Attachment Legal Narrative SAT-PDR-20170411-00063

Attachment Legal Narrative

This document pretains to SAT-PDR-20170411-00063 for Petition for Declaratory Ruling on a Satellite Space Stations filing.

IBFS_SATPDR2017041100063_1204995

Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554

In the Matter of )
)
Spectrum Five LLC ) File No.
)
Petition for Declaratory Ruling to Serve the )
U.S. Market from the 95.15° W.L. Orbital )
Location in the 17/24 Broadcasting Satellite )
Service Band )

PETITION FOR DECLARATORY RULING AND WAIVER

I. INTRODUCTION AND SUMMARY

Pursuant to Sections 1.2 and 25.137 of the Commission’s rules, 1 Spectrum Five LLC

(“Spectrum Five”) hereby requests a declaratory ruling that its provision of service to the U.S.

market through a Netherlands-authorized satellite from the 95.15° W.L. orbital location using the

17/24 GHz Broadcast-Satellite Service (“BSS”) band is in the public interest. This petition for

declaratory ruling (“Petition”) complies with the Commission’s procedural and substantive

requirements for market entry by a foreign-authorized satellite. Grant of this Petition is in the

public interest because Spectrum Five’s provision of BSS from the 95.15° W.L. orbital location will

benefit consumers by providing the next generation of DBS services, including video and audio

broadcasting, local-into-local TV, Broadband, and fixed and mobile networks.

Additionally, service by Spectrum Five, a U.S.-based company, will increase competition in

overall DBS services, which will lower costs and stimulate service innovation to the benefit of

consumers.

1
47 C.F.R. §§ 1.2, 25.137.

II. DESCRIPTION OF SPECTRUM FIVE’S PROPOSED SYSTEM

A full description of the technical system proposed by Spectrum Five is included in the

Technical Narrative.

III. LEGAL, FINANCIAL, AND TECHNICAL QUALIFICATIONS

A. Legal Qualifications

Spectrum Five is legally qualified to provide the service requested in this application.

The information provided in the attached Form 312 and ownership exhibit responding to

Question 40 of Form 312 demonstrates Spectrum Five’s compliance with the Commission’s

basic legal qualifications. In addition, Spectrum Five has previously been authorized to provide

DBS service to U.S. customers using Netherlands-authorized satellites. 7

B. Financial Qualifications

Spectrum Five will meet the milestone schedule set forth in Section 25.164 of the

Commission’s rules (i.e., contract in one year, complete critical design review in two years,

begin construction in three years, and launch and operate in five years) 8 and the bond posting

requirement set forth in Section 25.165 of the Commission’s rules. 9

C. Technical Qualifications

In the attached Form 312, Schedule S, and Technical Narrative, Spectrum Five

demonstrates that it is technically qualified to hold the authorization requested herein.

Specifically, Spectrum Five provides the information currently required by Section 25.114 of

the Commission’s rules, including demonstration of compliance with the orbital debris

7
See, e.g., Spectrum Five LLC, Petition for Declaratory Ruling Regarding 17/24 GHz
Broadcasting-Satellite Service to the U.S. Market from the 119.25° W.L. Orbital Location,
Declaratory Ruling, 27 FCC Rcd 13129 (2012) (“119.25° W.L. Authorization”).
8
47 C.F.R. § 25.164.
9
47 C.F.R. § 25.165.

mitigation rules. In addition, Spectrum Five’s Technical Narrative demonstrates compliance

with the FCC’s technical rules specific to the 17/24 GHz frequency band.

IV. TYPE OF OPERATIONS

Spectrum Five intends to use its proposed satellite on a non-broadcast, non-common

carrier basis.

V. GEOGRAPHIC SERVICE REQUIREMENTS

Spectrum Five will provide service to Alaska and Hawaii in compliance with Section

25.225 of the Commission’s rules, 47 C.F.R. § 25.225.

VI. NETHERLANDS AUTHORIZATION

The Kingdom of the Netherlands has granted Spectrum Five the right to use the 95.15°

W.L. orbital location and associated frequencies in the 17/24 GHz BSS band through an

agreement. 10 The foreign license requirement of Section 25.137 of the Commission’s Rules is

therefore satisfied. 11

Under the Agreement, the Kingdom of the Netherlands will act as the sponsoring

administration for notification, coordination, examination, and registration of Spectrum Five’s

networks to the ITU. The Netherlands Radio Communications Agency will be responsible for

making the ITU filings necessary to advance publish, coordinate and notify the frequencies to be

used by the Spectrum Five network. The Agreement authorizes Spectrum Five to make

10
Agreement between the State of the Netherlands, the Government of the Netherlands
Antilles, Spectrum Five LLC and Spectrum Five BV (effective August 7, 2007) (“Agreement”).
11
See Amendment of the Commission’s Regulatory Policies to Allow Non-U.S Licensed
Space Stations to Provide Domestic and International Satellite Service in the United States and
Amendment of Section 25.131 of the Commission’s Rules and Regulations to Eliminate the
Licensing Requirement for Certain International Receive-Only Earth Stations, Report and
Order, 12 FCC Rcd 24094, 24177-78 (¶ 196) (1997) (“DISCO II Order”).

exclusive use of the 95.15° W.L. orbital location with respect to the frequencies and services

specified in the ITU filings. The duration of the authorization is for the lifetime of Spectrum

Five’s first operational satellite, and the lifetime of any additional or replacement satellites

placed at this location and launched within five years from the launch of the first operational

satellite. The Agreement also provides that Spectrum Five may apply for renewal of the

exclusive use rights, and that such renewal will not be unreasonably withheld. The Kingdom of

the Netherlands has agreed to provide all necessary licenses for Spectrum Five’s TT&C

operations.

VII. GRANT OF THIS PETITION IS IN THE PUBLIC INTEREST

In the DISCO II Order, the Commission stated that providing opportunities for foreign-

licensed satellites to deliver services in the U.S. could benefit U.S. consumers. 12 Grant of

Spectrum Five’s Petition will serve the public interest in a variety of ways.

A. Grant of the Petition Will Strengthen Competition in the Provision of DTH
Services to the Public.

Spectrum Five plans to use the 95.15° W.L. orbital location for the provision of direct-

to-home (“DTH”) services. Grant of this application will thus serve the public interest by

ensuring greater competition in the delivery of DTH services to the public. In 2006, the

Commission authorized Spectrum Five to provide direct broadcast satellite services to the U.S.

from the 114.5° W.L. orbital location. 13 The Commission found that grant of that petition

would “offer an opportunity for increased competition in the U.S. DBS market” and that

“[i]ncreased competition could provide consumers more satellite programming choices, more

12
DISCO II Order, 12 FCC Rcd at 24097 (¶ 4).
13
Spectrum Five LLC, Petition for Declaratory Ruling to Serve the U.S. Market Using
Broadcast Satellite Spectrum from the 114.5º W.L. Orbital Location, Order and Authorization,
21 FCC Rcd 14023 (2006) (“Spectrum Five 2006 Authorization”).

alternatives in subscription video providers and services at reduced prices for those services, and

further technological innovation.” 14 The Commission also has previously granted Spectrum

Five authorization to operate at the 110.9° W.L. orbital location. 15

In addition, the Commission’s Order adopting service rules for 17/24 GHz BSS satellites

explicitly explained that the purpose of these rules was “to facilitate the introduction of new and

innovative services to consumers in the United States and promote increased competition among

satellite and terrestrial services.” 16 Similarly, when the Commission injected more flexibility

into the orbital spacing regime in the BSS Order on Reconsideration, the Commission intended

an allocation system that would produce the infrastructure needed to provide consumers with

“the most competitive service options.”17 The Commission’s intended benefits of increased

competition are clear: “reduced prices” for the services at issue and “further technological

innovation.” 18 Granting Spectrum Five’s Petition will enable the Commission to achieve these

objectives.

14
Id. at ¶ 1.
15
See Stamp Grant, Spectrum Five LLC Petition for Declaratory Ruling to Provide Service
from 110.9 W.L., IBFS File No. SAT-LOI-20150416-00025 (Oct. 29, 2015).
16
The Establishment of Policies and Service Rules for the Broadcasting-Satellite Service at
the 17.3-17.7 GHz Frequency Band and at the 17.7-17.8 GHz Frequency Band Internationally,
and at the 24.75-25.25 GHz Frequency Band for Fixed Satellite Services Providing Feeder
Links to the Broadcasting-Satellite Service and for the Satellite Services Operating Bi-
directionally in the 17.3-17.8 GHz Frequency Band, Report and Order and Further Notice of
Proposed Rulemaking, 22 FCC Rcd 8842, 8844 (¶ 1) (2007) (“Report and Order”).
17
See The Establishment of Policies and Service Rules for the Broadcasting-Satellite
Service at the 17.3-17.7 GHz Frequency Band and at the 17.7-17.8 GHz Frequency Band
Internationally, and at the 24.75-25.25 GHz Frequency Band for Fixed Satellite Services
Providing Feeder Links to the Broadcasting-Satellite Service and for the Satellite Services
Operating Bi-directionally in the 17.3-17.8 GHz Frequency Band, Order on Reconsideration, 22
FCC Rcd 17951 at ¶ 17 (2007) (“Order on Reconsideration”).
18
Establishment of Policies and Service Rules for the Broadcasting-Satellite Service at the
17.3-17.7 GHz Frequency Band and at the17.7-17.8 GHz Frequency Band Internationally, and
at the 24.75-25.25 GHz Frequency Band for Fixed Satellite Services Providing Feeder Links to
the Broadcasting-Satellite Service and for the Satellite Services Operating Bi-directionally in the

B. The ECO-Sat Test is Satisfied.

The FCC previously has found that Spectrum Five’s use of a Netherlands-authorized

satellite to provide DTH services to the U.S. satisfies the ECO-Sat test. 19 Grant of this Petition

also satisfies the Commission’s ECO-Sat test, under which the agency examines opportunities

for U.S.-licensed satellites to serve the home market of the non-U.S. satellite seeking access to

the United States. In particular, the Commission examines whether there are any de jure or de

facto barriers to entry for the provision of analogous services in the non-U.S. satellite’s home

market. 20 The relevant foreign markets are (1) the market of the authority licensing the satellite

and (2) the markets in which communications with the U.S. earth stations will originate or

terminate. 21 In this case, the relevant markets are the Kingdom of the Netherlands, the

authorizing Administration, and Curacao and Saint Maarten. The relevant service is Direct-to-

Home (“DTH”). 22 There have been no changes in relevant Netherlands law or policy since the

agency’s ECO-Sat finding. As the FCC concluded, there are no de jure or de facto barriers to

entry for an entity proposing to use a U.S.-licensed satellite to deliver DTH services to the

relevant markets.

Several foreign satellite operators already provide DTH services in the Netherlands. The

only Dutch regulation applicable to the provision of satellite services requires that a license be

obtained from the Radiocommunications Agency Netherlands for the use of frequencies for a

17.3-17.8 GHz Frequency Band, Notice of Proposed Rulemaking, 21 FCC Rcd 7426 at ¶ 1
(2006) (“BSS NPRM”).
19
Spectrum Five 2006 Authorization at 14030-31 (¶¶ 10-13).
20
DISCO II Order, 12 FCC Rcd at 24137 (¶ 99).
21
Id. at 24129-133 (¶¶ 76-88).
22
Id. at 24136-137 (¶ 98).

satellite earth station.23 There are no restrictions regarding the nationality of the applicant for a

license, and in practice, licenses are generally issued within eight weeks, for a (renewable)

period of five years. U.S. operators would receive the same treatment as any other operator in

this respect.

VIII. WAIVER PURSUANT TO SECTION 304 OF THE ACT

In accordance with Section 304 of the Communications Act of 1934, as amended, 47

U.S.C. § 304, the party to this application hereby waives any claim to the use of any particular

frequency or of the electromagnetic spectrum as against the regulatory power of the United

States because of the previous use of the same, whether by license or otherwise.

IX. CONCLUSION

For the foregoing reasons, Spectrum Five respectfully requests that the Commission

promptly approve this Petition as in the public interest, convenience and necessity.

23
No license is required for receive-only terminals.

Dated: April 11, 2017 Respectfully submitted,
Spectrum Five LLC

By: /s/ David Wilson
President
SPECTRUM FIVE LLC

Document Created: 2017-04-11 01:44:05
Document Modified: 2017-04-11 01:44:05

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