAT-MOD-20010810-00071 (filed Aug.10, 2001).
12
Id. The satellite is equipped with spectrum reuse capabilities for its uplinks as well as
downlinks. Id.

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W.L. orbital location. Because the must carry obligations commence on January 1, 2002,

EchoStar respectfully requests expeditious action on this application.

II. THE MODIFICATION WILL SERVE THE PUBLIC INTEREST

A. The Modification Will Promote the Efficient Use of Spectrum

This modification request will promote efficient use of spectrum and is therefore

in the public interest. EchoStar 2 is not needed at 119° W.L. except as an in-orbit spare, and is

not operational at that location. This proposal will move it from its now “dormant” status to

operational status. Thus, granting the modification would further the public interest by

facilitating the use of currently unused DBS channels at a western orbital location, to the benefit

of U.S. consumers.13

B. The Modification Will Aid EchoStar’s Effort to Provide Local Broadcast
Service to As Many Cities as Possible

Relocation of EchoStar 2 is essential to EchoStar’s efforts to provide local

broadcast service to as many cities as feasible. Under the must-carry scheme, the decision of a

satellite carrier to provide even one popular local station in a particular city carries with it a

manifold burden on the spectrum available to the carrier – the obligation to carry all qualified

13
In connection with its proposal to move EchoStar 2 to 148° W.L., EchoStar also
requests that the waiver of the Commission’s geographic service requirements already granted
for EchoStar 1’s operations at 148° W.L. be extended to cover the proposed operation of
EchoStar 2 from that orbital location. See 47 C.F.R. § 100.53 (requiring DBS licensees to serve
Alaska and Hawaii from 148° W.L.). As explained in detail below, EchoStar’s proposed
modification will not result in a degradation of service to residents of Alaska and Hawaii; those
residents will continue to receive the current level of service that is greater than what would be
received if EchoStar was forced to serve Alaska and Hawaii from 148° W.L.

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stations in that market. See 47 C.F.R. § 76.66. This poses a daunting strain on EchoStar’s

satellite capacity. To meet this need for capacity, EchoStar plans to launch two new satellites,

EchoStar 7 and 8, at a cost of roughly a half billion dollars. While the earliest EchoStar 7 will

launch is late December of this year, certain factors beyond EchoStar’s control could contribute

to the delay of this launch, including delays in delivery of the satellite or difficulties in procuring

adequate launch insurance. The modification EchoStar seeks here will help it meet its must carry

obligation, especially in light of the risk that EchoStar 7’s launch may be delayed. Specifically,

EchoStar seeks to use the frequencies at 148° W.L. to support DBS services and backhaul

capacity allowing the transfer of programming streams between EchoStar’s Gilbert, AZ and

Cheyenne, WY uplink facilities.14 The unappealing alternative would be to drop local service in

markets where EchoStar currently carries local television stations, something EchoStar hopes to

avoid.

.
III. THE PROPOSED OPERATION WILL NOT CAUSE HARMFUL
INTERFERENCE

No entity other than EchoStar has authority to conduct DBS operations from the

148° W.L. slot. Therefore, the requested operational authority will not cause any harmful

interference to any authorized user of the spectrum. See, e.g., In the Matter of Newcomb

14
Backhaul operation is explicitly included in EchoStar’s DBS authorizations under the
Commission’s policy of flexibility in allowing “non-conforming uses” of DBS resources. See In
the Matter of Revision of Rules and Policies for the Direct Broadcast Satellite Service, 11 FCC
Rcd. 9712, 9717-18 (1995).

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Communications, Inc., 8 FCC Rcd. 3631, 3633 (1993); In the Matter of Columbia

Communications Corporation, 11 FCC Rcd. 8639, 8640 (1996).

EchoStar 2 and EchoStar 1 are technically identical DBS satellites, and the

Commission has already found that EchoStar 1 will not cause harmful interference from the 148°

W.L. orbital location. The attached Technical Annex provides additional evidence in that regard.

As for EchoStar 2’s TT&C operations in the extended C-band, the move would, if

anything, alleviate any risk of interference, since it would place the satellite in a less congested

part of the geostationary arc. In any event, EchoStar 2 uses only a narrow sliver of that spectrum

for its TT&C communications, and coordination should be straightforward. EchoStar commits

to discontinuing any offending operations upon notification of harmful interference by an

authorized user of the spectrum.

EchoStar notes as well that, notwithstanding the freeze imposed by the

Commission on new FSS satellite applications seeking authorization to operate in the extended

C-band, EchoStar 2’s TT&C operations in the extended C-band have been explicitly

grandfathered without regard to the satellite’s orbital location under the rules adopted by the

Commission reallocating that spectrum to terrestrial services. See In the Matter of Amendment of

the Commission’s Rules With Regard to the 3650-3700 MHz Government Transfer Band, First

Report and Order and Second Notice of Proposed Rulemaking, 15 FCC Rcd. 20488, 20502

(2000) (“Consistent with our regulatory treatment of existing FSS earth stations, [the

Commission] . . . will grandfather the sites currently used to provide TT&C operations, including

EchoStar’s.”) (citing id. at Appendix F, Tables 3 and 4, grandfathering specific EchoStar earth

station locations that communicate with EchoStar 2 to perform TT&C operations). As the

grandfathering provisions of the Commission’s ruling apply to the sites of the earth stations in

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question (Three Peaks, California and Cheyenne, Wyoming), and the instant application seeks no

change with respect to the earth stations engaged in performing TT&C operations with EchoStar

2, the freeze on FSS satellite applications seeking authorization to operate in the extended C-

band is not implicated here.15

IV. REQUEST FOR WAIVER OF THE SECTION 100.53 GEOGRAPHIC SERVICE
REQUIREMENTS

In connection with its request to relocate and operate EchoStar 2 using the eight

unused and eight unassigned channels at 148° W.L., EchoStar also requests a waiver of the

Commission’s geographic service rules requiring DBS licensees to serve Alaska and Hawaii

from 148º W.L. should the Commission approve relocation of EchoStar 2 to 148° W.L. There is

good cause for the waiver, and it would in fact promote, rather than undermine the policies

embodied in the geographic service rule.16

In 1998, the Commission granted EchoStar a conditional waiver of the geographic

service rules.17 As a consequence, EchoStar’s satellite at 148° W.L., EchoStar 1, is not required

15
Although EchoStar is confident that the TT&C operations of EchoStar 2 in the
extended C-band are grandfathered without regard to the location of the satellite, out of an
abundance of caution, EchoStar has filed with the Commission a still pending petition seeking
confirmation of EchoStar’s position. See EchoStar Satellite Corporation’s Petition for
Clarification and, if Necessary, Reconsideration of the First Report and Order and Comments to
the Second Notice of Proposed Rulemaking, ET Docket No. 98-237, RM-9411 (dated Dec. 18,
2000), 66 Fed. Reg. 16940 (Mar. 28, 2001).
16
The Commission “may waive any provision of its rules if it determines that good cause
has been shown and that a grant of the waiver would not undermine the policies embodied in the
rule.” King Broadcasting Company, 5 FCC Rcd. 3068 (1990); see also EchoStar Satellite
Corporation, 15 FCC Rcd. at 23640 (“The Commission may waive a rule for good cause
shown.”) (citing WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969)).
17
EchoStar Satellite Corporation, Directsat Corporation and EchoStar DBS
Corporation, 13 FCC Rcd. at 8599. It appears that the instant modification request would not be
(Continued …)
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to serve Alaska and Hawaii. The waiver was granted because EchoStar was capable of serving,

and undertook to serve, Alaska and Hawaii from the 119° W.L. orbital location instead of 148°

W.L., resulting in enhanced service to Alaskan and Hawaiian consumers by making available to

them broader program offerings (e.g., EchoStar’s backbone cable and superstation package) than

what would be available from the 148° W.L. location.18 Thus, in Hawaii, EchoStar currently

offers its “America’s Top 100” package for the same price as it offers the package in the

continental United States ($9.00 per month for the first year and free installation with the

purchase of a DISH Network satellite television system).19 In Alaska, EchoStar offers its

“America’s Top 70” package. Were EchoStar required to provide service to Alaska and Hawaii

from the 148º W.L. orbital location, residents of these states would only be able to receive the

covered under the 1998 waiver, necessitating a separate waiver of the geographic service rules to
effectuate EchoStar’s plan to continue serving Alaska and Hawaii primarily from 119° W.L.
rather than 148° W.L. Specifically, among the conditions of the 1998 waiver were requirements
that: (1) any satellite replacing the EchoStar 1 satellite at 148º W.L. would immediately be
subject to the geographic service rules; and (2) EchoStar’s geographic service obligation would
remain intact for EchoStar and its affiliates on all other satellites. Id. The FCC also noted that
the obligations imposed by the geographic service rules “remain in force for [EchoStar’s] 8
assigned channels remaining unused at 148º W.L.” Id. Thus, although EchoStar 2 will not be
“replacing” EchoStar 1 at 148º W.L., but rather supplementing the provision of service from the
148º W.L. orbital location, because EchoStar’s obligations under the geographic service rules
remain intact for all satellites other than EchoStar 1 at 148° W.L., and “remain in force” for
EchoStar’s unused channels at 148° W.L., a separate waiver appears to be necessary.
18
Id. (Commission explaining that the 1998 waiver of the geographic service rules would
“serve the public interest because it will enable subscribers in Hawaii to receive the same
backbone programming as subscribers on the mainland.”). EchoStar started providing its
backbone cable and superstation package to residents of Alaska and Hawaii from the 119° W.L.
orbital location by means of EchoStar 4. The service was further enhanced when, with the
Commission’s approval, EchoStar moved its EchoStar 6 satellite to join EchoStar 4 at the 119º
W.L. orbital location. See EchoStar Satellite Corporation, 15 FCC Rcd. at 23638.
19
See www.dishnetwork.com/content/promotions/like9/index.shtml (describing
EchoStar’s “I Like 9” promotion).

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local, niche or other complementary programming available from EchoStar’s western orbital

locations.

The same benefits and promotion of the policies embodied in the geographic

service rules that attended the 1998 waiver exist here.20 By relocating EchoStar 2, an in-orbit

spare, to 148° W.L. from 119° W.L., there will be absolutely no loss or degradation of service to

residents of Alaska or Hawaii. As the Commission is aware, EchoStar 2 is covered by the

Commission’s geographic “grandfathering” provision: it does not have to, and is not equipped

to, serve Hawaii or Alaska from 119° W.L.21 As with the “swap” of EchoStar 4 and EchoStar 1,

EchoStar now proposes to substitute at the 119° W.L. orbital location a state-of-the-art satellite

that can provide high quality service to Alaska and Hawaii for an old satellite that cannot provide

such service. Therefore, like the swap of EchoStar 4 and 1, this proposed aggregate satellite

redeployment will: improve service to Hawaii and Alaska (through the launch of EchoStar 7 to

119° W.L.); not cause any prejudice to consumers in these two states (since EchoStar 2 is now

parked at 119° W.L. and could not serve Alaska and Hawaii even if it operated from 119° W.L.);

and allow the use of currently unused spectrum at 148° W.L. (through the relocation of EchoStar

2 to that slot).
In sum, by extending the conditional waiver to the remaining channels at 148º

W.L., the Commission will be promoting the policies embodied in the geographic service rules

20
See note 18, supra (Commission explaining that the 1998 waiver of the geographic
service rules would “serve the public interest because it will enable subscribers in Hawaii to
receive the same backbone programming as subscribers on the mainland.”).
21
See 47 C.F.R. § 100.53 (the geographic service rules only apply to “those acquiring
DBS authorizations after January 19, 1996,” and only where service to Alaska and Hawaii “is
technically feasible from the acquired orbital location.”). As explained above, EchoStar 2 is not
capable of serving Alaska and Hawaii from 119° W.L.

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and approving a satellite redeployment that achieves the use of unused spectrum without taking

service away from anyone.

V. SECTION 304 WAIVER

In accordance with Section 304 of the Communications Act of 1934, 47 U.S.C.

§ 304, EchoStar hereby waives any claim to the use of any particular frequency or of the

electromagnetic spectrum because of the previous use of the same, whether by license or

otherwise.

VI. CONCLUSION

For the foregoing reasons, EchoStar respectfully requests a modification of its

license authorizing the relocation of the EchoStar 2 satellite from the 119° W.L. orbital location

to 148° W.L. and operation of the satellite at 148° W.L.

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Respectfully submitted,

______________________________
David K. Moskowitz
Senior Vice President and General Counsel
EchoStar Satellite Corporation
5701 South Santa Fe
Littleton, CO 80123
(303) 723-1000

Dated: October 25, 2001

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Document Created: 2001-11-16 11:57:04
Document Modified: 2001-11-16 11:57:04

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