Attachment petition

This document pretains to SAT-MOD-20080516-00106 for Modification on a Satellite Space Stations filing.

IBFS_SATMOD2008051600106_679576

ORIGINAL BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In the Matter of No No Ns Nt N) Nes Nt Nt Nt N) N) N) Nt Globalstar Licensee LLC Call Sign $2115 GUSA Licensee LLC Call Sign E970381 FilepMACcer CCEPTED Iridium Constellation LLC Call Sign $2110 Noy 2 4 2008 Fe Iridium Satellite LLC Call Sign E960132 en Iridium Carrier Services Call Sign E960622 the Secretgry OM $2115 SAT—MOD—20080516—00106 1B2008001202 Modification of Authority to Operate a Globalstar Licensee LLC Mobile Satellite System in the 1.6 GHz Frequency Band $2110 SAT—MOD—19990303—00021 1B1999000033 Iridium Satellite LLC OPPOSITION OF IRIDIUM SATELLITE LLC TO PETITION FOR RECONSIDERATION OF GLOBALSTAR INC. Donna Bethea—Murphy R. Michael Senkowski Vice President, Regulatory Engineering Andrew G. McBride Iridium Satellite LLC Jennifer Hindin 6701 Democracy Blvd., Suite 500 Joshua S. Turner Bethesda, MD 20817 Wiley Rein LLP (301) 571—6200 1776 K Street N.W. Washington D.C. 20006 Tel. (202) 719—7000 Fax (202) 719—7049 Satellite LLC November 24, 20

TABLE OF CONTENTS L. INTRODUCTION. 1.22020202222022s2¥ssrssssrtsssessssssessersrscessersssessesrecenssrsesessrsesesesessessererssrecesreseniees 1 IL. SUMMARY. .1222022222222222ss¥rsssrsesrsrsresesessevesessesesscsesssesserseseessssetssessssesressrsessesese cssc esessccessr se n ns 3 III. GLOBALSTAR‘S PETITION FOR RECONSIDERATION MUST BE SUMMARILY DENIED ....222222222220222¥se2essesesesssrsssssseseseeesssssseresssesssessscesssresesssessesssecees se se ne e 4 A. Section 405 Precludes Consideration of Globalstar‘s Untimely Attack on the ReCORSIGEPQtiOM OYVGGP.......0.202020sssssscsesssessesessrersserseressesseresssscssseres cessn ces sressr iess 4 B. The Petition for Reconsideration Simply Restates Globalstar‘s Previous Claims and, Contrary to the Commission‘s Rules, Presents No New Arguments Or FaCts NOt KNOWIM BEfOFG. .. ..............ccsss2sessesessressssssessserseseree es esc nc es 9 IV. THE MODIFICATION ORDER WAS CORRECTLY DECIDED ......................uuslkkkl} .. 12 A. The FCC Did Not Depart from Longstanding Policy or Precedent..................... 12 B. Globalstar‘s Challenge to the "Interference Prevention" Rationale in the ModificatioOh Order IS$ UAfOUAUG@G, ..........20202200.sesesssssssssrrrseresereessserscersrseserscerereres 18 C. Globalstar Has Not Demonstrated Any New Basis for a Hearing Under S@CtiOM 3 16......0.020220202ereveseeesresererserssesseressseeseserereeserereresesseesesesercer se cesc errercrrerrecnees 20 V. CONCLUSION..120222222222020sererrerveerersrserseseresrsseseseresseserererescerseresercecrereresesrecsssscecerresenereccers 21

BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In the Matter of ) ) Globalstar Licensee LLC ) Call Sign $2115 GUSA Licensee LLC ) Call Sign E970381 ) Iridium Constellation LLC ) Call Sign S2110 ) Iridium Satellite LLC ) Call Sign E960132 Iridium Carrier Services ) Call Sign E960622 ) Modification of Authority to Operate a ) Mobile Satellite System in the 1.6 GHz ) Frequency Band ) OPPOSITION OF IRIDIUM SATELLITE LLC TO PETITION FOR RECONSIDERATION OF GLOBALSTAR INC. I. INTRODUCTION Iridium Satellite LLC ("Iridium"), by its attorneys and pursuant to 47 C.F.R. § 1.106(g), files this opposition to the Petition for Reconsideration of Globalstar Licensee LLC and GUSA Licensee LLC, dated November 14, 2008.‘ On November 9, 2007, the Commission released the Reconsideration Order in IB Docket No. 02—364 that set out a new plan for redistributing the electromagnetic spectrum allotted for Big LEO Mobile Satellite Service ("MSS") providers by modifying the frequencies on which they may operate in both their U.S.—market FCC—licensed earth stations and their FCC—licensed satellite space stations." In its original reassignment order, 1 See Globalstar Licensee LLC, GUSA Licensee LLC, Iridium Constellation LLC, Iridium Satellite LLC, Iridium Carrier Services, Modification ofAuthority to Operate a Mobile Satellite System in the 1.6 GHz Frequency Band, Call Sign $2115, Call Sign E970381, Call Sign $2110, Call Sign E960132, Call Sign E960622, Petition for Reconsideration of Globalstar Licensee LLC and GUSA Licensee LLC (filed Nov. 14, 2008) ("Petition"). For purposes of this filing, Globalstar Licensee LLC and GUSA Licensee LLC are referred to collectively as "Globalstar." 2 Review ofthe Spectrum Sharing Plan Among Non—Geostationary Satellite Orbit Mobile iSatellite Service Systems in the 1.6/2.4 GHz Bands, Second Order on Reconsideration, 22 FCC Red 19733 (2007) ("Reconsideration Order")

the Commission concluded that Iridium‘s demonstrated need for additional spectrum could be accommodated by allocating certain spectrum for use by both Globalstar and Iridium on a shared, co—primary basis." However, after considering additional information submitted by Globalstar in a petition for reconsideration, the Commission determined that co—primary spectrum sharing between the two MSS providers (Iridium and Globalstar) becomes more difficult as the two systems approach full loading and thus was not an appropriate long—term solution to addressing Iridium‘s need for additional spectrum." To accommodate claimed technical concerns related to Globalstar‘s system, however, the Commission retained a sharing approach for a small amount of spectrum—0.95 MHz. Globalstar appealed the Reconsideration Order, and this appeal is currently pending in the D.C. Circuit. On May 7, 2008, the Commission released an Order Proposing Modifications, in order to effectuate by license modifications the spectrum reassignment established in the Reconsideration Order." After considering Globalstar‘s Protest, which urged that the license modifications should have only a domestic effect, the Commission released the Modification Order on October 15, 2008, specifically explaining that the license modifications apply to Globalstar‘s and 3 Review of the Spectrum Sharing Plan Among Non—Geostationary Satellite Orbit Mobile Satellite Service Systems in the 1.6/2.4 GHz Bands, Report and Order, 19 FCC Red 13356 (2004) ("Sharing Order"). * Reconsideration Order, 22 FCC Red at 19740 («] 15). 5 Globalstar Licensee LLC, GUSA Licensee LLC, Iridium Constellation LLC, Iridium Satellite LLC, Iridium Carrier Services, Modification ofAuthority to Operate a Mobile Satellite System in the 1.6 GHz Frequency Band, Call Sign $2115, Call Sign E970381, Call Sign S2110, Call Sign E960132, Call Sign E960622, Order Proposing Modifications, 23 FCC Red 7984 (2008) ("Order Proposing Modifications").

Iridium‘s "global space station operations. * Globalstar now purports to seek reconsideration of the Modification Order. II. SUMMARY Globalstar‘s Petition for Reconsideration should be summarily denied, as it is procedurally defective in two significant respects. First, the Petition at its core is an untimely request for reconsideration of two central components of the spectrum reassignment in the Reconsideration Order—the worldwide effect of that reassignment, as it concerns space station authorizations, and the requirement that 0.95 MHz of the spectrum be shared. Under 47 U.S.C. § 405, any petition for reconsideration of the Reconsideration Order should have been brought, if at all, within thirty days of public notice of the order, a deadline that passed ten months ago. Globalstar may not evade that statutory deadline by now challenging the Modification Order, as this order is little more than a ministerial action giving effect to the spectrum assignment. Second, Globalstar has offered nothing more than recycled arguments that were rejected by the Commission in the Modification Order and an untimely argument that-it could have raised in its Protest. The FCC has, time and again, refused to consider similarly deficient petitions for reconsideration and should similarly do so here. Even absent these fatal threshold defects, however, Globalstar‘s Petition should still be denied. Contrary to Globalstar‘s assertion, the Commission did not depart from longstanding policy or precedent in the Modification Order, but simply followed its consistent practice of managing and coordinating the transmissions from U.S.—licensed space stations to earth stations 6 Globalstar Licensee LLC, GUSA Licensee LLC, Iridium Constellation LLC, Iridium Satellite LLC, Iridium Carrier Services, Modification ofAuthority to Operate a Mobile Satellite System in the 1.6 GHz Frequency Band, Call Sign $2115, Call Sign E970381, Call Sign $2110, Call Sign E960132, Call Sign E960622, Order of Modifications, FCC 08—248, 2008 WL 4601493 («] 1) (rel. Oct. 15, 2008) (emphasis added) ("Modification Order").

located within or outside the United States. Globalstar produces no precedent or policy that supports its position. Nor could it, as its contention that the FCC lacks authority over the operations of space stations outside the territory of the United States would render the Commission—absurdly—without authority over any space stations whatsoever. Moreover, Globalstar‘s challenge to the Modification Order‘s "interference prevention" rationale is premised on the false assertion that the FCC has concluded that spectrum sharing between Globalstar and Iridium is flatly impossible. The Commission has not reached that conclusion; instead, it has found, based in part on evidence that Globalstar itself submitted, that co—primary sharing of Big LEO spectrum between Globalstar and Iridium becomes more difficult as the systems approach full load and thus is not an appropriate long—term solution to Iridium‘s need for additional spectrum. However, if Globalstar believes that a limited amount of spectrum sharing, originally designed to protect its system, is either unnecessary or untenable, the Commission should simply return half of that spectrum to each systems‘ exclusive use. Finally, Globalstar‘s further request for a hearing is no more than an assertion of disagreement with the FCC‘s conclusion in the Modification Order. Globalstar does not show any material error or omission in the Modification Order or raise additional facts not known before. Globalstar‘s only contention is that the Commission failed to consider the potential harm of spectrum reassignment to Globalstar and its customers, but the agency did do so and even assumed Globalstar‘s worst—case scenario to be true. Accordingly, the Commission should deny the Petition.

III. GLOBALSTAR‘S PETITION FOR RECONSIDERATION MUST BE SUMMARILY DENIED. A. Section 405 Precludes Consideration of Globalstar‘s Untimely Attack on the Reconsideration Order. Under 47 U.S.C. § 405(a), a "petition for reconsideration must be filed within thirty days from the date upon which public notice is given of the order, decision, report, or action complained of."" A party cannot evade the statutory deadline for a petition for reconsideration simply by disguising the true nature of its pleading.© While Globalstar frames its filing as a petition for reconsideration of the Modification Order, the heart of the Petition is in fact an attack on two aspects of the Big LEO spectrum reassignment established in the Reconsideration Order—the worldwide effect of the space station portion of that reassignment® and the requirement that 0.95 MHz of the spectrum be shared.‘" Because Globalstar‘s filing is in reality a request that the FCC reconsider central aspects of the Reconsideration Order, it is required to have been filed no later than January 14, 2008."‘ As the request is now ten months late, it is untimely and should be summarily denied. It is plain that both the international impact of the FCC‘s reassignment of spectrum for space station use and the requirement that 0.95 MHz of spectrum be shared flow from the policy 7 47 U.S.C. § 405(a); see also 47 C.F.R. § 1.106(f). 8 See, e.g., In re MCI Telecommunications Corp., 3 FCC Red 3155, 3155 (€] 2) (1988) (refusing to consider the aspects of a petition for revocation of authority that were in fact "in the nature of an untimely petition for reconsideration" of a prior Commission decision). 9 Petition 2 (arguing that "the Commission should rescind the Modification Order insofar as it restricts Globalstar‘s global space station operations"). 10 1d. at 10—13. U Pursuant to 47 C.F.R. § 1.4(b)(1), a petition for reconsideration of the Reconsideration Order was due thirty days from the date on which the order was published in the Federal Register—December 13, 2007. See Review of the Spectrum Sharing Plan Among Non— Geostationary Satellite Orbit Mobile Satellite Service Systems in the 1.6/2.4 GHz Bands, 72 Fed. Reg. 70807 (Dec. 13, 2007) (to be codified at 47 C.F.R. pt. 25).

decisions made by the Commission in the Reconsideration Order, not from the ministerial implementation of these decisions in the Modification Order. First, when the Commission ordered the reassignment of Big LEO spectrum for space station use in the Reconsideration Order, it was an evident and natural consequence that this reassignment would have a global effect. As the agency noted in the Modification Order, it is and was "well—settled" that, outside the United States, FCC—licensed Big LEO space stations must operate in conformance with the specific frequencies authorized by the FCC and have done so "since they began service in the 1990s."" Indeed, in the 2003 notice of proposed rulemaking that ultimately resulted in the Reconsideration Order, the Commission gave express notice that any spectrum reassignment would have global effect. Specifically, the agency sought comment "on how the U.S. Big LEO spectrum sharing plan fits with international band plans for Big LEO operations and what impact changes to the U.S. plan would have on plans in other regions.""" Moreover, due to the nature of Iridium‘s system, which is designed to provide service coverage throughout the world rather than being sectorized by geographic region, any change in spectrum use by or assignment to Iridium would, as a practical and inevitable matter, occur worldwide. As Globalstar itself explained to the Commission on several occasions, because "the Iridium system is not currently able to assign frequencies based on geographic location," "any decision by the Commission to grant Iridium the use of [additional spectrum] would have the effect . . . of permitting Iridium to operate in those channels anywhere in the world that Iridium 12 Modification Order ® 13—14. Thus, as the Commission observed in the Modification Order, Iridium was required in 2003 to seek special temporary authority from the FCC before using additional spectrum in the Middle East. See id. 16. 13 Review ofthe Spectrum Sharing Plan Among Non—Geostationary Satellite Orbit Mobile Satellite Service Systems in the 1.6/2.4 GHz Bands, Report and Order and Notice of Proposed Rulemaking, 18 FCC Red 1962, 2090 (« 270) (2003).

14 . . . subscribers may find themselves. *"‘* Thus, soon after the Reconsideration Order was issued, Globalstar submitted a working paper to the European Conference of Postal and Telecommunications Administrations in which it explained that the FCC‘s change in spectrum assignment had an inescapable global effect."" Second, the requirement that Globalstar and Iridium share 0.95 MHz of Big LEO spectrum was, on its face, an explicit directive of the Reconsideration Order.‘° Globalstar acknowledges as much, as it is currently challenging this aspect of the Reconsideration Order in its pending case in the D.C. Circuit. In fact, Globalstar‘s argument here is indistinguishable from the argumentit already is making to the D.C. Circuit in challenging the Reconsideration Order— specifically, that the requirement that Globalstar and Iridium share 0.95 MHz of spectrum is inconsistent with the notion that spectrum sharing by the two parties could cause harmful interference."" 14 Comments of Globalstar Canada, Co. at 2, IB Docket No. 02—364 (filed July 11, 2003); see also Joint Reply Comments of L/Q Licensee, Inc., Globalstar, L.P. and Globalstar USA, L.L.C. at i1, iii, 21, 25, IB Docket No. 02—364 (filed July 25, 2003); Letter from William T. Lake, Counsel to Globalstar, Inc., to Marlene H. Dortch, Secretary, FCC, at 3 n.10, IB No. 02—364 (Sept. 21, 2006). 15 Globalstar, Requirement for a TDMA/CDMA Band Segmentation Plan and Provision for Implementation of a Complementary Ground Component in the New ECC Decision for the 1.6/2.4 GHz Bands at 2, FM44(O07)35, 5th Meeting of the FM PT44, Copenhagen, 6—7 December 2007 (Nov. 29, 2007) (noting "the inability of the Iridium system to differentiate spectrum assignments on a regional basis") (attached as Exhibit A); see also Globalstar, Outcome of Consultations Between Iridium and Globalstar on Band Segmentation in the 1.6 GHz Band as Requested by WGFM, FM44(07)34, 5th Meeting of the FM PT44, Copenhagen, 6—7 December 2007 (Nov. 29, 2007) (attached as Exhibit B). 16 See Reconsideration Order, 22 FCC Red at 19741 (( 18). 17 Compare Petition 13 ("The order fails to explain why coordination is possible for th[e] 0.95 MHz—as it also presumably was when the Commission ordered the companies to share 3.1 MHz of the band in 2004—but is not possible to accommodate differences in national Big LEO band plans."), with Brief for Petitioner Globalstar, Inc. at 34—35, No. 08—1046 (D.C. Cir. filed Sept. 17, 2008) ("The FCC‘s suggestion that the infeasibility of sharing supports its reassignment order is also undermined by the agency‘s concurrent decision to require the parties to share 0.95 MHz of spectrum. . . . The Reassignment Order does not even attempt to explain why such

Globalstar‘s opportunity to request reconsideration of these two aspects of the Big LEO spectrum reassignment established in the Reconsideration Order has long passed. Indeed, rather than file a timely petition to reconsider the order, Globalstar chose instead to seek review of the Commission‘s decision in the D.C. Circuit.‘" Although it is black—letter law that "a party may not simultafleously seek both agency reconsideration and judicial review of an agency‘s order,""" that is precisely the goal of Globalstar‘s current Petition—to attack central components of the Reconsideration Order simultaneously before both the D.C. Circuit and the FCC. It is no answer to assert that these aspects of the spectrum reassignment decision may now be properly challenged as components of the license modification in the Modification Order. The .license modification is merely a ministerial act giving effect to the spectrum reassignment, and therefore the sole basis for challenging the Modification Order on reconsideration would be if that order did not properly implement the policy decisions made in the Reconsideration Order. However, the international implications of the reassignment of Big LEO spectrum and the requirement to share 0.95 MHz of spectrum cannot be regarded as mistakes in fhe implementation of the Reconsideration Order—indeed, both would be necessary features of any order designed to effectuate the policy decisions of the Reconsideration Order. Substantive challenges to the policy choices involved in the spectrum reassignment, such as those made here by Globalstar, should have been brought, if at all, against the order promulgating that reassignment, namely the Reconsideration Order. Globalstar‘s request for reconsideration of the Modification Order thus constitutes nothing more than an "indirect coordination is feasible for the spectrum it orders to be shared but not for the spectrum it assigns to Iridium."). 18 See Petition for Review, No. 08—1046 (filed D.C. Cir. Feb. 5, 2008). 19 Wade v. FCC, 986 F.2d 1433, 1433 (D.C. Cir. 1993) (per curiam).

challenge{[] to [a] Commission decision[] adopted in proceedings in which the right to review has expired," and it therefore should be "considered [an] impermissible collateral attack[] and . . . properly denied.”20 B. The Petition for Reconsideration Simply Restates Globalstar‘s Previous Claims and, Contrary to the Commission‘s Rules, Presents No New Arguments or Facts Not Known Before. Even if Globalstar‘s Petition were properly directed toward the Modification Order, rather than the Reconsideration Order, the Petition is procedurally defective. As the Commission has often explained, "[rJeconsideration is appropriate only where the petitioner either shows a material error or omission in the original order or raises additional facts not known or existing until after the petitioner‘s last opportunity to present such matters.""‘ Thus, a petition for reconsideration will be considered only "if [it presents] arguments and facts [that] could not have been known at the time of the last opportunity for submission."""" By contrast, "[a] petition for reconsideration that reiterates arguments that were previously considered and rejected wili be denied.""" Indeed, the Commission has previously rejected petitions for reconsideration where the party "‘presented no new evidence that would cause [the agency] to 666 reconsider [its] prior determinations"""~" and where the party "largely re—argue[d] the issues that it 9 ’924 20 Syntax—Brillian Corp., 23 FCC Red 6323, 6331 4 17) (2008). 21 General Motors Corp. and Hughes Electronics Corp., 23 FCC Red 3131, 3132 (« 4) (2008); accord One Mart Corp., 23 FCC Red 9910, 9911 («] 5) (2008). 22 Investigation ofEqual Access Rate Elements Filed Pursuant to Waivers ofPart 69, 3 FCC Red 6572, 6572 (« 8) (2008). 23 One Mart Corp., 23 FCC Red at 9911 (« 5); accord Implementation ofthe Telecommunications Act of 1996, 15 ECC Red 1161, 1161 (« 1) (2000) ("Because no party raises new arguments that the Commission did not consider previously in this docket, we deny the petitions."). 24 Gen. Motors Corp., 23 FCC Red at 3135 ("] 11) (quoting Lockheed Martin Corp., Assignors, and Intelsat, Ltd., Assignees, Order on Reconsideration, 18 FCC Red 16605, 16612— 14 (4] 10) (2003)).

raised in its Petition to Deny . . . [and that had been] addressed and rejected in the Order.""" Globalstar‘sPetition suffers from these failings in that it rehashes issues raised in its Protest that were addressed and rejected in the Modification Order, and also raises an argument that could have been made before. For this additional and independent reason, the Petition should be summarily denied. In its Petition, Globalstar first argues that, under longstanding FCC policy and precedent, any license modification by the Commission should not have a global effect."* In making this claim, Globalstar specifically relies on the FCC‘s policy underlying Big LEO MSS,"" alleged Commission precedent,"" an erroncous understanding of an MSS provider‘s authority to construct sa‘tellite:s,29 and a misreading of a December 2003 order by the FCC‘s International Bureau ("IB")." This argument was considered and rejected by the Commission in the Modification Order. Globalstar has not varied the substance of this contention one iota: it made the same incorrect claims about FCC policy and precedent,"‘ and all the same constituent parts of the 25 Id. at 3138 (4 20). 26 Petition 2—10. 27 Id. at 3—5. 28 Id. at 5—7. 29 Id. at 8—9. 30 Id. at 9—10. 31 See Globalstar Licensee LLC, GUSA Licensee LLC, Iridium Constellation LLC, Iridium Satellite LLC, Iridium Carrier Services, Modification ofAuthority to Operate a Mobile Satellite System in the 1.6 GHz Frequency Band, Call Sign $2115, Call Sign E970381, Call Sign $2110, Call Sign E960132, Call Sign E960622, Protest of Globalstar Licensee LLC and GUSA Licensee LLC at 8—19 (filed June 6, 2008) ("Protest"). 10

argument,"" in its Protest and Reply. In the Modification Order, the Commission responded directly to Globalstar‘s contention that spectrum reassignment should not have an international effect, explaining that it is "well—settled precedent" that "the Commission has always required Big LEO space stations to operate outside the United States in conformance with the authorized operating bands in their licenses.""" The FCC specifically rejected Globalstar‘s reading of the IB‘s December 2003 order,"* and broadly concluded that Globalstar had not provided "any reason to deviate from the general Commission policy that requires U.S. space station licensees to operate their space stations in a manner consistent with their U.S. licenses, regardless of whether the 'end user of the communication service is using an earth station subject to the territorial jurisdiction of another country.""" Globalstar next argues in its Petition that the Commission incorrectly refused a hearing under section 316°° and that the waiver process is not a legally sufficient substitute for such a hearing.""‘ But these arguments, too, are merely recycled from Globalstar‘s Protest,"" and were 32 Id. at 8—10 (discussing alleged Commission precedent); id. at 11 (discussing MSS provider‘s authority to construct satellites); id. at 16—18 (discussing FCC policy underlying Big LEO MSS); see also Globalstar Licensee LLC, GUSA Licensee LLC, Iridium Constellation LLC, Iridium Satellite LLC, Iridium Carrier Services, Modification ofAuthority to Operate a Mobile Satellite System in the 1.6 GHz Frequency Band, Call Sign $2115, Call Sign E970381, Call Sign $2110, Call Sign E960132, Call Sign E960622, Reply of Globalstar to Opposition of Iridium at 13—14 (filed June 23, 2008) ("Reply") (discussing December 2003 IB order). 33 Modification Order [ 13. * 1d.23. 35 1d. 32. 36 See Petition 14—17. 7 Seeid. at 15, 16—17. 38 See Protest 19—22. 11

considered and rejected by the Commission in the Modification Order."" Indeed, Globalstar does not even attempt to contend that the FCC failed to consider its previous arguments and makes clear that it simply disagrees with the Commission‘s conclusions. Globalstar certainly offers no new evidence or additional facts as a basis for reconsideration. Only Globalstar‘s argument about the 0.95 MHz of shared Big LEO spectrum‘*was not previously raised in Globalstar‘s Protest and, thus, can arguably be considered "new." That alone does not suffice, however, as the FCC has made clear that "new" arguments in a petition for reconsideration must be truly novel. Thus, "[rleconsideration is only appropriate if arguments . . . could not have been known at the time of the last opportunity for submission."*‘ For this reason, while Globalstar‘s argument about the 0.95 MHz of shared Big LEO spectrum is "new" in the sense that it was not directly raised in Globalstar’s Protest and disposed of in the Modification Order, it is nevertheless just as procedurally defective. There is no question that, as a matter of timing, Globalstar could have raised the argument in its Protest."" Accordingly, Globalstar cannot do so now for the first time in a petition for reconsideration. IV. THE MODIFICATION ORDER WAS CORRECTLY DECIDED. Even if the Commission reaches the merits of the arguments in Globalstar‘s Petition, it should find that the Modification Order was correctly decided. As set forth below, Globalstar has failed to demonstrate that the FCC departed from any longstanding policy or precedent. In 39 See Modification Order §® 25—31. 4 Petition 10—14. 41 Investigation ofEqual Access Rate Elements Filed Pursuant to Waivers ofPart 69, 3 FCC Red at 6572 («] 8). 42 Indeed, as shown above, any request for reconsideration of the sharing decision should properly have been brought as a petition against the Reconsideration Order itself. 12

addition, Globalstar‘s challenge to the "interference prevention" rationale is unfounded, and its criticism of the FCC‘s refusal to grant a hearing under Section 316 is without merit. A. The FCC Did Not Depart from Longstanding Policy or Precedent. Confrary to Globalstar‘s assertion, the Commission did not depart from longstanding policy or precedent in the Modification Order, but simply followed its consistent practice of requiring U.S.—licensed space stations to obtain spectrum—specific operating authority from the FCC before transmitting from the space station to earth stations located outside the United States. As the Commission explained in a 2001 order, although the ultimate provision of satellite service between space and earth stations will depend on "foreign earth—station licensing procedures," the spectral transmission authority of any U.S.—licensed space stations is "routinely" a matter determined by the FCC." Thus, the Commission, through its International Bureau, has issued many licenses that specifically authorize a U.S.—licensed space station to "operate its . . . satellite" on certain frequencies "for space—to—earth transmissions to earth stations in foreign territory."** _Of course, foreign jurisdictions exercise precisely the same control over those space stations that they license. As Iridium explained in its Opposition to Globalstar‘s Protest, this longstanding approach by the FCC is effectively mandated by international treaties and telecommunications law.* 43 Rulemaking to Amend Parts 1, 2, 21, and 25 ofthe Commission‘s Rules to Redesignate the 27.5—29.5 GHz Frequency Band, to Reallocate the 29.5—30.0 GHz Frequency Band, to Establish Rules and Policiesfor Local Multipoint Distribution Service andfor Fixed Satellite Services, Memorandum Opinion and Order, 16 FCC Red 11464, 11469 («] 14) (2001) (emphasis added) ("Hughes Modification Order"). 44 Application by Columbia Communications Corp., Order and Authorization, 16 FCC Red 4725, 4728 (« 14) (IB 2001); see also Application by Hughes Communications Galaxy, Inc., Order and Authorization, 16 FCC Red 12627, 12628 («] 3) (IB 2001). 45 Globalstar Licensee LLC, GUSA Licensee LLC, Iridium Constellation LLC, Iridium Satellite LLC, Iridium Carrier Services, Modification ofAuthority to Operate a Mobile Satellite System in the 1.6 GHz Frequency Band, Call Sign $2115, Call Sign E970381, Call Sign $2110, 13

Under that body of law, every space station must receive authorization to operate from a particular sponsoring administration, and that administration, in turn, has an affirmative duty to police its satellite licensees.*" The IB similarly explained in October 2003 that "[t}he United States, as the licensing administration for Iridium, is responsible for its global operations in accordance with International Telecommunication Union treaty obligations.""" In light of this duty under international law, the only reasonable policy that the Commission can have is one in which U.S.—licensed space stations must obtain operating authority from the FCC before transmitting from the space station to earth stations located outside the United States. Thus, the FCC committed no error when it stated in the Modification Order that it is "well—settled precedent" that "U.S. Big LEO licensees may provide service in other countries only on frequency bands in which the Commussion has given them specific authority to operate.”48 Indeed, Globalstar does not contest the FCC‘s factual assertion that, "since [Big LEO licensees] began service in the 1990s, all Big LEO space station systems, including Globalstar, have operated outside the United States in a manner consistent with the operating bands specified in their U.S. space station licenses except upon grant of authority by the Commission to operate in another portion of the band."*" It is true that "[clountries have full discretion to decidé whether to use a U.S.—licensed satellite to provide Big LEO service in their country.""" Call Sign E960132, Call Sign E960622, Opposition of Iridium Satellite LLC to License Protest of Globalstar Inc. at 16—17 (filed June 16, 2008) ("Opposition"). 46 Id. 47 Modification ofLicenses Held by Iridium Constellation, LLC and Iridium, US LP, Order, 18 FCC Red 20023, 20028 (« 12) (IB 2003) ("October 2003 IB Order"). a8 Modification Order @ 13, 23. 49 Id. [ 14. 5o Id. [ 23 n.60. 14

However, "the U.S.—licensed space station may operate with those earth stations only on those frequency bands authorized for operation in its U.S. license, or on a subset of those frequency bands.""‘ The allegedly contrary precedents that Globalstar cites in its Petition are, upon inspection, not contrary at all. Globalstar relies primarily on two Big LEO orders from 1994 and 1996, in which the Commission declined to impose "a global band . . . plan* and left "decisions relating to the implementation of Big LEO service within a country‘s territory [to] that country‘s jurisdiction and control.""" Globalstar suggests that, in these statements, the FCC took the position that it had no authority over either space or earth stations outside the United States. Under Globalstar‘s reading, however, the FCC would have ceded al/ authority over any space stations, because space stations are never within the territory of the United States (or any other sovereign territory). The Commission cannot have intended such an absurd result. The better reading, as articulated by the International Bureau, is that these statements pertain only to "landing rights, or earth station authorizations," which reasonably lie within the jurisdiction of the territory in which the earth station is located."" In retaining worldwide authority over FCC—licensed space stations, but ceding any authority over foreign earth stations, 51 Id. 52 See Amendment of the Commission‘s Rules to Establish Rules and Policies Pertaining to a Mobile Satellite Service in the 1610—1626.5/2483.5—2500 MHz Frequency Bands, Report and Order, 9 FCC Red 5936, 6019 (« 213) (1994) ("Big LEO Report and Order"); see also Amendment ofthe Commission‘s Rules to Establish Rules and Policies Pertaining to a Mobile Satellite Service in the 1610—1626.5/2483.5—2500 MHz Frequency Bands, Memorandum Opinion and Order, 11 FCC Red 12861, 12879 (« 53) (1996) (declining to give the domestic plan "extraterritorial application"). 53 Big LEO Report and Order, 9 FCC Red 5936, 6018 (4 211). 54 Requestfor Special Temporary Authority ofIridium Constellation LLC, Order, 18 FCC Red 25814, 25820 (« 14) (IB 2003). 15

the Commission plainly avoids imposing a "global band plan" or dictating the terms of Big LEO "service" in a foreign country. As the IB explained, "[o]ther countries continue to retain the discretion as to whether to allow services within their borders in accordance with the [space station] frequencies [that the Commission has authorized].""" In its vain search for precedent supporting its theory, Globalstar attempts to turn the above—described IB decision to its favor. It asserts that the decision can, "by no stretch of the imagination," "provide a precedent for [the Commission] forbidding Globalstar to operate in other countries on [certain] spectrum.""° In the decision, however, the IB soundly rejects Globalstar‘s argument that the FCC lacks authority over the transmissions from FCC—licensed space stations to earth stations in foreign territories."‘ Indeed, the IB referred to a previous order in which it rejected "Globalstar‘s assertion that the Commission does not have authority to dictate the terms and conditions of Iridium‘s authorization to provide service in the Middle East.""" Thus, no "stretch" is required to understand why the decision stands for the principle that the Commission may authorize Globalstar‘s FCC—licensed space stations to use certain spectrum, and forbid them from using other spectrum, when transmitting, whether that transmission is intended to be received by earth stations in the United States or by earth stations in other countries. 55 Id. 56 Petition 10. 57 Requestfor Temporary Authority ofIridium Constellation LLC, 18 FCC Red at 25819 (« 13) (finding that Globalstar is "incorrect" in its assertion that the Commission lacks authority to grant Iridium the right to transmit over additional spectrum from its FCC—licensed space stations to earth stations located in the Middle East). 58 October 2003 IB Order, 18 FCC Red at 20027 (« 11). 16

In addition to allegedly contrary Commission precedent, Globalstar also contends that its original space station license®" proves that the FCC once recognized that it did not have authority over the transmissions of U.S.—licensed space stations to foreign countries. Globalstar makes much of the fact that it was authorized to construct space stations capable of operating over a much broader range of frequencies than it was authorized to use."" The reasoning behind the broad construction authorization is clearly documented, however, and it has nothing to do with the Commission conceding that its authority over the spectrum usage of U.S.—licensed space stations is somehow limited. Rather, the Commission permitted the construction of a satellite system with the ability to use a wide range of frequencies in order to preserve the agency‘s flexibility in future spectrum assignments."" Globalstar attempts to conflate this broad construction authorization with the more limited operational authorization that it and other Big LEO operators must also obtain before transmitting, but this turns the satellite licensing regime on its head. If Globalstar were correct that the FCC was obligated to allow its space stations to operate on each and every frequency that they were capable of operating on, this would transform the FCC‘s construction authorization process from a source of flexibility into a regulatory straitiacket that prohibited the FCC from reassigning any spectrum once a satellite system had been constructed." 59 In re Application ofLoral/Qualcomm Partnership, L.P., Order and Authorization, 10 FCC Red 3926 (IB 1995). 60 Petition 8—9. 61 See Big LEO Report and Order, 9 FCC Red at 5958—59 ("] 52); see also Modification Order «[ 5. 62 It would also have consequences adverse to Globalstar‘s interests—Iridium was also authorized to construct a satellite system capable of operating on frequencies beyond those that it is currently authorized to use. These frequencies are currently assigned to Globalstar. 17


Document Created: 2008-11-18 14:16:56
Document Modified: 2008-11-18 14:16:56
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