Petition To Dismiss or Deny Amendment/Application PETITION by Spectrum Five LLC SAT-MOD-20100329-00058 pet to deny amended

pet to deny amended

PETITION submitted by Spectrum Five LLC

Petition To Dismiss or Deny Amendment/Application

2010-08-02

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

IBFS_SATMOD2010032900058_832071

BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C.

------------------------------------------------------ )
)
In the Matter of: )
)
DISH OPERATING L.L.C. ) File Nos.: SAT-MOD-20100329-00058
) SAT-AMD-20100610-00127
Application for Minor Modification of )
Authority to Allow Operation of EchoStar 7 )
at 118.8° W.L. )
)
and ) Call Sign: S2740
)
Amendment to Application for Minor )
Modification of Authority to Allow )
Operation of EchoStar 7 at 118.8° W.L. )
)
)
)
------------------------------------------------------ )

PETITION TO DISMISS OR DENY
AMENDMENT TO APPLICATION AND APPLICATION

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
August 2, 2010

SUMMARY AND INTRODUCTION

DISH Operating L.L.C. (“DISH”) has filed a purported Amendment to its Application to

provide Direct Broadcast Satellite service from EchoStar 7 at the 118.8º W.L. orbital location.1

Because the underlying Application was defective, and a defective application cannot be

amended, the Application and Amendment should be dismissed or denied. Even if a defective

application could be amended, the Amendment neither satisfies the orbital debris mitigation

requirements nor addresses the other concerns raised in connection with Spectrum Five’s Petition

To Dismiss or Deny the underlying Application.2

I. DEFECTIVE SPACE STATION APPLICATIONS CANNOT BE AMENDED.

The Application was defective because it did not contain an orbital debris mitigation

assessment required by Section 25.114(d)(14)(iii). See Petition at 6-13; Reply at 3-5.

“Amendments to ‘defective’ space station applications . . . will not be considered.” 47 C.F.R. §§

25.112(a), 25.116(b)(5); see Reply at 5-6. Moreover, a materially defective application cannot

be fixed by submitting information in response to a request by the Bureau. See Reply at 6-9.

DISH does not claim that the Commission’s requirement to prepare a complete orbital debris

mitigation assessment was “ambiguous” or in need of clarification. See id. at 8-9. Further, the

1
Application, 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) (“Application”); Amendment to Application for
Minor Modification, In re DISH Operating L.L.C. Amendment to Application for Minor
Modification of Authority To Allow Operation of EchoStar 7 at 118.8° W.L., File Nos. SAT-
MOD-20100329-00058, SAT-AMD-20100610-00127, Call Sign S2740 (filed June 10, 2010)
(“Amendment”).
2
Spectrum Five LLP hereby incorporates by reference the Petition To Dismiss or Deny, 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
May 17, 2010) (“Petition”), and the Reply in Support of Petition To Dismiss or Deny, 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 June
4, 2010) (“Reply”).

Application did not make a substantial “attempt to demonstrate” compliance. See id. Thus, the

Bureau must reject the Amendment.

II. THE AMENDMENT DOES NOT CURE THE DEFECTS IN THE UNDERLYING
APPLICATION.

Even if the Amendment could be considered, the Application (as amended) should still be

dismissed or denied because it would remain materially incomplete and defective. Although

DISH now recognizes that Spectrum Five has a pending application to operate a satellite at the

118.8° W.L. orbital location, the Amendment does not meaningfully address how DISH intends

to physically coordinate with Spectrum Five’s satellite. The Amendment states that if a “risk

develops in the future,” DISH will request authority to drift EchoStar 7 to another location.3 But

Section 25.114(d)(14)(iii) requires operators to plan ahead so that the Commission may assess

orbital debris risks in advance of approval.4 The Amendment does not identify any concrete,

physical coordination solutions, much less “provide an assessment of feasibility for these

proposed measures.”5 Nor is the Amendment responsive to the other defects in the underlying

Application. See Petition at 15-20; Reply at 10-13.

CONCLUSION

For the reasons stated above, the Application and Amendment should be dismissed or

denied.

3
Amendment, Attachment A, § A.10.3.
4
Second Report and Order, In re: Mitigation of Orbital Debris, 19 FCC Rcd. 11567, ¶ 14
& n.55 (rel. June 21, 2004).
5
Letter from Robert G. Nelson, Associate Chief, Satellite Division, International Bureau,
to Bruce D. Jacobs and Tony Lin, Pillsbury Winthrop Shaw Pitman LLP, filed in In re: Pegasus
Development DBS Corp. Authority to Construct, Launch, and Operate a Broadcasting-Satellite
Service System, File No. SAT-LOA-20090807-00084, Call Sign S2795 (dated Apr. 15, 2010).

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

August 2, 2010

CERTIFICATE OF SERVICE

I, Howard W. Waltzman, hereby certify that on this 2nd day of August, 2010, I caused to
be hand-delivered a true copy of the foregoing upon the following:

Pantelis Michalopoulos Jeffrey Blum
Petra A. Vorwig Senior Vice President and Deputy General Counsel
L. Lisa Sandoval Alison Minea
Steptoe & Johnson LLP Corporate Counsel
1330 Connecticut Avenue, N.W. DISH Operating L.L.C.
Washington, DC 20036 1110 Vermont Avenue NW, Suite 750
Washington, DC 20005

_s/s Howard W. Waltzman
Howard W. Waltzman

Document Created: 2010-08-02 09:43:39
Document Modified: 2010-08-02 09:43:39

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