Attachment opposition

opposition

OPPOSITION submitted by ICO

opposition

2005-10-06

This document pretains to SAT-PPL-20050926-00184 for Permitted List on a Satellite Space Stations filing.

IBFS_SATPPL2005092600184_459664

receveD . 6 205 Before the set FEDERAL COMMUNICATIONS COMMISSION commnieai®s Washington, D.C. 20554 anact $ In the Mater of P ) Inmarsat Global Limited ) File No. SAT—PPL—2005 gr ‘%d Peti on ctition forfor Declaratory Dect a Mobile ); Ruling to Provide s Satellte Service to the United States Using the ) oct 0 7 200 2 GHz and Extended Ku Bands ) Palsy Branth intormational Bureau OPPOSITION TO PETITION FOR DECLARATORY RULING L INTRODUCTION Pursuant to Section 1.45(b) of the Commission‘s rules, 47 C.F—R. § 1.45(b), 1CO Satellite Services G.P. ("ICO®) opposes the above—captioned petition ("Petition") of Inmarsat Global Limited ("Inmarsat®) secking authorization to provide 2 GHz mobile satellite service ("MSS") to the United States using a U.K.—authorized satellite at 113° W.L.". Serious procedural deficiencies make the Petition unaceeptable for filing, and it must be dismissed.? Section 25.1 12 ofthe Commission‘s rules, 47 C.F.R. § 25.112, authorizes the Commission to dismiss an application as unacceptable for filing if the application "does not substantially comply with the Commission‘s rules, regulations ... orother requirements."" The ‘ See Petition at 1 (Sept. 26, 2008) * Because the Petition must be dismissed for procedural deficiencies, ICO does not address the merits of the Petition * The Petition secks authorization to provide 2 GHz MSS to the United States and generally must provide the same information required for satellite and earth station applications. See 47 C.F.R. Footote connues..

Petition is procedurally defective in atleast three respects. Firs, it attempts to circumvent the Commission‘s satellte processing round requirements by secking U.S. market access prior to launch of a satellte. Second, it was fled improperly pursuant to procedures that apply only to conventional C:—band and Ku—band fixed satellite service ("FSS") systems. Third, it is premature, iven the Commission‘s pending proceedings to redistribute or reallocate returned 2 GHz MSS spectrum 11. INMARSAT MAY NOT CIRCUMVENT PROCESSING ROUND REQUIREMENTS BY SEEKING U.S. MARKET ACCESS PRIOR TO LAUNCH OF ITS SATELLITE Nearly six years after withdrawing its equest for U.S. market access using a non—U.S.~ Hicensed 2 GHz MSS system, Inmarsat attempt to renew its request by filing a petition for declaratory ruling outside ofa 2 GHz MSS processing round. ‘The Commission‘s rules and regulations, however, do not permit Inmarsatto circumvent the processing round requirements in this manner. When the Commission originally established its framework in the DISCO / Order for allowing non—U.S—licensed satellitesto access the U.. market, it provided two procedures under which non—U.S—licensed satellte operators could seek authorization to serve the United States * The first procedure ("First Procedure") allows a non—U.S—licensed satellte operator to participate in a satllite processing round by filing either a "letter ofintent" (°LOT") or an earth §25.137, Accordingly, the Petition should be subject to the same standard for dismissal as satellite and earth station applications * See Amendment ofthe Commission‘s RegulatoryPolicies to AllowNon—U.S—Licensed Space Stations to Provide Domestic and International Satellite Service in the United States, 12 FCC Red 24094, ¥1 183—88 (1997) (*DISCO 11 Order"). «ons

station application by the relevant "cut—off"date established by the Commission.® The second procedure ("Second Procedure") allows the non—U.S.—licensed satellite operator to obtain access to the U.S. market without participating in a processing round by fling an earth station application "to access a non—U.S. satellite thatisalready operating and for which the international coordinatfion] process ... has been initited."" On reconsideration ofthe DISCO If Order, the Commission added a third procedure ("Third Procedure") to allow certain "operators of in—orbit non—U.S. satelltes"to obtain access to the U.S. market without participating in a processing round by filing a petition for declaratory ruling on whether the Commission should permit the non—U.S. satellte to serve the United States." The Commission, however, adopted this procedure for "fixed—satellites offering fixed— satelliteservice in conventional C—band and Ku—band frequencies."" In the Sarellie Licensing Reform Order, the Commission revised its satellite licensing procedures to provide (1) a modified processing round procedure for nongeostationary satellite orbit—like (*NGSO—like") systems such as MSS systems, and (2) a "first—come, first—served"" 414 184. °Jd. ¥1 1, 186. Under both the First and Second Procedures, requests for U.. market access, whether through an LOI or earth station application, generally must provide the same information required for satellite license applications under Section 25.1 14 of the Commission‘s tules. The Commission does not require requests for U.S. market access to provide technical information ifinternational coordination has been completed. 1d. 4 190, 191. " See Amendment of the Commission‘s RegulatoryPolicies to AllowNon—U.S—Licensed Space Stations to Provide Domestic and International Satellite Service in the United States, 15 FCC Red 7207, 1 10 (1999) ("DISCO !I First Reconsideration Order") "1d. 4 1. The Commission required petitions for declaratory ruling filed under the Third Procedure to provide the same information required under Sections 25.1 14 and 25.137 of the Commission‘s rules, 47 C.FR. §§ 25.1 14, 25.137, to be included in an earth station application to access a non—U.S. satellite. Jd.9 10. «ons

procedure for geostationary satellte orbit—like ("GSO—like") systems such as FSS systems" In doing so, the Commission re—affirmed its existing regulatory framework for considering U.S. market access requests and determined that it did not need to revise that framework for modified processing rounds."" For the first—come, first—served procedure, the Commission decided that LO1s and earth station applications would "continue to be the vehicle for non—U.S.—licensed satellite operators to request access to the United States" and would be placed into the satellte application processing quene together with U.S. satellite applications."" Because the Commission has not commenced a new processing round for 2 GHz MSS, the First Procedure for considering new requests by non—U.S.—licensed satellte operators to provide 2 GHtz MSS to the United States is unavailable. In filing the Petition, Inmarsat apparently seeks to utlizethe Third Procedure for obtaining U.S. market access. The Commission, however, repeatedly has affirmed that the procedure for secking U.S. market access outside a processing round is available only to non—U.S.—licensed satellite operators secking market access through an "in—orbit"satellte" or, in other words, a satelite that is "already operating.""". Although Inmarsat ctes two Interational Bureau decisions granting a declaratory ruling petition secking U.S. market access prior to the launch of the non—U.S. stellite,"" those decisions did not specifically address whether the Commission‘s rules and regulations permit the ° See Amendment ofthe Commission‘s Space Station Licensing Rules and Policies, 18 FCC Red 10760, 48 1, 21 (2003) (‘Sarellite Licensing Reform Order®). ® 14 9 201 " 149 204. " 1d.9 1; Satellte Licensing Reform Order, 4 287. " DISCO 11 Order, 4 186 (emphasis added). "* See Inmarsat Petition at 19—21 «ons

filing of a petition for declaratory ruling for U.S. market access prior to launch of its satellite without regard to processing round requirements."" Moreaver, both cases involved non—U.S—licensed FSS systems. Because FSS systems are no longer subject to processing round requirements, the Commission‘s rationale for the "in— orbit" requirement would not be undermined by allowing non—U.—licensed FSS operators to seck U.S. market access by filing a petition for declaratory ruling outside of a processing round. Specifically, this permissive approach would not allow non—U.—licensed FSS operators to cireumvent any processing round requirements, because these requirements no longer apply to FSS. Moreover, under the frst—come, fist—served procedure, non—U.S.—licensed FSS operators already are permitted to sek U.S. market access by filing an LOL at any time even if they have not yet Iaunched a satellite. Thus, Commission policies are not compromised if a non—U.S.— Hicensed FSS operator filesa declaratory ruling petition seeking U.S. market access through an unlaunched satellt. To the contrary, waiving the "in—orbit"requirement with respect to non—U.S.—licensed MSS systems would compromise Commission policy objectives because MSS systems remain subject to processing round requirements."*. For NGSO—like services such as MSS, the Commission decided to retain its processing round procedure, with certain modifications, rther than replace it entirely with a first—come, first—served procedure. The Commission rejected a first—come, first—served approach for NGSO —likeservices because that approach would allow "the "* See Star One SA., 19 FCC Red 16334 (IntBur. 2004); Telesat Canada, 17 FCC Red 25287 (Inc! Bur, 2002) ‘* In any event, the Petition does not seck a waiver of the "in—orbit" requirement. scanse

first qualified applicant [to] request authority in so much of the orbit—spectrum resource that additional market entry would be precluded.""" If non—U.S—licensed MSS operators were permited to file declaratory ruling petitions at any time, regardless of whether they have launched a satelite, the Commission in effect would be implementing a "first—come, first—served" policy for MSS operations. Granting a waiver would allow non—U.S—licensed MSS operators such as Inmarsatto ignore at will the Commission‘s processing round requirements and the pro—competitive policies underlying those requirements. Specifically,the MSS processing rounds provide the framework for, among other things, equitably allocating scarce spectrum in a given band to licensees that expended substantialtime and resources to comply with the Commission‘s exacting processing round requirements. The Commission clearly anticipated the issues created by late entrants and wisely required that spectrum reservations be accorded outside of processing rounds only to those operators with Iaunched satelltes Any other result would allow late entrants, whose milestone completion dates likely would be extended five to six years beyond those applicable to existing processing round Hicensees,"" to receive spectrum reservations for systems that may never be constructed. This result would unnecessarily and unfairly deprive existing processing round licensees access to critical spectrum resources. Requiring in—orbit satelites as an essential showing for MSS applications submitted outside a processing round ensures that "paper" satellite applications will ‘" See Satellte Licensing Reform Order, 4 22 ‘* For ease ofreference, the terms "licenses" and "licensees," with respect to 2 GHz: MSS, will refer to FCC authorizations to provide 2 GHz MSS and the parties that hold those authorizations, regardless of whether the authorization is a U.S. satelitelicense or letter of intent authorization granting a reservation of spectrum to a foreign—licensed satellite system. sans

not be entertained. Accordingly, the Petition should be dismissed without delay for failure to meet the in—orbit requirement under the Third Procedure 111. ECC RULES DO NOT ALLOW INMARSAT TO FILE A PETITION FOR DECLARATORY RULING TO PROVIDE 2 GHz MSS TO THE UNITED STaTES The Petition also is procedurally defective because it seeks to utilize the Third Procedure to obtain U.S. market access through a satellite that will provide 2 GHz MSS and operate extended Ku—band feeder links. The Third Procedure is applicable only to "fixed—satelltes offering fixed—satelit service in conventional C:—band and Ku—band frequencies,"" and not to any other satellite services. In fact,the Ordering Clauses of the DISCO // First Reconsideration Order expressly limit the use of petitions for declaratory ruling under the Third Procedure to "fixed—satelite services in the conventional C— and Ku—bands.""" In adopting the Third Procedure to allow petitions for declaratory ruling only for conventional C—band and Ku—band FSS systems, the Commission explained that "{tihere exists an established operating environment for these systems and it is possible to maintain acceptable levels of interference to other systems operating in the same environment when a licensee offering these services switches from one satelite to another.""" In contrast, "for services such as MSS service rules are either non—existent or recently adopted by the Commission.""" The Commission thus reasoned that the "operating environment for these services [including MSS is ‘" DISCO II First Reconsideration Order, 9 1. ®* 14. 4 28 "14.46n.19 "" n «ons

continuing toevolve and could substantially change if an earth station licensee providing these services were to switch from one satellite to another without prior Commission authorization.""" Given the distinction between conventional C—band/Ku—band FSS systems and other satellite systems such as MSS, the Commission expressly declined to permit non—U.S—licensed MSS and other non—C—band/Ku—band FSS systems to submit declaratory ruling petitions to access the U.S. market under the Third Procedure. Consequently, because the Petition seeks to provide 2 GHz MSS to the United States using a non—U.S. satellte, t is prohibited under the Commission‘s DISCO 11 First Reconsideration Order and should be dismissed on that ground alone. Iv. FCC PROCESSING OF THE PETITION IS PREMATURE IN VIEW oF ThE PENDING PROCEEDINGS TO ADDRESS THE REDISTRIBUTION OR REALLOCATION OF RETURNED 2 GHtz MSS SPECTRUM Importanily, any Commission consideration of the Petition would be premature, given that the Commission has not yet resolved the pending proceedings addressing the redistribution or reallocation of retured 2 GHz: MSS spectrum."" In evaluating requests for U.S. market access, he Commission is required to conduct a publicinterest analysis that considers various factors, including spectrum availability.®* Specifically, the Commission may deny U.S. market access if, for example, here is insufficient spectrum to accommodate new entrants in a particular frequency band."" Until the Commission resolves the crucial issue of whether and how to n * See FCC Public Notice, Commission Invites Comments Concerning Use ofPortions of Returned 2 GH: Mobile Satellte Service Frequencies, FCC 05—133 (June 29, 2005); FCC Public Notice, Commission Invites Comments Concerning Use ofPortions ofReturned 2 GHz Mobile Satellite Service Frequencies, FCC 05—134 (June 29, 2005). "* See DISCO II Order, 8 146—50. ** See id.9 147. «ons

redistribute or reallocate the retured 2 GHz MSS spectrum, it cannot possibly determine how much 2 GHz MSS spectrum may be available for Inmarsat‘s use and therefore cannot assess the merits of the Petition. Immediate Commission resolution of the pending 2 GHz spectrum redistribution proceedings is critical to expediting the provision of 2 GHz MSS to the United States. For too Tong, the future of 2 GHz: MSS has been clouded by regulatory uncertainty regarding the amount of spectrum available for each 2 GHz MSS system. Recent local and national emergencies affecting the capabiliics ofterrestrial wireline and wireless systems have demonstrated that spectrum is desperately needed now to enable next—generation MSS systems to satisfy public safety and homeland security demands. Inmarsatis not expected to launch a 2 GHz MSS satellite until 2010, ifat all, while existing 2 GHz MSS licensees are ready to launch their systems by July 2007. It is therefore imperative that the Commission resolve the spectrum needs of existing 2 GHz MSS licensees, rather than waste time and resources to address the speculative spectrum needs of a late entrant. ¥ CONCLUSION Based upon the foregoing, ICO urges the Commission immediately to dismiss the Petition as unacceptable for filing. «ons

Respectfully submitted, 1CO SATELLITE SERVICES G.P. Suzanne Hutchings Malloy Chery1 Trit Senior Regulatory Counsel Phuong N. Pham 2000 Ponnsylvania Ave., NW, Suite 4400 Morrison & Foerster LLP Washington, D.C. 20006 2000 Pennsylvania Ave., NW, Suite 5500 Washington, D.C. 20006 Its Attomeys October 6, 2005 10 «ons

CERTIEICATE OF SERVICE 1, Mike Rodgers, hereby certify that on October 6, 2005, a copy of the foregoing OPPOSITION was served by electronic mail or,asindicated below, by U.S. mail upon the following: Cassandra Thomas Fem Jarmuinck Deputy Chief, Satellite Division Deputy Chicf, Satellite Division International Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 12" Street, SW 445 12" Street, SW Washington, DC 20554 Washington, DC 20554 Email: Cassandra.Thomas@fee.gov Email: FemJarmulnck@fee.gov William Bell Karl Kensinger Deputy Chief, Satellite Division Associate Division Chief Satellte Division International Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 12" Street, SW 445 12" Street, SW Washington, DC 20554 Washington, DC 20554 Email: Willism.Bell@fee.gov Email: KarlKensinger@fcegov John P. Janka® Inmarsat Global Limited Jeffrey A. Marks 99 City Road Latham & Watkins LLP London 555 Eleventh St., NW, Suite 1000 ECY IAX Washington, DC 20004 Counselfor Inmarsat Global Limited Mngc Rodecis % * By U.S. mail dearsns?


Document Created: 2005-10-11 15:58:30
Document Modified: 2005-10-11 15:58:30
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