Attachment LightSquared - AOPA

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

IBFS_SATMOD2010111800239_872849

ORIGINAL BEFORE THE Federal Communications Commission WASHINCTON, DC 20554 in the Matter of J LightSquared Subsidiary LLC ; w y LL , ) File No. SAT—MOD—20101118—00239 sAoymamtmpmes— 00| FILED/AccEPTED To: The Commission FEB 25 n Federal Communications Commission APPLICATION FOR REVIEW bffice of the Secratcly The Aircraft Owners and Pilots Association ("AOPA"), in accordance with Section 1.115 of the Commussion‘s rules, 47 CFR. $ 1.115, requests that the Federal Communtcations Commission reverse the Order and Authorization granted bythe International Bureau (the "Bureau") to LightSquared subsidiary LLC {("LightSquared") in the above—captioned proceeding.‘ AOPA represents more than 400,000 aircraft owners and pilots in promoting the economy, safety, utfiity, and popularity of flight in general aviation aircraft, and AOPA often participates in proceedings before courts and administrative agencies to assure due consideration of the interests of its members." AOPA‘s members are directiy and acutely affected by the LightSquared Order because the waiver it grants creates a significant threat of frreparable disruption to the GPS system and to the future air travel system that depends on it." 4 LightSquared Subsidiary, LLC, Order and Authorization, SAT—MOD—20101118—00239, Call Sign: $2358, DA11—133 (rel. Jan. 26, 2011) ({the "LightSquared Order‘). * See hitp:!fwoww.aopa.org! for additional information about AGPA and its interests, 3 During the briefperdenicy ofthe LightSquared waiver request, AOPA fully explained to the Commission the dangers to general aviation posed byjeopardizing the integrity of the GPS system and urged the Commission not to permit terrestrial—only operations in the MSS band. See Letter from Melissa Rudinger, Senior Vice President, Government Affairs, AOPA to Mr. Nicholas Oros, Office of Engineering and Technology, WT docket No. 10—142, dated Jan. 14,

Given the substantial risks to aviation and the publicsafety posed by LightSquared‘s proposed terrestrial—only operations in theMSS spectrum and its likely severe and costlyimpact on GPS, AOPAcontends that theBuresu erred in granting LightSquareda conditional waiver, The public interest clearlyrequired thatthe Bureau consider the potential inferference isgues and any costs associated withtheir resolution before granting LightSquared‘s application. Instead, in amunprecedented deciston to waive the Commission‘s rules and regulations, the Bureau granted LightSquared‘s application with only avagueconditionthat LightSquaredparticipate in a process that addresses the interference concerns regerdingGPS to the Commission‘s satisfaction. The Ruteau‘s order does aot require that the interferenceproblem be fixed beforeLightSqnared deploys service,nor does the Bureau‘s order consider what sosts to the aviation user, either financially orfoperationally, might result. AOPA‘s members andthe airtravelers who depend on GPS simply cannot afford the uncertainty of thecurrent and future potential dangers tothe GPS system thathas become and willcontinue to beincreasinglycrucial toali aspectsofsafe and: efficient air travel. Forthese and other reasons—set forth more fully below, the Commission ‘should reverse the LightSquared Order andrefrain fromgranting L“ightgqaaaj‘e&’s request untfil all potential harms to the GPS systemandthe aviation users havebeen amelforated. 4. THE BUREAU EXCEEDED ITS AUTHORITY BY CRANTING LICHTSQUARED A WAIVER THAT PLAINLY CONFLICTS WITH COMMIsSSION PRECEDENT, The LightSquared Order should be reversed because it exceeds the Burean‘s authority and cannot besquared with Compatission precedent. First, under 47 CFR. §:0.261(b)(1), theBureau is profmbitedfrom acting onapplications that "present newornovelarguments not previously considered by the Commission." AOPA 2011. Inmaddition, otherpilots and organizationsfiled letters in this proceeding:.opposing grant of LightSquared‘s requested waiver.

understands that the Commission bas never waived the integrated services requirement of 47 CFR. §25.14$9(b)(4) or even stated that the requirement could be waived: therefore, the Burean appears to have acted on the basis ofnew or novel—issues theBurcan may not decide. Sécond, the LightSquared Ordershould bereversed becaaseitis in irreconcilable conflict with Commission precedent regarding ATC operationsin the MSS band." The LightSquared Orderitself pointed out that existing Commission policy and Section 25.149(b)(4) <of the Commission‘s rules prohibltthe terrestrial—onlyservices describedby the waiver" Commission precedent reflectsthe determination that such services cannot safely coexist with: MSS satellite operations." Despite thisclear Commmission policy, the Bureau acted tothe contrary and granted to LightSquared a conditional waiver. However, the Bureau is not authorizedto overrule the Commnssion‘s policy prohibiting terrestrial—only service offerings by MSS providers tike LightSquared. Thirdthe LightSquaredOrder seemingly ignores Commission precedentcautioning against makingimportant rule or policy changes through the waiverprocess. ‘Asthe Commission has noted inthe past, the waiver process is not an appropriate forum forrevisingits tules or changing ‘paiicy.? Instead, the Commisgion has held that when a requested waiver would. cause work a significant changein the rule,it is incumbent on the Commussion to conduct notice and commentrulemaking procedures consistent with the Adrministrative Procedure—Act 4 See 47CER. §1.115(b)(@2)@). $ LightSquared Order; §24; see also 47 C.F.R. §25.149(b)(4). 6 See Flexibility forDelivery of Communications by Mobilé Satellite Service Providersin the 2GHz Band, the L—Band, and the 1 6/2.4 GHz Rands, Memorandum Opisiton andOrder and Second Order on Reconsideration, 20 FCC Red 4616, 4628, 1 33 (2005) ("We clarify that ‘integrated service‘ as used in this proceeding and required by 47 C.E.R. § 25.149(b)(4) forbids MSS/ATC operators from offering ATC—only subsefiptions."}. ? See XMSatelliteRadio Holdings Iic. and Sirius Satellite Radio Inc., 23. FCC Red 12348, 12422 ((162) (2008). |

(CAPA"}" By revisingthe ATC integrated servicesrule throughthe waiver process, the Bureau ignored the APA and these Commission admonitions. L THEBUREAU MISAPPLIED THEAPPLICARBLE WAIVERSTANDARDS. The LightSquared Order also findamentally misapplies longstanding requirements for granting a waiver. Under familiar D.C. Circuit precedent, the Commission may grant a waiver. of its rules in a particular case only.if (1) the relief requested would not undermine thepolicy objective of the rule in question and (2) wouldotherwiseserve the public inferest." The LightSquared Order fails to satisfyeither prong of this test. The waiver granted by the Bureau severely jeopar{iizes the public Interest. The LightSquared Orderwas primarily concerned with LightSquared‘s history as a good actor in the— MSS band and the p(}{mt‘ia] for future wireless broadband services intheband. Neitherofthese asserted public interest benefits, however, outweighs thesignifficant threat to the GPS sys“i'em that accompanies LightSquared‘s proposed operations. in particular, the threats to the general aviationindustry. are unconscionable.. As AOPA has sxplainedto the Commission, due to the reliance on GPS by the general aviation community both now and in the future, any interférence source severelythreatens thesafety ofall #ircraft operatingin theairspaceenvironment as well as the viability ofthose airoraftcontinuitig to be able to operate intheenvironment, Many system users rely on GPS for navigation, electronic mapping, terrainavoidance, and air traffic proximity awareness and havealready invested in equipment that may notbe economically replacedor modifiedby any resolutionthat LightSquared may idenatify. Moreover, for more 25%, 20 years,AOPA has worked with the Federal Aviation Administration‘s goalof transitioningall \ground—based airnavigation to a GPS system. Today, a majority ofour members relyonGPS in Seeid.; see also [gite]. 9 WAITRadio, MS F2E at 1 157.

one formor:anctherforsafe operation intheaviationenvironment. Theaviation community‘s reltanceon GPS is predicatedonits dependability, and the waiver grantedto LightSc;fim‘éé may serve to degrade that essential quality of the GPS system.. Under these circumstances,grant of LightSquared‘s application would only serve thepublic interest if LightSquared‘s terrestrial operations &reon an interference—free basis with GPS at nooperationaland financial cost tothe aircraft operator. At‘a mintmum, ifthe LightSquaredOrder is not reversed,the reportrequired in accordance with thatOrder mustreflect allviews, and the FCC must ensure throughcredible studies and analysis that the GPS signal is not negatively impacted and that there are no operational or commensurate finaricial impacts on the aviation system users. III. THE WAIVER CONDITIONSUNLAWFULLY DELECATE TO ; LICHTSQUAREDTHE BUREAU‘S DUTIES TO DETERMINE THE SCOPE OF THEKINTERFERENXCE ‘PR(}ELE’M ANBD I}E’WS!{& S@K@TK‘QNS. While the LightSquared Order includes conditionsthat delayLightSquared‘s roll—outof commercial services, thevagueness of those conditions only multiply the legal infirmities ofthe decision. By appointing LightSquared to essentiallylead the examiniation ofthe seope of the GPS interference problem and any solutions, the Bureau appears to haveunlawfilly subdelegated to aprivate, interested partyits dutiesto explore, analyze; and make those: determinations. Such an outcome violates the public‘s trustin the Commussion to fairly, .faily, «and objectively discharge its statutory duties. While the LightSquared Order contemplates inter—industry cooperation in the process, the vague and ill—defined contours of that process violate thedue process rights of interested parties. Dueprocess requires that agency proceedings and determinations mustbe governed by

articulated standards that can be evaluated by a reviewingcoutrt.‘" TheLightSquared Order, however, lacks any procedural guidelines or discernible standards forthe industry workinggroup: to apply. LightSquared, a very interested party, is appointed the leader of the required inter— dindustry process. Although the Bureauretains theright to detenninewhetherthe results ofthe working group are completed, the LightSquared Order does not articulate whatcriteria the Bureau will apply to make that determination. In other words, the Bureau replaced a walver proceeding governedbythe APAand the Commission‘s rules with anad hoo process—with no discernible rules or standards. At the same time, the GPS industry and all who depend on it will be subject to the report produced bythis privateinterested party, potentially without recourse. IVv. CONCLUSION For the foregoing reasons, AOPA requests that the Commission reversethe LightSquared ‘Order and direct the Bureau to withhold action.on LightSquareds=application until LightSquared demonstrates that it will not interfere with GPS and without a costothe aviationuser. Respectfully submitted, MolissaRudinger, Senior Vice President Government Affairs: Aircraft Ownersand Pilots Association 421 Aviation Way Frederick, MD 21701 (301}—695—2000 & Chited States v. Attins, 323 F28 733, 74142 (Sth Cir. 1963)(failute of voterregistration approvalboard to adopt "uniform objective standards" that enabledthe decision maker to éxercise"arbitrary power" violated due process).

CERTIEFICATE OFSERVICK 0 L Heidi Willams, Senior Direcior ofAirspace and Modernizationfor AOPA, do hereby certify thata true and correct.copy ofthe foregoing "Application for Review" was servedby U.S. mail, first class, postage—prepaidonthe 25day of February, 2011, on the following: Brace D. Incobs PiHlisbury Winthrop Shaw Pittman 2300 N StreetNW| _ Washington, D.C. 20037 CounselforLightSquared SubsidiaryLLC


Document Created: 2019-04-19 07:16:27
Document Modified: 2019-04-19 07:16:27
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