Attachment objection

objection

OTHER submitted by TMI Communications and Company Limited/TerreStar Networks Inc.

objection

2005-10-06

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

IBFS_SATPPL2005092600184_459666

RECEIVED Before the oct — 6 205 Federal Communications Commission Washington, D.C. 20584 FadenlConmuntaton Conniasi uce Eelce In the Matter of ) Burenu/ofFi ) Inmarsat Global Limited ) File No. SAT—PPL—20050926—00184 ) Petition for Declaratory Ruling to Provide ) R Mobile Satellite Service to the United States ) Received Using the 2 GHz and Extended Ku Bands ) OCT 11 2005 TO: Chicf International Bureau G Poly Branch femational Bureay OBIECTION To ACCEPTANCE OF APPLICATION FOR FILING The above—captioned application ofInmarsat Global Limited ("Inmarsat") improperly seeks to obtain U.S. suthority to operate a new U.K.—based mobile satelite service (‘MSS®) space station in the 2 GHz band." As described below, Inmarsat‘s application cannot lawfullybe accepted for filing under the Commission‘s satellite liensing rules and spectrum management policies. Accordingly, TMI Communications and Company Limited Partership and its affiliate, TerreStar Networks Inc. (collectively, "TMUTerreStar®)" respectfully request that the Commission dismiss Inmarsat‘s appliation. ©_ See Inmarsat Global Limited, Application for Satellite Space Station Authorizations, File No. SAT—PPL—20050926—00184 (filed Sept. 26, 2005) ("Inmarsat Application"). TMUTerreStar have cited the file number of Inmarsat‘s application for ease ofreference. However,under Section 25.150 ofthe Commission‘s rules, "Neither the assignment ofa file number and/or other identifier nor the listing ofthe application on public notice as received for filing indicates that the application has been found acceptable for filing or precludes the subsequent retur or dismissal ofthe application ifit is found to be defective or not in accordance with the Commission‘s rules." 47 CBR§25.150. * TerreStaris the prospective assignee ofTMI‘s 2 GHz MSS authorization and, pursuant to an agreement with TMI, has contracted with Space Systems/Loral Inc. for a satellite that will operate in this band.

A. Inmarsat‘s Application Must Be Dismissed As Untimely. Inmarsat filed the above—captioned application on September 26, 2005. Yet as Inmarsat is well aware, the deadline for participating in the Commission‘s 2 GHz MSS processing round expired eight years earlier, on September 26, 1997. No second processing round has been initited by the Commission:" Although Inmarsat previously tendered a timely 0T application prior to the 1997 cut—off date, on November 21, 2001, following adoption of service rules for the 2 GHz MSS, Inmarsat asked the Commission to dismiss its application "without prejudice."*. The Commission prompily did so and, on November 29, 2000, issued a Public Notice to "confirm" that Inmarsat‘s Letter ofIntent application "has been dismissed without prejudice to its secking authorization to provide 2 GHz Mobile Satellite Service in a subsequentprocessing round."" * Extension of Cut—OffDatesfor Applications, Letters ofIntent, and Amendment to Applications in the 2 GHz and 36—51.4 GHz Frequency Bands, FCC, Public Notice, Report No. SPB—99 (rel. Sept. 4, 1997). The Commission‘s original cut—off notice for the only 2 GHz MSS processing round to date clearly stated. that, pursuant to Section 25.155 of the Rules (47 C.F.R. Section 25.155, applications that are not complete as of the cut—off date "will be dismissed as unacceptable forfling."" Cut—OfEstablished For Additional Space Station Application, Letters ofIntent, And Amendments To Pending Applications In The 2 GHe Frequency Band, Public Notice, Report No. SPB—88 (rel. Tuly 22 1997), at 3. Likewise, the Commission‘s August 2000 Order adopting final rules for the 2 GH: MSS also clearly stated that any then pending applications, such as Inmarsat‘s, must be amended "no later than 30 days after a summary ofthis Report and Order is published in the Federal Register to receive continued consideration." Policies and Service Rulesfor MSS in the 2 GHz Band, TBDok.99—81, Report and Order, 15 FCC Red 16127,16129 (2000), t 12. Publications occurred on October 4, 2000 (See 65 Fed.Reg.59140) and, as noted elsewhere, instead ofcomplying with the new rules by November 4, 2000, Inmarsat chose to dismiss ts application shortly thereafter. f See Letter from Kelly Cameron, Powell, Goldstein, Frazer & Murphy LLP, counsel to Inmarsat,to Magalie Roman Salas, Secretary, CC (Nov. 21, 2000). 5_ See Satellite Policy Branch Information, Public Notice, Report No. SAT—00061 (rel. Nov. 29, 2000), at 2 (emphasis added).. The Commission completed its 2 GHz MSS processing round on July 17, 2001, at which time it granted eight 2 GHz MSS authorizations. See The Bocing Company, Order and Authorization, 16 FCC Red 13691 (Int‘l Bur, 2001); Celsar America, Inc., Order and Authorization, 16 FCC Red 13712 (Int‘l Bur. 2001); Constellation (continued...)

Inmarsatdid not contest the Commission‘s determination that "without prejudice" meant thata 2 GHz application could not be re—filed unless and until the Commission opened a second processing round, and the time for bringing such a challenge has passed. Accordingly, Inmarsat‘s application cannot be accepted for filing because it would conflict with the Commission‘s earlier determination to accept additional applications solely pursuant to a second processing round.® In addition to being inconsistent with the cut—off dates setin the only 2 GHz MSS processing round initiated by the Commission, Inmarsat‘s application runs afoul ofthe policies and rules adopted in 2003 by the Commission‘s Space Station Licensing Reform Order. There, the Commission decided to continue using processing rounds to license NGSO—like satellites, such as MSS systems, and decided that once a processing round is initiated, only timely filed applications will be considered." Further, under the rules adopted in the same Space Station Licensing Reform Order, where all the available spectrum for an NGSO—like system has previously been assigned Communications Holdings, Inc., Order and Authorization, 16 FCC Red 13724 (Int‘l Bur/OET 2001); Globalstar, L.P., Order and Authorization, 16 FCC Red 13739 (Int‘l Bur/OET 2001); TCO Services Limited, Order,16 FCC Red 13762 (Int‘1 ButJOET 2001); fridium LLC, Order and Authorization, 16 FCC Red 13778 (Int‘ Bur. 2001); Mobile Communications Holdings, Inc. Order and Authorization, 16 FCC Red 13794 (IntBur/OET 2001); TMZ Communications and Company, Limited Parmership, Order, 16 CC Red 13808 (Int‘1 Bur. 2001). ®_ Moreover, as TMITerreStar and other parties have documented, there is no basis for the opening of a second processing round. See, e.g., Reply Comments ofTMI/TerreStar, IB Docket No. 05—221 (Aug. 15, 2005); Letter from Gregory C. Staple and Jonathan D. Blake to Marlene H. Dortch, IB Docket No. 05—221 (fled Sept.14, 2005) (responding to reply comments of Inmarsa). 7 See Amendment ofthe Commission‘s Space Station Licensing Rules, TB Docket 02—34, 18 ECC Red. 10760 4 48 (2003) ("We wl eview applications fledby the cut—off date to determine whether they are acceptable for filing, and f so, we will place those applications on public notice."). See also Section 25.155 and 25.157 ofthe Commission‘s rules, 47 C.F—R. § 25.155 and 25.157.

in a prior processing round, as is the case here (see note 5, infra), a party cannot initiate a second processing round sua sponte by filing an application for licensed spectrum that has been surrendered by one or more parties. Rather, Section 25.157(@)(2) ofthe Commission‘s rules makes clear that a second processing round for an NGSO—like system may be opened only by the issuance of a public notice establishing a cut—off date for such applications.* And the Commission will only issue such a notice ifitdetermines that the surrendered spectrum would not be efficiently put to use by the remaining NGSO—like licensees in the band." Ofcourse, no such determination has been made and thus no public notice opening a second processing round has been issued..° There is accordingly no merit to Inmarsat‘s claim that the Commission has "provided an open invitation for post—first—2 GH band—processing—round applications" following surrender of a 2 GHz MSS license."" & See 47 CER. §25.157(@)(0). * 14. !®= On the contrary, the Commission is still in the midst of considering whether the public interest is better served by distribution of the remaining 13.34 MHz of surrendered spectrum to the existing 2 GHz licensees. See Commission Iivites Comments Concerning Use ofPortions of Returned 2 GHz Mobile Satellite Service Frequencies, Public Notice, FCC 05—134, IB Docket No. 05—221 (rel. Tune 29, 2005) (‘Second Redistribution Notice"). In a filing in that proceeding, Inmarsatitself has acknowledged that a 2 GHz MSS application could only be validly filif the Commission were to frst open a new processing round. See Letter from John P. Janka, Counsel to Inmarsat to Marlene H. Dortch, Secretary, FCC (iled Aug. 24, 2005), at 2 (requesting that the Commission "open a processing round soliciting 2 GHz MSS system applications"). o Inmarsat Application, Ex. E at 23, citing 7AZ Communications and Company, Limited Partership and TerreStar Networks, Inc., Applicationfor Review and Requestfor Stay, 19 FCC Red 12603, 12621 4 52 & n.97 (2004). The blanket lcense procedures, moreover, may be invoked only ifU.S. spectrum is available at the time the space station becomes operational. 1.

The Commission precedent cited by Inmarsatin support of is attempt to open a new processing round is wholly inspposite.""— For example, in the Anik case on which Inmarsat primarily relies, the Commission added a Canadian GSO satellte, Anik F2, t the Permitted Space Station List,even though it had previously granted a license to KaStarCom to Taunch and operate a domestic Ka—band GSO satellite atthe 111.0° W.L. orbit location. Telesat‘s market entry was achieved not pursuant to a new processing round, but rather to a condition expressly placed on the KaStarCom license at the time ofgrant. Specifically, when the Commission Hicensed the KaStarCom satellite, it noted that Canada‘s Ka—band TTU filing at 111.1° had date priority relative tothe U.S. Ka—band ITU filing at 111.0° W.L.. Accordingly, the Commission conditioned KaStarCom‘s Ka—band authorization "on coordination with any non—U.S.satellte within two degrees of the KaSterCom satelite having fling date priority at the TTU.""".Inmarsat does not make, nor can it, any such claim concering the TMUTerreStar and ICO spectrum reservations granted purstiant to the 2 GH: MSS processing round. Thus, Anik is entirely inapposite with respect to Inmarsat‘s application."* !". See Telesat Canada, Ptitionfor Declaratory Rulingfor Inclusion ofAnik F2 on the Permitted Space Station List, Pettionfor Declaratory Ruling to Serve the U.S. Market Using Ka—band Capacity on Anik F2, 17 FCC Red 25287 (2002) ("Anik"). _ Anik, 17 ECC Red at 2296 (2002) citing In re KaStarCom World Satellite LLC, 16 ECC Red.14322, 14330 (Int‘l Bur. 2001). In aStarCom, the Commission emphasized that KaStar‘s Hicense was "subject to the outcome of the intemational coordination process, and that the Commission is not responsible for the success or failure ofthe required intemational coortination." 14. 14— Moreover, Anilinvolved a request to add a GSO satellite to the Permitted Space Station List, whereas, despite Inmarsat‘s positioning ofits application as a "Petition for Declaratory Ruling to be Added to the Permitted List," such requests generally are not applicable in the NGSO—like context. Similarly,the other cases cited by Inmarsat — Star One $.4., 19 FCC Red 16334 (2004) and Loral Spacecom Corp., 18 FCC Red 16374 (2003) — are irrelevant to the acceptance for fling of a NGSO—like application to use 2 GHz MSS spectrum. These two cases, like Anil, involved GSO—like space stations which are subject to different processing rules and (continued...)

In sum, the plain meaning of the Commission‘s prior public notices and orders regarding the 2 GHz MSS licensing proceeding, as well as the text of the Commission‘s general satellte icensing rules, clearly bars the Commission from accepting Inmarsat‘s application for authority to use the MSS spectrum previously licensed to TMI, 1CO and others unless the Commission initiates a new satellite system processing round. B. Alternatively, ItIs Premature For Inmarsat To Apply For 2 GHz MSS System Authority Outside OF A Processing Round. To the extent that Inmarsat is relying on the Commission‘s procedures for filing market access applications outside the context ofa processing round, ts filing is premature. As the Commission stated in the TM/TerreStar Reinstatement Order cited by Inmarsat, these procedures are not available in connection with a non—U.8. licensed space station until the space station has been constructed, launched, and placed into operation."" Inmarsat has taken none of these steps: . C. Acceptance of Inmarsat‘s Application Would Unlawfully Prejudice The Outcome Of Two Pending Commission Proceedings. In addition to flouting the Commission‘s established satellite and earth station Hicensing procedures, Inmarsat‘s 2 GHe application blatantly attempts to make an end run around the proceedings opened by the Commission to determine the future of surrendered 2 GHz MSS spectrum. As Inmarsat is well aware, the Commission has opened a proceeding, 1B Docket No. implicate different interference and coordination issues. For example, in the Loral case, the applicant‘s fixed C—band satellite was only added to the Permitted Space Station List to the extent it would notinterfere with any previously authorized U.S. satellte and was subject to interational coordination. w See TMI Communications and Company, Limited Partnership and TerreStar Nenworks, Inc, Applicationfor Review and Requestfor Stay, 19 FCC Red 12603, 12621 4 52 & 1.97 (2004.

05—221, in which it has stated that a second 2 GHz MSS processing round is only one of three options under consideration for distribution of 13.34 MHz of surrendered 2 GHz spectrum."" Furthermore, the Commission has already announced, by public notice in TB Docket No. 0—220, its intent to redistribute 10.67 MHz ofsurrendered 2 GH spectrum to the existing 2 GHz Hicensees."" Inmarsat‘s application disregards both ofthese outstanding procedings and even misleadingly asserts that the collective 24 MHz of surrendered spectrum at issue in the two proceedings is "currently available" for ts use."". Consequently,if the Bureau to were to accept Inmarsat‘s application forfling,it would also unlawfully prefudgethe issues raised in TB Docket No. 05—221 and would directly conflct with the Commission‘s stated spectrum redistrbution plan in IB Docket Nos, 05—220. !® See Second Redistribution Notice. 5‘ See Commission Invites Comments Concerning Use ofPortions ofReturned 2 GHz Mobile Satellite Service Frequencies, Public Notice, FCC 05—133, IB Docket No. 05—220 (rel. June 29, 2005). 5* Inmarsat Application, Ex. Eat 22.

conctusion Inmarsat‘s application for U.S. authority to use 2 GHz MSS spectrum is untimely and must be dismissed. The application represents an unlawul attempt to file a 2 GHz MSS application outside of a processing round in direct contravention ofthe terms of the Commission‘s prior Public Notice dismissing Inmarsat‘s 1997 2 GHz MSS application, and the Commission‘s general satellie licensing rules. Acceptance of Inmarsat‘s application would also undermine the Commission‘s two ongoing proceedings regarding the distribution ofsurrendered 2 GHz MSS spectrum. To protect the integrity of the Commission‘s rules and its spectrum management prerogatives, the Burcau should dismiss Inmarsat‘s application as unacceptable for filing. Respectfully submitted, A—_fAl GréaAry CStaple fu: d64t__ ;g(naihan D; Blake Edward Price Kurt A. Wimmer Vinson & Euns Covnoton & Burume 1455 Pennsylvania Avenue NW. 1201 Pennsylvania Avenue N.W. Washington, D.C. 20004—1008 Washington, D.C. 200042401 Counselfor TMI Communications and Counselfor TerreStar Networks Inc. Company Limited Parmership

CERTIFICATE OF SERVICE 1, Karen A. Schwarteman, a secretaryat the law firm of Covington & Burling, do herebycertify that on this 6th day of October, 2005, I caused a copy of the foregoing "Objection to Acceptance of Application for Filing" to be sent via hand delivery to the following: John P. Janka Jeffrey A. Marks Lamam & Wanens LLP 555 Eleventh Street, N.W. Suite 1000 Washington, D.C. 20004 Counsel to Inmarsat Global Limited Karen A. Scl Gman


Document Created: 2005-10-11 15:47:59
Document Modified: 2005-10-11 15:47:59
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