Attachment reply

reply

REPLY submitted by Boeing

reply

2005-03-29

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

IBFS_SATPDR2005011000024_425776

OPY Before the reperat communications commussion RECEIVED Washington, DC Zflfigcfl.ved mar 2 9 2005 In the Matter of ; MAR 3 0 2005 e CompenticatosCont neses 1CO Satellte Services, G.P. ) ‘ . Polcy Branch ) NomationalBureay Application for Modification of Authority ) File No. SAT—MOD—20050110—00004 For Use ofthe 2 GHz Bands to Provide ) Mobile Satellte System ) ) Petition for Declaratory Ruling, or ) File No. SAT—PDR—20050110—00024 Alternatively, for a Waiver ) REPLY OF THE BOEING COMPANY The Bocing Company (‘Bocing"), by its attomeys, pursuant to Section 25.154(d) of the Commission‘s rules, 47 C.FR. § 25.154(d), hercby replies to the response filed by ICO Satellte Services, G.P. (‘ICO®) in the above—captioned proceeding on March 22, 2005." In its response, ICO does not refuite that it made factual misrepresentations to the Commission in its January 10, 2005 modification application® and petition for declaratory ruling? For example, 1CO failed to disclose to the Commission that it terminated its satellte manufacturing contract with Bocing Satelite Systems International, Inc. (‘BSS") nearly a year before filing its modification application and petition._ 1CO also misled the Commission by ! See Response ofICO Satelite Services, G.P, FCC File Nos. SAT—MOD—20050110—00004 and SAT— PDR—20050110—00024 (March 22, 2005) ("ICO Response") * See ICO Satellite Services, G.P., Applicationfor Modification ofAuthority For Use ofthe 2 GHz Rands to Provide Mobile Satelite System, FCC File No. SAT—MOD—20050110—00004 (Jan. 10, 2005) ("ICO Application®) > See ICO Satellte Services, G.P, Petition for Declaratory Ruling, or Alternativelsfor a Waiver, FCC File No. SAT—PDR—20050110—00024 (Jan. 10, 2005) ("ICO Pertion")

repeatedly claiming that the contract was "suspended" rather than terminated. for 1C0‘s convenience." Rather than focus on the facts, ICO claims in its response that its misleading statements and omissions to the Commission involve "unnecessary details" that"are not material orrelevant to the Commission‘s ultimate decision to grant or to deny ICO‘s modification and waiver requests: 1CO‘s response also dwells on issues that are relevant primarily to the civil litigation that exists between ICO and Bocing in Califomia Superior Court. Specifically, 1CO claims that "unresolved disputes" existed between ICO and BSS, which ICO "repeatedly attempted to resolve"with BSS prior to ICO‘s termination ofthe contract for ts convenience.* As BSS acknowledged in its comments, numerous disputes did. arise between I1CO and BSS during the eight—year life of the manufacturing contract." The last of those disputes, however, was resolved on July 25, 2003, when the parties signed Amendment 25 to the contract. Subsequent to that date, and prior to January 29, 2004, the day on which ICO issued a notice to BSS terminating the manufacturing contract for 1CO‘s convenience, there were no * ICO Application at 3 (claiming that "additional work under the manufacturing contract has been suspended"); see also id. at 1 (stating that "ICO seeks this modification because ofevents givingrise to a dispute with its satelite manufacturer have foreed the suspension of work‘); 7CO Perition at 1 n3 (¢laiming "further work on the 1CO NGSO system has been suspended"); id.at 3 (stating that "events giving rise to an untesolved dispute between ICO and ts NGSO system manufacturer have resulte in a temporary suspension offrther work"); id.at 8 (‘ICO could not reasonsbly avoid suspension of further worl). °ICO Response at 4 *4 i2 " See Comments of The Boeing Company, FCC File Nos. SAT—MOD—20050110—00004 and SAT—PDR— 200501 10—00024 (March 7, 2005).. As Bocing noted in ts comments, 1CO firstentered into a satelte manufacturing contract with Hughes Space and Communications International, Inc.the parent company of which was subsequently purchased by Bocing and renamed BSS. See id at 4 n9. 2

disputes between the parties. If any disputes had existed, ICO was required by the manufacturing contract to give written notice of the dispute to BSS so that the parties could attempt to resolve the matter. BSS had not received any such notice and was proceeding with the construction of 1CO‘s satellites.. 1CO‘s termination of the manufacturing contract was therefore unilateral and entirely within its control. 1CO‘s response further dwells on whether ICO‘s termination of the contract for its convenience extinguished 1CO‘s right to recover for any disputes that predated the signing of Amendment 25, despitethe clear contract language.® This contested issue is being addressed by the California Superior Court and is not relevant to this proceeding. As Boing has previously stated, Bocing filed comments in this proceeding for the sole purpose of correcting misstatements by ICO regarding ICO‘s prior contractual relationship with BSS. Bocing remains of the view that the Commission should take into account 1CO‘s misstatements and omissions when considering the merits oICO‘s application and petition. Respectfullysubmitted, THE BOEING COMPANY By: Marylou Cahir, Exq Toseph P. Markoski Counsel Bruce A. Olcott The Bocing Company Squire, Sanders & Dempscy L LP. 2260 East Imperial Highway 1201 Pennsylvania Avenue, NW. El Segundo, CA 90245 P.0. Box 407 Washington, D.C. 20044—0407 (202) 626—5600 Its Attomeys March 29, 2005 * See ICO Response at23

CERTIFICATE OF SERVICE Thereby certify that a copy of the foregoing Reply of the Bocing Company with respect to FCC File Numbers SAT—MOD—20050110—00004 and SAT—PDR—200501 10—00024, was mailed this 29th day ofMarch, 2005 by U.S. mail to the following: Chery! A. Trit Phuong N. Pham Morrison and Foerster LLP 2000 Pennsyvania Avenue, NW Sute 5500 Washington, DC 20006 Suzsnne Hutchings Malloy Senior Regulatory Counsel 1CO Stellite Services, G.P. 2000 Pennsylvania Avenue, NW Sute 5500 Washington, DC 20006 Rarfos


Document Created: 2005-03-30 11:38:18
Document Modified: 2005-03-30 11:38:18
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