Attachment LightSquared - IB OE

This document pretains to SAT-MOD-20101118-00239 for Modification on a Satellite Space Stations filing.

IBFS_SATMOD2010111800239_871566

Federal Communications Commission. Washington, D.C. 20554 DA 11—367 February 25, 2011 Jeffrey J. Carlisle Executive Vice President Regulatory Affairs & Public Policy LightSquared 10802 Parkridge Boulevard Reston, VA 20191—4334 Re: File Number: SAT—MOD—20101118—00239 Dear Mr. Carlisle: On February 15, 2011, the U.S. GPS Industry Council (GPS Council) filed a petition for clarification of the LightSquared Authorization Order.‘ The GPS Council requests that the Commission clarify whether the Federal Advisory Committee Act (FACA) applies to the GPS interference working group that LightSquared was required to establish as a condition to the waiver granted in the LightSquared Authorization Order and, if it doesn‘t, asks the Commission to elaborate on the process the working group should follow. In this letter, we set forth the FCC‘s International Bureau‘s and Office of Engineering and Technology‘s expectations for LightSquared‘s implementation of the working group condition, and clarify that the FACA would not apply to the working group contemplated by the waiver order and described in greater detail below. 1. The Working Group Process. In light of the GPS Council‘s questions regarding the operation of the working group, we take this opportunity to provide further guidance on implementation of the LightSquared Authorization Order. First, while the Order encourages the GPS community and federal interests to participate in the working group, it does not require LightSquared to obtain the participation of any particular organization or individual. The Commission has not selected the members of the working group, nor does it intend to do so. While participation by a broad cross—section of technical experts is desirable, LightSquared is responsible for selecting appropriate participants. ‘ LightSquared Subsidiary LLC, Requestfor Modification of its Authorityfor an Ancillary Terrestrial Component, Order and Authorization, DA 11—133 (Int‘l Bur. rel. Jan. 26, 2011). > GPS Council Petition for Clarification at 2.

Federal Communications Commission DA 11—367 Second, Commission staff will not attend the working group meetings as a general matter, and will not control or supervise the working group. We expect LightSquared to schedule the meetings and set the agenda." Third, the LightSquared Authorization Order directed LightSquared to submit a final report that includes analyses of the potential for interference to GPS devices from LightSquared‘s facilities, and recommendations for steps that LightSquared or other interested parties could take to mitigate the potential for interference." To be clear, the LightSquared Authorization Order contemplates that there may be more than one interference analysis and set of recommendations in the final report. The Order does not ask or require LightSquared to develop a consensus recommendation among the working group participants. Rather, LightSquared should submit in its final report the various interference analyses and recommendations offered by working group participants, as well as LightSquared‘s individual and independent interference analysis and plan for avoiding harmful interference. LightSquared may not commence commercial service on its L—band frequencies pursuant to the January 26, 2010 waiver until the Commission, after consultation with NTIA, concludes that the harmful interference concerns have been resolved." To that end, the progress reports and final report — containing both LightSquared‘s plan for avoiding harmful interference to GPS operations and the respective analyses and recommendations of the parties participating in the * If Commission staff attend a particular meeting, the normal ex parte rules for permit—but—disclose proceedings would apply. See 47 C.F.R. § 1.1206. Those rules allow parties to make their ex parte filings jointly with other participants. See, e.g., Robert M. Franklin, Transferor, Inmarsat, ple, Transferee, Consolidated Application for Consent to Transfer of Control ofStratos Global Corporation andIts Subsidiaries from an Irrevocable Trust to Inmarsat, ple, Memorandum Opinion and Order, IB Docket No. 08—143, 24 FCC Red 449, 454 n.35 (Int‘l Bur., 2009); Reexamination ofRoaming Obligations of Commercial Mobile Radio Service Providers, Report and Order and Further Notice ofProposed Rulemaking, WT Docket No. 05—265, 22 FCC Red 15817, 15845 n.193 (2007); Review of the Section 251 Unbundling Obligations ofIncumbent Local Exchange Carriers, Report and Order and Order on Remand and Further Notice ofProposed Rulemaking, CC Docket No. 01—338, 18 FCC Red 16978, 17097 n.602 (2003) (examples of the Commission or a Bureau accepting joint ex parte statements). * "LightSquared is further required to submit a final report no later than June 15, 2011, that includes the working group‘s analyses of the potential for overload interference to GPS devices from LightSquared‘s terrestrial network of base stations, technical and operational steps to avoid such interference, and specific recommendations going forward to mitigate potential interference to GPS devices." LightSquared Order at para. 43. ° LightSquared Order at para. 48.

Federal Communications Commission DA 11—367 working group — will be placed in the public record. LightSquared should file its reports in the public record of the Commuission‘s proceeding and interested parties may comment on them. 2. Applicability of the FACA. We are advised by the Commission‘s Office of General Counsel that a working group conducted as described above would not trigger the requirements of the FACA. The FACA applies to advisory committees that are "established or utilized by one or more agencies in the interest of obtaining advice or recommendations."" An advisory committee is "established" when it has been formed by a government agency (which typically involves appointment of the membership), and it is "utilized" if it is "amenable to ... strict management by agency officials.""" Moreover, FACA does not apply to meetings between Federal officials and a collection of individuals, even if convened at the request of the agency, unless the attendees are requested to provide consensus advice "as a group" rather than to offer their individual views.© Here, the FCC will not select the membership of the working group, nor will the agency control, supervise, or otherwise manage it. While the LightSquared Order encouraged the GPS community and federal interests to participate in the working group, it did not require LightSquared to obtain the participation of any particular organization or individual." Further, as noted above, the FCC is not seeking the development of consensus positions or recommendations."" * 5 U.S.C. app. II § 3(2). ‘ Public Citizen v. Dept. ofJustice, 491 U.S. 440, 457—58 (1989); see also Byrd v. Envtl. Prot. Agency, 174 F. 3d 239, 246 (D.C. Cir. 1999) (finding that a committee providing recommendations to an EPA contractor was not "established" by the EPA and thus not a Federal Advisory Committee even though the EPA conceived of the need for the committee, submitted a list of suggested members to the contractor, and retained veto power over the membership). 8 See 41 C.F.R. Pt. 102—3, Subpt. A, App. A, Key Points and Principles III ("The Act applies only where a group is established or utilized to provide advice or recommendations "as a group.") ° See LightSquared Order at para. 41. * See note 4, supra.

Federal Communications Commission DA 11—367 The GPS Council states in its petition that the initial discussions with LightSquared regarding the working group have been constructive.‘‘ We are gratified that the GPS Council and LightSquared have embraced participation in the working group. Please let us know if other questions arise. Sincerely, c pe Mindel De La Torre Chief, International Bureau (3~ ,%W/ Julius P. Knapp Chief, Office of Engineering and Technology ge: David S. Keir Counsel for U.S. GPS Industry Council Lerman Senter PLLC 2000 K Street, NW, Suite 600 Washington, DC 20006 ‘ GPS Council Petition for Clarification at 5.


Document Created: 2019-04-20 12:17:08
Document Modified: 2019-04-20 12:17:08
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