Attachment reply

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

IBFS_SATMOD2008051600106_681271

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)).


Document Created: 2008-12-03 11:22:01
Document Modified: 2008-12-03 11:22:01
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