Attachment reply to opp

reply to opp

REPLY TO OPPOSITION submitted by Star One

reply to opp

2008-09-10

This document pretains to SAT-PPL-20071113-00159 for Permitted List on a Satellite Space Stations filing.

IBFS_SATPPL2007111300159_663674

Before the FEDERAL COR.1MUNICATIONS COR.1R.IISSION Washington, D.C. 20554 1 In the Matter of ) ) STARONES.A. 1 File No. SAT-PPL-20071113-00159 1 Call Sign S2742 Petition for Modification of 1 Declaratory Ruling That Added the 1 Star One C5 Satellite at 68” W.L. to 1 the Permitted Space Station List 1 To: The Commission REPLY TO OPPOSITION TO APPLICATION FOR REVIEW Star One S.A. (“Star One”) hereby replies to matters raised in the Opposition to Application for Review filed in this proceeding by the Andean Community.’ “Surprise” is not a good excuse for failing to participate in a proceeding until after the Commission has acted. The Andean Community attempts to distinguish the extensive Commission precedent on this point* on the grounds that it is “not seek[ing] to deny Star One entry on the Permitted List or to enter an adversarial proceeding to seek relief not requested by ’ See Letter from Freddy Ehlers, Secretary General of the Andean Community to Kevin J. Martin, Chairman, FCC,Jled in File No. SAT-PPL-20071113-00159 (filed Aug. 28,2008) (“Opposition”). ’ See, e.g., Press Broaclccistitig Co. itnil Silver King Broaclccistirig of Vinelantl, Inc., 3 FCC Rcd 6640, at 11 5 (1 988) (holding that “surprise” is “no basis for a new party to file a petition for reconsideration”); GTE Telenet Cot?tnztrriicatiorisCorp. v. ,4T&T, 1 FCC Rcd 367, at 11 6 (1986) (rejecting “surprise[] at the result” as “good cause” for a new party to file a petition for reconsideration); GTE hiobiletlet of Hortstoti L.P., 8 FCC Rcd 2728, at 77 4-5(rejecting a mistaken assumption about how the Commission would rule as good cause for not participating earlicr); A T d T C a p . v. BeIISoirtJi T ~ I e c o t ~ ~ t ~ ~ i ~ ~Itic., ~ ~FCC ~ i c20 i s , 8578, at 116 (2005) t i o tRcd (“‘surprise’ at the outcome of a Commission proceeding does not ordinarily excuse a fiilure to attempt to participate earlier in the proceeding.”). See czlso Cottiinifteefor Co~niniitiif~~ ,+1ccess1’. FC’C, 737 F.2d 74, 84 (D.C. Cir. 1984).

the original ~ o n ~ p l a i n a n t .This ” ~ is a distinction without a difference. Section 1.106 of the Commission’s rules applies to petitions for reconsideration in cill non-rulemaking proccedings, regardless of whether the proceeding is adversarial or whether the petitioner is requesting full or partial reconsideration of the original decision.“ As a result, a non-party filing a petition for reconsideration must comply with that rule and show “good reason” why it failed to participate earlier in the proceeding if its petition is to be ~ o n s i d e r e d .As ~ Star One has shown, however, “surprise” is simply not a good excuse for failing to participate earlier in a proceeding under well-established Commission and court precedent in any context.6 Indeed, the Commission has expressly ruled that “unanticipated results” is a “legally insufficient” basis for a non-party to seek partial reconsideration in the context of a non-adversarial proceeding.’ The Andean Commuriity’s reliance on the Spectrum Five decision is misplaced. The Andean Community also claims that the time limits on participation in Section 1.106 do not Opposition at 3 (emphasis in original). There are only two Commission rules governing petitions for reconsideration. See 47 C.F.R. $5 1.106, 1.429. Section 1.429 of the Commission’s rules applies to petitions for reconsideration in rulemaking proceedings, while Section 1.106 applies to petitions for reconsideration in all other proceedings. See 47 C.F.R. 5 1.106(a)( 1) (“For provisions governing reconsideration of Commission action in notice and comment rule making proceedings, see 4 1.429. This 4 1.106 does not govern reconsideration of such actions.”). 47 C.F.R. 4 l.l06(b)(l). (’ See Star One S A . , Application for Review at 4-5,filed irt File No. SAT-PPL-20071 1 13- 00 159 (filed Aug. 13,2008). 7 See The Seiieri Hills Televisiorl C‘o., 3 FCC Rcd 826 (1988) (“Seven /fills”) (dismissing non-party’s petition for partial reconsideration of license renewal to modify conditions of grant); Seivri /fills at 71 2 (“[aln unanticipated result is not conventionally recognized as ‘good cause’ for lack of earlier participation in an agency proceeding.”); Seven HiIZs. at 15 (“This basis, as wc have said, is legally insufficient.”). 2

apply to its “petition for clarification,” as opposed to petitions for reconsideration.8 In this regard, the Andean Community relies on the International Bureau’s recent Specfrirrti Five decision, \vhich modified the EchoStar 11 license months after the license was granted.” That decision is inapposite, however. In that case, the EchoStar 1 1 license contained an express resewation of authority to the Commission to impose “additional terms and conditions” as required to effect coordination.” In other words, modifications to the EchoStar 1 1 license could be requested and made outside of the procedure for reconsideration set out in Section 1.106 of the Commission’s rules. In contrast, there is no similar reservation of authority in the Star One C5 authorization, which means that the Andean Community’s post-grant request in this case must be treated as a petition for reconsideration that is subject to the limits on participation in Section 1.106. Indeed, there can be no doubt that the International Bureau did in fact treat that request as a petition for reconsideration, as its grant of that request is styled an “Order on Reconsideration.”’ ’ Opposition at 3 (“But the rule cited by Star One applies only to petitions for reconsideration, and as the Commission has recently made clear there is no similar time limitation on the filing of a petition for clarification such as the one involved here.”). In fact, the Andean Community’s request was styled a “Request for Clarification or, in the Alternative, for Reconsideration.” See Letter from Maria Del Rosario Guerra, Minister for Communications, Republic of Colombia, to Kevin J. Martin, Chairman, FCC,Jilec/ iiz File No. SAT-PPL- 20071 1 13-001 59 (dated Mar. 13,2008). 0 See Spectrzriti Five, LLC, DA 08-1955, Order (rel. Aug. 26, 2008) (b‘Spectrut?iFiive”). l o Id. at 1 1 8 (“Pursuant to the EchoStar 1 1 license condition quoted above, EchoStar ‘may be subject to additional terms and conditions as required to effect coordination or obtain the agreement of other Administrations.’ We find here that an additional term of operation . . . is a necessary part of a successful coordination . . . .”). ‘ I See Stcir One S A . , DA 08-1645, Order on Reconsideration, File No. SAT-PPL- 20071 1 13-00159 (rel. Jul. 14, 2008) (“Recoiisitlercitiorl Ortier”). This can be contrasted \+ ith the Specti-imi Fi\*e decision, Lvhich the Bureau styled an “Order.” The Bureau also applied a different caption to that Order (rather than the EchoStar 1 1 caption) to indicate that it \+as not acting on reconsideration of the original grant. 3

The Biireaii Did Not Waive the Procedural Defects iti the Atideati Cottiniiitiity ’s Reyiiest. The Andean Community suggests that “there \vas ample basis for the Bureau to \vaive any procedural technicalities.”” But the Bureau did not in fact waive any procedural defects in the Andean Community’s request. Indeed, the Bureau failed to even discuss Section 1.106, much less make a finding that there was “good reason” for the Andean Community’s failure to participate prior to the Bureau’s grant of the Star One C5 authorization. The Bureau did no more than note the Andean Community’s explanation for non-participation - namely, that it “expected” a different o ~ t c o m e-’ without ~ reference to either the requirements of Section 1.106(b)(l) or the extensive Commission and judicial authority holding that “surprise” is not a good reason for failing to participate earlier in a proceeding. As a result, and as explained more fully in the Application for Review, the Bureau acted in clear conflict with established precedent and committed prejudicial procedural error. The Commission should therefore reverse the Bureau’s decision to grant the Andean Community’s request, and should re-affirm “the Commission’s - and indeed the public’s - interest in finality of licensing decisions.”14 ’’Opposition at 4. I? Rccotisiticrtrtiori Order at 71 3. I4 Coriiriiitterfor Cottii?ii/tiityA4ccess11. FCC, 737 F.2d 74, 84 (D.C. Cir. 1984) (“If we were to require the Commission to accept surprise as a sufficient justification for a new party to seek reconsideration, the Commission’s - and indeed the public’s - interest in finality of licensing decisions would be eviscerated.”) 4

Respectful 1y subm i ttcd. A l f r e f i . Manilet Chung Hsiang Mah Steptoe & Johnson LLP 1330 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 429-3000 Couiisel for Stur Oiie S A . September 10,2008 5

CERTIFICATE OF SERVICE I, Chung Hsiang Mah, hereby certify that on Wednesday, September 10, 2008, I caused true and correct copies of the foregoing "Reply to Opposition to Application for Review to be " sewed on the following parties by the method indicated: Maria Del Rosario Guerra Minister of Communications Republic of Colombia c/- Joaquin RestrePo* International Affidirs Advisor Ministry of Communications Calle 13 X Cra 8a. Ed. Murillo Toro, Piso 4" Bogota, D.C., Colombia Dr. Freddy Ehlers Zurita* Secretary General Andean Community of Nations Av. Paseo de la Republica 3895, San Isidro Lima, Peru Helen Domenici** Chief, International Bureau Federal Communications Commission 445 12th Street SW Washington, D.C. 20554 Ambassador David Gross*** Coordinator for International Communication and Information Policy Bureau of Economic Energy, and Business Affairs U.S. Department of State 2201 C Street, NW Room 6333 Washington, D.C. 20520-5820 * Sent by Federal Express ** Delivered by Hand *** Sent by First Class Mail STEPTOE &JOHNSONLLP 1330 Connecticut Avenue, N. W. Washington, D.C. 20036


Document Created: 2008-09-11 11:40:16
Document Modified: 2008-09-11 11:40:16
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