Petition to dismiss or deny PETITION by Spectrum Five LLC SAT-MOD-20100329-00058 Petition to Deny (5-

Petition to Deny (5-

PETITION submitted by Spectrum Five LLC

Petition to dismiss or deny

2010-05-17

This document pretains to SAT-MOD-20100329-00058 for Modification on a Satellite Space Stations filing.

IBFS_SATMOD2010032900058_817363

BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C.

------------------------------------------------------ )
)
In the Matter of: )
)
DISH OPERATING L.L.C. ) File No.: SAT-MOD-20100329-00058
)
Application for Minor Modification of ) Call Sign: S2740
Authority to Allow Operation of EchoStar 7 )
at 118.8° W.L. )
)
)
------------------------------------------------------ )

PETITION TO DISMISS OR DENY

David Wilson Howard W. Waltzman
President Brian J. Wong
Spectrum Five LLC Mayer Brown LLP
1776 K Street, N.W., Suite 200 1999 K Street, N.W.
Washington, D.C. 20006 Washington, D.C. 20006
(202) 293-3483 (202) 263-3000

Counsel to Spectrum Five LLC
May 17, 2010

TABLE OF CONTENTS

SUMMARY .............................................................................................................................. 1
INTRODUCTION AND BACKGROUND ............................................................................... 3
ARGUMENT ............................................................................................................................ 6
I. THE APPLICATION IS DEFECTIVE, AND MUST BE DISMISSED OR, IN
THE ALTERNATIVE, DENIED, BECAUSE IT DOES NOT CONTAIN THE
COMPLETE ORBITAL DEBRIS MITIGATION ASSESSMENT REQUIRED
BY 47 C.F.R. § 25.114(D)(14)(III)................................................................................. 6
A. The Application Is Incomplete Because It Does Not Consider Spectrum
Five’s Already-Filed Petition For A Declaratory Ruling To Operate A
BSS Satellite At The 118.8° W.L. Orbital Location.. .......................................... 8
B. There Is No Basis For A Waiver Of The Section 25.114(d)(14)(iii) Orbital
Debris Mitigation Assessment Requirement ..................................................... 11
II. THE APPLICATION SHOULD BE ALSO BE DISMISSED OR,
ALTERNATIVELY, DENIED BECAUSE THE APPLICATION DOES NOT
PROVIDE THE ANALYSES NECESSARY TO EVALUATE ECHOSTAR 7’S
PROPOSED OPERATIONS AT 118.8° W.L............................................................... 15
CONCLUSION ....................................................................................................................... 20

SUMMARY

DISH Operating L.L.C. (“DISH”) has filed an application to provide Direct Broadcast

Satellite (“DBS”) service from EchoStar 7 at the 118.8º W.L. orbital location. The application

leaves the reader in the dark regarding DISH’s plans for EchoStar 7 going forward. DISH

asserts that the proposed move will “accommodate” and make “room” for DISH’s EchoStar 14

satellite, which has been licensed to operate at the 118.9° W.L. orbital location where EchoStar 7

is presently located, though DISH originally asserted that EchoStar 14 would “replace” EchoStar

7.1 DISH also vaguely claims that EchoStar 7 will “supplement[]” the service to be provided by

EchoStar 14, but supplies no elaboration regarding the manner in which EchoStar 7 will be

operated in the future. The application is defective, and should therefore be dismissed, or, in the

alternative, denied, because it does not comply with the Commission’s regulations regarding the

information that must be provided in an application for a modification to a space station

authorization.

In particular, the application does not contain the orbital debris mitigation assessment

required by 47 C.F.R. § 25.114(d)(14)(iii), which mandates that all applications include a

statement of the “measures that will be taken to prevent collisions” with “any known satellites

located at, or reasonably expected to be located at, the requested orbital location.” (emphasis

added). DISH’s application conspicuously fails even to mention the pending application of

1
EchoStar Satellite Operating L.L.C. Application for Minor Modification of DBS
Authorization and Authority to Launch the EchoStar 14 Satellite and to Operate it at 118.9º
W.L., File Nos. SAT-LOA-20090518-00053, SAT-AMD-20090604-00064, Call Sign S2790
(filed May 18, 2009) (“EchoStar 14 Application”), at 1.

Spectrum Five LLC (“Spectrum Five”) to operate a 17/24 GHz Broadcasting Satellite Service

(“BSS”) satellite from the very same 118.8° W.L. orbital location. 2

The application is also fatally defective for other, independent reasons. First, even with

no other changes to the operation of EchoStar 7, the relocation of the satellite to the 118.8° W.L.

orbital location would result in an increase in interference to Spectrum Five’s authorized DBS

network at the 114.5° W.L. orbital location. DISH’s refusal to provide any analysis of this

interference or to demonstrate how it can be accommodated renders its application defective.3

Moreover, as a condition of its authorization, Spectrum Five was obligated to coordinate its DBS

satellite network at 114.5° W.L. with EchoStar 7 at 119° W.L.4 Now that EchoStar 7 would be

moved closer to Spectrum Five’s satellite network at 114.5° W.L., the Commission must, at the

very least, ensure that DISH is entitled to no greater interference protection at 118.8° W.L. than

it would have been afforded at 119° W.L., and that EchoStar 7 may not cause any more

interference to Spectrum Five than it would otherwise cause under normal operation at 119°

2
Petition for Declaratory Ruling to Serve the U.S. Market from the 118.8° W.L. Orbital
Location in the 17/24 Broadcasting Satellite Service Band, File No. SAT-LOI-20080910-00178
(filed Nov. 13. 2008) (“Spectrum Five 118.8° W.L. Application”). See also Public Notice, DA
08-2699, Report No. SAT-00569, available at 2009 WL 1576567 (rel. June 5, 2009).
3
See 47 C.F.R. § 25.114(d)(13) (requiring applicants to provide an analysis of the
interference that the proposed system would generate with respect to limits set forth in Annex 1
to Appendices 30 and 30A of the International Telecommunication Union Radio Regulations).
4
Order and Authorization, In re Spectrum Five, LLC Petition for Declaratory Ruling to
Serve the U.S. Market Using Broadcast Satellite Service (BSS) Spectrum from the 114.5º Orbital
Location, File Nos. SAT-LOI-20050312-00062, SAT-LOI-20050312-00063, Call Signs S2667,
S2668, DA 06-2439, 21 FCC Rcd. 14023, ¶ 30 (rel. Nov. 29, 2006) (“Spectrum Five ‘Tweener’
Order”), upheld on application for review in Memorandum Opinion and Order, In re EchoStar
Satellite Operating Corporation Application to Construct, Launch, and Operate a Direct
Broadcast Satellite at the 86.5º W.L. Orbital Location, File No. SAT-LOA-20030609-00113,
Call Sign S2454, Spectrum Five, LLC, Petition for Declaratory Ruling to Serve the U.S. Market
Using Broadcast Satellite Service Spectrum from the 114.5º Orbital Location, File Nos. SAT-
LOI-20050312-00062, SAT-LOI-20050312-00063, Call Signs S2667, S2668, FCC 08-64, 23
FCC Rcd. 3252 (rel. Feb. 25, 2008).

2

W.L. Yet the application does not contain the technical information required in order to assess

these issues.

Contrary to DISH’s blithe and untenable assertion—without a trace of supporting

evidence—that its purportedly “slight” change in orbital location would not affect EchoStar 7’s

operational characteristics, there are myriad implications of DISH’s proposed change that

absolutely have to be addressed by DISH before its application can be considered by the

Commission. DISH’s failure to provide the requisite showings necessitates that its application

be dismissed or denied.

INTRODUCTION AND BACKGROUND

On behalf of Spectrum Five, the Netherlands filed documentation for two DBS satellites

at the 114.5º W.L. orbital location with the International Telecommunication Union (“ITU”) on

March 29, 2005. On November 29, 2006, the International Bureau (“the Bureau”) granted

Spectrum Five authorization to enter the U.S. market for DBS services using those two satellites

at 114.5º W.L.5 On November 13, 2008, Spectrum Five filed a petition for declaratory ruling to

serve the market in the United States through a 17/24 GHz BSS Netherlands-authorized satellite

from the 118.8° W.L. orbital location. This application was accepted for filing on June 5, 2009

and remains pending as of this date.6

Meanwhile, on January 15, 2002, DISH received authorization to operate EchoStar 7 at

the 119° W.L. orbital location.7 On May 18, 2009, DISH requested authority to launch and

5
Order, In re Spectrum Five, LLC Petition for Clarification of Condition in EchoStar 11
License, DA 08-1955, 23 FCC Rcd. 12786, 12786 ¶ 2 (rel. Aug. 26, 2008) (“EchoStar 11
Order”); see also Spectrum Five ‘Tweener’ Order, 21 FCC Rcd. 14023, ¶ 43.
6
See supra note 4 (citing Spectrum Five 118.8° W.L. Application).
7
In re EchoStar Satellite Corporation Application for Minor Modification of Direct
Broadcast Satellite Authorization, Launch and Operating Authority for EchoStar 7, File Nos.
(continued)

3

operate a new DBS satellite, EchoStar 14, at the 118.9° W.L. orbital location.8 DISH

represented that EchoStar 14 would “replace” EchoStar 7, and that EchoStar 7 would initially be

deployed as an “in-orbit spare” for EchoStar 14.9 EchoStar 14 would “operate only on the 21

DBS channels” already in use by DISH at that orbital location.10 DISH also asserted that

approval of EchoStar 14 would “free up” EchoStar 7 for “in-orbit backup missions” or “more

efficient deployment at a different orbital location.”11 The Bureau granted DISH’s EchoStar 14

application on March 10, 2010.12

DISH has now applied for approval to operate EchoStar 7 from the 118.8° W.L. orbital

location, concurrently with EchoStar 14 at 118.9°.13 DISH provides no description of how

EchoStar 7 would be operated or what changes would be made to the operation of the virtually

co-located EchoStar 14 satellite to accommodate EchoStar 7.14

SAT-MOD-20010810-00071, SAT-A/O-20010810-00073, Call Sign DBS8801, DA02-118, 17
FCC Rcd. 894 (rel. Jan. 16, 2002) (“EchoStar 7 Order”).
8
EchoStar 14 Application, at 1.
9
Id. at 1-2.
10
Id. at 2.
11
Id. at 4.
12
Order and Authorization, In re DISH Operating L.L.C. Application for Modification of
Authority to Operate at the 118.9° W.L. orbital location and Authority to Launch and Operate
the EchoStar-14 Satellite, File Nos. SAT-LOA-20090518-00053 SAT-AMD-20090604-00064
SAT-AMD-20100212-00027, Call Sign S2790, DA 10-407, 2010 WL 8349 (rel. Mar. 10, 2010).
13
In re DISH Operating L.L.C. Application for Minor Modification of Authority To Allow
Operation of EchoStar 7 at 118.8° W.L., File No. SAT-MOD-20100329-00058, Call Sign S2740
(filed Mar. 29, 2010) (the “Application”).
14
Clearly, EchoStar 7’s operations under the modification application are going to be
different from its operations prior to the implementation of EchoStar 14. DISH’s failure to
provide any meaningful description of its operations violates its obligation to provide a
“[g]eneral description of overall system facilities, operations, and services.” 47 C.F.R. § 25.114
(d)(1).

4

In addition, although the Application states that EchoStar 7 is now operating from the

118.9° W.L. orbital location, the Commission’s 2002 order does not appear to specifically

authorize EchoStar 7’s operation at that orbital location. 15 To be sure, DBS licensees have

flexibility under Commission policy to adjust their satellite locations within 0.2° of a nominal

orbital location in the Region 2 BSS Plan to accommodate other DBS operators.16 But nothing

in the Commission’s regulations or underlying policy allows a licensee to move its satellite

without Commission authorization. Here, however, it appears that DISH’s requested move is

really one from 119.0° W.L. to 118.8° W.L., rather than from 118.9° W.L. to 118.8° W.L. As a

result, the Application has significance in terms of the impact the proposed move has on

Spectrum Five’s Commission-authorized satellite network and pending application.

Nonetheless, whether the Application is construed as seeking to change EchoStar 7’s

orbital location by a tenth of a degree (i.e., from 118.9° W.L. to 118.8° W.L.) or by two-tenths of

a degree (i.e., from 119.0° W.L. to 118.8° W.L.), it should be dismissed or, alternatively, denied

for the reasons explained herein. The Application contains no orbital debris mitigation

assessment with respect to Spectrum Five’s pending application—of which DISH undoubtedly

has notice17—to serve the U.S. market from a BSS satellite at that very same orbital location.

The Application also contains no analysis of the increased interference to Spectrum Five’s DBS

satellite network at 114.5° W.L. that would result from DISH’s operation of EchoStar 7 at 118.8°

15
Cf. EchoStar 7 Order, 17 FCC Rcd. 894, ¶ 8 (“EchoStar Satellite Corporation IS
AUTHORIZED to launch and operate its satellite, EchoStar 7, using channels 1-21 at the 119°
W.L. orbit location.”) (emphasis added); see Region 2 Appendix 30 BSS Plan, USABSS-14,
SNS No. 102555001, WIF/IFIC Nos. 2521, 2534 (received Mar. 7, 2002).
16
See Report and Order, In re: Polices and Rules for the Direct Broadcast Satellite Service,
17 FCC Rcd 11331, 11386-88 (¶¶ 119-121) (rel. June 13, 2002).
17
In its EchoStar 14 Application, DISH acknowledged that “[i]n a new application,
Spectrum Five has proposed to adjust the orbital location [of its BSS satellite] to 118.8° W.L.”
See EchoStar 14 Application, Appendix 1, at 10.

5

W.L. The Application simply does not provide enough information about EchoStar 7’s proposed

operations at 118.8° W.L. (presumably alongside EchoStar 14’s operations at 118.9° W.L.) to

make an intelligible evaluation of the potential for interference even possible.

ARGUMENT

I. THE APPLICATION IS DEFECTIVE, AND MUST BE DISMISSED OR, IN THE
ALTERNATIVE, DENIED, BECAUSE IT DOES NOT CONTAIN THE
COMPLETE ORBITAL DEBRIS MITIGATION ASSESSMENT REQUIRED BY
47 C.F.R. § 25.114(D)(14)(III).

All DBS applications must “follow Section 25.114 of the Commission’s rules, which

governs applications for space station applications.”18 That section “of the Commission’s rules

explicitly requires all space station applicants, including DBS applicants, to submit certain

specified information,”19 which must be “complete in all pertinent details.” 47 C.F.R. §

25.114(b). An application that “is defective with respect to completeness of answers to

questions” or that otherwise “does not substantially comply with the Commission’s rules [or]

regulations” is “defective” and “unacceptable for filing.” Id. § 25.112(a)(1)-(2). “[A]ny

relaxation of the requirement that satellite applicants submit substantially complete applications

could encourage speculative applications,” unfairly aimed at securing an earlier place in line in

the Commission’s “first-come, first-served” licensing process. 20 Thus, the Commission has

18
Public Notice, International Bureau Clarifies Direct Broadcast Satellite Space Station
Application Processing Rules, DA 04-195, 19 FCC Rcd. 1346, 1346 (rel. Jan. 28, 2004) (“DBS
Public Notice”).
19
Id. at 1347.
20
In re Amendment of the Commission’s Space Station Licensing Rules and Policies, IB
Docket No. 02-34, 18 FCC Rcd. 10760, ¶ 244 (rel. May 19, 2003) (“First Space Station
Licensing Reform Order”), modified by Erratum, DA 03-2861 (rel. June 26, 2003) and Second
Erratum (rel. Sept. 10, 2003).

6

“strictly enforced its Part 25 rules,” and routinely “dismiss[es] applications that do not contain

information that is clearly required by the Commission’s rules.”21

Of special relevance here, Section 25.114(d)(14) explicitly requires all applicants—

whether for a “new or modified” satellite authorization (id. § 25.114(b))—to submit a “statement

that the space station operator has assessed and limited the probability of the space station

becoming a source of debris by collisions” in orbit. When, as here, the application “requests the

assignment of a geostationary-Earth orbit location, it must assess whether there are any known

satellites located at, or reasonably expected to be located at, the requested orbital location, or

assigned in the vicinity of that location, such that the station keeping volumes of the respective

satellites might overlap. If so, the statement must include a statement as to the identities of those

parties and the measures that will be taken to prevent collisions.” Id. (emphases added). DISH

did not submit this information in the Application, which contains nary a mention of Spectrum

Five’s pending application to provide service from the same orbital location. Because the

Application “fail[ed] to include . . . the required information” set forth in the Commission’s

regulations, it was not substantially complete when filed, and must be dismissed.22

21
Order on Reconsideration, In re EchoStar Satellite LLC Application for Authority to
Construct, Launch and Operate a Geostationary Satellite in the Fixed Satellite Service Using the
Extended Ku-Band Frequencies at the 101° W.L. Orbital Location, 19 FCC Rcd. 24953, ¶ 14
(rel. Dec. 27, 2004) (“EchoStar Reconsideration Order”) (collecting cases).
22
DBS Public Notice, 19 FCC Rcd. at 1347; First Space Station Licensing Reform Order 18
FCC Rcd. 10760, ¶ 244; see also 47 C.F.R. § 25.112(a)(2). Even after an application is placed on
Public Notice, “the Commission reserves the right to return any application if, upon further
examination, it is determined the application is not in conformance with the Commission’s rules
or its policies.” Order and Authorization, In re DIRECTV Enterprises, LLC Application for
Authorization to Launch and Operate DIRECTV RB-2, a Satellite in the 17/24 GHz Broadcasting
Satellite Service at the 102.825° W.L. Orbital Location, File Nos. SAT-LOA-20060908-00100
SAT-AMD-20080114-00014 SAT-AMD-20080321-00077, Call Sign S2712, DA 09-1624, 24
FCC Rcd. 9393, ¶ 7 n.23 (rel. July 28, 2009). “Neither the assignment of a file number and/or
other identifier nor the listing of the application on public notice as received for filing indicates
that the application has been found acceptable for filing or precludes the subsequent return or
(continued)

7

A. The Application Is Incomplete Because It Does Not Consider Spectrum
Five’s Already-Filed Petition For A Declaratory Ruling To Operate A BSS
Satellite At The 118.8° W.L. Orbital Location.

Section 25.114(d)(14)(iii) requires an orbital debris mitigation assessment to consider

both satellites presently located at the requested geostationary orbital location, as well as

satellites “reasonably expected to be located at” that location. The Commission routinely

dismisses applications that are “missing technical information concerning . . . orbital debris

mitigation.”23 In this case, the Application wholly ignores Spectrum Five’s petition to operate a

satellite at the same 118.8° W.L. orbital location requested for EchoStar 7.24

dismissal of the application if it is found to be defective or not in accordance with the
Commission’s rules.” 47 C.F.R. § 25.150.
23
Letter from Robert G. Nelson, Chief, Satellite Division, International Bureau, to Donald
M. Jansky, Jansky-Barmat Telecommunications, Inc., Re: HISPAMAR SATÉLITES, S.A.,
Petition for Declaratory Ruling to add the AMAZONAS-2 Satellite at 61° W.L. to the
Commission’s Permitted Space Station List, IBFS File No. SAT-PPL-20081203-00219 (Call
Sign: S2779), DA 09-761, 24 FCC Rcd. 3970, 3970-71 (Apr. 2, 2009) (“HISPAMAR’s petition
does not provide certain information required by Section 25.114(d) of the Commission’s rules,
which renders the petition unacceptable for filing and subject to dismissal. . . . HISPAMAR’s
petition is missing technical information concerning the orbital debris mitigation plans for the
AMAZONAS-2 satellite, which is required by Section 25.114(d)(14) of the Commission’s rules.
). See also Letter from Robert G. Nelson, Chief, Satellite Division, International Bureau, to
Stephen D. Baruch, Leventhal Senter & Lerman PL, Re: Applications of DG Consents Sub, Inc.
to Modify the Orbital Parameters of the WorldView 60 Satellite and to Authorize the WorldView
110 Satellite IBFS File No. SAT-MOD-20070223-00038 and SAT-AMD-20070504-00066. Call
Sign: S2129, DA 07-3418, 22 FCC Rcd. 13709, 13709 (July 27, 2007) (dismissing “the
application and its amendment as defective” because they “d[id] not satisfy the express
requirement of Section 25.114(d)(14)(iii)”); Letter from Robert G. Nelson, Chief, Satellite
Division, International Bureau, to David M. Drucker, Manager, ATCONTACT
Communications, LLC, Re: ATCONTACT Communications, LLC, Amendment to Application for
Modification of Assigned Orbital Location from 83° W.L. to 87° W.L. and for the Addition of Ka-
band Frequencies, File Nos.SAT-AMD-20060626-00068 and SAT-AMD-20060905-00098 (Call
Sign S2680), DA 07-1095, 22 FCC Rcd. 4624, 4624 (Mar. 8, 2007) (“[T]he debris mitigation
statement is incomplete . . . Accordingly, ATCONTACT’s applications . . . are dismissed . . . .”);
Letter from Robert G. Nelson, Chief, Satellite Division, International Bureau, to David K.
Moskowitz, Executive Vice President and General Counsel, EchoStar Satellite Operating
Corporation, Re: EchoStar Satellite Operating Corporation File No. SAT-MOD-20061218-
00154 Call Sign: S2636, DA 07-1096, 22 FCC Rcd. 4626, 4626 (Mar. 8, 2007) (“EchoStar did
(continued)

8

It is immaterial that Spectrum Five’s application has not yet been approved. A system

counts as “reasonably expected to be located” at a given location once there is a pending

application under consideration by the Commission that seeks approval to operate at that

location. As the Commission explained in the course of promulgating Section 25.114(d)(14)(iii),

the orbital debris mitigation assessment “should address any licensed FCC systems, or any

systems applied for and under consideration.” Second Report and Order, In re Mitigation of

Orbital Debris, 19 FCC Rcd. 11567, ¶ 51 n.140 (rel. June 21, 2004) (emphasis added) (“Orbital

Debris Report and Order”). The Commission amplified this requirement in a subsequent public

notice:

For space stations that are to operate in geostationary-Earth orbit
(GEO), the statement must assess whether there are any known
satellites located at, or reasonably expected to be located at, the
requested orbital location, or assigned in the vicinity of that
location, such that the station-keeping volumes of the respective
satellites might overlap. If so, the statement must include a
statement as to the identities of those parties and the measures that
will be taken to prevent collisions. The statement should address
any licensed FCC systems, or any systems applied for and under
consideration.

Public Notice, Disclosure of Orbital Debris Mitigation Plans, Including Amendment of Pending

Applications, 20 FCC Rcd. 16278, 16280 (Oct. 13, 2006) (“Orbital Debris Mitigation Plans

Notice”) (emphasis added).

Indeed, in the past, DISH itself has recognized the need to “review[] the lists of FCC

licensed satellite networks, as well as those that are currently under consideration by the FCC”

when considering “current and planned satellites” that might have an overlapping stationkeeping

not submit this information for its proposed operations at 112.85° W.L. Consequently, the
modification application is incomplete and therefore unacceptable for filing.”).
24
The Application mentions only DIRECTV 7S, at the 119.05° W.L. orbital location, and
Anik F3, located at 118.7° W.L. See Application, at 2-3.

9

volume.25 When DISH filed the EchoStar 14 application, in which DISH specifically

acknowledged Spectrum Five’s application to operate a satellite at 118.8° W.L., DISH reassured

the Commission that no further orbital debris mitigation analysis was necessary because

Spectrum Five’s “orbital location [at] 118.8° W.L.[] . . . would result in no overlapping station-

keeping volume with ECHOSTAR-14,” which would be located at 118.9° W.L.26 DISH’s

recognition in the EchoStar 14 application that Section 25.114(d)(14)(iii) requires it to take into

account Spectrum Five’s pending 118.8° W.L. application makes the omission of a complete

orbital degree mitigation analysis in the present Application all the more glaring and inexcusable.

Unlike in the EchoStar 14 proceeding, the “station keeping volumes of the respective

satellites” in this case would certainly overlap. 47 C.F.R. § 25.114(d)(14)(iii). The proposed

location for EchoStar 7 is exactly the same one for which Spectrum Five has a pending (and

earlier in line) petition. 27 Yet the Application fails to acknowledge this stationkeeping overlap,

much less “include a statement as to . . . the measures that will be taken to prevent collisions”

with Spectrum Five’s satellite. Id. The Application plainly is thus incomplete and defective.28

25
EchoStar 14 Application, Attachment A, at A.10.3 (emphasis added).
26
Id.
27
If the Application is approved and EchoStar 7 is allowed to occupy the 118.8° W.L.
orbital location, Spectrum Five would be forced to substantially alter the parameters of its 17/24
GHz BSS satellite. The nearest available location where physical coordination could be
achieved would be 118.6° W.L.—because 118.7° W.L. is occupied by the Anik-3 satellite (see
Application at 3)—where, due to the Commission’s “offset power” rules for 17/24 GHz BSS
satellites, it might be required to further reduce its power by 13%. See 47 C.F.R. § 24.262.
28
It bears noting that DISH could continue operating EchoStar 7 at its present 118.9° W.L.
orbital location alongside EchoStar 14. See generally Public Notice, Report No. SAT-00646,
Report No. SAT-00646, 2009 WL 3802600 (rel. Nov. 13, 2009) (noting that DIRECTV has
requested authorization to co-locate multiple satellites at the same orbital location “with a
reduced station keeping tolerance of ± 0.025°”). It would be much less feasible to locate
EchoStar 7 at the same location as Spectrum Five’s proposed satellite. “Where the satellites are
not operated by a single company, such [real-time] coordination may present logistical or cost
(continued)

10

B. There Is No Basis For A Waiver Of The Section 25.114(d)(14)(iii) Orbital
Debris Mitigation Assessment Requirement.

As a fallback position, DISH requests a waiver of Section 25.114(d)(14)(iii)’s

requirement that applicants perform a complete orbital debris mitigation assessment. See

Application, at 4-5. An application that is defective under § 25.112(a)(2) will be accepted for

filing only if (1) the application is accompanied by a request for a waiver and (2) the FCC grants

such a waiver. Id. § 25.112(b). There is no basis for a waiver here. We address each of DISH’s

arguments in turn.

DISH first asserts that a 0.1° relocation in orbital location does not “change the operating

parameters” approved by the Commission, and so does not “change the overall orbital debris risk

environment.” Application, at 4. The discussion in Section I.A above demonstrates both that this

assertion is patently false, and that DISH knew otherwise.

DISH quite evidently is seeking a modification of its authorization, and “applications for

modifications of space station authorizations shall be filed in accordance with § 25.114.” 47

C.F.R. § 25.117(d)(1). Under § 25.114(b), “[e]ach application for a new or modified space

station authorization must constitute a concrete proposal for Commission evaluation,” which

contains the “technical information” specified in § 25.114(d), including a complete orbital debris

mitigation assessment that complies with § 25.114(d)(14)(iii). The Commission’s regulations

contain no exception for purportedly “small” or “minor” changes in orbital location—a change is

a change, particularly when there is already a pending, higher-priority application for a satellite

at the proposed orbital location. To the contrary, when “existing operators seek authority for . . .

modified authorizations, and information under Section 25.114 is required by our rules in

considerations that render it undesirable as a first choice for preventing collisions.” Orbital
Debris Report and Order, 19 FCC Rcd. 11567, ¶ 51 (emphasis added).

11

connection with requests for such authorizations”—as is the case here—“disclosure of orbital

debris mitigation plans is required as part of the request for additional authority.”29

DISH also seeks a waiver on the ground that EchoStar 7 was launched in 2002, before the

Commission promulgated the requirement that applicants submit orbital debris mitigation

assessments. See Application, at 4-5. The date on which EchoStar 7 was launched is irrelevant:

the rule is based upon when the application for a modification of approval is filed, not when the

satellite is launched. “All applications filed after October 19, 2005, that require submission of

Section 25.114 information must include an orbital mitigation disclosure as part of the

application or will be dismissed as incomplete.”30 The Commission knows full well how to

apply its rules only prospectively when it so desires; thus, it grandfathered from the disposal

rules all geostationary satellites that were already launched as of the Notice of Proposed

Rulemaking.31 Tellingly, the Commission did not do the same with respect to the orbital debris

mitigation assessment rules. In fact, the Commission even required applications that were

already pending when the rules came into effect to promptly be amended to “include disclosure

of the system’s orbital debris mitigation plans.”32

In sum, “[t]he Commission’s rules regarding the disclosure of orbital debris mitigation

plans have been effective since October 19, 2005.”33 DISH “has failed to explain why a general

29
Orbital Debris Mitigation Plans Notice, 20 FCC Rcd. at 16279 (emphasis added).
30
Id. (emphasis added).
31
Second Report and Order, In re Mitigation of Orbital Debris, IB Docket No. 02-54, 19
FCC Rcd. 11567, ¶¶ 77, 81 (rel. June 21, 2004).
32
Orbital Debris Mitigation Plans Notice, 20 FCC Rcd. at 16278.
33
Letter from Robert G. Nelson, Chief, Satellite Division, International Bureau, to Stephen
D. Baruch, Leventhal Senter & Lerman PL, Re: Applications of DG Consents Sub, Inc. to Modify
the Orbital Parameters of the WorldView 60 Satellite and to Authorize the WorldView 110
Satellite IBFS File No. SAT-MOD-20070223-00038 and SAT-AMD-20070504-00066. Call Sign:
S2129, DA 07-3418, 22 FCC Rcd. 13709, 13710 (July 27, 2007) (emphasis added).

12

request to waive unspecified provisions of Section 25.114(d)(14) ‘to the extent necessary’ serves

the public interest or comports with the requirement that each application for a new or modified

space station authorization constitute a concrete proposal for Commission evaluation” that fully

complies with Section 25.114(d)(14)’s requirements.34 A waiver under these circumstances,

where the proposed relocation would directly overlap the station-keeping volume of Spectrum

Five’s 17/24 GHz BSS satellite but DISH provides no indication of how coordination would be

effected, also cannot be found consistent with the underlying purpose of Section 25.114(d)(14)

and the orbital debris mitigation policy.

***

DISH’s application to relocate EchoStar 7 to the 118.8° W.L. orbital position is defective

within the clear and unambiguous meaning of Section 25.112(a): it is “defective with respect to

completeness” and does not “substantially comply with the Commission’s” rules requiring an

orbital debris mitigation assessment. Because the Application is defective, it must be

dismissed.35 Moreover, DISH cannot now cure the defect in the Application because

Commission rules would deem any such amendment to be null and void. Section 25.116(b)(5)—

a crucial feature of the Commission’s “hard look” approach to enforcing first-come, first-served

processing rules—unambiguously states that “[a]mendments to ‘defective’ space station

applications . . . will not be considered.”36

34
Second Report and Order, In re Mitigation of Orbital Debris, IB Docket No. 02-54, 19
FCC Rcd. 11567, ¶¶ 77, 81 (rel. June 21, 2004).
35
Orbital Debris Mitigation Plans Notice, 20 FCC Rcd. at 16279 (“All applications filed
after October 19, 2005, that require submission of Section 25.114 information must include an
orbital mitigation disclosure as part of the application or will be dismissed as incomplete.”).
36
See also PanAmSat Reconsideration Order, 18 FCC Rcd. 23916, ¶ 7 (explaining that
newly provided information that purports to “correct a prior deficiency in a dismissed application
cannot be used to reinstate an initial application or maintain a previous position in the queue”);
(continued)

13

DISH’s failure to make a requisite showing on this point is an independent ground for denying

the Application on the merits.38

II. THE APPLICATION SHOULD BE ALSO BE DISMISSED OR,
ALTERNATIVELY, DENIED BECAUSE THE APPLICATION DOES NOT
PROVIDE THE ANALYSES NECESSARY TO EVALUATE ECHOSTAR 7’S
PROPOSED OPERATIONS AT 118.8° W.L.

DISH has styled its Application as seeking only a “minor modification” of its

authorization. But make no mistake: DISH proposes operating EchoStar 7 from the 118.8° W.L.

orbital location, which represents a departure from the “technical characteristics” set forth in its

corresponding Region 2 Plan filing.39 The Plan modification sought by the United States in

connection with EchoStar 7’s original application presented its orbital location as 119.0° W.L.,

not 118.8° W.L.

As an initial matter, even if the relocation to 118.8° W.L. were the only change to the

operation of EchoStar 7—and that is not the case, as explained further infra—the Application is

“defective” and subject to dismissal (see § 25.112(a)(1)-(2)) because it does not contain the

“complete” and detailed technical showings required by Section 25.114(d)(13) of the

Commission’s rules. In this case, at a bare minimum, the proposed system’s “technical

38
See, e.g., Memorandum Opinion and Order, In re: EchoStar Satellite LLC, Petition for
Reconsideration of Order Denying Application for Authority to Construct, Launch and Operate
Geostationary Satellites In the Fixed-Satellite Service Using the Ka And/or extended Ku-bands
at the 83° W.L., 105° W.L., 113° W.L. and 121° W.L. Orbital Locations, File Nos. SAT-LOA-
20030827-00180, SAT-LOA-20030827-00182, SAT-LOA-20030827-00185, SAT-LOA-
20030827-00187, Call Signs: S2493, S2495, S2498, S2500, DA 06-865, 21 FCC Rcd. 4060, ¶ 15
(rel. Apr. 14, 2006) (explaining that even if accepted, an application properly is denied on the
merits if it is “not consistent with the Commission’s rules and policies[] and fail[s] to support the
necessary waivers”).
39
See Region 2 Appendix 30 BSS Plan, USABSS-14, SNS No. 102555001, WIF/IFIC Nos.
2521, 2534 (received Mar. 7, 2002).

15

characteristics [i.e., orbital location] differ from those specified in the Appendix 30 BSS Plans

[or] the Appendix 30A feeder link Plans,”40 and so the Application was required to provide:

(i) The information requested in Appendix 4 of the ITU’s Radio
Regulations. . . . .

(ii) Analyses of the proposed system with respect to the limits in
Annex 1 to Appendices 30 and 30A.

47 C.F.R. § 25.114(d)(13).

Applications for modifications of space station authorizations are permitted to

incorporate by reference information from previously filed applications, but only if the

“information has not changed.” 47 C.F.R. § 25.117(d). This exception is not applicable here. It

is plain that relocating EchoStar 7 to 118.8° W.L. would produce a different—and indeed,

substantially greater—amount of interference to other systems, such as Spectrum Five’s

authorized satellite network at 114.5° W.L. The Commission’s rules require that the Application

must take such other systems into account. The interference “[a]nalyses of the proposed system

with respect to the limits in Annex 1 to Appendices 30 and 30A” could not possibly be

unchanged from the interference analyses submitted in connection with EchoStar 7’s original

application to operate at 119.0° W.L. See 47 C.F.R. § 25.114(d)(13)(ii). The showing required

by Section 25.114(d)(13)(ii) is “intended to demonstrate how the proposed system will affect

40
The Commission’s orders make clear that the orbital location of the satellite is a relevant
“technical characteristic[].” As noted in the Spectrum Five ‘Tweener’ Order, “foreign-licensed
DBS operators seeking U.S. market access . . . must file the same information requested under
Section 25.114 of the Commission's rules that U.S. DBS applicants must file (including, without
limitation, the technical characteristics of the satellite as specified in Section[] 25.114(c)).” 21
FCC Rcd. 14023, ¶ 8 (emphasis added); accord Notice of Proposed Rulemaking, In re:
Amendment of the Commission's Policies and Rules for Processing Applications in the Direct
Broadcast Satellite Service: Feasibility of Reduced Orbital Spacing for Provision of Direct
Broadcast Satellite Service in the United States, IB Docket No. 06-160, 21 FCC Rcd. 9443, ¶ 23
(rel. Aug. 18, 2006). And one of the items required under Section 25.114(c) is, “[f]or satellites in
geostationary-satellite orbit,” the requested “[o]rbital location.” Id. § 25.114(c)(5)(i).

16

operating DBS systems and those systems that are subject to pending Region 2 modification

proposals.”41

Yet the analyses originally submitted with the EchoStar 7 application on August 10,

200142 could not have taken Spectrum Five’s licensed satellite network at 114.5° W.L. into

account—the system was not yet the subject of Commission or ITU filings. Thus, the exception

in Section 25.117 for unchanged information cannot apply: the relevant analyses manifestly

need to be updated. Even if the analysis in the original EchoStar 7 application had somehow

taken Spectrum Five’s network into account, that analysis would be different now that DISH is

proposing to operate EchoStar 7 two-tenths of a degree closer to Spectrum Five’s already-

licensed satellite network at 114.5° W.L.43 The Application’s failure to address this interference

alone renders it defective and subject to dismissal.

41
Spectrum Five ‘Tweener’ Order, 21 FCC Rcd. 14023, ¶ 6 (emphasis added).
42
EchoStar 7 Order, 17 FCC Rcd. 894, ¶ 1 n.1.
43
It is DISH’s obligation, as the applicant seeking a modification of authorization, to
include the requisite technical analyses with its application. See 47 C.F.R. § 25.114(b); id. §
25.114(d)(13). DISH’s failure to do so therefore independently requires dismissal or denial of
the Application.
Nonetheless, the concern with increased interference is not merely a theoretical one.
Although Spectrum Five’s analysis necessarily is a preliminary one—and one that is further
handicapped by DISH’s failure to specifically articulate how it plans to operate EchoStar 7 and
EchoStar 14 if the proposed relocation is granted—it is clear that there would be a substantial
impact on Spectrum Five’s licensed satellite network at 114.5° W.L. That analysis shows that
changing EchoStar 7’s orbital location from 119.0° W.L. to 118.8° W.L. would reduce the
discrimination of a 45 cm reference antenna (as described in Appendix 30) due to the decreased
angular spacing by anywhere from 1.59 dB (in Anchorage) to 1.86 dB (in Los Angeles), which
would result in an increase in the interference level at the 114.5° W.L. location of between 30
and 35 percent. Particularly given DISH’s prior representation that EchoStar 14 would “replace”
EchoStar 7’s operations at 118.9° W.L. (EchoStar 14 Application at 1-2), it is at the very least
“prima facie inconsistent with the public interest” (47 C.F.R. § 25.154(a)(4)) to permit EchoStar
7 to “supplement” EchoStar 14 and operate at a new orbital location that would cause even
greater interference with other satellite networks.

17

In addition, recognizing Spectrum Five’s “willingness . . . to achieve a coordination

agreement with the existing DBS operators,” the Commission approved Spectrum Five’s DBS

satellite network at 114.5° W.L. “on the condition that it coordinate with EchoStar and

DIRECTV.”44 In accepting the Commission’s grant of authority subject to conditions, Spectrum

Five also agreed that it would “tolerate additional interference” to its operations at 114.5° W.L.

from other systems.45 As DISH now proposes moving EchoStar 7 closer to Spectrum Five’s

approved satellite network at 114.5° W.L., Spectrum Five should not be required to coordinate

with a moving target; it would be grossly unfair if the conditions of the Tweener approval could

in essence be changed after the fact merely on DISH’s request. The Commission should

therefore ensure that EchoStar 7 is entitled to no greater interference protection at the proposed

118.8° W.L. orbital location than it would have been afforded at 119.0° W.L., where EchoStar 7

was originally approved to operate.46 And as a corollary, EchoStar 7 cannot be permitted to

cause any more interference to Spectrum Five’s 114.5° W.L. satellite network than if EchoStar 7

had remained at its original 119.0° W.L. orbital location. Whether the proposed modification of

44
Spectrum Five ‘Tweener’ Order, 21 FCC Rcd. 14023, ¶¶ 29-30.
45
Id. ¶¶ 30, 43(d)-(e), (i).
46
Cf. EchoStar 7 Order, 17 FCC Rcd. 894, ¶ 8; In re Spectrum Five, LLC Petition for
Declaratory Ruling to Serve the U.S. Market Using BSS Spectrum from the 114.5º Orbital
Location, File Nos. SAT-LOI-20050312-00062, SAT-LOI-20050312-00063, Call Signs S2667,
S2668 (filed Mar. 12, 2005).
Moreover, given that it is DISH that seeks to move EchoStar 7 to 118.8° W.L., and
therefore place EchoStar 7 directly on top of Spectrum Five’s long-pending application for a
17/24 GHz BSS system at 118.8° W.L., Spectrum Five should not be accountable for any
additional space path interference that may result on account of EchoStar 7’s proposed relocation
from its originally authorized location. Cf. Report and Order and Further Notice of Proposed
Rulemaking, In re: The Establishment of Policies and Service Rules for the Broadcasting-
Satellite Service at the 17.3-17.7 Ghz Frequency Band and at the 17.7-17.8 Ghz Frequency Band
Internationally, and at the 24.75-25.25 Ghz Frequency Band for Fixed Satellite Services
Providing Feeder Links to the Broadcasting-Satellite Service and for the Satellite Services
Operating Bi-Directionally in the 17.3-17.8 Ghz Frequency Band, IB 06-123, 22 FCC Rcd.
8842, ¶ 180 (rel. May 4, 2007).

18

EchoStar 7’s authorization sought by the Application is consistent with these limitations is

impossible to discern (although, it seems, exceedingly unlikely, see supra note 43), because the

Application does not contain the interference analyses required by Section 25.114(d)(13). Given

its patently incomplete and defective state, the Application cannot be approved.

Finally, the Application runs afoul of the Commission’s rules in yet another respect

because the Application is frustratingly short on details and does not adequately describe

EchoStar 7’s planned operation at the 118.8° W.L. orbital location. For example, the

Application claims that EchoStar 7’s proposed relocation is meant to “accommodate” or “make

‘room’” for EchoStar 14.47 It asserts EchoStar 7 at 118.8° W.L. would “provide service that

supplements the service to be provided by EchoStar 14” at 118.9° W.L.48 In its application for

special temporary authority to operate EchoStar 7 at 118.8° W.L., DISH similarly stated that

EchoStar 7 will “continue to support” DISH’s other “DBS services” around the “nominal 119°

W.L. orbital location.”49 What any of this means is left alarmingly undefined in the Application.

In other filings, DISH has represented that EchoStar 14, once brought into operation, would use

“the 21 DBS channels” currently used by EchoStar 7 at the 118.9° W.L. orbital location.50 It is

unclear from the Application whether DISH intends to operate both EchoStar 7 and EchoStar 14

in full frequency reuse, what power the satellites would use, and what impact these operations

would have on other networks, both proposed and operational. That is also an independent

reason to dismiss or deny the Application. The Commission’s rules require applications to be

47
Application at 1-2.
48
Id. at 2.
49
In re DISH Operating L.L.C. Application for Special Temporary Authority to Move
EchoStar 7 to 118.8° W.L., File No. SAT-STA-20100219-00031, Call Sign S2740, at 1 n.4
(filed Feb. 19, 2010).
50
EchoStar 14 Application, at 2.

19

“complete in all pertinent details” and to describe the “overall system facilities, operations and

services” precisely so that licensing decisions can be made with all relevant information at hand.

See 47 C.F.R. § 25.114(b), (d)(1).

In sum, the Application does not contain the “information requested in Appendix 4 of the

ITU’s Radio Regulations,” or “[a]nalyses of the proposed system with respect to the limits in

Annex 1 to Appendices 30 and 30A” required by Section 25.114(d)(13). The Application also

fails to provide any meaningful description of EchoStar 7’s proposed operations at 118.8° W.L.,

as required by Section 25.114(d)(1). Accordingly, the Application is not substantially complete

and should be dismissed as defective under Section 25.112(a)(2).51 In the alternative, the

Application should be denied on the merits under Section 25.156(a) because the Commission is

not a position to find that the “proposed . . . operations [will] comply with all applicable rules,

regulations, and policies, and that grant of the application will serve the public interest,

convenience and necessity” given that the Application does not make the requisite technical

showing.52 (Emphasis added.)

CONCLUSION

For the foregoing reasons, the Application to relocate EchoStar 7 to 118.8° W.L. is

incomplete, defective, and does not substantially comply with the Commission’s rules. It should

be dismissed, or, in the alternative, simply denied on the merits.

51
E.g., Letter from Fern J. Jarmulnek, Deputy Chief, Satellite Division, to Todd M.
Stansbury, Esq., Counsel for Spectrum Five LLC, Re: Spectrum Five LLC Petition for
Declaratory Ruling To Serve the U.S. Market from the 114.5° W.L. Orbital Location, File No.
SAT-LOI-20041228-00228, Call Sign S2649, 20 FCC Rcd. 3451, 2451 (Feb. 17, 2005)
(dismissing application because it “did not include any information pursuant to Section
25.114(d)(13)(ii)”).
52
See also Third Report and Order, In re: Amendment of Space Station Licensing, 18 FCC
Rcd. 15306, ¶ 11 (rel. July 8, 2003) (“The information in Section 25.114 ensures that the
satellites will comply with our rules.”).

20

Respectfully submitted,

s/s Howard W. Waltzman
David Wilson Howard W. Waltzman
President Brian J. Wong
Spectrum Five LLC Mayer Brown LLP
1776 K Street, N.W., Suite 200 1999 K Street, N.W.
Washington, D.C. 20006 Washington, D.C. 20006
(202) 293-3483 (202) 263-3000

Counsel to Spectrum Five, LLC

May 17, 2010

21

CERTIFICATE OF SERVICE

I, Howard W. Waltzman, hereby certify that on this 17th day of May, 2010, I caused to
be hand-delivered a true copy of the foregoing, upon the following:

Pantelis Michalopoulos Linda Kinney
Petra A. Vorwig Vice President, Law and Regulation
L. Lisa Sandoval DISH Operating L.L.C.
Steptoe & Johnson LLP 1110 Vermont Avenue NW, Suite 750
1330 Connecticut Avenue, N.W. Washington, DC 20005
Washington, DC 20036

_s/s Howard W. Waltzman
Howard W. Waltzman

Document Created: 2010-05-17 15:06:28
Document Modified: 2010-05-17 15:06:28

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