Attachment app for review

app for review

APPLICATION FOR REVIEW submitted by AT&T Wireless

app for review

2001-10-17

This document pretains to SAT-STA-20010712-00063 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2001071200063_456704

RECEIVED Before the FEDERAL COMMUNICATIONS COMMISSION get 17 2001 Washington, DC 20554 n cxmsnovors commem wree ie ne screan ) In the Matter of ) ) XM Rapto, Inc. ) File No:SAT—STA—20010712—00063 ) Received Request for Special Temporary Authority ) To Operate Terrestrial Repeaters in the ) Satelite Digital Audio Radio Service ) Eesnc APPLICATION FOR REVIEW Pursuant to Section 1.115 ofthe Commission‘s rules, AT&T Wireless Services, Inc. (‘AWS®) respectfully requests that the Commission grantthis application for review and reverse the decision ofthe Intemational Bureau granting XM Radio, Inc. (‘XM") Special Temporary Authority ("STA") to operate a nationwide terrestral repeater network in the 2332.5—2345 MHz band.‘ Absent complete disclosure by XM ofthe location and technical parameters of all repeaters to be operated pursuant to the STA, grant ofthe STA was in clear violation ofthe Commission‘s rules. Accordingly, the Bureau‘s order must be reversed and XM‘s request denied. On July 12, 2001, just prior to publicly announcing September 12 commercial launch ofits satellte Digital Audio Radio Service, XM filed an STA request so that it could initiate service using more than 700 high power repeaters, operating at powers up to 40 kW nationwide. Curiously, in a footote, and without explanation, XM observed ! XM Radio nc, Application for Special Temporary Authority, Order and duthorizaion, File No. SAT— $A—200110712:00063 (rnl. Sepe 17, 2001).

that it "has not included this [location and operational) information for the low power repeaters (Le,, EIRP of 2 kW or less) it seeks to operate pursuant to this STA."" In response o a Public Notice seeking comment on the application," AWS detailed a number of substantive and procedural deféets in XM‘s request and argued that those issues must be addressed prior to any grant of authority.* Specifically, AWS argued (1) that XM‘s application was facially defective because it did not include complete information on all of the tansmitters it sought to operate pursuant tothe STA; and (2) that a number of the high power repeaters disclosed in the application could be shown conclusively to interfere with AWS‘s current and near—term deployment of ts fixed wireless network" Section 25.120 ofthe Commission‘s rules governs the standards and requirements relevant to a grant of an STA for satellite communications services. The rule plainly states that "(t}he request [for special temporary authority] must contain thefull particulars ofthe proposed operation including all fats sufficient to justify the temporary authority sought and the public interest therein."" Despite this explicit requirement, the Bureau on delegated authority decided to read the "particularity" requirement out ofthe rule. At this point, no one except XM knows the locations of hundreds — perhaps thousands — of transmitters that it is operating nationwide. Such a * XM Radio Inc. Requestfor Specil Temporary Authorty to Operite Digial Audio Radio Service Terestrl Repesters Jaly 12, 2001) * »Satlite Policy Branch Information Application Accepted for Filing," Pubile Noice Report No. SAT« 90077 e Juy31, 2001) * XM Radio Inc.and Sinus Satlite Radio Inc. Request for Special Temporary Authoriy, Comment AT&T Wireess Services, Ic, Fil Nos. SAT—STA—20010712.00063 and SAT—STA—20010724—00064 (Augest 21, 2000) AMWS cureny operatesa fited wireless ntwork providingliflinvoiceand Intemet broadband services to residenil customersover Wirless Communications Service ("WCS") spectrum. Th SDARS spectrum is loctedin the midst ohe WCS band and thercby poses substanial isk ofblanketing inerference to the WCS Iicensees °47 CER § 25.120() (emphasis added)

generous grant of authority —— one that is definitionally untimited in scope — clearly exceeds that contemplated by the Commission or authorized by the rule. The contradictions in the Bureau‘s order belieits analysis. The Bureau‘s entire discussion conceming whether it should actually require XM to disclose all ofthe repeaters for which it sought operational authorityis as follows: "because the focus of the party‘s [sic] technicalinterference objections has been on repeaters operating above 2 kW EIRP and because the particulars of those repeaters have been disclosed, Section 25.120‘s requirement for specificity have been satisfied."" Oddly, then, not even the Bureau knows what it has authorized." Furthermore, because it looks like a blanket grant for all repeaters at or below 2 kW, it appears that XM can continue t construct more repeaters and bring them into operation anywhere in the country without receiving the prior consent ofthe Commission. The reference tothe "parties‘ objections" as focused on high power repeaters, operating at levels up to 40 kW, is inspposite in this proceeding. As the Bureau recognized, the Commission is actively considering "complex issues" about SDARS repeaters‘interference to WCS operations in rulemaking docket No. 95—91. Andit is true that many of the WCS licensees, including AWS, have indicated that authorization by 1ule ofrepeaters below 2 kW may be appropriate because 2kW is the standard power authorized in the band. However, no such rules have been adopted. Moreover, WCS Hicensees have never indicated that a 2kW environment would leave them free from interference from SDARS repeaters. Though the Bureau‘s analysis could be read to suggest the WCS licensees have "waived." any objection to repeaters operating at or " Order and Authorization, t 49. * in a mesting with TB stf, AWS counselconfiemed thtthe Bureay does t itend toask XM to provide it ny information on ts repentes operating ator blow 2 KW

below 2 kW, that is simply not the case. Nor,indeed, is it appropriate for the Bureau to make a ruling in this adjudicatory proceeding based on conjecture about what the Commission may decide in a pending rulemaking proceeding. Appropriately, the Bureau order indicated that operations pursuant to the STA must be on a non—interference basisto all other licensed services. The order indicates that "XM {must] immediately reduce the power level ofor,ifnecessary, cease operation of any repeater that causes interference to a WCS, MDS or ITFS authorized station."" Ironically, this requirement ieffective upon "receipt ofa written, descriptive notifiation from a WCS... lcensee identifring the specific source ofinterference.""° How a WCS Hicensee is to identify an interfering transmitter operating at 2 KW is not discussed. Perhaps recognizing this deficiency, the Bureau required XM to share information on all repeaters it intends to operate pursuant to the STA. However,it invited XM to impose a non—disclosure agreement on any recipient of the information. By taking this path, the Bureau has allowed XM to continue its consistent practice ofwithholding information that could be useful in resolving interference concemns. To date, despite a formal request made by AWS one month ago, no WCS licensee has received this information."". Even disclosure through an NDA, however, does not resolve the legal deficiency in the Bureau‘s order. That order gives XM a blank check on terrestril repeaters. The requirement that an applicant for extraordinary reliefdisclose the "full particulars" ofits request exists to protect operational licensees, such as AWS, from unauthorized and potentially dangerous interference. IfXM wishes o make the showing : Order and Authorizaton, at 414 emphasis added) *m ©* Today XM verified thisfetin leter. XM Leter o the Don Abelson, Chicf, Intemational Bureay,File No. SAT—STA—20010712:00063 (Ostober 16, 2001).

necessary to receive confidential reatment of that information, et it do so. But the burden ofdoing so should be on the applicantprior to ts receipt ofextraordinary relief— and not upon existing licensees who continue to be held in the dark long after XM has begun its operations. By issuing the STA in the absence of identification ofall ofthe repeaters to be authorized, the Bureau acted in derogation of the Commission‘s rules. For the reasons stated above, the Commission must grant this application for review and reverse the Bureau‘s grant of the STA. Respectfully submitted, AT&T Winuess Services, Inc. Hanms, Wirrsure & Gramas tir 1200 Eighteenth Street, NW. Washington, DC 20036 202—730—1300 Douglas I. Brandon AT&T Wiretess Seavices, Inc. 1150 Connecticut Avenue, NW. 4" Floor Washington, DC 20036 202.223—0022 Dated: October 17, 2001


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Document Modified: 2005-09-27 15:08:11
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