Attachment petition

petition

PETITION FOR RECONSIDERATION submitted by Inmarsat Ventures Limited and Inmarsat Global Limited

petition

2006-01-09

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

IBFS_SATPPL2005092600184_475352

RECEIVED Before the JAN — 9 2006 FEDERAL COMMUNICATIONS COMMISSION ioi Washington, DC 20554 retent %me In the matter of ) ) Use of Retured Spectrum in the 2 GHz ) 1B Docket Nos. 0$—220 and 05—221 Mobile Satellite Service Frequency ) Bands ) ) Inmarsat Global Limited ): File Nos. SAT—PPL—20050926—00184 Petition for Declaratory Ruling to ) SAT—PDR—20050926—00184 Provide Mobile Satellite Service to the ) SAT—AMD—20051116—00221 United States Using the 2 GHz and ) Extended Ku—Bands ) CONSOLIDATED PETITION FOR RECONSIDERATION OF INMARSAT VENTURES IMITED ARSA AL LIM Diane J. Comell John P. Jonka Viee President, Government Affairs Jeffrey A. Marks Inmarsat, Inc. LATHAM & WATKINS LLP 1100 Wilson Blvd, Suite 1425 555 Eleventh Street, N.W. Arlington, VA 22209 Suite 1000 Telephone: (703) 647—4767 Washington, D.C. 20004 Telephone: (202) 637—2200 Counselfr Inmarsat Ventures Limited and Inmarsat Global Limited January 9, 2006

TABLE OF CONTENTS Inrropucrion anp Summary IL The Bases ror Awaromvo Ti Eriee 2 GHz Baxp o TMI Axp ICO Ar Unsuastanmiatep A.— The Commission‘s Competition Analysis Did Not Address the Unique Nature ofthe 2 GHz Band .. B. The Commission Failed to Consider that TMI is an MSS Incumbent with Considerable MSS Spectrum Holdings ¢: The Public Safety and Rural Broadband Benefits Identified in the 2 GHz Order Are Not Unique to TMI or 1CO .. u. Th Comisston Dip Nor ConspeAut. Or ThArernariv: Sorutions Prorosep On Ti Recorp . Reconsiperation orINvarsat‘s Maricer Access aprication is wargantep Conctuston.

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In the matter of ) ) Use of Returned Spectrum in the 2 GHz ) IB Docket Nos. 05—220 and 05—221 Mobile Satellite Service Frequency ) Bands ) ) Inmarsat Global Limited ): File Nos. SAT—PPL—20050926—00184 Petition for Declaratory Ruling to ) SAT—PDR—20050026—00184" Provide Mobile Satellite Service to the ) SAT—AMD—20051116—00221 United States Using the 2 GHz and ) Extended Ku—Bands ) CONSOLIDATED PETITION FOR RECONSIDERATION OF INMARSAT VENTURES INMARSAT Pursuant to Section 1.106 ofthe Commission‘s rules, 47 C.F.R. § 1.106, Inmarsat Ventures Limited and Inmarsat Global Limited (together, "Inmarsat®) respectfully request reconsideration ofthe Orders of the Commission and the International Bureau issued in the above captioned proceedings:" One order awards the entire 2 GHz MSS band to two entites, TMI and ICO. ‘The other order dismisses Inmarsat‘s request for a reservation of 2 GHz MSS spectrum so that Inmarsat could deploy a competitive MSS system to serve the U.S. Inmarsat is filing a consolidated petition for reconsideration because these two Orders are interrelated. Nemely, the outcome of the Inmarsat PDR Order was determined by the outcome of the 2 GHz * The Commission‘s Order dismissing the application of Inmarsat Global Limited included the above—captioned "PDR" file number, although the file number originally assigned was the "PPLfile number also included in the caption above. Out of an abundance ofcaution, this pleading references, and is being submitted in the records for, both file numbers. * Use ofReturned Spectrum in the 2 GHz Mobile Satellite Service Frequency Bands, 1B Docket Nos. 0—220 and 05—221, FCC 05—204 (rel. Dec. 9, 2005) (*2 GHz Order"); Inmarsat Global Limited, Petition for Declaratory Ruling to Provide Mobile Satellite Service to the United States Using the 2 GHz and Extended Ku—Bands, File Nos. SAT—PPL—20050926—00184 and SAT—AMD—20051116—00221, DA 05—3170 (rel. Dec. 9, 2005) ("Inmarsat PDR Order") (collectively, the "Orders").

Order. Thus, to the extent the Commission reconsiders ts decision in the 2 GHz Order, the Interational Bureau should reconsider its decision in the Inmarsat PDR Order. L Intropucrion anp Summary Inmarsat urges the Commission to reconsider it award of additional 2 GHz spectrum to TMI and ICO, and reinstate Inmarsat‘s Petition for Declaratory Ruling to allow the provision of a competitive 2 GHz MSS altemative to the U.S. The 2 GHz band is a vitalfiture resource for MSS systems. Inmarsat therefore applauds the Commission for retaining the MSS designation for the entirety ofthe 2 GHz band. Inmarsat respectfully submits, however, that the decision to award the entire band to TMI and 1C0 is neither supported by the record nor adequatelyjustified, and that all altermative proposals for licensing the available 2 GHz spectrum were not adequately considered and addressed. Specificaly, the following three flawed and unsubstantiated assumptions appeor to underlie the determination that the public interest would be better served by assigning the entirety of the 2 GHz band to TMI and ICO, rather than by allowing other satelite providers to develop competitive 2 GHz MSS altematives: (}) satellite operators in other MSS bands do not need access to 2 GHz because they can provide all ofthe services possible at 2 GHz in other bands, (i) TMI should have access to more 2 GHz spectrum because it does not hold any other MSS interests, and (ii) the award ofall ofthe additional 2 GHz: spectrum to TMI and ICO will produce public sefety and rural broadband benefits that otherwise would not exist. ‘As to the first point,the Commission simply has not considered that the "greenfield" thatis 2 GHz provides MSS business opportunities that are not possible in other MSS bands. As a result, the Commission prematurely and mistakenly has concluded that Hicensing the entire 2 GHz band to TMI and ICO does not create an undesirable duopoly. As to the second point, the Commission unfortunately has failed to take into account that TMI today

operates an L—Band MSS system, and, combined with is affiliates, now holds approximately 46 MHz ofMSS spectrum — almost twice as much as anyone else. As tothe third point, there is nothing in the record that suggests that TMI and ICO are better situated than any other MSS operator to deliver public sefety or rural broadband benefits through a 2 GHz system, orthat awarding them all ofthe additional spectrum would improve their ability to deliver those benefits. Moreover, the 2 GHz Order should be reconsidered because the Commission has not, as it must, addressed all altemative proposals offered in the record that would serve the public interest better than awarding the entiety of the 2 GHz band to two entities. Specifically, the Commission should consider all of the altematives proposed by Inmarsat," and adopt one of them, rather than grant TMI and ICO a duopoly in the 2 GHz band before either entity has even neared completion of its 2 GHz system. Namely, the Commission could: ) award one—third ofthe 2 GHz band to each ofICO and TMI, but then also prompily authorize a third entity in the remaining one—third ofthe band; ) retain the 2 GHz band for MSS, but not award additional spectrum to TMI or ICO at this time, and hold an expedited proceeding focused on the best way to suthorize the available spectrum, including possibly awarding additional spectrum to TMI and ICO when they actually implement their systems; or (ii) accommodate more than three licensecs in the band, and expeditiously authorize those additional lcensees through a market—based licensing mechanism than provides an incentive to commence service tothe public as carly as possible. Each of these proposals could be accomplished in a expeditious manner that ensures the benefis of 2 GHz MSS, including the public safety benefits, would be brought o the American public in a timely fashion. For example, the Commission could authorize additional Hicenseesin the band through a "race to space" whercby spectrum would be awarded once an * See, e.g, Letter from John P. Janka to Mariene H. Dortch, File No. SAT—PPL—20050926— 00184, IB Docket Nos. 0—220 and 05—221, at 9—10 (filed Nov. 16, 2005).

entity had actually launches a 2 GHz satellte and therefore is in a position to commence 2 GHz MSS service to the American public. Alternatively, and consistent with past precedent, the Commission could have granted Inmarsat‘s request for market access outside ofa "processing round," and thereby allowed Inmarsat to immediately commence its plans to launch a 2 GHz: MSS system by the end ofthe decade. None ofthese alternative proposals that the Commission expressly solicited was given the serious consideration that he law requires..Instead, the Commission summarily awarded the entire 2 GHz band to two entities who do not have an established track record, based on reasoning that does not withstand scrutiny. TL TBases ror Awaroinc ue Entime 2 GHz Baxp zoTMI anp ICO Are Unsurstantiate» In its 2 GHOrder, the Commission found that the public interest would be better served by assigning the entirety of the 2 GHz Band to TMI and ICO, rather than by allowing other satelite providers the opportunity to offer competitive 2 GHz MSS altematives.* In particular, the Commission determined, based on competition, public safety and rural broadband considerations, that giving the entire band to TMI and ICO serves the public interest "more than it does allowing other existing providers to expand their existing services.""" As demonstrated ‘below, the Commission‘s decision to assign the entirety ofthe 2 GHz band to TMI and ICO and to foreclose opportunities for additional competition in the band is unsubstantiated and is contradieted by its reasoning elsewhere in the 2 GHz Order, and by the record in the * 2 GHz Order at1 56. ul

proceeding. Therefore, the decision to award all of the additional spectrum to TMI and ICO is not sustainable and should be reconsidered.® A. The Commission‘s Competition Analysis Did Not Address the Unique Nature of the 2 GHz Band The Commission, in summary fashion, determined that "ICO‘s and TMI‘s 2 GHz MSS offerings will compete in the same product market as the offerings of licensees in other MSS bands"and, therefore, the Commission "disagree{dthat reassigning the 2 GHz MSS spectrum to TMI and ICO results in a duopoly."". In making this finding, however, the Commission simply did not address the converse———whether providers in other MSS bands will be able to compete with the MSS offerings possible at 2 GHz. The Commission also did not address Inmarsat‘s arguments that: () the nascent 2 GHz band is unique among MSS bands because it supports the provision ofbroadband MSS offerings that cannot readily be provided in other bands; and (i) the policies articulated in the DIRECTV/EchoStar Hearing Designation Order® therefore require a serious examination and substantiation ofthe public interest issues presented by licensing only two entities at 2 GHz:" Thus, the Commission wrongly concluded that licensing only two MSS providers at 2 GHz would not result in an MSS duopoly in that band. These problems with the 2 GHz Order are significant. As Inmarsat has explained, and as the Commission has acknowledged in other contexts, courts have generally condemned * MCI Telecommunications Corp. v. FCC, 842 F24 1296, 1305—06 (D.C. Cir.1988) (remanding an FCC decision as "confused, conclusory, and uncompelling,"because ofts failure to gather and consider relevant information and its reliance on unsupported assumptions). 7. 2 GHz Order at 1 33; see also id. at n.164. EchoStar Communications Corporation, 17 FCC Red 20559 (2002). * See, eg., Reply Comments of Inmarsat Ventures Limited, 1B Docket No. 05—221,at 14—22 (filed Aug. 15, 2008).

mergers to duopoly, particularly in cases, as here, where barriers to entry are high."" This is so because the creation ofsuch a duopoly creates both the opportunity and the incentive for both firms to coordinate to increase prices, and therefore raises the possibility that consumers will not receive the service quality and low prices that result from healthy competition." In its August 15 Reply Comments and in a September 28, 2005 ex parte letter, Inmarsat provided eight pages of analysis regarding the unique capability ofthe "greenfield"that is 2 GHto support the provision of broadband and multimedia services capabilities that do not exist in other MSS bands. The unique features of the 2 GHz band that Inmarsat identified include the following: ) the band was internationally designated for the development of IMT— 2000 compatible 3G terrestrial and satellte services, with the expectation that doing so would enable the mass—market development of integrated and interoperable hybrid terrestrial/satellite equipment and services; (i) 2 GHz supports the use of wider—bandwidth channels than other bands and greater ability to develop new and innovative services; and (i) the complete lack of congestion in the band (there are no satellte systems operating today in the part ofthe 2 GHz band atissue) allows new services to develop without the constraints imposed by hundreds of thousands of existing users and dozens ofsatelltes who operate in other MSS bands." Thus, Inmarsat demonstrated that 2 GHz is wnigue among MSS bands in itsability to support high—data—zate, next—generation multimedia and broadband MSS offerings over mobile handheld devices, including in rural areas that may otherwise be unserved or underserved. The ‘° Letter from John P. Janka to Marlene H. Dortch, File No. SAT—PPL—20050926—00184, TB Docket Nos. 05—220 and 0—221, atS (filed Nov. 16, 2005) (citing See FTC v. HJ, Heinz Co. and Milnot Holding Corp., 246 F.3d 708, 724 n.23, 725 (D.C. Cir. 2001); see also id. at 724 n.23 (‘supracompetitive pricing at monopolisti levels is a danger in a market with only two competitors"). U ig bp

Commission correctly acknowledged that 2 GHz MSS systems would be able to compete with existing and forthcoming MSS offerings in other bands, but it simply failed to consider the converse————whether MSS providers in other bands would be able to compete fully with the 2 GHz MSS offerings ofTMI and ICO, For the reasons Inmarsat has articulated, MSS providers in other bands cannot be expected to fully compete with all forthcoming 2 GHz MSS offerings. Thus, the award ofthe entire 2 GHz band to two entities results in a duopoly, and Commission competition policy warrants censing at least one more initial competitor in the nascent band. B. The Commission Failed to Consider that TMI is an MSS Incumbent with Considerable MSS Spectrum Holdings In its competition analysis,the Commission concluded that assigning the entire 2 GHz Band to TMI and ICO would provide each ofthem "the inputs needed to enable them to become strong MSS compstitors,""" and that they needed 10 MHz of spectrum in each direction to be "roughly comparable" with their MSS competitors. Thus, the Commission declined to allow "other existing services providers" access to the 2 GHz band "to expand their existing services.""" The notion that TMIis not an "existing MSS service provider," and does not already have extensive spectrum resources, is simply incorrect. As the Commission is well aware, TMI has been an MSS operator for over a decade. TMI is the Canadion licensee ofan L—Band MSS satellite network currently operating at 106.5° W.L., and therefore has the right to those portions ofthe L—Band that have been coordinated by the Canadian administration under the Mexico City MoU."" Moreover, TMI has entered into a venture with Motient creating a combined Canadian—American regional MSS * 2 GHz Order at 156. "ta. ‘* See generally SatCom Systems, Inc.et al, 14 FCC Red 20798 (1999)(market access decision by which TMI‘s L—Band MSS spacecraft was authorized to serve the U.3.).

service, uilizing the capacity on TMI‘s Canadian—Licensed L—band satelite, as wellas the U.. L~ Band satellite now licensed to MSV."* That venture already has access o approximately 13 MHz of L—Band spectrum in each direction.‘" Thus, TMI is an incumbent MSS operator who has access to the L—Band on its own accord, as well as through its interest in the MSVjoint venture. Moreover, TMI‘s 2 GHz business is being acquired by Motient Corporation. Currently pending before the Commission is a proposed assignment ofTM‘s 2 GHz authorization to TerreStar, an entity that is majority owned and controlled by Motient."" Motient plans to acquire affimative control ofMSV (which it does not have today},and also to acquire ownership ofall of MSV and TerreStar thatit does not now own (other then minority positions to be retained by TMD)." Thus, there is no question thatthe award to TMI o2 x 10 MHz of2 GHz spectrum increases the MSS spectrum holdings of an existing MSS service provider, regordless whether Motient sequires TM‘s 2 GHz authorization. Moreover, upon consummation of Motient‘s acquisition of the TMI 2 GHz authorization, Motient will have access to almost twice ‘* See Motient Services Inc. and TMI Communications and Company, LP, Assignors and Mobile Satellite Ventures Subsidiary LLC, Assignee, 16 ECC Red 20469, 20469—71 (2001). ‘" Letter from John P. Janka to Mariene H. Dortch, IB Docket Nos. 05—220 and 05—221, at 2,n.1 & Exhibit 1 (fled Nov. 16, 2005). "* See Application of TMI Communications and Company, L.P.to assign its 2 GHz MSS LOI authorization to TerreStar Networks, SAT—ASG—2002121 1—00238; see also TMF Communications and Company, Limited Partmership and TerreStar Nemworks, Inc. Applicationfor Review and Requestfor Stay, 19 FCC Red 12603 (2004) (reinstating this application following the reinstatement ofTMI‘s 2 GHz authorization). !* See News Release, Motient Announces Transaction with Owners ofMobile Satellte Ventures and TerreStar Network: Restructuring and Simplifcation ofOwnership Structure to Provide MSVand TerreStar Enhanced Access to Capital and Strategic Partners (Sep. 22, 2005) (available at htt:‘ph.cororate—iz nev‘phoenix.zhimi?c=1 10135&p=irol= newsArticle&ID=7601 14&highlight=, last viewed January 9, 2006) cited in Letter from John P. Janka to Mariene H. Dortch, IB Docket Nos. 05—220 and 0$—221, at 1 (filed Sep. 28, 2005); see also Letter from John P. Janka to Marlene H. Dortch, File No. SAT—PPL—20050026—00184, 1B Docket Nos. 05—220 and 05—221 (filed Nov. 16, 2005).

as much MSS spectrum in North America as any other company——a total o46 MHz."" The 2 GHz Order inexplicably ignores this evidence. For these reasons, the Commission‘s conclusion that assigning more 2 GHz spectrum to TMI will frcilitate entry by a new MSS provider,and will allow TMI to "compete more effectively" with other MSS competitors, is not only wrong but also is contradicted by the record in this proceeding. C. The Public Safety and Rural Broadband Benefits Identified in the 2 GHz Order Are Not Unique to TML or ICO The Commission proffered two additional public interest benefits of increasing TMI‘s and ICO‘s 2 GHz MSS spectrum assignments: (1) public safety; and (2) rural broadband. While it is clear that public safety and rural broadband policies could be advanced by the deployment of almost any MSS system, nothing in the record supportsa conclusion that awarding all ofthe 2 GHz spectrum to TMI and ICO would advance these goals better than suthorizing one or more further competitive 2 GHz MSS systems. In analyzing the public safety benefis of ts decision, the Commission aptly explained that satelite technology generally provides invaluable capabilites to first responders in situations where terrestril services may be unavailable."". But there is no analysis in the 2 GHz Order, no any demonstration in the record, how increasing TMT‘s and ICO spectrum assignments 250 percent would benefit first responders. The Commission expressly disregarded evidence submitted by TMin support ofits request for more spectrum that Inmarsat and others disputed: that TMI needed additional spectrum to deploy ATC, take full advantage ofthe power on its spacecraf, achieve economies of scale in handset production, or use state—ofthe—art—air * Leter from John P. Janka to Marlene H. Dortch, File No. SAT—PPL—20050926—00184, TB Docket Nos. 05—220 and 05—221, at 2 (Filed Nov. 16, 2005) " 14 428.

interfaces."" Instead, the Commission‘s justification that TMI and ICO need more spectrum to provide public safety benefits is entirely based on brief and virtually identical submissions of certain public safety agencies that () tout the very important benefits ofMSS, and (i) mention (ustally in passing, if at all their support ofassigning the band to TMI and ICO, but provide no rationale or data to support dividing the band between just two providers. But nothing in those letters explains why assigning the entire 2 GHz band — 2 x 10 MHz each — to TMI and ICO is necessary to ensble those entities to provide public safety—related services that they could not provide with smaller 2 GHz spectrum assignments. Indeed, the Commission does not address why one ofthe options on which it requested comment would not be adequate to meet public safety needs, nemely the option ofincreasing the two incumbents‘ assignments to 6.67 MHz in each direction."" Nor does the 2 GHz Order‘s eliance on potential E911 benefits withstand scrutiny.. The 2 GHz Order cites as an "ndependent and additional justifiation for reassigning 10 megahertz of spectrum in each direction to ICO and TMI" the expectation that MSS providers who include an ATC component "will work toward providing basic and enhanced 911 features.""" Putting aside that neither TMI nor ICO has sought ATC authority, tfact remains that this justifieation has nothing whatsoever to do with TMor ICO per se, and would apply equallyto any other 2 GHz MSS proponent, including Inmarsat and Globalstar. Moreover, the ultimate conclusion ofthe public safety analysis in the 2 GHz Order is Ratly contradicted by two other findings in the 2 GH Order. In it public safety * 1d. nn.76 & 116. ®* Commission Invites Comments Concerning Use ofPortions ofReturned 2 GHz Mobile Satellite Service Frequencies, Public Notice, IB Docket No. 05—221, 20 FCC Red 12234 (2005). "* 2 GHe Order it 128 & 176. 10

analysis, the Commission concludes that "assigning this spectrum to TMT and ICO will enable them to bringit into use more quickly, and so they can offer public safety services more quickly than would be possible ifthe spectrum were assigned to another party.""" Yet later n the 2 GHz Order, the Commission expressly finds thatthe increased speed ofdeployment expected from an award to TMI and ICO would not outweigh giving new entrants an opportunity to enter the market."" This conclusion, which undercuts the key basis for awarding additional spectrum to TMI and 1CO, is particularly noteworthy given that the Commission also disregarded evidence that the 2 GHz band supports MSS services not possible in other bands, and (i) the harms oflicensing to duopoly at 2 GHz. Thus, the Commission‘s public safetyjustification for increasing TM‘s and 1CO‘s assignments is wholly unsubstantiated. Inmarsat fully agrees with the Commission‘s conclusion that the 2 GHz band is vitalto serving the interestsofthe public safety community.. Indeed, providing this community with the innovative services and competitive pricing that additional entrants would bring was one ofthe reasons why Inmarsat fled its application to provide service in this band. But the issue is not whether public safety services can be provided in this band — the issue is whether it was necessary to grant TMI and ICO a duopoly assigament of2 x 10 MHz each in this band to provide these offerings, or whether smaller assigaments, combined with the many benefits of additional competitive entry, would have better served those interests. The 2 GH Order also looks to rural broadband as a basis for assigning TMI and 1C0 a full 10 MHz in both directions. After stating the potential benefits ofsatellte services generallyto rural areas, the Commission concludes that "increasing ICO‘s and TMT‘s spectrum * 14. 428. * 14. 1570173 1

reservations would increase their capacity to provide broadband services in rural areas.""" But nowhere does the Commission as much as consider whether TMI and 1CO otherwise would have inadequate capacity to serve rural areas with less than 2 x 10 MHz, nor does it explain how their ability o serve rural areas would be improved, other than the tautology that more spectrum provides more capacity.. In contrast, the Commission expressly declined to consider contentions that awarding additional spectrum to TMI and ICO was needed to achieve other "efficiencies.""" Thus, the publicinterest benefits cited as justifications for awarding additional spectrum to TMI and ICO are not substantiated. HHI. Ti Conmsston Dib Nor Consiper Au Or Ti Aurernative Souvrions Propostn On Tue Recorn The Commission specifically sought comment on altemnatives to reassigning the entire 2 GHz band to TMI and 1CO." In its pleadings, and in various ex parte submissions, Inmarsat proposed various altermatives that would advance the public interest more than Hicensing only two entities in the nascent 2 GHz band, including: i) adopting the Commission‘s proposal to award one—third ofthe 2 GHz band to each of ICO and TMI, but then also promptly uthorizing a third entity in the remaining one—third ofthe band; i) retaining the 2 GHz band for MSS, not awarding any additional spectrum to TMI or 1CO at this time, and holding an expedited proceeding focused on determining the best way to authorize the available spectrum, including possibly awarding additional spectrum to TMI and ICO when they actually implement their systems; or (i) accommodating more than three licensees in the band, and expeditiously authorizing those additional licensees through a market—based licensing 7 14 q31. " Td n.l16. * Commission Invites Comments Concerning Use ofPortions ofReturned 2 GHz Mobile Satellite Service Frequencies, Public Notice, IB Docket No. 05—221, 20 FCC Red 12234 (205). 12

mechanism than provides an incentive to commence service to the public as early as possible.® Any ofthese proposals would have produced a better result than awarding the entire 2 GHz: band to only two entities, each of whom remains years away from implementing its 2 GHz system. And each of these proposals could be accomplished in a manner that ensures that the benefits of 2 GHMSS, including the public safety benefits, are brought to the American public in timely fashion. ‘The Commission‘s failure to address these altematives is sufficient reason for reconsideration."" Inmarsat‘s proposal to authorize one or more additional licensees in the band could have been expeditiously accomplished by altemative means: () licensing through a "race to space" whereby spectrum would be made available to the first entties to actually launch a 2 GHz MSS satellite, or (i) consistent with past precedent, granting Inmarsat‘s request for market access outside a "processing round," and thercby allowing Inmarsatto immediately commence itsplans to launch a 2 GHz MSS system by the end ofthe decade. Inmarsat explained that there would be no harm from its proposal to retain the returned 2 GHz spectrum for MSS and determine how best to assign it at a later date, because TMI had represented thatits 2 GHz spacecraft was well under construction, TMI had raised * See Letter from John P. Janka to Marlene H. Dortch, File No. SAT—PPL—20050926—00184, IB Docket Nos. 05—220 and 0—221 (filed Nov. 16, 2005); Letter from John P. Janka to Marlene H. Dortch, IB Docket Nos. 05—220 and 05—221 (filed Sep. 28, 2005); Letter from John P. Janka to Marlene H. Dortch, File No. SAT—PPL—20050926—00184, TB Docket Nos. 05—220 and 05— 221 (filed Oct. 27, 2005); Letter from John P. Janks to Marlene H. Dortch, IB Docket Nos. 05— 220 and 05—221 (fled Aug. 24, 2005); Letters from John P. Janka to Marlene H. Dortch, File No. SAT—PPL—20050926—00184, IB Docket Nos. 05—220 and 05—221 (filed Dec. 6, 2005). " City ofBrookings Municipal Telephone Co. v. FCC, 822 F2d 1153, 1170 (D.C. Cir. 1987) (("The Commission fell it the forbidden zone of arbitrary and capricious conduct i failing even to consider the proposed altemative."); National Black Media Coalition v. FCC, 775 F.2d 342, 357 (D.C. Cir. 1985) (Commission‘s failure to consider options was flaw in agency decisionmaking). 13

substantial capital and was spending billions of dollars based on a 2 x 4 MHz authorization, and. there was no question that TMI would deploy itssystem in accordance with its existing milestones."" Thus, Inmarsat urged the Commission to consider an award of additional spectrum to TMI and ICO onlafter they had actually implemented their systems. Nor did the Commission give serious consideration to Inmarsat‘s proposal to accommodate additional MSS competitors at2 GHz by determining the optimal number of2 GHz MSS competitors, and dividing the band evenly among them. The Commission stated that such an approach would require an "inherently subjective" determination of the minimum amount of2 GHz spectrum that would be adequate, and therefore was not consistent with Commission policy."" The Commission similarly stated that it would not "attempt to quantify cither TM‘s or ICO‘s individual spectrum needs.""* However, as discussed above, the Commission concluded that TMI and ICO each needs 2 x 10 MHz to provide public safety benefits, with no justification for why this particular amount ofspectrum is needed to provide these benefits. The Order does not attempt to reconcile () the summary refection of a proposal to faciltate MSS competition, based on the Commission‘s desire to avoid an "inherently subjective" analysis, with (i) the entirely subjective (and unsubstantiated) determination that increasing TMI‘s and ICO‘s spectrum assignments to 2 x 10 MHz was necessary to ensure their ability to provide public safety services. It also bears noting that the text of the 2 GHz Order suggests that the Commission failed to consider volumes of material that were submitted after the formal pleading eycle closed * See Letter from John P. Janka to Marlene H. Dortch, File No. SAT—PPL—20050926—00184, TB Docket Nos. 05—220 and 05—221, at3 (Filed Nov. 16, 2008). ® 2 GHz Order at 9 50—60. " 1i z42. 14

on August 15, 2006, including dozens ofpages of ex parte submissions from Inmarsatalone, which address a number of the issues discussed above."" In two places, the 2 GHe Order identifies the record that formed the basis for the decision: (1)the text ofthe decision states that "the record in this proceeding is comprised of"" the comments and reply comments filed in the formal pleading cycles in IB Docket Nos. 05—220 and 05—221 "together with the leters filed by interested parties prior to the release ofthe public notices,""" and (i) the Appendix to the 2 GHz Order delineates those same documents, but then selectively ists as Sincluded in the record" only nine exparte letters submitted after the pleading eycle closed, but none of Inmarsat‘s four substantive ex parte submissions. The Commission is obligated to address all serious altemative proposals that purport to serve the public interest, which the 2 GHz Order did not do."" Moreover, the Commission may not selectively include certain submissions in the record, while inexplicably excluding others, particularly when those other submissions contain evidence that undercuts the * Letter from John P. Janka to Marlene H. Dortch, IB Docket Nos. 0—220 and 05—221, at 1 (filed Sep. 28, 2005); Letter from John P. Janka to Marlene H. Dortch, File No. SAT—PPL 20050926—00184, TB Docket Nos. 0—220 and 05—221, at1 (filed Oct. 27, 2003); Letter from John P. Janks to Marlene H. Dortch, SAT—PPL—20050926—00184, TB Docket Nos. 05—220 and 05—221, at 1 (fled Nov. 16, 2003). ® 2 GHz Order u15. *‘ FlagstaffBroadcasting Foundation v. FCC, 979 F.2d 1566, 1570 (D.C. Cir. 1992) (remanding to the Commission to consider altemative proposal purporting to better serve the public interest than current Commission practice); YakimYalley Cablevision, Inc. v. FCC, 794 F.2d 737, 746 FN 36 (D.C. Cir. 1986) (‘The failure of an ageney to consider obvious altematives has led uniformly to reversal."); City ofBrookings Municipal Telephone Co. v. FCC, 822 F.2d at 1170. 15

analysis in the decision, and make proposals for altermative resolutions."" Both ofthese failures are independent grounds for reconsideration IV. Reconsiperation or IN\arsar‘s Maker access arpuicamion is warzaniEn To the extent Commission revisis ts determination to award the entire 2 GHz band to TMI and ICO, the Bureau should revisit is dismissal ofInmarsat‘s Petition for Declaratory Ruling to provide 2 GH: MSS service o the U.S.,using Ku band FSS feeder links. In its decision, the Bureau stated that it sole reason for dismissing the Petition was the Commission‘s "comprehensive ruling on the matter ofreturned spectrum" in TB Docket Nos. 05— 220 and 05—221," iethe fact that there does not appear to be any 2 GHz: spectrum currently available to Inmarsat. For the reasons set forth above, however, the bases for awarding the entirety of the 2 GHz: band to TMI and 1CO are unsound, and there are compelling reasons to accommodate at least one additional competitor in the band. Inmarsat wishes to be that additional competitor. To the extent that the Commission reconsiders its decision to license to duopoly at 2 GHz, the Bureau should reconsider the dismissal of Inmarsat‘s Petition, and reinstate it mume pro tune in the satellite application processing queue. As the Commission is well aware, authorizations to use FSS feeder link frequencies are issued on a "first come, first served" basis as established by filing priority in the Commission‘s satelite application processing queue. If the sole basis for dismissing Inmarsat‘s Petition is reconsidered, equities warrant restoring Inmarsatto its place in the processing queue that it held prior to dismissal. * Hllinois Public Telecommunications Ass‘n v. FCC, 177 F3d 555, 564 (D.C. Cir.1997) ("FCC‘s ipse dixit conclusion, coupled with ts failure to respond to contrary arguments resting on solid data, epitomizes arbitrary and capricious decisionmaking."). ® Inmarsat PDR Order at §4. 16

v. Concuusion For the foregoing reasons, the Commission should reconsider its 2 GHz Order to the extent specified above, and reinstate Inmarsat‘s Petition for Declaratory Ruling to provide 2 GHtz MSS. Respectfully submitted, Diane J. Comell Vice President, Govemment Affairs Inmarsat,Inc. 1100 Wilson Blyd, Suite 1425 555 Eleventh Street, N.W. Arlington, VA 22209 Suite 1000 Telephone: (703) 647—4767 Washington, D.C. 20004 Telephone: (202) 637—2200 Counselfor Inmarsat Ventures Limited and Inmarsat Global Limited January 9, 2006 17

CERTIFICATE OF SERVICE 1, Jeffrey A. Marks, hereby certify that on January 9, 2006, I caused to be served a copy of the foregoing Consolidated Petition for Reconsideration by first—class U.S. mail (unless otherwise indicated) upon the following: Chairman Kevin J. Martin Michael J. Copps Federal Communications Commission Federal Communications Commission 445 12® Strect, SW 445 12" Street, SW Washington, DC 20554 Washington, DC 20554 By Electronic Mail By Electronic Mail Jonathan J. Adeistein Deborgh Taylor Tate Commissioner Commissioner Federal Communications Commission Federal Communications Commission 445 12" Street, SW 445 12° Street, SW Washington, DC 20554 Washington, DC 20554 By Electronic Mail By Electronic Mail Fred Campbell Emily Willeford, Legal Advisor to Chairman Martin Deputy Chiefof Staffand Federal Communications Commission Advisor to Chairman Martin 445 12" Street, SW Federal Communications Commission Washington, DC 20554 445 12° Street, SW By Electronic Mail Washington, DC 20554 By Electronic Mail John Giusti Barry Ohlson Legal Advisor to Commissioner Copps Legal Advisor to Commissioner Adelstein Federal Communications Commission Federal Communications Commission 445 12" Street, SW 445 12" Streat, SW Washington, DC 20554 Washington, DC 20554 By Electronic Mail By Electronic Mail Anton Goldberger Donald Abelson Legal Advisor to Deborah Taylor Tate Chief, International Bureau Federal Communications Commission Federal Communications Commission 445 12® Street, SW 445 12" Street, SW Washington, DC 20554 Washington, DC 20554 By Electronic Mail By Electronic Mail

Roderick Porter Richerd Engelman Deputy Bureau Chief, International Bureau Chief Engineer,International Bureau Federal Communications Commission Federal Communications Commission 445 12" Street, SW 445 12" Street, SW Washington, DC 20554 Washington, DC 20554 By Electronic Mail By Electronic Mail Sam Peder Cassandra Thomas Acting General Counsel Acting Chief Federal Communications Commission Satellite Division, International Division 445 12" Street, SW Federal Communications Commission Washington, DC 20554 445 12" Street, SW By Electronic Mail Washington, DC 20554 By Electronic Mail Gardner Foster Karl Kensinger Legal Advisor, International Bureau Associate Division Chief Federal Communications Commission Satellte Division, International Bureau 445 12" Street, SW Federal Communications Commission Washington, DC 20554 445 12" Street, SW By Electronic Mail Washington, DC 20554 By Electronic Mail Fem Jarmulnck William Bell Deputy Chicf Policy Branch Satelite Division, International Bureau Satelite Division Federal Communications Commission International Division 445 12" Street, SW Federal Communications Commission Washington, DC 20554 445 12° Street,SW By Electronic Mail Washington, DC 20554 By Electronic Mail Steve Spacth Christopher Guttman—McCabe Assistant Division Chief CTIA The Wireless Association Satellte Division, International Bureau 1400 16" Street, NW Federal Communications Commission Suite 600 445 12" Street, SW Washington, DC 20036 Washington, DC 20554 By Electronic Mail powsin

Dale Branlund Thomas Clemons Chief Technical Officer President BRN Phocnix, Inc. Alaska Association of Chiefs of Police 329 N. Bemardo Avenue P.0. Box 167 Mountain View, CA 94043 Seward, AK. 99664 Loren Leman Suzanne Hutchings—Malloy Chairman 1CO Satelite Services, G.P. Aerospace States Association 2000 Pennsylvania Avenue, NW 2200 Wilson Boulevard Suite 4400 Suite 102—249 Washington, DC 20006 Arlington, VA 22209 William T. Lake Kelin N. Kasler William Cutler Pickering Hale and Dorr Amy E. Bender 2445 M Street, NW Jennifer D. Hindin Washington, DC 20037 Carl R. Fronk Counselfor Globalstar, LC Wiley Rein & Ficlding 1776 K Street, NW Washington, DC 20006 Counselfor Sirius Satelte Radio, Inc. Nils Rydbeck, MSEE, PhD., Professor Kathleen OP‘Brien Ham Rydbeck Consulting Managing Director, Federal Regulatory Affairs 943 Flagship Drive T—Mobile USA, Inc. Summerland Key, FL 33042 401 9° Street, NW Suite 550 Washington, DC 20004 Thoms J, Sugrue Carol L. Tacker Vice President, Govemment Affairs David G. Richards T—Mobile USA, Inc. 1. R. Carbonell 401 9° Street, NW Cingular Wireless, LLC Suite 550 5565 Glenridge Connector Washington, DC 20004 Suite 1700 Atlanta, GA 30342 Robert A. Calaff Peter Pitsch Director, Federal Policy Communications Policy Director T—Mobile USA, Ic. Intel Government Affairs 401 9° Street, NW Intel Corporation Suite 550 1634 I Street, NW, Washington, DC 20004 Suite 300 Washington, DC 20006 possama

Dennis J. Bumett Andrew Tang Vice President Director Wireless Systems Analysis EADS North America Defense Company Broadband Wireless Division 1616 North Fort Myer Drive Intel Corporation Suite 1500 1634 I Street, NW Arlington, VA 22209 Suite 300 Washington, DC 20006 Marjorie J. Dickman Matthew S. DelNero Senior Attomey Kurt A. Wimmer Intel Government Affairs Jonathan D. Blake Intel Corporation Covington & Burling 1634 I Street, NW 1201 Pennsylvania Avenue, NW. Suite 300 Washington, DC 20004—2401 Washington, DC 20006 Counselfor TerreStar Networks, Inc. Gregory C. Staple Wayne V. Black Vinson & Eikins Keller and Heckman LLP 1455 Pennsylvania Avenue, NW 1001 G Street, NW Washington, DC 20004—1008 Suite 500 West Counselfor TMI Communications and Company Washington, DC 20001 Limited Parmership Counselfor American Petroleum Institute Oliver Badard Bruce A. Olcott Viee President Joseph P. Markoski Alcatel North America Squire, Sanders & Dempsey LLP 11600 American Dream Way 1201 Pennsylvania Avenue, NW 9® Floor P.0. Box 407 Reston, VA 20193 Washington, DC 20044—0407 Counselfor The Bocing Company Thomas M. Walsh Henry Rubwiedel Spectrum Planning & Regulation Rubwiedel The Bocing Company — IDS/S&IS sarr w iss® Satellte Development Center Crown Point, IN 46307 P.0. Box 92919 we w—sio.s343 Los Angeles, CA 90009—2910 pesman

ChiefDan Flynn Raymond G. Bender, Jr. Savannsh Chatham Metropolitan Police John S. Logan P.0. Box 8032 Dow, Lohnes & Albertson, PLLC Savennch, GA 31412 1200 New Hampshire Avenue, NW Suite 800 Washington, DC 20036 Counselfor Hughes Network Systems, LLC Gerald C. Musarra Leurence D. Atlas Vice President, Trade & Regulatory Affairs Loral Space & Communications Lockheed Martin Corporation 1421 Jefferson Davis Highway 1500 Crystal Drive Suite 810 Suite 300 Arlington, VA 22202—3290 Arlington, VA 22202 Carl Hofferberth Lany Hatch Microwave Circuits, Inc. Advanced Manufacturing Technology, Inc. 1611 Kemper Street 28 Millrace Drive Lynchburg, VA 24501 Lynchburg, VA 24501 David A. Cavosse Christopher D. Imlay Executive Director General Counsel Satelite Industry Association Society of Broadcast Engineers, Inc. 1730 M Street, N.W. eo Booth, Freret, Imlay & Tepper Suite 600 14356 Cape May Road Washington, DC 20036 Silver Spring, MD 20904 Fred Fellmeth, Esg James R. Jenkins 777 American Drive Vice President, Legal and External Affairs Bensalem, PA 19020 United States Cellular Corporation Counselfor Total RF Marketing, Inc. 8410 West Bryn Mawr Chicago, IL 60631 George Y. Wheeler, Esg. Bert W. King Holland & Knight LLP 24 Jones Avenue 2099 Pennsylvania Avenue, NW Greenville, SC 29601—4332 Suite 100 Washington, DC 20006 Counselfor United States Celtular Corporation ChiefJoseph G. Estey Chief Harold L. Hurt President President International Association ofChiefs ofPolice Major Cities Chiefs Association 422 Winthrop Drive 422 Winthrop Drive Tthaca, NY 14850—1739 Ithaca, NY 14850—1730 pomsni

Sheriff James A. Kames SheriffTed Sexton President President Major County Sherifis® Association National Sheriffs‘Association 422 Winthrop Drive 422 Winthrop Drive Ithace, NY 14850—1739 Tthaca, NY 14850—1739 William K. Coulter, Esq. Kumar Singarajah Coudert Brothers, LLP Chairman 1627 I Street, NW. Satelite Action Plan Regulatory Group Suite 1200 Brussels Washington, DC 20006 BELGIUM, DC 01040 Counselfor Mobile Satellite Users Association By International Mail Aarti Hollo—Maini R. Edward Price Secretary General Robert A. Mazer, Esg Buropean Satellite Operators Association Vinson & Elkins, LLP Brussels 1455 Pennsylvania Avenue, NW BELGIUM, DC 01040 Washington, DC 20004—1008 By International Mail Counselfor StyTerra Communications, Inc. Lawrence R. Krevor Robert S. Foosaner Vice President, Spectrum Strategy Vice President and ChiefRegulatory Officer Sprint Nextel Corporation Sprint Nextel Corporation 2001 Edmund Halley Drive 2001 Edmund Helley Drive Reston, VA 20191 Reston, VA 20191 Jill M. Lyon Vice President and General Counsel Trey Hanbury United Telecom Council Senior Counsel, Spectrum Strategy 1901 Pennsylvania Avenue, NW Sprint Nextel Corporation 5° Floor 2001 Edmund Halley Drive Washington, DC 20006 Reston, VA 20191 Kenneth L. Morekel Lee Cobb Director Executive Director Ohio Department of Public Safety Virginia‘s Region 2000 Economic 1970 West Broad Street Development Council P.0. Box 182081 P.0. Box 937 Columbus, OH 43218—2081 Lynchburg, VA 24505 Lester B. Baird, Sr. Cecilia Bernier County Administrator Town Manager Hendry County, Florida P.0. Drawer 660 P.0. Box 2340 Windermere, FL 34786 LaBelle, FL 33975—2340 poman

SheriffRobert J. McCabe ChiefA.M. Jacocks, Jr. Norfolk Sherif‘s Office ChiefofPolice 811 E. City Hall Avenue Building 11 Norfolk, VA 23510 Municipal Center 2509 Princess Anne Road Virginia Beach, VA 23456 Carlton Stallings President Georgia Fratemal Order ofPolice 772 Maddox Drive Suite 104 Ellijay, GA 30540 pomama


Document Created: 2006-01-11 12:17:56
Document Modified: 2006-01-11 12:17:56
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