Attachment 2003Carriers opposit

2003Carriers opposit

OPPOSITION submitted by Carriers

Request to immediately grant Globalstar's Emergency Application For Review

2003-03-18

This document pretains to SAT-MOD-20020717-00118 for Modification on a Satellite Space Stations filing.

IBFS_SATMOD2002071700118_1076475

                                                                                       ORIGINAL
                                             Before the
                                Federal Communications Commission             RECEIVED
                                       Washington, DC 20554
                                                                               MAR 1 8 2003
In the Matter of Application of




                                                 e
                                                       DA 03—328         FEDERAL COMMUNICATIONS COMMISBION
                                                                               OFFICE OF THE SECRETARY
Globalstar, L.P.                                       File Nos.:
                                                       183/184/185/186—SAT—P/LA—97
For Modification of License for a Mobile—              182—SAT—P/LA—97(64)
Satellite Service System in the 2 GHz Band
                                                       IBFS Nos.:
For Waiver and Modification of Implementation          SAT—LOA—19970926—00151/52/53/54
Milestones for 2 GHz MSS System                        SAT—LOA—19970926—00156
                                                       SAT—AMD—20001103—00154
                                                       SAT—MOD—20020717—00116/17/18/19

                     Received                          SAT—MOD—20020722—00107/08/09/10/12

                                                       Call Signs:
                      MAR 2 5 7003
                                                       $2320, $2321, $2322, $2323, $2324
                       Policy Branch
                     ‘mammional Bureau




             OPPOSITION TO EMERGENCY APPLICATION FOR REVIEW


                                                        Kathryn A. Zachem
                                                        L. Andrew Tollin
                                                        Stephen L. Goodman
                                                        Wilkinson Barker Knauer, LLP
                                                        2300 N Street, NW, Suite 700
                                                        Washington, DC 20037—1128
                                                        (202) 783—4141


 AT&T WirEuEss SERVICES, INC.            VERIZON WiIRELESS               CINGULAR WIRELESS LLC
Douglas I. Brandon                       John T. Scott, III              J. R. Carbonell
 AT&T Wireless Services, Inc.            Charla M. Rath                  Carol L. Tacker
 1150 Connecticut Avenue, NW             Cellco Partnership              David G. Richards
 Washington, DC 20036                    d/b/a Verizon Wireless          Cingular Wireless LLC
 (202) 223—9222                          1300 I Street, NW               5565 Glenridge Connector
                                         Suite 400—W                     Suite 1700
                                         Washington, DC 20005            Atlanta, GA 30342
                                         (202) 589—3760                  (404) 236—5543


March 18, 2003


                                                   TABLE OF CONTENTS

SUMMARY ::2200000000000er2errrrrrrrrrrrerrrerrerrvrrrerrerrvrrarerrrrerrsereverrerrreererrerverererererreerererereeveerevereerereeeeen i
L.  npplomueno 2
IL  THE COMMISSION SHOULD NOT REINSTATE THE ONE GEO
    Cmannnsne—ys 3
IIL THEBUREAU ORDER CORRECTLY FOUND THE INITIAL NON—
    CONTINGENT CONTRACT MILESTONE WAS NOT MET ..s0..00000eee s emereeemieeeeeeeeess. 5
Iv. THE BUREAU CORRECTLY DENIED GLOBALSTAR‘S EXTENSION
    ajonmS 7
V.  GLOBALSTAR‘S NEW BANKRUPTCY ARGUMENTS ARE ALSO
    WITHOUT MERIT a220000000000 00000 rrrrrerrrreerrrearreerrrrererrrvrrrrrverrrereeerrravareerserrseervearrrereereek es 13
CONCLUSION..22222222222222022errvrrerrrererrererrrrrresereerersesersesreserserrerseerrererssererssesererrrrerrerserrerrerrrr es rrrerenes 17


                                           SUMMARY


         The Carriers oppose the Application for Review filed by Globalstar seeking a
reinstatement of its 2 GHz MSS authorization. The Bureau Order correctly denied Globalstar‘s
request for an extension of the construction and launch milestones for its 2 GHz MSS system and
found the contract, which assumed the extensions would be granted, inadequate for meeting the
initial non—contingent contract milestone. The Bureau Order thus declared the authorization null
and void pursuant to the explicit condition in the authorization. Globalstar has not shown that
the Bureau committed any errors in reaching its decision. The Bureau Order was well reasoned,
consistent with precedent and fully considered the waiver request of Globalstar. In contrast,
Globalstar‘s Application for Review is procedurally defective and substantively without merit.

        Globalstar first argues that, at the very least, the Commission must reinstate the license
for the one GEO satellite that would have been timely constructed under the contract. There is
no ground for now treating Globalstar‘s modification and waiver request as an application to
reduce the 2 GHz MSS authorization to a single GEO satellite, and the single satellite would not
meet the coverage requirements for hybrid systems like Globalstar‘s. Such a system would also
inefficiently use the spectrum in CONUS, and warehouse the spectrum throughout the rest of the
world.

        The Commission has also long established that in order to support an initial milestone,
the non—contingent contract must provide for construction and launch of the satellites within the
milestones. Globalstar cannot claim ignorance of this policy, and it (along with the other 2 GHz
MSS licensees) was explicitly told that the Commission would strictly enforce the milestones.
To the extent there was any ambiguity (and the Carriers maintain there was none), Globalstar
should have sought guidance from the Commission instead of simply waiting until the milestone
deadline to submit its request for extension of the waivers and a milestone showing that assumed
the extensions would be granted.

        The Bureau Order considered and rejected Globalstar‘s justifications for the extension
request. Indeed, Globalstar was simply seeking what the Commission explicitly rejected in the
Globaistar Authorization Order — authority for Globalstar to defer implementation of its 2 GHz
MSS system in order to align it with the second generation Big LEO system. The Bureau Order
properly found that the purported reasons for delay were business decisions within Globalstar‘s
control, and that grant of the waiver would undercut the purpose of the strict enforcement of the
milestones. Finally, there is no merit to Globalstar‘s arguments, raised for the first time in the
application for review, that the Bureau Order is inconsistent with the bankruptcy code.

       For all of these reasons, the Carriers urge the Commission to deny summarily
Globalstar‘s Application for Review.


                                           Before the
                              Federal Communications Commission
                                     Washington, DC 20554

In the Matter of Application of                   DA 03—328

Globalstar, L.P.                                  File Nos.:
                                                  183/184/185/186—SAT—P/LA—97
For Modification of License for a Mobile—         182—SAT—P/LA—97(64)
Satellite Service System in the 2 GHz Band
                                                  IBFS Nos.:
For Waiver and Modification of                    SAT—LOA—19970926—00151/52/53/54
Implementation Milestones for 2 GHz MSS           SAT—LOA—19970926—00156
System                                            SAT—AMD—20001103—001 54
                                                  SAT—MOD—20020717—00116/17/18/19
                                                  SAT—MOD—20020722—00107/08/09/10/12

                                                  Call Signs:
                                                  $2320, §2321, 82322, $2323, $2324

To:    The Commission


            OPPOSITION TO EMERGENCY APPLICATION FOR REVIEW


       Pursuant to Section 1.115(d) of the Commission‘s Rules, 47 C.E.R. § 1.115(d), AT&T

Wireless Services, Inc., Cingular Wireless LLC and Verizon Wireless (jointly, the "Carriers")

hereby oppose the above—referenced Emergency Application for Review filed by Globalstar, L.P.

("Globalstar") seeking reinstatement of its 2 GHz MSS authorization.‘ As competitors in the

mobile telephony marketplace and as parties who have successfully convinced the Commission

to re—allocate some of the 2 GHz MSS spectrum, the Carriers have a strong interest in the

application for review." As demonstrated below, Globalstar‘s application for review is



         _ The International Bureau ("Bureau") determined that Globalstar failed to meetits
initial non—contingent contract milestone, and declared the authorization null and void pursuant
to its license condition. Globalstar, L.P., Memorandum Opinion and Order, 18 F.C.C.R. 1249
(Jan. 30, 2003) ("Bureau Order").

       > The Carriers are licensed to compete with Globalstar in the nationwide mobile
telephony market. See Seventh Annual CMRS Competition Report, 17 F.C.C.R. 12985, 12997,


procedurally and substantively defective. Thus, the Commission should summarily deny the

Globalstar Emergency Application for Review.

L.     INTRODUCTION

       Globalstar has presented no valid basis for overturning the Bureau Order. That decision

was well reasoned, consistent with precedent and fully addressed all of the issues raised by

Globalstar in its request for extension of the milestones. The Bureau correctly held that the

contract on which Globalstar relied for satisfying the initial non—contingent contract milestone

did not satisfy the Commission‘s requirements for such agreements, particularly in light of the

fact that the Commuission had made cleér that it would strictly enforce the milestones with regard

to the 2 GHz MSS authorizations. Moreover, the Bureau properly considered and rejected

Globalstar‘s request for waiver of the milestones, because it was not justified under the

Commission‘s well—established standards for milestone extensions.

       Finally, Globalstar‘s application for review is procedurally defective. Several of the

arguments raised by Globalstar in the Emergency Application for Review were never presented



13025—13026 (2002); Service Rules for the Mobile Satellite Service in the 2 GHz Band, IB
Docket No. 99—81, Report and Order, 15 F.C.C.R. 16127, 16128—29 (2000) ("2 GHz MSS
Order"). Moreover, the Carriers were active participants in the proceedings to redistribute
and/or reallocate non—viable MSS spectrum to advanced wireless services that relied upon the
voidance of Globalstar‘s authorization to make 30 MHz of spectrum available for new terrestrial
services. See Flexibilityfor Delivery of Communications by Mobile Satellite Service Providers
in the 2 GHz Band, the L—Band, and the 1.6/2.4 GHz Bands, IB Docket Nos. 01—185, 02—364,
Report and Order and Notice ofProposed Rulemaking, FCC 03—15 (rel. Feb. 10, 2003) (hereafter
cited as "ATC Order"); see also Amendment ofPart 2 ofthe Commission‘s Rules to Allocate
Spectrum Below 3 GHzfor Mobile and Fixed Services to Support the Introduction ofNew
Advanced Wireless Services, including Third Generation Wireless Systems, ET Docket No. 00—
258, IB Docket No. 99—81, Third Report and Order, Third Notice ofProposed Rulemaking and
Second Memorandum Opinion and Order, FCC 03—16 (rel. Feb. 10, 2003). Accordingly, the
Carriers would be adversely affected by a grant of this stay request, which would impede their
access to a portion of this needed spectrum. See AmericaTel Corporation, Memorandum
Opinion, Order, Authorization and Certificate, 9 F.C.C.R. 3993, 3995 (1994) (citing Sterra Club
v. Morton, 405 U.S. 727, 733 (1972)).


to the Bureau, and thus cannot be considered by the Commission. Even if it considers those

arguments, however, the Commission should still uphold the Bureau Order. In addition,

Globalstar‘s modification application and request for extension of the milestones was a belated

challenge to the Globalstar Authorization Order, and thus could have been rejected by the

Bureau on that basis as well.

II.    THE COMMISSION SHOULD NOT REINSTATE THE ONE GEO
       SATELLITE LICENSE

       In its first argument, Globalstar alleges that the Bureau erred in declaring null and void

the license for the one geostationary satellite that purportedly was set for timely launch under the

submitted contract, even though the other 51 satellites in its system (under its modified design)

would not be timely constructed or launched." As an initial matter, this is a new argument upon

which the Bureau has had no opportunity to pass, and thus cannot form the basis for overturning

the Bureau on review." Globalstar‘s modification request did not explicitly indicate that the

authorization should be reduced to a single satellite if the Commission rejected the extension

request. Nor was such a request implicit in that modification application, insofar as Globalstar

was still relying on the benefits of a global system to support grant of its waiver request. The

Emergency Application for Review was the first indication from Globalstar that it viewed its

modification application as a request for a 2 GHz MSS authorization for just one satellite,

CONUS—only service.



           Application for Review at 3—4. Under the original application submitted by
Globalstar and granted by the Commission, Globalstar was authorized to launch a hybrid system,
consisting of four Geostationary (GEO) satellites and a constellation of 64 Non—Geostationary
(NGSO) satellites. In its modification application, Globalstar sought to reduce its NGSO
constellation to 48 satellites (along with its request to extend the construction and launch
milestones for three of its GEO satellites and all of its NGSO satellites).

       *   See 47 CFR. § 1.115(c).


        Even apart from the procedural defect in this new argument, Globalstar‘s claim is based

on the erroneous assumption that the initial noncontingent contract milestone is discrete as to

each element of the Globalstar constellation. Although for administrative purposes the FCC

issued separate call signs for different parts of the Globalstar system, the authorization (and the

nullification if the noncontingent contract milestone is not met) applies to the satellite system as

applied for by Globalstar.®

       Globalstar did not apply for or receive an authorization for a single Geostationary

satellite, or for a Geostationary—only satellite system, and its modification request did not seek to

"downsize" its system to such a degree." Whether such a modification request would have been




       ° See Globalstar, L.P., Order and Authorization, 16 F.C.C.R. 13739, 13757 (2001)
(2001) ("Globalstar Authorization Order"), affd, 18 F.C.C.R. 1405 (2003), appeal pending sub
nom. AT&T Wireless Services, Inc., et al. v. FCC, No. 03—1042 (D.C. Cir. filed Feb. 26, 2002):

               Accordingly, IT IS ORDERED that Application File Nos. 183/184/185/186—SAT—
               P/LA—97 and 182—SAT—P/LA—97(64); IBFS File Nos. SAT—LOA—19970926—
               00151/52/53/54, SAT—LOA—19970926—00156 and SAT—AMD—20001103—001 54 IS
               GRANTED, and Globalstar, L.P. IS 4UTHORIZED to construct, launch and
               operate a satellite system comprised ofsixty—four non—geostationary—satellite orbit
               satellites andfour geostationary—satellite orbit satellites capable of operating in the
               1990—2025/2165—2200 MHz bands in the United States, in accordance with the
               technical specifications set forth in its application and consistent with our rules
               unless specifically waived herein, and subject to the following conditions[.]
               (emphasis added)

The Globalstar Authorization Order, 16 F.C.C.R. at 13759, also provides that the
"authorization" shall become null and void if the milestones are not met.

        ° Globalstar asserts that it was treated differently than Celsat and Boeing. Globalstar is
readily distinguishable from Celsat (where the FCC did find milestone compliance), because
Celsat‘s milestone submission demonstrated that it would timely construct and launch everything
for which it had been authorized. In contrast to Globalstar, under its contract Celsat will be able
to deliver in a timely fashion what it promised. The FCC has applied the same "strict
enforcement" milestone compliance standard to all 2 GHz MSS licensees. Boeing does not
provide Globalstar with any precedential support, because the Commission has not yet acted on
Boeing‘s request.


granted by the Commission had such a request been made is wholly speculative.‘ In Globalstar‘s

case, however, such a single satellite would not appear to be acceptable because it clearly would

not meet the 2 GHz MSS coverage requirements for the hybrid system authorized by the

Commission.*

III.    THE BUREAU ORDER CORRECTLY FOUND THE INITIAL NON—
        CONTINGENT CONTRACT MILESTONE WAS NOT MET

        Globalstar also now claims that the Bureau‘s decision finding its submitted contract

inadequate was inconsistent with precedent." Globalstar‘s argument lacks merit. The

Commission has long made clear that in order to fulfill an initial milestone, the licensee must

have executed a non—contingent contract that incorporates a payment and construction schedule

that allows construction and launch to be completed within the licensee‘s milestones.‘"

Globalstar clearly was on notice that the contract it had executed in satisfaction of the initial

milestone was inadequate.


         ‘ The Commission seeks concrete satellite system applications when considering a new
satellite service so that potential allocations and service rule development do not occur in a
vacuum. E.g., LEOSAT Corporation, Memorandum Opinion and Order, 8 F.C.C.R. 668, 670
(1993). It is far from clear whether the FCC would have allocated the same amount of spectrum
or the particular frequencies selected for the 2 GHz MSS if the majority of applicants sought
merely to provide a CONUS—only service, as opposed to the global services proposed by
Globalstar and others. The Commission could well conclude that a "bait and switch" down to a
single GEO satellite from a promised 68 satellite system would be viewed as contrary to the
public interest because it would result in the waste of spectrum for most of the world. In any
event, Globalstar did not make such an application, although by seeking reinstatement of the
license for one of its satellites, it appears to be attempting to do so in this pleading.

       82 GHz MSS Order, 15 F.C.C.R. 16154—16155.

       °   Application for Review at pp. 5—6.

       !9 See Bureau Order, 18 F.C.C.R. 1249, [ 6 & n.13 (citing precedent); see also Mobile
Communications Holdings, Inc., Memorandum Opinion and Order, 17 F.C.C.R. 11898, 11901—
11902 (2002) (explaining that "the execution of a contract that does not provide for complete
construction of the satellites in question by a specified date consistent with the licensee‘s
milestone deadline for making its system fully operational cannot satisfy a construction—
commencement milestone requirement").
                                              5


        Globalstar‘s attempted reliance on the Teledesic decision‘‘ to undermine the Bureau

Order lacks merit. In that case, the Bureau did find that the contract, which comported with the

modification request (but not the licensed system), was sufficient for meeting the initial contract

milestone. What is significant, however, is that the deviation had to do with the technical design

of the satellite system (substituting a 30 satellite MEO system for a 280 satellite NGSO system),

not with the timing of deployment many years after the milestone schedule. In Globalstar‘s case,

the Bureau did not reject the contract as non—conforming because of the reduction in the number

of NGSO satellites — it rejected the contract because it did not allow for construction and launch

of the satellites within the milestones. Had Globalstar simply filed the modification to change

the technical parameters without seeking milestone extensions (and submitted a contract

consistent with that modification), then it could rely on the Teledesic precedent — but that is not

what Globalstar did, so the Teledesic case is readily distinguishable."

       Likewise, the NetSat 28 decision provides no support for Globalstar. In the NetSat 28

case, the Commission granted a waiver of the initial milestone because the non—compliance was

due to a cloud the Commission had cast over NetSat 28‘s authorization that the Commission

subsequently determined was erroneous. * Globalstar has not argued that its non—compliance

was due to any wrongful action by the Commission. Nor can Globalstar rely on the Echostar




       _ Teledesic LLC, Memorandum Opinion and Order, 17 F.C.C.R. 11263 (2002).
        12 Cf. Application for Review at 6 n.18 (the need for delay was unrelated to any
technical changes proposed in the modification request).

       5 NetSat 28 Co., Memorandum Opinion and Order, 16 F.C.C.R. 11025 (IB 2001). In
that case, the Commission called into question the qualifications of NetSat 28, because its
principal had also been an officer at MobileMedia (which had falsified numerous FCC filings),
but subsequently found that the NetSat 28 principal had not been involved in the wrongdoing at
MobileMedia.


case‘ * to bolster its entitlement to relief, because that case was based on the more lax "due

diligence" standard applicable at that time to DBS licensees, in contrast to the "strict

enforcement" standard the Commussion made clear applies to 2 GHz MSS licensees. Particularly

in light of the "strict enforcement" policy, Globalstar should have sought a determination in

advance from the Commission if it believed there was any ambiguity as to the Commission‘s

standards for evaluating an initial contract.""

IV.        THE BUREAU CORRECTLY DENIED GLOBALSTAR‘S EXTENSION
          REQUEST
          The Commission can likewise reject Globalstar‘s claim that the Bureau acted in an

arbitrary or capricious manner in rejecting its milestone extension request. Globalstar (and the

other 2 GHz MSS licensees) were all on notice that the Commission would be applying a "strict

enforcement" standard to milestone compliance. The Commission has long placed critical

importance on milestone compliance in the 2 GHz MSS proceeding. In adopting the service

rules, the Commission concluded that it would "impose and strictly enforce milestone

requirements" instead of financial qualifications.‘" The FCC emphasized that strict milestone

enforcement would be "especially important" in lieu of "financial qualifications as an entry

criterion,""" and specifically anticipated that spectrum would be "returned to the Commission as


          " Echostar Satellite Corp., Memorandum Opinion and Order, 7 F.C.C.R. 1765 (1992).

        5 See e.g., Morning Star Satellite Company, L.L.C., Memorandum Opinion and Order,
16 F.C.C.R. 11550, 11554 (2001) ("At no point did Morning Star request a clarification,
extension or waiver of its construction commencement milestone. . . . [WJhen satellite licensees
do not pursue procedural avenues available to them to address concerns surrounding their
authorizations, but rather wait until their authorizations are null and void due to their failure to
act, their inaction ensures the result that the milestone concept is designed to prevent.").

          * 2 GHz MSS Order, 15 F.C.C.R. 16127, 16150 (2000) (emphasis added).
          _ Establishment ofPolicies and Service Rules for the Mobile Satellite Service in the 2
GHz Band, IB Docket No. 99—81, Notice ofProposed Rulemaking, 14 F.C.C.R. 4843, 4881
(1999).
                                               7


a result of missed milestones.""" As noted above, the Commission also had previously made

clear that an initial milestone compliance contract must incorporate payment and construction

schedules that will allow for completion of the satellite system in conformity to the milestones.

       Thus, Globalstar can claim no surprise that the contract it submitted would be insufficient

for demonstrating compliance with the first milestone, as grant of the waiver would have

undercut these policies. First, the "justification" proffered by Globalstar for grant of the deferral

— a greater ability to finance the construction of the satellite system if given more time — directly

contradicts the purpose of strict milestone enforcement as a substitute for a financial

qualifications standard."" Second, the significant delay in deployment of the other three GEO

satellites and the NGSO constellation would result in "warehousing of spectrum," contrary to the

purpose of milestones. Although limited capacity would be available in CONUS with the launch

of the one GEO satellite within the milestones, the Globalstar spectrum would lie fallow

throughout the rest of the world (and would be significantly underutilized in CONUS).

       To the extent there was any ambiguity concerning milestone compliance (and the Carriers

submit there was none), it was incumbent on Globalstar to try to resolve any questions it may

have had prior to the milestone deadline. Globalstar chose not to pursue a declaratory ruling or

other determination in advance of the July 17 deadline even though the authorization was at

stake, ignoring advice the Commission had provided in prior milestone case law."" Instead, on



       3 2 GHz MSS Order, 15 F.C.C.R. at 16150.
        * Under a traditional financial qualifications test, the Commission only issues a license
to an applicant that can demonstrate a present ability to finance the construction, launch and first
year‘s operations of the proposed satellite system. In this case, Globalstar admits that it cannot
presently finance its 2 GHz MSS system, and hence would not have been qualified to receive a
license if the traditional test had been used.

      * See Morning Star Satellite Company, L.L.C., Memorandum Opinion and Order, 16
F.C.CR. at 11554 (2001); see also Motorola, Inc. and Teledesic, Inc., Memorandum Opinion
                                              8


the day milestone compliance was due, Globalstar submitted an application for modification of

its authorization requesting, inter alia, an extension of the construction and launch milestones.

The contract relied upon by Globalstar to demonstrate compliance with the first milestone simply

treated the extension request as having been granted.

        Nor was it reasonable, in light of the strict enforcement standard, for Globalstar to

assume that it would be provided an additional 90 days after any rejection of the extension

request to re—negotiate its satellite manufacturing contract. As the Bureau Order makes clear, it

would be contrary to the public interest to allow such an extension of the initial milestone,

because then anyone could get an "automatic‘ extension of the initial milestone of 90 days or

more simply by filing an extension request."‘ Such a procedure would be particularly

incompatible with the "strict enforcement" standard applied to the 2 GHz MSS licensees.

       Globalstar also claims that the Bureau failed to give meaningful consideration to its

request for waiver of the milestones, citing WAIT Radio."" Although WAIT Radio does stand for

the proposition that an agency cannot simply reject a waiver request summarily because it is

inconsistent with the rule, the Bureau did not do that here. Globalstar‘s argument ignores other

important aspects of the WAIT Radio decision. As the Court in WAIT Radio observed, "An

applicant for waiver faces a high hurdle even at the starting gate."""" An exemption from the rule

must be based on "special circumstances," and the "very essence of waiver is the assumed

and Order, 17 F.C.C.R. 16543, 16550—51 (IB 2002) ("Not having even taken the basic step of
apprising us of the alleged difficulty prior to expiration of the time allowed for compliance, the
Applicants must accept the consequences of their failure to satisfy the milestone requirement
within that time—period.").

       *‘ Bureau Order, 18 F.C.C.R. 1249 at [ 12.
        * Globalstar Request for Stay at 6 (citing WAIT Radio v. FCC, 418 F.2d 1153, 1156—59
(D.C. Cir. 1969)).                                                               —
       * 418 F.2d at 1157.


validity of the general rule."""* WAIT Radio also constrains the Commission‘s ability to grant

waivers: "The court‘s insistence on the agency‘s observance ofits obligation to give meaningful

consideration to waiver applications emphatically does not contemplate that an agency must or

should tolerate evisceration of a rule by waivers. . . . The process viewed as a whole leads to a

general rule, and limited waivers or exceptions granted pursuant to an appropriate general

standard.""" This instruction is particularly relevant here, given the number of 2 GHz MSS

licensees that have sought to waive or extend the milestone deadlines.""

       The Bureau properly considered Globalstar‘s request for milestone extensions under its

well—established standard that business decisions within the licensee‘s control are insufficient to

justify extensions. The Bureau considered (and rejected) the excuses proffered by Globalstar in

its modification filing, because the proposal to delay construction and launch so as to wait out

the downturn in the MSS industry and the resulting excess capacity in Globalstar‘s Big LEO

system are "business decisions." The volatile nature of the satellite industry in general, and the

MSS sectorin particular, can hardly be considered "unanticipated events" as Globalstar asserts.""

       Indeed, Globalstar‘s desire to align its second generation Big LEO system and its 2 GHz

MSS system had been explicitly rejected by the Commission when authorizing Globalstar‘s 2

GHz MSS system because the resulting delays in deployment of the 2 GHz MSS system would

       * Id. at 1157—58.
       * Id. at 1159.
       *° See, e. g., Letter from Kathryn A. Zachem, Esq. and L. Andrew Tollin, Esq. on behalf
AT&T Wireless Services, Inc., Cingular Wireless and Verizon Wireless to Marlene H. Dortch,
Secretary, FCC in IB Docket No. 01—185 et al., at 5 (Aug. 15, 2002); see also Nextel
Communications, Inc., 14 F.C.C.R. 11678, 11691—92 (WTB 1999) ("The Commission has been
especially reluctant to grant a waiver when to do so would ‘invite numerous other waiver
requests which, if granted, would effectively circumvent the Commission‘s rulemaking
function."") (quoting Verilink Corporation, 10 F.C.C.R. 8914, 8916 (1995)).

       *‘ Application for Review at 7.

                                             10


be unacceptable."* The same problems in the MSS industry that Globalstar complained about in

its extension request existed a year earlier when its authorization was issued. However, rather

than challenge that determination in a timely petition for reconsideration of its licensing order,

Globalstar waited until the first milestone deadline to request the relief that had been denied in

the 2 GHz MSS licensing decision."" As the Court of Appeals indicated in the Capital Telephone

decision,"" the Commission‘s Rules logically require the licensee to accept the privileges along

with the obligations, or to follow the procedures to seek reconsideration of the conditions. Here,

Globalstar accepted the 2 GHz MSS authorization, despite the fact that the Commission imposed

milestone deadlines that rejected Globalstar‘s request to align its 2 GHz MSS system with its

second generation Big LEO system. Its belated attempt to challenge that determination is

therefore an impermissible collateral attack on a final decision that must be rejected."‘

       Even apart from this fatal procedural flaw, there is no merit to Globalstar‘s claim that the

Bureau did not adequately consider its "intent to proceed." Globalstar has not exhibited any such

intent."" Indeed, Globalstar‘s expressed intent in seeking extension of the milestones was to




       * Globalstar Authorization Order, 16 F.C.C.R. at 13743, 13758.
        * A conditioned license becomes finalif the licensee fails to timely challenge the
conditions on its license. See 47 U.S.C. §§ 402(b), 405(a); 47 C.F.R. §§ 1.110 and 25.156(b);
Plaut v. Spendthrift Farm, Inc., 514 U.S. 224, 225—27 (1995); see also Morning Star Satellite
Company, L.L.C., Memorandum Opinion and Order, 16 F.C.C.R. 11550, 11553 (2001) ("Failure
to challenge the conditions imposed is tantamount to accepting its license as conditioned.").

       ° Capital Telephone Company, Inc. v. FCC, 498 F.2d4 734 (D.C. Cir. 1974).
       * See eg., MCI Telecommunications Corp. v. Pacific Northwest Bell Telephone Co.,
Memorandum Opinion and Order, 5 F.C.C.R. 216, 221 n.38 (1990), recon. denied, 5 F.C.C.R.
3463 (1990), appeal dismissed sub nom. Mountain States Tel. and Tel. Co. v. FCC, 951 F.2d
1259 (10th Cir. 1991) (per curiam).

       * Globalstar makes some apparent references to financial information redacted from its
milestone application referencing payments to its satellite contractor. Application for Review at
16. Because that information is not publicly available, the Carriers cannot address the nature of
                                             11


delay construction of the satellites, not to proceed expeditiously with the introduction of new

services.

       Finally, Globalstar contends that the Bureau Order failed to address the benefits of its

extension request,"" but its application for review presented no real countervailing public interest

benefits. Globalstar refers to its increased chances of emerging from bankruptcy, but to the

extent it seeks to accomplish this by capturing now the speculative value of the ATC authority,

that would hardly constitute a "public‘ benefit. Globalstar also seeks to rely on the fact that it

would be able to continue to serve unserved and underserved populations. However, Globalstar

has more than sufficient capacity in its Big LEO system to continue serving those customers —

indeed, it is the glut of capacity on its Big LEO system that Globalstar relies on to justify

deferring the deployment of the 2 GHz MSS capacity. Moreover, as far as the Carriers are

aware, Globalstar is not threatening to shut down its system and de—orbit its satellites — and even

where Iridium had threatened to do so when it was in bankruptcy, that threat never

materialized."*

       In fact, grant of the extension is contrary to the public interest. Because the spectrum

freed up by the declaration that Globalstar‘s authorization was null and void was a component of

the 30 MHz of spectrum reallocated to Advanced Wireless Services, grant of the extension via

the application for review would effectively nullify a portion of that reallocation, and thereby



any payments (and whether they reflect work performed on the Big LEO system), or how those
payments are impacted by the affiliation between Globalstar and the satellite contractor.

       * See Application for Review at 14.

       * Indeed, according to the public accounts of its situation, Globalstar rejected one
financing offer that was presented before the FCC released its ATC decision because that offer
had not factored in the expected value of the FCC‘s grant of ATC authority, and more recently
Globalstar accepted temporary financing from investors that include its competitors.

                                             12


foreclose the many beneficial services the Commission envisioned when creating that new

terrestrial allocation.

        In sum, the Bureau gave the Globalstar waiver request the "hard look" it deserved, and

properly concluded that its extension of milestone request was unjustified under the

Commuission‘s well—established standards.

V.      GLOBALSTAR‘S NEW               BANKRUPTCY ARGUMENTS                    ARE    ALSO
        WITHOUT MERIT

        Finally, Globalstar makes new arguments in faulting the Bureau for not addressing

Globalstar‘s status as a bankrupt company as a basis for granting the milestone extensions or

explaining why the Bureau Order is consistent with the automatic stay provisions of the

bankruptcy code. Globalstar asserts in the Application for Review: "Inexplicably, nowhere in

the MO&O does the Bureau even mention GLP‘s status as a Chapter 11 debtor, nor the relation

of its status to the rationale for the Extension Request.""" Of course, the fact that Globalstar

never raised these arguments to the Bureau probably goes far in explaining why the Bureau

failed to address them. Moreover, the Commission‘s rules make clear that an application for

review cannot rely on questions of law the Bureau has been afforded no opportunity to address.""

       With regard to Globalstar‘s newly—minted claim to milestone relief because of its status

as a Chapter 11 debtor, the obligation was clearly on Globalstar to assert such a claim explicitly.

As the Court in WAIT Radio made clear, "When an applicant seeks a waiver of a rule, it must




       " Application for Review at 19 (emphasis in original).

       3° 47 C.F.R. § 1.115(c); see also Richard Duncan d/b/a Anderson Communications,
Memorandum Opinion and Order and Order on Remand, FCC 03—52, at [ 7 (rel. Mar. 12,
2003).

                                             13


plead with particularity the facts and circumstances which warrant such action.""‘ In seeking to

justify the extension request, Globalstar did generally refer to its bankruptcy status as

background information."" On the other hand, in that same application Globalstar asserted that

"Undaunted by its financial setbacks and determined to succeed in the global MSS business,

GLP has begun to implement its Plan of Reorganization.”3° These few fleeting (and in some

cases positive) descriptions of Globalstar‘s bankruptcy status are hardly sufficient to have put the

Bureau on notice that it was expected to addreés bankruptcy as a basis for waiver of milestones.

Moreover, the fact that the Commission in other cases has provided relief in response to specific

requests for exemptions from the payment of application filing fees or annual regulatory fees

based on bankruptcy status does not establish a general requirement that the Bureau grant or

even address such bankruptcy issues sua sponte in every case involving a company in

bankruptcy. Thus, Globalstar‘s bankruptcy arguments are procedurally defective.

        These new bankruptcy arguments are substantively inadequate as well. As noted above,

one of the purposes underlying the strict enforcement of the milestones is its substitution as a

replacement for a financial qualifications test — it would stand the policy on its head to then hold

that being so egregiously unqualified financially so as to be adjudged bankrupt justifies waiving

that replacement for a financial qualifications test.

       The Commission can also dismiss Globalstar‘s new claim that the automatic stay

provision of Section 362 of the Bankruptcy Code precludes the Bureau from declaring the



      *‘ WAIT Radio, 418 F.2d at 1157 (citing Rio Grande Family Radio Fellowship, Inc. v.
FCC, 406 F.2d 664 (D.C. Cir. 1968)).

       *   Globalstar, L.P., Requestfor Waiver and Modification ofImplementation Milestones
for 2 GHz MSS System, SAT—MOD—20020717—00116, et al., at 3, 5, 10 (July, 17, 2002).

       * Id. at 5.
                                              14


license null and void per the terms of the condition in the license. Globalstar‘s argument is based

on an inaccurate and overbroad reading of the NextWave decision (which was addressing

Section 525 due to the non—payment of an auction debt), and a discredited bankruptcy court

decision."" Unlike the NextWave case — which involved an auction debt and thus the

Commission serving as both a regulator and creditor (and hence Section 525 issues) — this case

involves the Commuission solely in its regulatory capacity.

       Under Globalstar‘s theory of the Bankruptcy Code, the Commission would virtually lose

authority to regulate a licensee once it enters bankruptcy. Such a theory is undercut by the

"regulatory exception" included in Section 362 itself.*‘ Although some ambiguity may have

existed before 1998, Congress has since made clear that the regulatory exception applies in cases

such as this. In previous versions of the bankruptcy code, subsection (b)(4) expressly excepted

regulatory actions from the stay imposed by subsection (a)(1) but not did not expressly except

such actions from the stay imposed on acts to exercise control over property of the estate by

subsection (a)(3). Congress resolved the confusion created by this omission when it amended

Section 362(b)(4) in 1998 to make it an express exception to the automatic stay imposed by

subsection (a)(3) as well." Accordingly, as a result of the 1998 amendment, there is no longer

any question as to whether a regulatory action within the scope of subsection (b)(4) that

terminates or destroys a debtor‘s rights or property interests is subject to the automatic stay. The




       * FCC v. Nextwave Personal Communications Inc., 71 U.S.L.W. 4085 (U.S. Jan. 27,
2003); In re Fugazy Express, Inc., 124 B.R. 426 (S.D.N.Y. 1991), appeal dismissed, 982 F.2d
769 (24 Cir. 1992).

       * See generally FAA v. Gull Air, Inc., 890 F.24 1255 (1" Cir. 1989).
       * 11 U.S.C. § 362(b)(4) (Act of October 21, 1998).
                                             15


regulatory purpose of the Commission‘s actions in enforcing a condition in the license, therefore,

renders it exempt from the automatic stay pursuant to Section 362(b)(4).

       Globalstar suggests that Section 362(b)(4) is inapplicable because that exception applies

only to government actions that "impact the health or safety of the public," citing Fugazy

Express. The reliance on Fugazy Express for this proposition is erroneous because Fugazy‘s

attempt to /imit the scope of subsection (b)( 4) to only those regulatory actions that protect the

public‘s "health or safety" is foreclosed by the actual language of the provision and by the

decision of every Court of Appeals that has addressed the issue."" In sum, the Commission must

reject Globalstar‘s new bankruptcy arguments.




       * See In re Universal Life Church, Inc., 128 F.34 1294, 1297—98 (9th Cir. 1997), cert.
denied, 118 S. Ct. 2367 (1998); In re Yellow Cab Co—Op Ass‘n, 132 F.3d 591, 597 (10th Cir.
1997); In re James, 940 F.2d 46, 51 (3d Cir. 1991); see generally In re Berry Estates, Inc., 812
F.2d 67, 71 (2d Cir.) (State court proceedings to enforce rent control regulations excepted from
automatic stay under (b)(4) exception), cert. denied, 484 U.S. 819 (1987).

                                             16


                                            CONCLUSION

          Globalstar has failed to demonstrate that the Bureau erred in finding the satellite

manufacturing contract inadequate, denying the requested extension of the milestones or

declaring the license null and void. The Carriers therefore urge the Commission expeditiously to

deny Globalstar‘s Emergency Application for Review.

                                                                Respectfully submitted,




                                                                Kathryn Ai. ;achem
                                                                L. Andrew Tollin
                                                                Stephen L. Goodman
                                                                Wilkinson Barker Knauer, LLP
                                                                2300 N Street, NW, Suite 700
                                                                Washington, DC 20037
                                                                (202) 783—4141




 ougl@s   I. Brandon               John T. Scott, M               J. R. Carbonell
AT&T Wireless Services, Inc.       Charla M. Rath                 Carol L. Tacker
1150 Connecticut Avenue, NW        Cellco Partnership             David G. Richards
Washington, DC 20036               d/b/a Verizon Wireless         Cingular Wireless LLC
(202) 223—9222                     1300 I Street, NW              5565 Glenridge Connector
                                   Suite 400—W                    Suite 1700
                                   Washington, DC 20005           Atlanta, GA 30342
                                   (202) 589—3760                 (404) 236—5543

March 18, 2003




                                               17


                                 CERTIFICATE OF SERVICE

       I, Paula Lewis, hereby certify that a copy of the foregoing "Opposition to Emergency
Application for Review" has been served this 18"" day of March, 2003, by hand delivery, on the
following:

Joseph A. Godles                                    Jennifer Manner
Goldberffr, Godles, Wiener & Wright                 Legal Advisor
1229 19°" Street, NW                                Office of Commissioner Kathleen Abernathy
Washington, DC 20036                                Federal Communications Commission
                                                    445 — 12th Street, SW, Room 8—B115
William F. Adler                                    Washington, DC 20554
Vice President, Legal and
 Regulatory Affairs                                 Barry Ohlson
Globalstar, L.P.                                    Interim Legal Advisor
3200 Zanker Road                                    Office of Commissioner Jonathan S.
San Jose, CA 95134                                  Adelstein
                                                    Federal Communications Commussion
William D. Wallace                                  445 — 12th Street, SW, Room 8—C302
Crowell & Moring LLP                                Washington, DC 20554
1001 Pennsylvania Avenue, NW
Washington, DC 20004                                Donald Abelson, Chief
                                                    International Bureau
Bryan Tramont                                       Federal Communications Commussion
Senior Legal Advisor                                445 — 12th Street, SW, Room 6—C750
Office of Chairman Michael K. Powell                Washington, DC 20554
Federal Communications Commission
445 — 12"" Street, SW, Room 8—B201                  Thomas J. Sugrue, Chief
Washington, DC 20554                                Wireless Telecommunications Bureau
                                                    Federal Communications Commission
Samuel L. Feder                                     445 — 12th Street, SW, Room 3—C252
Legal Advisor                                       Washington, DC 20554
Office of Commissioner Kevin Martin
Federal Communications Commission                   Edmond J. Thomas, Chief
445 — 12th Street, SW, Room 8—¢A204                 Office of Engineering and Technology
Washington, DC 20554                                Federal Communications Commission
                                                    445 — 12th Street, SW, Room 7—C153
R. Paul Margie                                      Washington, DC 20554
Legal Advisor
Office of Commissioner Michael Copps                Robert M. Pepper, Chief,
Federal Communications Commuission                  Policy Development
445 — 12th Street, SW, Room 8—A¢A302                Office of Strategic Planning
Washington, DC 20554                                  & Policy Analysis
                                                    Federal Communications Commission
                                                    445 — 12th Street, SW, Room 7—C347
                                                    Washington, DC 20554


Jane E. Mago                           Alexandra Field
General Counsel                        Senior Legal Advisor
Office of General Counsel              International Bureau
Federal Communications Commussion      Federal Communications Commission
445 — 12th Street, SW, Room 8—C743     445 — 12th Street, SW, Room 6—C40O7
Washington, DC 20554                   Washington, DC 20554

John A. Rogovin                        Breck J. Blalock
Deputy General Counsel                 Deputy Chief , Policy Division
Office of General Counsel              International Bureau
Federal Communications Commission      Federal Communications Commission
445 — 12th Street, SW, Room 8—C758     445 — 12th Street, SW, Room 6—A¢A764
Washington, DC 20554                   Washington, DC 20554

David E. Horowitz                      Thomas S. Tycz
Attorney Advisor                       Chief, Satellite Division
Office of General Counsel              International Bureau
Federal Communications Commission      Federal Communications Commission
445 — 12th Street, SW, Room 8—A636     445 — 12th Street, SW, Room 6—A665
Washington, DC 20554                   Washington, DC 20554

Neil A. Dellar                         Christopher Murphy
Office of General Counsel              Senior Legal Advisor
Federal Communications Commission      International Bureau
445 — 12th Street, SW, Room 8—C818     Federal Communications Commission
Washington, DC 20554                   445 — 12"" Street, SW, Room 6—C:750
                                       Washington, DC 20554
Howard Griboff
Attorney Advisor, Satellite Division   William H. Bell
International Bureau                   International Bureau
Federal Communications Commission      Federal Communications Commission
445 — 12"" Street, SW, Room 6—C467     445 — 12th Street, SW, Room 6—B505
Washington, DC 20554                   Washington, DC 20554

Karl A. Kensinger                      Cheryl Williams
Special Advisor, Satellite Division    Administrative Management Specialist
International Bureau                   International Bureau
Federal Communications Commission      Federal Communications Commission
445 — 12th Street, SW, Room 6—A663     445 — 12th Street, SW, Room 6—A721
Washington, DC 20554                   Washington, DC 20554


James L. Ball                          John Branscome
Chief, Policy Division                 Attorney Advisor
International Bureau                   Commercial Wireless Division
Federal Communications Commission      Wireless Telecommunications Bureau
445 — 12th Street, SW, Room 6—A763     Federal Communications Commission
Washington, DC 20554                   445 — 12th Street, SW, Room 4—A324
                                       Washington, DC 20554
Thomas Sullivan
Assistant Bureau Chief                 Evan R. Kwerel
Administrative and Management Office   Senior Economist
International Bureau                   Office of Strategic Planning
Federal Communications Commission        & Policy Division
445 — 12th Street, SW, Room 6—C841     Federal Communications Commission
Washington, DC 20554                   445 — 12"" Street, SW, Room 7—C347
                                       Washington, DC 20554
Richard B. Engelman
Chief Engineer                         Kathleen O‘Brien Ham
International Bureau                   Deputy Bureau Chief
Federal Communications Commission      Wireless Telecommunications Bureau
445 — 12th Street, SW, Room 6—A668     Federal Communications Commission
Washington, DC 20554                   445 — 12th Street, SW, Room 3—C255
                                       Washington, DC 20554
David L. Furth
Senior Legal Advisor                   Fern J. Jarmulnek
Wireless Telecommunications Bureau     International Bureau
Federal Communications Commission      Federal Communications Commission
445 — 12th Street, SW, Room 3—C217     445 12"" Street, SW
Washington, DC 20554                   Washington, DC 20554

                                       Cassandra Thomas
                                       International Bureau
                                       Federal Communications Commission
                                       445 12"" Street, SW
                                       Washington, DC 20554




                                           Paula Lewis



Document Created: 2015-01-30 14:48:18
Document Modified: 2015-01-30 14:48:18

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