Attachment support

This document pretains to SAT-MOD-20031118-00333 for Modification on a Satellite Space Stations filing.

IBFS_SATMOD2003111800333_411606

                                 D<                                             @ telenor
                                                                                           Bruce A Henoch
                                                                                           Assstort Generl Counse
                                                  December 20, 2004


    By Hand Delivery
                                                                          ECEIVED
    The Honorable Michael K.Powell                                       Bc s 0 2004
    Chairman
    Federal Communications Commission        D.
    445 12° Street, S.W.
    Washington, D.C. 20554                 ,mw"
                                                       Sureay
           Re:    In the Matter ofMobile Satellite Ventures Subsidiary LLC, Application for
                  Modification of Space Station License, t al.
                  File Nos. SAT—MOD—20031 118—00333
                            saT—AnD—20031118—003
                            sEs—MOD—20031118—018 32
                                                      70
    Dear Chairman Powell:
          T am writing on behalfof Telenor Satellite Services, Ic., Telenor Satelfte, Inc., and
   Telenor Satellite Services Holdings, Ic. (callectively, "Telenor") in support ofthe Application
   for Review filed by Inmarsat Ventures Ltd. on December 8,2004, in the above—referenced
   proceedings.
           Telenor, located in Rockville, Maryland, is one the world‘s leading providers ofmobile
   satelite services (‘MSS") and, together with its affliate Telenor Satellite Services AS of
   Norway, is th single largest distibutor of Inmarsat services in the world. Telenor provides
   services using ts network ofowned—and—operated land earthstations in Southbury, Connectiout
   and Santa Paula, Califomia in the United States and Eik in Norway. Telenor holds a number of
   Hicenses and authorizations to provide Inmarsatland mobile and aeronauticalservices in the
   United States, lcenses that were obtained after iterally years oftenacious opposition by MSV as




   " n the Matter ofMobile Satellite Ventures Subsidiary LLC, Application for Review of
   Inmarsat Ventures Ltd, File Nos. SAT—MOD—20031118—00333, SAT—AMD—20031118—00332,
   and SES—MOD—2003111$—01879 (filed Dec. $, 2004) ("Application for Review).




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 it desperately attempted tocling to its monopoly hold on domestic MSS." Now, without regard
 to the standards carefully established in the ATC Order® and without following any required
 procedural rules, he Bureau has eviscerated Telenor‘s licenses by effectively giving prionity to
 MSV‘s untested ATC services, which the Commission clearly intended to be secondary and
 ancillary service tothe satelite services for which the L—Band has been primarily allocated.
         Using ts domestic Inmarsat servicelcenses, Telenor provides land mobile services to a
 range ofcustomers throughoutthe country,in rura, suburban, and urban areas alike. Many of
 Telenor‘s customers in the U.S. rely on Inmarsat services as their primary method ofproviding
 back—up communications capabilits in time ofemergency. As Inmarsat noted in its Application
 for Review, one ofthe primary benefits ofInmarsat services is that they operate independent of
 local tlephone and power systems, making them ideally suited to disaster response, emergency
 communications, and other applications where relisble communications are required regardless
 of the cicumstances.

        For this reason, a significant number of public and private organizations throughout the
country have purchased terminals under Telenor‘s domestic blanket lcenses, including
municipal governments,relieforganizations, and news media companies. These customers may
require use ofthese terminals at any location at any time, including in cities and suburban areas
as well as in raral locations. Neither the customer nor Telenor can reasonably foresee where the
terminals might be needed; indeed, these organizations have purchased these terminals with the
reasonable expectation of being able to operate them throughout the license area (%e., the United
States), a very reasonable assumption given that the L—Band frequencies in which the terminals
operate are allocated for primary use by Inmarsatservices, meaning that coordination with other
users is not required and users need not accept harmfulinterference from others. These users
simply cannot accept a situation where use ofthe terminalsin a particular location may be
restricted by the implementation ofATC.
        Through its grant ofwaivers to MSV, the Bureau is requiring Telenor to make an
affirmative showing that ts MSS terminals will beinterfered with in order t prevent MSV from
constructing high—powered ATC base stations within Telenor‘s authorized license area. In doing
so, the Bureau has effectively modified Telenor‘s lcense. It is forcing Telenor to accept
otherwise impermissible interference and consigning Telenor at best toa status co—primary with —



* In the Matter ofComsat Corporation d/b/a Comsat Mobile Communications, Memorandum
Opinion, Order and Authorization, 16 FCC Red 21661 (2001); /n the Maiter ofLoctheed Martin
Global Telecommunicationet al, Applicationsfor Assignment ofSection 214 Authorizations,
Private Land Mobile Radio Licenses, Experimental Licenses, and Earth Station Licenses, Order
and Authorization, 16 FCC Red 22897 (2001).
5_ In the Matter ofFlesibilityfor Delivery ofCommuntcations by Mobile Satellte Service
Providers, Report and Order and Further Notice of Proposed Rulemaking, 18 FCC Red 1962
(2003) ("ATC Order‘).


 — and at worstsecondary to —— MSV‘s terrestrial cellular—like network.* As Inmarsat correctly
 notes in the Application for Review, the Commission‘s unambiguous intent was for ATC to
 remain a secondary service, ancillary to the mobile satelite services for which the L—Band is
 primarily allocated. The Bureau‘s actions tum this structure upside down, giving the
 presumption ofinterference—free operation to MSV while foreing Telenor to make an affitmative
 showing of interference potentialin order to allow its fully—licensed operations to continue intect
 and without disruption.
        Section 316 Prohibits License Modifications Without a Hearing

        The Communications Act provides that station licenses "may be modified®" by the
Commission, but onlafter a hearing. Priorto any such modification, the licensee must be
"notified in writing ofthe proposed action and the grounds and reasons therefore," and provided
an opportunity t "protest such proposed order."" By its decision to allow a cellular—like network
in the L—Band, the Commission has modified Telenor‘s earth station license without notice o
Telenor, and without any opportunity for Telenor to protest
        Permitting MSV to construct thousands ofterrestrial ell sites in the L—Band that will
generate interference into nearby MSS user terminals effects license modification under section
316. "Ithas long been established that [section 316] covers indirect as well as direct
modifications oflicenses."* Such "indirect modifications" include circumstances where the
grant or modification of another license "may create objectionable electrical iterference to an
existing licenseand the existing licensee is protected by Commission policy or regulation from
such interference.""_ As the Supreme Court stated, "[talter the rules so as to deprive [an
existing licensee] ofwhat had been assigned toit and to grant an application which would create
interference on the channel given it," would be "in fict and in substance to modify"that license."
        To be sure, not every grant ofa conflcting application constitutes a license modification.
‘[A]Hensee whose right to use of a frequencyis contingent on satisfying specified conditions
has no ight to use ofthe frequency when the conditions are not met."" And a licensee has no
greater tights than ts icense, and the relevant rules othe FCC, provide. Thus, licensee whose

* In the Matter ofMobile Satellie Ventures Subsidiary LLC, Fle Nos. SAT—MOD—20031118—
00333, SAT—AMD—20031118—00332, SES—MOD—20031118—01879, Order and Authorization,
DA 04—3553 (released Nov. 8, 2004) (‘MSV Order").
* 4708C.§316@).
6. Westen Broadcasting Co. v. FCC, 674 F.2d 44, 49 (D.C. Cir. 1982).
7 wl
* FCC v. National Broadcasting Co., 319 US. 239, 245 (1943).
* P&R Tremmerv. FCC, 743 F24 918, 927—28 (D.C. Cir.1984).


  authorization is "expressly conditioned upon and made subordinate to" coordination or other
  spectrum sharing arrangements cannot be heard to complain when it is required actually to
  coordinate or otherwise share spectrum in accordance with its authorization.‘" But where one
  radio station is authorized to operate in a way "which will cause interference to [an existing
  station] within it lawfully protected contour," that authorization constitutes a modification of the
  existing station‘s Hcense."".That is the case here. And the Act requizes that prior to such
  modifications the existing licensee beafforded notice and an opportunity to be heard.""
         The MSV License

         There is ittle question that the Commission‘s grant to MSV of authority to construct a
. terrestralcellular—like network in the L—Band constitutes a modification of Telenor‘s Kiense.
  Telenor holds a "blanket authority" to provide L—Band—based services throughoutthe United
  States. In its 2003 Report and Order authorizing ancillry terrestrial components for crtain
  satelite—based services, the Commission established narrow exceptions to Telenor‘s otherwise
  unconditional ights." The ATC Order permitted the construction of certain terrestrial facilites
  within the L—Band on a strict noneinterference basis, and subject t power limits designed to
  mitigate their interference with existing L—Band operations."
          In the MSV Order, however, the Commission waived and modified those rulesin the
 context of a licensing proceeding that did not involve Telenor. Perhaps most notably, the
 Commission raised the power limit for terrestrial base station operations by a factor of over 6,
 thus dramatically increasing the area within which those operations would interfere with existing
 L—Band uses. According to the Commission‘s own studies, that interference contour more than
 quadrupled in area:from 31,000 square meters per cel site under the ATC Order, to 130,000
 square meters per cellsite under the MSV Order."® Nationally, under the Commission‘s analysis
 this power increase would allow the cumulative area ofinterference to grow from 53,500,000
 squiare meters to 225,000,000 square meters. Inmarsat has estimated the area of interference to
 be even greater."" Moreover,the non—contigous nature oftheinterference renders the problem
 even worse than these numbers would suggest, as the spots ofblanketing willcreate, as Inmarsat

 * AMSC Subsidiary Corp. v. PCC, 216 F3d 1154, 1159 (D.C. Cir. 2000}; see also AT&T
 Wireless Serv‘s Inc. v. FCC, 270 F3 959, 964 (D.C. Ciz. 2001).
 "— WBEN, Inc. v. FCC, 290 F.2d 743, 744 (D.C. Cir. 1961)
 * s
 * See generally, ATC Order.
 !*. ATC Order at 104.

 !*. MSV Order at 81 (expanding interference radius from 100 meters to 204 meters).
 !*. See Application for Review, Technical Appendix at 2—9.


 calls t a "swiss cheese" MSS coverage area, riddled with anomalous pockets ofterrestrial
 interference —— places where MSS terminals no longer will work.
         Just as important, the MSV Order appeared to establish a new priority within the L—Band.
 By the terms ofits lcense, Telenor was authorized to provide L—Band services on a primary
 basis: no harmful interference to Telenor‘s operations would be tolerated. The ATC Order
 expressly retained this scheme, providing that if an "MSS or other operator does receive harmful
 interference from ATC operations, either from base stations or mobile terminals, the ATC
operator must resolve such interference.""" The MSV Order, however, tums this scheme on its
head. The MSV Order establishes a presumption that interference from MSV‘s cell sites is
acceptable, and it requires L—Band satelit service providers to bear the burden of "convincingly
show{ing}" that they actually will have users operating in the vicinity of those cell sites who will
e adversely affected by thatinterference. Moreover, the MSV Order appears to establish an
extremely restrictive "statute oflimitations" for such objections: the L—Band operators must
object"within 30 days" oreceiving notice from MSV that it is commencing operations atthe
enhanced power level in a particular lcation."" Finally, in areas where the MSV Order
concludes that there will be an interference problem into MSS service, it simply dismisses the
issue as one to be "worked together" between MSV and the affected satellite service provider,"
thereby elevating the formerly secondary ATC serviceto a co—primary status.
        The thirty—day procedural cut—offhas the further, substantive, effect of freezing into place
the L—Band operators‘ systems as ofthe date such noticeis given. Though interference might not
exist when MSV first builds a cellsite, operators like Telenor inevitably willlater wantto
introduce new services and serve new users who would suffer nterference from ATC base
stations. Any failure (based on existing technology, services, or customers)to object within 30
days, however, would foreclose the opportunity for those L—Band operators to bring those
objections in the future.
        These substantive changes consttute a modification ofTelenor‘s lcense. The MSV
Order dramatically expands the nterference contour oferrestril L—Band operations beyond that
which was authorized by the FCC‘s rules, as established in the ATC Order.. And the MSV Order
effects a substantive re—prionitization ofthe L—Band, even while freezing the technological status
qiand otherwise creating procedural obstacles to the enforcement ofthose prionities. Plainly,
MSV‘s terrestril cellular—like network "may create objectionable electrical interference" with
the uses that are otherwise allowed under Telenor‘s current lcense and the relevant rules and
regulations of the FCC."" The FCC‘s order authorizing construction and operation of that


7. ATC Order at1 104.
"*. MSV Order at 81.
5* MSV Order ty 82
® Western Broadcasting, 674 F2d at 49—50.


network constitutes a "modification" ofTelenor‘s Kcense, and is therefore prohibited absent
notice and a hearing."
        This faling is no mere technicality, devoid ofsubstance. On the contrary, the FCC has
introduced a scheme that will cause significant interference with Telenor‘s current services, and
could dramatically curtail it ability to expand and introduce new services in the future, As
reflected in Telenor‘s blanket license to provide MSS throughout the United States, ubiquitous
service is a hallmark of MSS, and MSS subscribers therefore expect that thei terminals will
work anywhere they need them to work. A discussed above, they do not expectto find Telenor‘s
service area iddled with pockets of interference where they cannot receive service.
       For the reasons discussed herein, the Commission should grant Inmarsat‘s Application
for Review and reverse the action ofthe Bureau in this proceeding.

                                            Respectfully submittod,
                                          >a
                                            Brice A. Henoch
                                            Assistant General Counsel




ce:   Commissioner Kathileen Q. Abemathy
      Commissioner Michael J. Copps
      Commissioner Kevin J. Martin
      Commissioner Jonathan S. Adeistein
      Ed Thomas, Chief, Office ofEngineering and Technology
      Donald Abelson, Chief, Itemational Bureau
      Mariene Dortch, Secretary




* Seed7 US.C.§316@).



Document Created: 2004-12-28 14:42:14
Document Modified: 2004-12-28 14:42:14

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