Attachment petit for recon

petit for recon

PETITION FOR RECONSIDERATION submitted by EchoStar

petit for recon

2005-06-09

This document pretains to SAT-MOD-20050513-00103 for Modification on a Satellite Space Stations filing.

IBFS_SATMOD2005051300103_436830

STEPTOE &JOHNSONw attorners at taw Brendan Kaper 110 Connectat Aveve NY rorassus Wastingren c 200167905 buaspertiteprccon Teaormmso00 recaoromsoor wepoecom Received JUN 1 4 2005 June 9, 2005 Polcy Branch Electronic Mail Intormational Bureau Marlene H. Dortch Secroury Federal Communications Commission The Portals 455 12th Street, S.W. Washington, DC 20554 Re: EchoStar Petition for Reconsideration (File Nos, SAT—STA—20050321—00068; SAT—MOD— 20050513—00103; SES—MFS—20050527—00662) Dear Ms. Dontch: Enclosed is a Revised Aftachment 1 to EchoStar‘s Petiion for Reconsideration of the International Bureau‘s Memorandum Opinion and Order (DA 05—1581) in the above captioned matter The only change to Atlachment 1 is that the Peak EIRP is corrected to read 54.9 dBW. The original Attachment 1 incorreetly stated that the Peak EIRP was 56.8 dBW. If you have any questions regarding this filing, please feel free to contact me. Sincerely, Beadm Knoper4 Breadan Kasper CC (via email: Donald Abelson Thomas Tyez Karl Kensinger Joy Whaley Cassandia Thomas William Wiltshire Enclosure wasnimcron + ow york + mornix + os anorits + tonbon + arusstis

Before the RECEVED & INSPECTED FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20564 JUN 9 2005 FCC — MAILROOM ) In the Matter of ) ) EcnoSrarSaretureLL.C. ) ) Application for Special Temporary Authority ) File No. SAT—STA—20050321—00068 to Conduct Telemetry, Tracking, and Command ) Operations during the Relocation of EchoStar 4 ) to the 77° W.L. Orbital Location; ) ) Application for Modification of ) File No. SAT—MOD—20050513—00103 Direct Broadcast Satelite Authorization ) Call Sign: S2621 To Permit Long—Term Cessation of Operations ) On Three DBS Channelsat the 157 WL. ) Orbital Location; and ) ) Application for Modification of Barth Station ) File No. SES—MFS—20050527—00662 Authorization to add the EchoStar4 Satelite at ) CallSign: E20306 77° W.L. as a Point of Communication ) e To: The Intemational Bureau PETITION FOR RECONSIDERATION EMERGENCY ACTION — EXPEDITED BRIEFING REQUESTED David K. Moskowitz Pantelis Michalopoutos Executive Viee President and General Counsel Philip L. Malet 9601 South Meridian Boulevard Brendan Kasper Englewood, CO 80112 Srertoe & Jomisoniur (303) 723—1000 1330 Connecticut Avenue NW Washington, D.C. 20036—1795 (202) 429—3000 Counselfor EchoStar Satelite LLC June 8, 2005

TABLE OF CONTENTS INTRODUCTION AND SUMMARY n SUBSEQUENT EVENTS HaVE SHOWN THAT GRANTING ECHOSTAR‘S APPLICATION IS IN THE PUBLIC INTEREST 3 A.— EchoStar 4 Would Immediately Benefit Mexican Consumers Upon Relocation to 77° W.L. B. EchoStar Has Subscquently Determined That It Can Use EchoStar 4 to Provide Service to the U.S. from the 77° W.L. Orbital Location u. THE DENIL ORDER FAILS TO TREAT SIMILAR APPLICATIONS IN A SIMILAR MANNER............ ~10— iv. THE DENIAL ORDER PAILS TO TREAT FOREIGN ADMINISTRATIONS IN A NON—DISCRIMINATORY FASHION. —is— THE DENIAL ORDER MISAPPLIES THE PUBLIC INTERESTSTANDARD.....~ 14 — vil THE DENIAL ORDER DISREGARDS THE PUBLIC BENEFITS OF ECHOSTAR‘S PROPOSAL FOR U.S. CONSUMERS ais: vii CONCLUSION.... —19—

Before the rEDERAL COMMUNICATIONs conmmsston Washington, DC 20554 In the Matter of EonoSrarSatetureLL.C. Application for Special Temporary Authority File No. SAT—STA—20050321—00068 to Conduct Telemetry, Tracking, and Command Operations during the Relocation of EchoStar 4 to the 77° W.L. Orbital Location; Application for Modification of File No. SAT—MOD—20050513—00103 Direct Broadcast Satelite Authorization CllSign: 52621 To Permit Long—Term Cessation of Operations On Three DBS Channelsat he 157 W.L. Orbital Location; and Application for Modification of Barth Station File No. SES—MFS—20050527—00662 Authorization to add the EchoStar 4 Satelite at Call Sign: BO20306 77° W.L. as a Point of Communication cce To: The International Bureau PETITION FOR RECONSIDERATION EvERGENCY4CTION— EXPEDITED BRIEFING REQUESTED Pursuant to the Commission‘s Rules, 47 C.FR. § 1.106, EchoStar Satelte L.L C (‘EchoStar") hereby petitions the Internationa! Bureau ("Bureau")toimmedistely reconsider the denial and dismissals othe above—captioned Applications." In light ofe exigent ‘ See In the Matter ofBchoStar Satellie LLC, Applicationfor Special Temporary Authorityto Conduct Telemeiry, Tracking and Command Operations during the Relocation of EchoStar 4 t the 77° W.L. Orbial Location; Applicationfor Modification ofDirect Broadcast Surelite Authorization to Permit Long—Term Cessation ofOperations on Three DBS Channels at the 157° W.L Orbital Location: Applicationfor Modifcation ofEarth Station Authorization to add the EchoStar 4 Satelite at77° WL as a Point ofCommunication, File Nos. SAT—STA—

circumstances presented in thisproceeding, EchoStar requests an expedited briefing schedule ofone dayfor thefling ofany apposition o thispetiionfor reconsideration* 1. INTRODUCTION AND SUMMARY In a decision released June 3, 2005,the Bureau denied EchoStar te limited authority it had requested to remove a DBS satelite from a U.S. orbital location and to move t to another orbital location alloted by the Intemational Telecommunication Union ("TU®) to Mexico in order to meet ts customer‘s requirements and its oun business needs. "The Bureau should reconsider ts denial because new facts have emerged, demonstrating that granting EchoStar‘s STA request is in the public interet, even under the Burcau‘s rationale in the Dental Order. These additional facts are (1) EchoStar now understands that Mexico‘s Secretaria de Comunicaciones y Transportes (‘SCT) will promptly grant the pending application ofQuetzSat Directo, an affiate of EchoStar‘s customer SES Americom S.A.,to provide direct—o—home ("DTH) serviceto Mexican consumers from BchoStar 4 at 77° W.L.and provide a second source of DTH service forthe Mexican public;and (2) EchoStar has determined thatit can also provide DTH service to the portions of the U.S. rom EchoSta 4 at 77° W.L. Consistent with the Bureau‘s rationale in the Denial Order, these new facts mean that the requested STA (and related applications) should now be granted. EchoStar‘s request is now indistinguishable from the Bureau‘s previous grant ofan STA to DIRECTV for relocating DIRECTV 3 to 82° W.L. (even on the basis ited in the Denia! Order for distinguishing the two cases). 20050321—00068, SAT—MOD—20050513—00103, and SES—MFS—20050527—00662; Call Signs: S2621 and BO20306, DA 05—1581 (rl. June 3, 2008)(*Denial Order®). * EchoStar is today serving counsel for DIRECTV, the only entity that has submited an informal lettein this proceeding, via email dlivery in order to expedite service and faciitate expedited bricfing on this pettion.

Aside from these newfacts, the Bureau‘s decision was also in crror. The Bureau proceeded o evaluste what the satellite would be doing at a foreign orbitalst and prevented EchoStar from moving its property to thatlocation, matters clearlybeyond the jurisdiction of the Commission. In denying and dismissing the above—captioned Applications, the Bureau submitted two similarly stuated, and indeed competing, entiies — EchoStar and DIRECTV — to a different standard. Justlast year, DIRECTV was authorized to move not one but two DBS stellites o two orbitel locations allotted to Canada. Th simpler of these two moves was indistinguishable from the instant request. DIRECTV sought and received authority to move its DIRECTY 3 satellite to the Canadian 82° W.L. orbitl location, where it would become subject to the jurisdiction of Canada. The Bureau tries to ditinguish the disparatetreatment ofthe two DBS companies based on is view thatthe move of the DIRECTV satelfit to the Canadion slot would "help to assure continuity ofservice" to Canadian customers." Butthe Commission does not have authority to evaluate the service needs ofe Canadian public orthe alleged lack of servicetothe Mexican public as it found in this case. "The Denial Order also discriminates unfairly between two foreign admninisrations — Canada and Mexico. By preventing EchoStar‘s customer from meeting a condition of ts Mexiean license to bring into use a sateliteat 77° WL. by July 10, 2005,the Denfal Order not only hampers plans t use the Mexican slotforservice to Mexico, but alsoto portions of the United States. This is particularly inappropriate considering that Canada does not have a reciprocity agreement with the U.S.regarding DTH service. Mexico, by contrast, has reached a bilateral DTH protocol with the U.S. under the auspices ofthe North America Free Trade Agreement (‘NAFTA®). As EchoStar had explained in its Application, theinstant STA request * 1d. at 7. See also DIRECTY, Inc., Order and Authorization, 19 FCC Red 11055, at 1.10 (2004) (CDIRECTY 3 Order®)

is directlyrelated to Mexico‘s abilty to ejoy its rights under the DTH protocol. Allowing Mexico to meet the July 10 ITU deadline for bringing this orbital location into use would preserve the slt fora second DTH provideto offer serviceto Mexico and the U.S., even aside from the immediate service to Mexico and the U.. that wll be possible from EchoStar 4. In denying EchoStar‘s Application,the Bureau also misapplied the public iterest standard. First, the Bureat is not well—equipped to gauge what it viewed as the lack of immediateservice from EchoStar4 to Mexico. This is Mexico‘s concemn. The Bureau erred by proceeding to evaluste what the satellite would be doing when located at a Mexican orbital slot and under the censing authority ofanother country. Second, EchoStar‘s STA requestis only requesting authorityto remove the satelite from U.S—licensed services and move it to a foreign orbitallocation. Thisis akin to a common carrier applying for authorityto discontinue service over certain facilities pursuant t Section 214 ofthe Act. In evaluating such applications, the Commission cannot properly claim that the publicinterest is disserved if the faciities willnot be immediately redeployed to provide service, letalone service to citizens of another country. The only factors thatthe Commission properly considers in its publi interest analysis ofsuch applications is whether consumers will be disentranchised, recognizing the ight ofcarriers to be able to make sound business decisions, For that reason, the Commission has routinely granted. service discontinuances in the common cartier context. EchoStr, ofcourse, is not a common carrir, and ts removal ofa satellte from U.3.service should therefore be subject o even less scrutiny. Indeed, EchoStar could tum itslieense in tomorrowwithout any prior Commission approval, even ifconsumers were to lose service. Likewise here, EchoStar is secking to discontinue U.S—Jicensed operations for one of ts stellites in order to put thatsatelite to more productive use rom a foreign orbital slt. The only

relevant issues for the Bureau to consider for such a move are: (1) whether U.S. consumers would lose service; and (2) whetherthere is a isk thatthe satellite could collide orinterfere with any radio stations within the Commission‘s jurisdiction on ts way to the foreign orbital location Neither ofthese factors militates agninst approval here. EchoStar has explained that not one U.S. consumer would lose serviceas a result ofthe move, And EchoSter, one of the most experienced satellte operators, has moved satelftesaczoss the geostationary are numerous times Instead, the Bureau appears to have based its decision solely on itperception of what services could be provided from the satelitein Mexico. This is nota proper public interest consideration in this case. While being unduly solicitous for the service needs ofMexican and Canadian consumers, the Denial Order also disregarded the public interest benefits for U.S. consumers set forth in EchoStar‘s Application,including the fict thatit will help make one aditional CONUS orbital location available for service to the U.S. 11. SUBSEQUENT EVENTS HAVE SHOWN THAT GRANTING ECHOSTARS APPLICATION 1IN THE PUBLIC INTEREST Afterthe Denial Order, new facts have emerged., demonstrating thatgranting EchoStar‘s Application is in the publi interest, even under the Bureau‘s rationale in the Denial Order. These additional fiets are: (1) EhoStar now understands that Mexico‘s SCT will prompily grant QuetzSat Directo‘s pending application to provide DTH service to Mexican consumers from EchoStar 4 at 77° W.L. and provide a second source of DTH serviceforthe Mexican public;and (2) EchoStar has determined thatit can also provide DTH service to portions ofte U.S.from EchoStar 4 at 77° W.L.. Consistent with the Bureau‘s rtionale in the Dental Order, hese new facts mean that the requested STA (and relted applieations) should now be granted. EchoStar‘s

request is now indistinguishable from the Bureau‘s approval ofthe move of DIRECTV 3 to 82° w "The expectation that Mexico will soon grant QuetzSat Directo‘s pending application to provide DTHservice to Mexican consumersis based on assurances that EchoStar has received after the release ofthe Denial Order. Itthus relates to *events that occurred or circumstances which have changed since the last opportunity o present such matters.."* Likewise, the fact that EchoStar has subsequently determined that it can also provide DTH service to portions of the U.S. from EchoStar 4 at77° WL. should be considered because such consideration is in the public interest The publicinterest benefit fom providing service into the U.S. from EchoStar 4 at 77°W.L., discussed below, outweigh any alleged harm from filingto provide such information as part of EchoStar‘s Application® A.—— EchoStar 4 Would Immediately Benefit Mexican Consumers Upon Relocation to 77° W.L. Even if the Bureau‘s rationale were correct,the Bureau should immediately reconsider ts decision because that rationale is based on inscourate facts. As discussed above, the Bureau tries to distinguish the Denial Order and the DIRECTY 3 Order on the ground that DIRECTV 3 would be immediately used to benefit Canadian customers, while EchoStar 4 would not immediately be used to serve Mexican customers, in prt because an additional concession is "See 47 CFR§ 1.1060)@)0) 5 See 47 CFR § 1.106(@(2). See In the Matter ofEchoStar Satellte Corp : Application for Authority to Construct, Launch, and Operate a Ka—band Satelixe System in the Fixed ‘Sarelite Service, 17 FCC Red 23489 (2002) at9 5 (*EchoStar 1.106(c)(2) Decision") and In the Matter ofLocal Exchange Carriers® Individual Case Basis DS3 Service Offerings, 5 FCC Red 482 (1990) ar 33. * See EchoStar 1.106(e)() Decision at 1 5 ("The public interestin secing EchoStars Ka— band services broughtto the public outweighs any harm caused by EchoStar‘s failure to provide this information as part o ts iniial milestone compliance demonstration.")

needed to provide DTH service in Mexico." This is inaceurate, however. Itis EchoStar‘s understanding, based on assurances received sincethe Bureau released the Dental Order,that Mexico‘s SCT will prompily grant QuetzSat Directo‘s pending DTH concession application. Thus, as in the DIRECTY 3 Order, EchoStar 4 will be used toimmediately benefit Mexican consumers upon its arivalathe 77° WL. by providing additional DTH services. Indeed, the move of EchoStar 4 to 77° W.L. will be a key step towards the introduction of a new and competitive DTH servicein Mexico In fact, the move will allow a second DTH competitor to enter the Mexican DTH market, which currently has only one DTH provider. This immediate benefit for Mexican consumers is aleast as compellingas the DBS needs of Canadian consumers, which served as the basis for the public iterest finding in the DIRECTY 3 Order.* B. EchoStar Has Subsequently Determined That It Can Use EchoStar d to Provide Service to the U.S. from the 77" W.L. Orbital Location in addition t immediately providing serviceto Mexican consumers, EchoStar has determined subsequent to the Denial Order that it can also provide DBS service to the U.S. rom EchoStar 4 at 77° W.L." Thus, granting EchoStar‘s Application is also in the public interest because it would enable EchoStarto provide much needed additional spectrum at full CONUS (versus a halCONUS slotlike 157° W.L.) orbital location, which could be used to offer local: into—Local, HDTV, thnic and other programming into the U.S. These benefits can be achieved ? See Denial Order at9 6—7 (‘In particular, we notethat QuetzSat‘s Concession clearly indieates that,in order to provide Directto—Home Service, . an actual service consumers, that service must be provided either through an existing concessionaire for such a service,or though the issuance of a newconcession This case,therefore, is unlikother cases in whichthe Commission has granted authority to move an FCC licensed satelite t a non—U.S. DBS location in order t address capacity needs and concerms with continuity of service."). * See DIRECTV 3 Order at§ 10. * EchoStar willfile an application shortly fora blanket receive—only earth station authorization to provide service to U.S. consumers from EchoStar 4 at 77° W.L.

withoutaffecting EchoStar‘s current subscribers because the programming provided by EchoStar 4 at is existing location is duplicative of the programming provided from another EchoStar satelite at 148° W.L The grant of EchoStar‘s Application would also be consistent with the Commission‘s recent grant oasimilar STA request (and related applications) by DIRECTV Enterprises, LLC (‘DIRECTV®)."° In that proceeding, DIRECTV had‘entered into a imilar arangement with Telesat Canada ("Telesat") whereby DIRECTV relocated the DIRECTV 5 satelite to Telesat‘s Canadian—licensed BSS slot at72.5° WL., from which DIRECTV would provide DBS service on an interim basisto the United States. The Commission approved that arangement, despite finding that Canada did not meetthe effective competitive opportunities" est for comparable DBS services, because othe public interest benefits associated with increasing the number of markets ble o receive local—into—local programming from DIRECTV." This proposal offers a more compelling case for authorization than the arrangement between DIRECTV and Telesat because it deliverssimilar publi interest benefis without raising the countervailing consems about the competitive opportunitiesfor U.3. satelites in a forcign market. Unlike Canada, Mexico and the U.S. have a bilsteral agreement tofaciltte the provision of commercial stellte service, and in particular the two countries have adopted protocols related to the provision of DTH services."" Under the DISCO 11 framework, the ‘* In the Matter ofDIRECTV Enterprises, LLC. Request for Special Temporary Authority for the DIRECTY5 Satellte, DA 04—2526, Order and Authorization, SAT—STA—20040107— 00002, Call Sign $2417 (released Aug. 13, 2005). " tdit 23. !* Agreement between the Government of the United States of America and the Govermment of the United Mexican States Concerning the Transmission and Reception from <4.

Commission presumes thatthe entry of a foreign satellte icensed by government with whom the U.S. has a bilateral agreement fothe relevant service will promote compeition and thus an analysis othe effective competitive opportunities is not required.." While EchoStar is not required to show that using EchoStar 4 to provide DBS service to the U.S. from a Mexican orbitl location offers public interest benefitssubstantial enough to overcome any competiive concems, the move of EchoStar t 77° W.L., nevertheless,offers compelling public interest benefits While EchoStar 4 can only operate on a limited number of ransponders at any given time, the additionalfll CONUS spectrum that will become available at77° WL. would allow EchoStar to compete more effectively with established cable operators in the MVPD market. As the Commission is aware, EchoStar operates with significantly less bandwidth and programming capacity than is available to most digital cable providers. All 32 DBS channels atthe 77° W.L. orbital location are controlled by Mexico. By moving EchoStar 4 to 77° W.L., EchoStar will Satellitesforthe Provision of Satellite Services to Users in the United States of America and the United Mexican States, April 28, 1996, ArticleI and Protocal Conceming the Transmission and Reception of Signals from Satelites for the Provision of Directto—Home Satelite Services i the United States of America and the United Mexican States, November 8, 1996. " See In the Matter ofAmendment ofthe Commission‘s Regulatory Policiesto Allow Non—US. Licensed Space Statons o Provide Domestic and International Satelite Service in the United States; Amendment ofSection 25.131 ofthe Commission‘s Rules and Regulations to Eliminate the Licensing Requirementfor Certain International Receive—Only Earth Stations, 12 FCC Red 24094, at 3 143 (1997) (°DISCO 11",. Indeed, the Commission highlighted the agreement with Mexico as the type ofagreement that would benefit U.S. satelite operators. See 14. at§ 130. See also In the Matter ofTelevisa International, LLC, Application For Blanker License For Receive—Only EarthStations In The FixedSateliteService For Direct—To—Home Subseription Television Service, 13 ECC Red 10074 (1997) (approving the application, under the bilateral agreement,to operate 1,000,000 receive only earth stations to receive DTH service from a Mexican sotelite)

thus be able to bring a portion ofthis new full CONUS satelfte capacity to use in providing DBS service to U.. consumers. In addition, EchoStar can provide service from EchoStar 4 at 77° W.L. without causing harmful nterference. There is no BSS orbital location in the vicnity of 77° W.L.thatis assigned to the United States (the closest U.S. location is 61.5° W.L.). EchoStar 4 will also be operated in accordance with the existing coordination agreements between the Administrations of Mexico and Canada with respectto the adjacent BSS assignments assigned to Canada (72.5° W.L. and 82W.L. orbital locations)." INL. THE DENHL ORDER FAILS TO TREAT SIMILAR APPLICATIONS IN A SIMILAR MANNER Itis well established that "administrative agencies must apply the same basic rules to all similarlysitusted applicants""" and that "an agency must provide adequate explanation before it "* EchoStar 4 will operate in full conformity with the 1996 Mexican ITU modification over all points in Canada and the United States. The attoched map showing the proposed c.irp. contours of EchoStar 4 at 77° W.L. demonstrates thatthe operation of EchoStar 4 atthat location should be below or t thec.iz;p.envelope ofthe 1996 Mexican ITU modifcation over virtally all ofthe United Sttes and all ofCanada. Outside the United States and the 72.5 W.L. service area, EchoStar 4 may operate abovethe ITU modification over limited number ofpoints, and in these areas EchoStar 4 will operate on a non—interference basis. !* See Henry v. INS, 74 F.3 1, 6 (1st Ciz, 1996) (‘[Aldministrtive agencies must apply the same basic rules to all similanly situated supplicants. An agency cannot merely it serendipitously from case to case, likea bee buzzing from flower to flower, making up the rules as it goesalong.");Adams Telecom, Ine.v. PCC, 38 F.3d 576, 581 (D.C. Ci. 1994) (*We have recently reminded the FCC ‘of the importance of reating similarlysituated parties alike or providing an adequate justifation for disparate reatment." (quoting MoElzoy Electronics Corp v. FCC,.990 F.2d 1351, 1365 (D.C. Cir. 1993)); Garretrv. RCC, 513 F.2d 1056, 1060 (D.C. Cir. 1975) (‘[An agency} ‘cannot act arbitrarily nocan it reatsimila sitations in dissimilar ways," {J and we (have] remanded litigation to the agency when it did not take pains to reconcile an apparent difference in the treatment accorded litigants circumstanced alike." (quoting Herber/ Harvey, Inc.v. NLRB, 424 F.24.770, 780 (D.C. Cir. 1969)). «10—

treats similarly situated parties differenty.""® In distinguishing between the disparate treatment of EchoStar and its competitor DIRECTY, the Bureau has resorted to an unavailing distinction —— i.,the welfare of consumers in Canada versus those in Mexico —— a factor that is both outside the purviewofthe public iterest standard and outsidethe Commission‘s jurisdiction Justlastyear, the Bureau authorized DIRECTV to move not one but two sstelites to two DBS orbital locations alloted to Canada. In a case almostidentical t the instant request, DIRECTV sought and received authority to move its DIRECTV 3 satelit to the Canadian 82° W.L. rbitelocation, where it would become subject tothe jurisdiction of Canada."" Like the requested move of EchoStar 4," the removal of DIRECTV 3 from U.S —licensed service would not lead to any loss ofservice to U.S. consumers" Also, either application appeared to raise any significant consem about harmful nterference or colliions with other satelites during the move across the geostationary arc. "* See Petroleun Communications, Inc.v. PCC, 22 F.3d 1164, 1172 (D.C. Cir,1994) (*We have long held that an agency must provide adequate explanation before it rea similarly situated partes differently."); Melody Music, Irc. v. FCC, 345 F.2d 730, 732—33 (D.C. Cir. 1965) (*We think the Commission‘s refusalat leasto explain is differential treatment of appellant and NBC were in error. Both were connected with the deceptive practices and their renewal applications were considered by the Commission at virtally the same time. Yet one was held disqualified and the other was not. . [Wie think the differences are not so‘obvious‘ as to remove the need for explanation."). See also Transaetive Corp. v. United States, 91 F.3d 232, 237 (D.C. Cir. 1996) ("An agency actionis arbitrary when the agency offer{s] insulficient reasons for treating similar situations differently®). See also Coumty ofLos Angeles w Shalala, 192 R.3d 1005, 1022 (D.C. Cir. 1999) (some). ‘" See DIRECTV 3 Order. "* The programming provided by EchoStar 4 at the 157° W.L. orbitallocation is duplicative othe programming offered by EchoStar atthe 148° W .L. orbital location. ‘" See DIRECTY 3 Order a 12 (DIRECTV 3 was in storage orbit and was not being used to provide service to U.. consumers). <3s

"The Bureau triesto ditinguish the disparatetreatment of the two companies based on its view that moving the DIRECTV 3 satelite to the Canadian slot would meet the service needs of the Canadian public. In the Bureau‘s words, "[T}he [move of the DIRECTV 3] satellte provided for immediate improvement in the quality and reliability ofan existing service provided to directto—home subscribers in Canada. In granting that request, we noted that helping ‘to assure continuity of service‘ served the public iterest by comporting ‘with eooperation between U.S and Canadian satellite providers in imes ofemergency or capacity need."""" In the Bureau‘s view, these needs distinguished DIRECTV‘s application from EchoStar‘s request. In this case, the Bureau reasoned, the EchoSta 4 satelite would notimmediately serve the Mexican public because ofthe need to obtain an additional concession to provide DTH services."" But the agency does not have authoriy to evaluate the service needs of the Canadian public othe perceived lack of service to the Mexican public. One of the primary purposes of the Communications Actis to ensure tavailability ofservice to U.S. consumers."‘ The provision of DBS service to Canadian or Mexican consumers is not a cognizable part of the Commission‘s See Denial Order at 57 (ctations omitted). * See Denial Order at§6. "" See 47 U.S.C. § 151 (Purposes of Act) (*For purpose of regulating intersate and foreign commerce in communication by wire and radio so as to make available, so far as possible to allthe people of the United States ... a rapid, efficient, Nation—wide,and world—wide wire and radio communications service ..... See also General Motors Corporation. et al, 19 FCC Red 473, 492 4 34 (2004) (rjecting the concem raised by EchoStar regurding effective comperitive opportunitesfor U.S. stelite operators in Australia because: "The nature of our inquiry here focuses on whetherthe provision ofTitle IIlservices by a U.S.licensee (with a controlling interest held by a foreign incorporated entty) would harm compertion in the U.S. marker EchoStar‘s argument,atbes, advances the posiion that U.S. licensees could be at a comperitive disadvantage in the Australian market due to Australia‘s statutory and regulatory foreign ownership limitations on subscription television.") (emphasis added). 242

publicinterest standard. In any event, asindicated above, the Denial Order elied upon inaccurate information as to the pending DTH concession in Mexico Iv. THE DENLL ORDER FAILS TO TREAT FOREIGN ADMINISTRATIONS IN A NON—DISCRIMINATORY FASHION The Denial Order also discriminates unfairly between two foreign administrations —— Canada and Mexico. By granting the DIRECTV applications and denying EchoStar‘s instont requests, the Denial Order put the service needs of the Canadian public above the needs of the Mexican public because in the Bureau‘s view the former were superior and more immediate." This is especially inappropriate considering that Mexico, unlike Canada, has entered io a protocol withthe U.S. with respect to the provision of DTH services. Canada does not provide US. DTH providers with the same opportunities to serve the Canadian market because oflocal contentrequirements, As the Commission has found, "a ejure barier exists in Canada for any U.S. satellite secking tooffer [DTH service}.""" In order to allow service to the U.S.from Canadian stots,therefore, the Commission has had to ind "countervailing public interest factors to overcome the ack of reciprocity required under the Commission‘s "BCO—Sat" test.* Mexico, by contrast, has reached a bilateral DTH protocol with the U.S. under the auspices of NAFTA that allows reciprocal servicefrom the orbitl locations of each country to ® See DIRECTV 3 Order at § 10 (‘The use ofthe DIRECTV 3 satelite to augment the service currently provided by Telesat‘s Nimig 1 and Nimig 2 satelites helps to assure continuity of serviceto Canadian customers."); Denial Order at 9 7 (*Thn the DIRECTY 3 case, the] stelite provided for immediate improvement in the quality and reliablity oan existing service provided to direct—1o—home subscribers in Canada..... In [the EchoStar 4J case, there are no considerations concerning capacity needs for continuity of existing service.") *‘ See Digital BroadbandApplications Cory., Order, 18 ECC Red 9455, 9462 4 14 (2003) (‘DBAC Order‘). * 1d. c 94624 15 aige

consumers located in the other country.2® As EchoStar explained in its Application, the instant STA request and subsequent movement of EchoStar 4 is eriical to Mexico‘s ablity to enjoy ts rights under that DTH protocol."" Allowing EchoStar‘s customer t meeta condition of ts Mexican license to bring a satellte into use by the July 10, 2005 ITU deadline for Mexica‘s 1996 modification to the ITU Broadcast Satellite Services ("BSS") plan for Region 2 would preserve the slot for use by Mexico and for servicetothe U.S. market. Consistent with the DTH protocol, the Bureau should be sensitive to Mexico‘s attemp to safeguard ts international rights. v. TiE DENHL ORDER MISAPPLIES THE PUBLIC INTEREST STANDARD The Denial Order also misapplies the public interest standard. Pirst,as mentioned above, it is not appropriate forthe Bureau to weigh what it views as the lack ofimmediate service from EchoStar 4 to Mexico from a Mexican orbitl location. This is solely a concem for Mexico. "The Bureau‘s evaluation ofthe use ofthe 77° W.L. slot was not only beyond the scope of the publi iterest standard, butalso factuallyincorrect. The Bureau did not have before it all the fiets about service to Mexican consumers from the satelite, because they should have been irrelevant to any evalvation of the removal of the satelitefrom a U.S. orbitallocation. In fact, * Agreement between the Government of the United States of America and the Govermment of the United Mexican States Concerming the Transmission and Reception from Satelftes forthe Provision of Satellite Services to Users in the United States ofAmerica and the United Mexican States, April 28, 1996, ArtileI and Protocol Conceming the Transmission and Reception of Signals from Stellites for the Provision of Directto—Home Satelite Services in the United States ofAmerica and the United Mexican States, November 8,1996. *" See SAT—$TA—20050321—00068, at 4 (‘[T}hisrequestwill usher in the potential to use the 77° WL. orbital location for the eventual provision ofservice o the U.S. Specifically,in addition to allowing usof EchoSta 4 as a Mexican—licensed satelite at 77° W.L., the requested STA will allow QuetzSat t satisfy a condition ofthe Mexican license and thus ultimately would enable EchoStar to use the 77" W.L. for the purpose ofoffering local—into—local, HDTV, ethnic and other programming into the U.S."). 2168

QuetzSat Directo, an afflite of EchoStar‘s customer SES Americom S.A.,alreadyhad pending an applieation to obtain authority to do precisely what tBureau faulted EchoStar for not providing —— using EchoStar 4 to provide serviceto Mexico. As mentioned above, EchoStar understands that Mexico‘s SCT will promptly grant this application. So the Bureau‘s view that Mexican consumers do not stand to benefit from a DBS satelite at 77° W.L. was misguided. Butthe more fundamental point is that the Bureau does not have the power to safeguard the welfare of Mexican consumers and to second—guess the Mexican regulator‘s view as to whether any particular use of the satllit at 77° WL. serves the Mexican public interest" The Bureau is charged with protecting and promoting the U.S. public interest. Second, EchoSta is only secking authorityto remove the satelite from U.S. jurisdiction so thait can move the satelite to a Mexican orbital location. This requestis akin to a common carrier requesting authorityto discontinue service over certai facilities pursuant to Section 214 ofthe ActLike the instant request, discontinuances of service are subject to the public nterest standard. But if the Commission applied that standard in the way it did here, it would almost certainly have to deny all Titl 1 discontinuance applications. In every such case,the Commission could reason that te subject faciities would not be redeployed to serve consumers. EchoStar submits that this is not the proper public interest analysis of a proposed service discontinuance. The only legitimate factorsthatthe Commission should consider in this context is whether consumers will be disenfianchised without appropriate notice, and whether any potentialdisentfranchisement outweighs the applicant‘sright to make sound economic and "" See 47 U.S.C. § 151. See also General Motors Corporation, sypra note22,a1 34 * See 47 U.S.C. § 214 (* No carrier shalldiscontinue, reduce, orimpair service to a community, opart oa communit, unless and until there shall havefrst been obtained from the Commission a certificate that nether the present northe future public convenience and necessity shall be adversely affected ... iss

business decisions. Under that standard,the Commission routinely approves discontinuances of service even if consumers wll loseservice, recognizing the value oaffording the carier certain business flexiblity" Infact,the Commission has found that most service discontinuances can be deemed automatically granted, so long as adequate noticeto consumers is provided."" EchoStar, ofcourse, is not a common cartir, and ts emoval offacilites from service is therefore subject to even Tess seruti. Indeed, as a DBS operator, EchoStar could turn in its Hicense for EchoStar 4 tomorrow without requesting prior approval from the Commission. It could do so even if consumers were tolose service. In the context of moving a U.S—licensed DBS sitelite from a U.S. orbital location and relocating it toa slotalloted to another country, the publi interest analysis should likewise be straightforward. There are only two factors ofany conceivable relevance: (1) whether U.. consumers willbe disenfranchised; and (2) whether "° See In the Maiter ofPolicy and Rules Concerning Ratesfor Competitive Common Carrier Services and Facilites Authorizations, 85 F.C.C. 24 1, at § 146—47 (1980); "We recognize that service discontinuance can be disruptive t customers. We believe, however, that we are offering customers falr degree of protection by requiring cartiers to notify all customers ofdiscontinuance plans and by providing customers with an opportunity t inform the Commission of resultant hardships. ...‘ Nonetheless, in a compeitive marketplace ease of exitis essential. IFregulatory exit barrirs are not lowered, carriers may be discouraged from entering high risk markets for fear that they may not be able to discontinue service in a reasonably short period oftime ift proves unprofitable. Ease ofexit is also a fundamental characteristic ofa competitive market. We have alteady found thatthe overall public is best served in these areas by the development ofthis compstition, even though some customer dislocations mightbe atendant thereto. We believe tht Section 63.71 strikes a good balance between the need to reduce regulatory bariersto exit fom competiive markets and our responsibility to ensure that the public served will be given a reasonable period oftime to make other service arrangements." " 47 C.F.R. § 63.71 (permitting carriersto automatically discontinue service within a certaintime afer an application to discontinue is fled, provided thatadequate noticis given and unless it can be shown that customers would be unible to receive service or a reasonable substitite from another carier) 218%

there is any risk that the satellte would interfere or collde with any object subjectto U.S. jurisdiction on ts way to ts new location. Neither ofthese factors militates agninst a denial here. As EchoStar explained in its Application, no U.S. consumer would lose any programming as a result ofthe relocation, since the trafic on the satellte is duplicative of programming available from another satelite at 148° W.L."* In addition, BchoStarhas requested authorityto perform TT&C operations during the relocation and has represented, in accordance with industry practice, that such operations will be coordinated with potentially affected satelite operators during the relocation ofthe satete." As a result,there will be no risk of harmfulinterference or collision with other satllites. The Denial Order makes no mention ofany of these matters. In fact,the detailed additional questions that the Bureau directed to EchoStardid not suggest the Bureawas going to decide this case on extrancous grounds."" The Bureau did not ask EchoStar to explain what the satelfte would be doing at the Mexican orbita location. Nor did the Bureau ask EchoStar whether EchoStar 4 would provide service t Mexican consumers or when such service could commence. Rather, the Bureau merely asked EchoSta to show that "QuetzSat‘s authorization from SCT, or any aditional authorizations, are intended to be sufficient to make Mexico the censing adininistation for EchoStar 4 pursuant to Article 18 of the ITU Radio Regulations."" Such questions, ofcourse, were proper, and EchoStar submitted "" See SAT—3TA—20050321—00068. ®" See 1d. * See Letter rom Thomas S. Tycz, Chiet, Satllte Division, International Bureay, FCC to Pantelis Michalopoulos, Counselfor EchoStar Satelite L.L. C. (Apr. 13, 2005). "w 53.

detailed and satisfactory answers to them."* These questions, however, turned outto be largely irrelevant to the public interest analysis thatthe Denia! Order applies. vi. THE DENTAL ORDER DISREGARDS THE PUBLIC BENEFITS OF ECHOSTARS PROPOSAL FOR U.S. CONSUMERS While being unduly solicitous for the service needs of Mexican and Canadian consumers, the Denial Order distegards the public benefits of EchoStar‘s Application for U.S. consumers, even settng aside the new facts presented herein. As EchoStar explained in its Application, in additon to allowing use ofEchoStar 4 as a Mexican—licensed satellteat77° W L.the requested STA willallow QuetrSat to satisfy a condition of ts Mexican license and thus ultimately would enable EchoStar to use the 77° W L. for the purpose ofoffering a varity of services to portions ofthe United States, including localsnto—localretransmissions of broadeaststations, HDTV, ethnic and other programming."" While the Denfal Order dismisses this benefit as "purely speculative""" in this case, the Bureau recognized a similar possibilty of fture service to the U.S. asa benefit n the DIRECTV 3 Order. The prospect of U.S. service, which properly appears to have contributed to the Bureau‘s grantothe DIRECTV move, should likewise be weighed favorably here. * See Letter rom Pantels Michalopoulos, Counselfor EchoStar Satellte L.L.C. o Marlene H. Dortch, Secretary, FCC (Apr. 26, 2005); Leter from Pantelis Michalopoulos, Counsel for EchoStar SateliteLL.C. t Marlene H. Dortch, Secretary, FCC (May 13, 2005) (with request for confidentiality); Leter from Pantelis Michalopoulos, Counsel for EchoStar Satelfite L L.C. to Marlene H. Dortch, Secretary, FCC (May 24, 2005). "" See SAT—STA—20050321—00068 "" See Denial Order at§ 8 "" see DIRECTY 3 Order at§ 13 (‘In fact, relocation of the DIRECTV 3 satelite may have a beneficialeffect on thelikelinood ofadditional ervice to the United States,to te extent that it increases capacity atthe 82° W.L. and 91° W.L. orbitallocations."). At:

ViI. CONCLUSION For the foregoing reasons, EchoStarrespectflly requests thatthe Bureau immediately reconsiderits decision and grant EchoSter‘s Application to move EchoStar 4 to the 77° orbitalocation.® Respectfully submited, [gufiéfl Tarapes David K. Moskowite Pantelis Michalopoulos Exeeutive Vice President and General Philip L. Malet Counsel Brendan Kasper EchoStar Satellite LL.C. Steptoe & Johnson tur 9601 South Meridian Boulevard 1330 Connectiout Avene, NW Enalewood, CO 80112 Washington, D.C. 20036 (303)723—1000 (202) 429—3000 Counselfor EchoStar SoteliteLLC June 8, 2005 * The Bureau should also reconsider ts associated dismissals of the reated EchoStar applications and grant them as well. sise

CERTIFICATE or sERVICE Ihereby certify that on this $th day ofJune 2005, a copy ofthe foregoing was served upon the following by electronic mail: Donald Abelson Thomas S. Tyer Chief, Itemnational Burcau Chicf, Satelite Division, Intemnational Bureau Federal Communications Commission Federal Communications Commission 445 12th Streeu, S.W. 445 12th Stret, S.W Washington, D.C. 20554 Washington, D.C. 20554 Karl Kensinger Jay Whaley International Burcau International Bureau Federal Communications Commission Federal Communications Commission 445 12th Street, S.W. 445 12th Street, S.W. Washington, D.C. 20554 Washington, D.C. 20554 Cassandra Thomas William M. Wiltshire International Burcau Harris, Wiltshire & Gramnis LLP Federal Communieations Commission 1200 18th Street, N.W. 445 12th Street, S.W. Washington, D.C. 20036 Washington, D.C. 20554 wailtshire@harriswilisire.com —f Brendan Kasper «39.

OF 1, David Bair, declre under penalty ofpegury underthe laws ofthe United States of America that t assertions offict contained in the foregoing "Emergency Pettion for Reconsideration,"fled in SAT—STA—20050321—00068, SAT—MOD—20050513—00103 and SES—MFS—20050527—00062, and are tmie and corect to the best ofmy knowledge, information and beliet Brecuted on _7 {U@C_2.005 David Bar EeboStar Satelite LL.C. 9601 South Meridian Boulevard Englewood, CO 80112

Relative Downlink EIRP Contours Peak EIRP = 54.9 dBW pertransponder Contour shown are —2, —4,—6,—8 —10, 15 and —20 dB relative to peak


Document Created: 2005-06-14 15:51:59
Document Modified: 2005-06-14 15:51:59
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