Attachment reply

reply

REPLY TO COMMENTS submitted by ICO

reply

2005-03-22

This document pretains to SAT-PDR-20050110-00024 for Petition for Declaratory Ruling on a Satellite Space Stations filing.

IBFS_SATPDR2005011000024_424622

coPY Before the FEDERAL COMMUNICATIONS ComisstON ashington, D.C. Washi .C. 20554 RECEIVED E Received mar 3 2 205 fithe Matter of ; MAR 2 4 2005 reowaicomminteatoncomniasin 1CO Satelite Services G.P. ) Polley Branch Ofcnot Cl ) I onalBureay Application for Modification ofAuthority ) File No. SAT—MOD—20050110—00004 For Use of the 2 GHz Bands to Provide ) Mobile Satellite Service ) ) Petition for Declaratory Ruling, or ) FileNo. SAT—PDR—20050110—00024 Altematively, for a Waiver ) RESPONSE OF 1CO SATELLITE SERVICES G.P. 1CO Satellte Services G.P. (‘ICO") submits this response to comments of The Boeing Company ("Boeing"),fled on March 7, 2005, regarding the above—captioned application (*Application") and petition (*Petition"). 1CO notes that its Application and Petition are unopposed. Bosing is the only party that filed comments on the ICO filings, and it did not request that the Commission deny the filings, impose conditions on grant ofthe filings, or otherwise delay consideration ofthe filings. Rather, it merely requested that the Commission "take into account" certain alleged "misstatements offact" that are at issue in an ongoing litigation matter between ICO and Bocing‘s subsidiary, Bocing Satellite Systems International, Inc. (‘BSSI").‘ The apparent purpose of Boeing‘s comments is to preserve itlitigation posture in court, rather than to raise any substantive objections against the Application or ‘ See Comments of Bocing at 6 (Mar 7, 2005) de—a10526

Petition. Accordingly, Bocing‘s comments present no obstacle to expeditious Commission action on the Application and Petition. In any event, Boeing‘s claim that ts filing corrects "misstatements" by 1CO in its modification application is unfounded. Boeing‘s principal assertion that ICO mischaracterized the sequence of events leading up to its execution of a new construction contract erroncously implies that no disputes existed between the parties prior to the Junuary 2004 termination ofthe ICO/BSS1 contract and that ICO made no attempt to resolve these disputes prior to termination. Bocing is wrong. In fact, Bocing attached a copy of a letter from ICO to BSSL, which expressly contradiets Bocing‘s characterization and describes events consistent with the statements made in the Application and Petition. Specifically, ICO asserted the following in the letter: 1CO has been compelled totake this action to mitigate ts losses arising from launch and satellte filures and other events that have occurred during the course ofit relationship with Bocing. This termination is effected without prejudice to, and with a full eservation of, all rights of 1CO arising from such events and otherwise." 1CO also demonstrated in court flings that it repeatedly attempted to resolve its disputes with BSSI. Thus, ICO consistently maintained that,despite it efforts, construction— related difficulties and unresolved disputes with BSSI compelled termination ofthe 1CO/BSSI construction contract. 1CO also made clear that termination ofthe contract did not preclude its right to pursue all available remedies under the contract, whether through arbitration or in court Bocing‘s assertions are predicated on a misstatement ofthe nature of ICO‘s termination action and a misperception ofthe applicable California law. 1CO terminated de—s10s26 2

BSST‘s remaining performance under the contract while expressly reserving ICO‘s rights, an action which preserved all of ICO‘s ights to recover for prior breaches under California‘s Commercia! Code section 2106() and settled Califomia case law "Termination" occurs when cither party pursuant to a power created by agreement or law puts an end to the contract otherwise than for its breach. On "termination"all obligations which are still executory on both sides are discharged but any right based on prior breach or performance survives" Furthermore, Bocing‘s claim that ICO presented facts to the Commission that were inconsistent with those presented in court quotes ICO‘s court filings out of context. The only example that Bocing offered was that ICO represented in a court filing thatit could not change vendors,"" while reporting to the Commission that it has executed a construction contract with a geostationary satellte manufacturer." 1CO‘s court filing in fact stated. that "BSSI knew that ICO could not change vendors or even move the partially constructed satelltes without substantially destraying their value and ICO‘s billion—plus dollarinvestment to that date."" 1CO‘s decision to switch to a geostationary satellite manufacturer did not contradict ts statements to the court that BSSI was a monopoly supplier with respect tothe existing non—geostationary satellite system and that 1CO could not change vendors without a substantial loss in the value of ts investment in that non—geostationary satellte system. * See Leter from Brent Abrahanisen, Directr,1CO Global Communications (Opertions) Limtedto Dennis R. Beeson, Contracts Manager, Bocing Satellte Systems Iterationl,In. a 1 (lan. 29, 2004) (atiached to Comments of Bocing) * Cal.U. Com, Code$2106G); see also .L. MetcalfGeneral Contractor,Inc v. Barle Eme, nc 212 Cal. App. 2 689, 694 (4" Dis. 1963); Gran». The derodrailcs Co, 91 Cal. App.24 68, 75 2d Dist190). " Sze Comments of Bocing at . °100 Global Communieations (Opertions)Limited‘s Cross—Complain, Case No. BC 320115,at 30 (CaL. Super. C.)(Rled Sep.16,2004)(emphasis added) de—arosa6 :

Because many ofthe facts leading up to and following the termination ofthe 1CO/BSST contract ar in dispute and will be resolved in court proceedings, ICO properly avoided including in ts Application and Petition unnecessary details that would improperly require the Commission to become involved in private contractual dispute. Moreover, the details of the contract dispute with Bocing are not material or relevant to the Commission‘s ultimate decision to grant orto deny ICO‘s modification and waiver requests. Bocing‘s key allegation seems to be that there were no unforesceable events beyond ICO‘s control leading up to its execution of a new satellite construction contract. 1C0 strongly disputes this characterization, but even if it were correct, it has no bearing on the merits of the Application or the Petition. Under the Commission‘s well—established policy for granting satellte modification applications, modification proposals generally are found to serve the public interest "where the proposed modification presents no significant interference problems and is otherwise consistent with Commission policies."" Additionally, in granting the waivers requested in the Application and the Petiion, the Commission must consider (1) whether special circumstances warrant a deviation from the general rule, and (2) whether the deviation better serves the public interest than strict adherence tothe rule." None of these standards requires a demonstration of unforesceable circumstances beyond ICO‘s control. Consistent with the standard for granting modification applications, ICO demonstrated that ts proposed modification will not present any significant interference problems and is otherwise consistent with Commission policies. Furthermore, consistent * The Boeing Conpary, 18 FCC Red 12317,47 (B & OET 2003) (‘Bocing Modication Order"); sealso GTE SpacenetCorp., 5 FCC Red 4112 (CCB 1990}; American SatelteCo, $ ECC Red 1186 (CCB 1990); Teledesic LLC, 14 FCC Red 2261 B 1999). dearos26 a

with the standard for granting waiver requests, ICO demonstrated substantial progress in implementing is satelltsystem, far exceeding that of any other 2 GHz MSS authorization holder, and its continued commitment to the timely delivery of MSS services to the public. Bocing did not dispute these facts, which are central t the Commission‘s deliberations. In the absence of any substantive objections, ICO reiteratesis request for expedited action on the Application and Petition: Respectfully submitted. 1CO SATELLITE SERVICES G.P. Chery! A. Trit Sumnnegmchmgs Malloy 4 Phuong N. Pham: Senior Regulatory Counsel Morrison & Foerster LLP 2000 Pennsylvania Avenue, NW 2000 Pennsylvania Avenue, NW Suite 4400 Washington, D.C. 20006 Washington, D.C. 20006 (202) 887—1500 (202) 330—4005 Its Attomeys Date: March 22, 2005 " See Northeast CelluarTelephne Co. . FCC, $97 F2d 1164, 1166 (D.C. Cr. 1990) de—ti0s26

CERTIFICATE OF SERVICE hereby certify that on March 22, 2005, a copyofthe foregoing Response was hand—delivered and sent via electronic mail as indicated (*) to the following: Joseph P. Markosi Bruce A Olcott Squire, Sanders & Dempsey LLP 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Counsefor The Boeing Company Cassandra Thomas® Deputy Chief, Satellite Division International Bureau Federal Communications Commission 445 12" Street, SW Washington, DC 20554 Email: CassandraThomas@fec.gov Williom Bell® International Bureau Federal Communications Commission Federal Communications Commission 445 12® Street, SW Washington, DC 20554 Email: William.Bell@fee.gov Altoun Fe/z:s Theresa Rollins de—sr0s26 s


Document Created: 2005-03-24 15:49:50
Document Modified: 2005-03-24 15:49:50
© 2024 FCC.report
This site is not affiliated with or endorsed by the FCC