Attachment order on recon

order on recon

ORDER ON RECONSIDERATION submitted by FCC,IB

order on recon

2005-03-30

This document pretains to SAT-PDR-20020321-00027 for Petition for Declaratory Ruling on a Satellite Space Stations filing.

IBFS_SATPDR2002032100027_425327

Federal Communications Commission pa 05736 Before the Federal Communications Commission Washington, D.C. 20584 In the Matter of Telesat Canada File NoSAT—PDR—20020321—00027 Petition for Declaratory Ruling to Serve the US Market Using Ka—Band Capacity on Anik F2 ORDER ON RECONSIDERATION Adopted: March 30, 2005 Released: March 30, 2005 By the Chief, Satllte Division,Intemational Bureau: L. INTRODUCTION 1. In this Order, we dismiss as untimely Microcom‘s Petition for Reconsideration of the Commission‘s Anit F2 OrderIn that Order, the Commission added a Canadian satelite, Anik F2, Iocated at 111.1° W.L., to the Commission‘s Permited Space Station List (‘Permitted List")" and also granted Telesat Canada (‘Telesat") authorityto use Anik R2‘s Ka—band" capscityto provide two—way broadband communications services in the United Sttes: * Telesat Canada, Pettionfor Declarator Ruling For Inclusion ofAnik F2 on the Permited Space Staron Lin, Order, DA 02—3490, 17 FCC Red, 25287 (St Div.2002) (Anik F2 Onder. We not hat in foototes 1 and 2 to that Order, the terms "spacetoBarth® and "Barthto—space" are erroncously reversed. See also FelesaConade, Pettion for Decluratory uin t beAdded tothe Pernited Lis, Granof Autoriy.SAT—PL—20041004—00194, Call Sign $2646, granted with conditionsJanary 19, 2005, FCC PubliNote, Policy Branch Information, Actions Taken, DA No,0%—241, Report No SAT—0026%,January 2, 2008 (removing ceriain conditions imposed by theAnit F2 Order and declaringthat AnilF2, which i Hcensed by Canada is authorzed o access the U.S. marketfom th111.1° WL orbiualIocation. **This isidentifesalstelitesand services wth which U.S—censed carthstations withroutinelyauthorized technical parametersand operatingin the conventional Cand Kurhands (CALSATYcrth station) are prmited to communicate wthout additional Commission action, rovided tat those communications falwihin thesame tectnical prametes and conditions etablishe in the earth siationsoriginalleenses. Amendmentof the Commission‘s Regulatory Poliies o Allow Non—UJS——iensed Space Stionsto Provide Domesti and JnterationalSatlite Servicein the Unted States, irt Order on Reconsiderarion1B Docket No. 96—111, 15 FCC Red 7207 (1999) (DISCO It Fire Reconsideration Ordert 7213, pra.13. The "comventinal C:band" refers t frequenciesin the 3700—4200 Mitz (spacetoEarth) and $925—6125 Mitz (Barthospace) band. The "comventional Kurhand" refrst frequencis in th 1 1:7—12.2 GHt (spaceto—Earth)and 14.0—14.5 GHte (Ranttospace)frequency bands. > The term "Ka—band" refers t frequencies ithe 17.7—20.2 Gitz (Earthtospace) and 27.5—30.0 Gite (spaceoEart) bands

Federal Communications Commission Da 05—736 Lo BACKGROUND 2. On December 18, 2002, the International Bureau released the Anik F2 Order adding Telesat‘s Anik F2 satellte to the Permitted List. Pursuant to the Anik 72 Order, U.S. arth stations with "routine" technical parametersare able to communicate with Anik F2, in the conventional C: and Ku— band frequencies.® The order also provided that Earth station operators secking t access Anik F2 to provide Ka—band services may do so only after obtaining an earth stationlicense that includes Anik F2 as an authorized point of communication or after modifying an existing license to add Anik F2 as a point of communication. 3. Two weeks after the deadlinefo fling Petitions for Reconsideration, Microcom, a distributor of direct broadeast satelite ("DBS") and broadband sateliteservices from StarBand Communications, Inc.("StarBand"), filed a Petition for Reconsideration of the Anik F2 Order.In its petition, Microcom alleges that grant of the application will provide a competitive injury to Starband." Accordingly, Microcom requests that certain geographic service requirements be placed on Anik F2‘s operation to prevent loss of consumer stellite broadband access in Alaska and Howail.® 4. Telesafiled a response to Microcom‘s Pettion, alleging that is procedurally defective, (hat Microcom lacks standing to file a peition for reconsideration, and that reconsideration of he Anik F2 Order would not be in the publi interest." Telesat also argues that Commission policy favors the provision of broadband service by multile comperitorsand that there is a particularly compelling need for such servicein rural areas such as Alaska and Hawail. According to Telesat, the alleged harm to StarBand is a "non—cognizable loss of a private nterest" that does not affect the publicinterest" Furthermore, Telesat assertsthat the Commission has lcensed, without the conditions requested by Microcom, other Ka—band satelltesthatwillprovide service o Alaska and Howati" 5.. Microcom filed a response tothe Telesat‘s Petition to Dismiss, reiterating that the public interest would be best served by imposing gcographic coverage requirements on Telesat. Microcom also notes that Telesat might only provide serviceto profitable portions of ts footprint. Microcom assertsthis * DISCO I Fist Reconsideration Order,13 FCC Red at 7213, pars. 13. * Microcom Petition at unnumbered 2. Specifeally, Microcom allees that Telesat andanothercompany (Wiblue} plan o use Anic F2‘s Ka—band capacitto provide highr access speedsfoess than the monthly cosofxisting SurBand servie to a small portion ofthecustomers in Alaska. Microcom also alleges thatthe fasterchesperservice will e made possible by the frequency rease of Ka—band spectrum. Accortingto Microcom, the market pressire hat could result from suchservie could pt SarBand outofbusines in both Alasta and Havaii. /d. * Microcom Pertion atunnumbered 2. Microcom assersthatthe Commisionshould plac addionalconditons on the use of he Anik F2 stelite such thatserviceto the Ucannor begin unless provisions are made tprevent lossofconsumersitelitebroadband access o Alaskaand Havail " Telesat Canada Pettionto Dismiss and Opposion o Microcom Pettion for Reconsideration(iled Februry 27. 2003)(Telesat Canada Peton to Disniso * Telesat Canada Pettionto Dismissat 3. Telestclaims that Microcom‘sargumentsarereminiscent of th"Carrol doctine,"wherin the Commisson considere thderimentleffect f a new broadcast sution on an exising sation See Carroll Broadeasting Co.v. FCC, 258 F2d 440 (DC. Cir 1996). Telest notestht thisdoctrine was properly abolshed beeause "the purposeo nt—rus law istoprotect ‘competiion, not compettors‘" Telesat Canada Pertion to Dismis ard. *

Federal Communications Commission ba05736 would pat StarBnd at a competitive disadvantage, cause ts demise,and result in the lossofservice to the 1000 StarBand subscribers." iL. DISCUSSION 6. By statute, Congresslimited the Commission‘s urisdietion to review petitions for reconsideration to those filed within a specific ime period." Section 1.106() ofthe Commission‘s rules implements this statutory mandate requiring a petition for reconsideration to be filed within thiry days from the date of public notice ofthe Commission‘s action." Thus, the deadline forfiling periions to the Anik F2 Order was January 17, 2003. Microcom filed ts Peition on February 3, 2003. «o Microcom acknowledges that "it may not have filed the petition in a procedurally correct manner: Microcom, however, does not allegeany "extraordinary circumstances"" that would excuse itfailure to timely file the petiion for reconsideration."* Instead, Microcom simply assers that "procedural correctness should not stand in the way of pointing out harm to the public nterest." A mere allegation of a public interestconcer does not satisfythe "extraordinary circumstance" standard required for the consideration of untimely petitions for reconsideration. Accordingly, we dismiss Microcom‘s petition for reconsideration as untimely."* ° Microcom response to Telesat Comment on Ption for Reconsideration, dated March 21, 2003 (Microcom Response)at unnumbered 1—3. " usc34000 ©® 47 CBR. § 1.106(D (*The pertionfor reconsideation and any supplementtheeto shailbe Aled within 30 days from the date of publc oticeof th inal Commisson action ."; San Franciseo IVDS, Inc. Memorandum Opinion and Order on Reconsideration, 18 RCC Red. 724, 733 at . 28 (2003) (YWie note thatthecoutshave noted a strong polic in favorof adminisatve finlity, and have heldthat proceedings hathave become finl will notbereopened unless herehas beenfraud on th agency‘s or courts processes ouless threslt is maniesty unconscionable. See3.HacelAtlas Co. w Harford Go, 22 US, 238, (1944); Greater Boston Televiion Corporation . FCC, 463 R2d 268 (D.C.Ci, 1970); KIRO, ne. . FCC, 438 Rad 181 (D.C.Cir1970); Rado Pare La Rese, Memorandam Opinion and Order, 40 FCC 28 1102, 1104 (1973)%) * Mierocom Response at unnumbered 1 !* See Resters Linited . FCC, 781 F2d 946, 951—52 (D.C.Cir. 1986) (narroly constuingthejudicialy creted fextraordinary cireumstances" exception o sttutory time imit frfling pettins frreconsideraion. ©* 14. We note that Micracon‘s ption for reconsideration is premised upon the asumption hatour Ka—band tolesrequire U.S. icenseesto provide service to Alaskaand Hawal, while wdid not require Telesat o do so over AniRZ. This assurmption is incorectOurrules do notrequire Ka—band Heensees to serve Alaska and Hawail Moreaver,consistent with Commision policy i all otherstelit ervies, non—5. a—band aperatorare subjectto thesame rles as U.S. icnsees,ensuringa levelcompattve playing field. See Amendnent oftie Commission‘s Regulatory Poliies To Allow Non—U.—Licensed Space Sutions To Provide Domestiand ItermationalStelite Service in the United States, Reportand Order, 1B Docket No. 96—111, 12 PCC Red 24094, 24168, parn. 173 (1997). !* in light of our action, we need no address Telest‘ argument that Microcom lack standing to fil peition for reconsideration in this mater arsuant o Section1.106(b1) o the Commission‘s rles.

Federal Communications Commission DA 05736 11L ORDERING CLAUSE 7. Accordingly, TTIS ORDERED that, pursuant to Section 405 of the Communications Act of 1934, as amended,47 U.S.C. § 405, and Section 1.106 of the Commission‘s rules, 47 CFR. § 1.106, the January 23, 2003 Microcom Petition for Reconsideration of the Anik F2 Order 1S DISMISSED as untimely. FEDERAL COMMUNICATIONS COMMISsION fu, Thomas 58Tyg Chiet, Satelite Division International Bureau


Document Created: 2005-03-30 13:46:38
Document Modified: 2005-03-30 13:46:38
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