Attachment comment

comment

COMMENT submitted by AT&T Wireless

comment

2001-08-21

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

IBFS_SATSTA2001071200063_456867

Before the HECEJVED FEDERAL COMMUNICATIONS COMMISSION Aug 21 Washington, DC 20554 ram. 200; womvemnmeee, S In the Matier of XM Rapio, INc. File No. SAT—$TA—20010712—00063 Request for Special Temporary Authority To Operate Terrestrial Repeaters in the Satellite Digital Audio Radio Service Spavs Sareturme Rapio, Inc. File No. SAT—STA—20010724—00064 Request for Special Temporary Authority To Operate Terrestrial Repesters in the Satellite Digital Audio Radio Service COMMENTS or AT&T WiRELESS SERVICES, INC. AT&T Wireless Services, Inc. (°AWS") submitsthese comments to highlight the substantial defects — both procedural and substantive — that exist in the requests for special temporary authority ("STA®)to operate terrestrialrepesters in the satellite Digital Audio Radio Service (‘SDARS") filedby XM Radio, Inc." and Sirius Satellite Radio, Inc.*. In view of the fact that AWS is currently operating a facilties—based., fixed wireless networks providing lifeline and broadband Internet access services using adjacent spectrum licensed in the Wireless Communications Service ("WCS®) that would be affected by the proposed SDARS operations, these issues must be addressed priorto any grant of authority, whether by STA or otherwise. & Letter from Lon C. Levin to Magaie Roman Salas, dated July12, 2001 (‘XM Request"). $ Letterfrom Robert D. Briskman to Magatie Roman Slas,dred Jaly 24,2001 (‘Sirius Request).

Specifically, neither applicant has demonstrated the "extraordinary circumstances" and "serious prejudice to the public interest" that must be shown in order to justify the grant of an STA. Neither applicant has provided complete information for alltransmitters it seeks to operate pursuant to the STA. And most importantly, now that XM and Sirius have finally come forward with operating information on their high power repeater networks, AWS can demonstrate with certainty that some of those repeaters will cause harmfulinterference to AWS® current and near—term provision of lifline services. In addition, AWS submits that the STA requests must be viewed in the larger contextof the pending SDARS service rules proceeding? concerning the precise operations atissue here and the applicants‘ established history of abuse ofthe Commission‘s experimental Hicense program. }fthe Commission is provided with information sufficient for it to conclude that the applicants have met their burden of proof and are otherwise qualified to receive an STA, AWS believes that any STA issued in these proceedings must be appropriately conditioned in order to safeguard WCS operations. A+—— The Current STA Requests Satisfy None of the Standards Warranting Grant of an STA. An STA is an extraordinary authorization, not something issued routinely or in the usual course by the Commission. Such an authorization is a departure from standard requirements and procedures and must be strictly justified. The departure is even greater than usual here as both XM and Siius seek authority not for a discrete transmitter at a single location orin a single market, but rather for hundreds of transmitters located across f Establishmentofues and Policesorthe Seteite Digial Audio Radio Service in the 2310—2360 Mitc Bond, Th Docket No.9531.

the country. AWS is aware of no case in which the Commission has ever before granted an STA for a nationwide network of terrestrial transmitters. Section 25.120 of the Commission‘s rules sets forth the showing that must be made by applicants secking an STA. First, an STA is appropriate "[i)n circumstances requiring immediate or temporary use of facilities," and the request "must contain the full particulars of the proposed operation."* Second,in order to grant an STA, the Commission mustfind "that there are extraordinary circumstances requiring temporary operations in the public interest and that delay in the institution of these temporary operations would seriously prejudice the public interest, "* The rule also specifically makes clear that "{cJonvenience to the applicant, such as marketing considerations of meeting scheduled customerin—service dates, will not be deemed sufficientfor this purpose."" The Commission adopted its STA rule as a codification ofa staff policy under which an STA request would be denied unless the applicant could demonstrate that "an STA is necessary due to circumstances beyond its control."" XM and Sitius clearly have not made the required showing: in fact, hy have failed to satisty even a single aspect of the established criteria. First and foremost, neither of them has identified any cognizable "xtraordinary circumstances" justifying an STA. The onlcircumstance proffered by the SDARS licensees is their desire to «1 ore gasen f 16. at25.1200), For example, raditinaluse of an STA is wheretemporaryfaciies are needed to proteclfe, health,or safiy. € 14(emphasis added) * Amendnent of Par 25 ofthe Commisson‘s Rudes and Regulations o Reduce Alen Carrier Interference Bevween Pixed—Sotelitesor Reduced Orbtal Spacingsand to Revise Application Processing ProceduresfoSatlite Conmunications Serice, GBCC Red. 2806, 2810 (1991)

incorporate terestrialrepeaters in their initalroll—out of commercial service." Yet such marketing considerations are the one type of circumstance that the Commission has explicitly identified as insufficient to justify an STA The wisdom of this rule is demonstrated in this case, where the only exigency even arguably present was created by XM‘s unilateral announcement on July 24, 2001 thatit will begin offering commercial service in two markets on September 12, 2001.° (Sirius does not even have this patently insufficient exigency to ely upon, as it has announced that it expects to begin offering service in the fourth quarter.") Having ereated a "circumstance," XM now seeks to leverage ts voluntary and unilateral announcement of a date for service commencement — made just 12 days after secking authorization for a terrestrial component t claims is integral to itsoffering (and one week before that request went on public notice)—— into a basis for Commission action. Unfortunately for XM, Commission rules and precedent wisely foreclose such a strategy. Moreover, neither XM nor Sitius has provided thefull particulars of operation because neither of them has provided any information on the repeaters operating at power levels below 2 KW for which they seek authoriztion."" Although AWS and other WCS Hicensees have proposed blanket licensing for such standard power repeaters as part of the ongoing SDARS rulemaking, no such blanket authorization has yet been adopted and in thissituation one would not be appropriate.. Any STA issued to XM and Sirius will See XM Requestat . 2; Sirins Requestatp. 3. * iee"XM Uneils National Advertsing Campign. National Rollot Pn and Channel Lineup," July24, 2001 (vailable wirw xmradio com/rewsrounsreenfress reease 200107 24 himi) * See "Siius Announces Second Quater Financil Results and Operaional Hightighs," Augost 13, 2001 (mailabl t ww siivwadiocomonash steecentasp. See XM Requestatp. 2n4; SirinsRequestatp. 3 n9.

obligate them to operate on a non—interference basis. However, unless WCS licensees know exactly where repeaters are operating, they may not be able to identify the source of interference into their systems in a timely manner,if atall Thus, information on the location and operational characteristics of standard power repeaters must be provided. In addition, the applicants have failed to indicate exactly what spectrum they intend to use for their repeater operations. We anticipate that XM will use the frequencies from 2336.225 MH to 2341.285 MHz and that Sirius will use the frequencies from 2324.2 MHz to 2328.3 MHz. However, the applicants should identify on the record the specific frequencies in which their repeaters will operate. Lastly, neither XM nor Sirius has provided the factual basis for the Commission to make the required finding that failure to use the extraordinary vehicle of an STA would "seriously prejudice" the public interest. This is not a case that implicates potential harm to health, safety,loss of life or property..".It does not implicate the provision of lifeline services. Nor even is this a case in which an STA is necessary to ensure continuation of service to existing customers, because neither of the SDARS Hicensees is currently offering service or has any customers. The applicants have not demonstrated why the public interest — as opposed to their own marketing plans —— requires the imediate provision of an additional form of audio entertainment. Each of these significant shortcomings must be addressed before the Commission can justify the grant ofthe requested STAs. 9 Compare Consat Corp, 13 FCC Red. 319,322—23 (It‘I Bur, 1998)(enying an STA and contrasting prio case in which grant was necessiry in the affermath ofa natural dsaste

B. Th STA Requests Are Inextricably Linked to Serious Substantive Issues Concerning Both the Pending SDARS Rulemaking and Prior Abuse of the Commission‘s Rules for Experimental Licenses. As AWS and other WCS licensees have demonstrated in the SDARS proceeding, the blanketing interference resulting from the operation of high power SDARS repeaters will create large exclusion zones within which WCS operators will be effectively precluded from providing service..". Neither XM nor Sirius has seriously contested the blanketing effect of their proposed transmitters."" Yet they both continue to insinuate that because they have been deploying and testing their proposed repeater networks for months under an experimental authorization without complaintfrom WCS operators, there must not be any interference."" They make these sweeping statements without ever asserting that they have operated on a continual basis (as opposed to limited operations characteristof testing) or atfull power. In the few weeks since XM and Sitius first revealed the locations of their terrestrial repeaters, AWS has found that the repeaters near its operational WCS stations either are not transmitting any signalatall or are transmitting at a powerlevel dramatically less than the rated power soughtin the STA requests. The Commission should not be misled by the SDARS licensees‘ generalized but unsupported and unquantified assertions. 8 See, e Leters from Willam M. Wilshire to Magalic Roman Sas,IB DocketNo.95—91, dated Aprl 30 and February20,2001 1t or example, in arecent epart filing, XM bldlyassets thatitsown analysisndicates that greater use of lower pover epeaters oflen willincreas the poential fo intrference,"bt nowhere provides theassumptions, xlclitions, and methodalogyleading tothis conclusion for examination and eiique y the Commission and othe intrested paries. See Leter rom Lon C. Levin o Donald Abelson and Thomas Sugm, 1B Docket No. 9591dted Augus7, 2001, t p 6. Thishasbeena consistetpracie in the SDARS proceeding. See XM Requestatp iris Request atp. 2.

In light of the demonstrated potentialfor interference, AWS and other WCS Hicensees have advocated that SDARS terrestrial repeaters be limited to no more than 2 KW EIRP — the limit imposed in 1997 on terrestral WCS operations immediately adjacent (both above and below) to the SDARS band. Even XM recognizes that a 2 KW EIRP limitation is "completely standard" in the band."" AWS continues to believe that a 2 kW maximum is the appropriate level for all services in the band, including SDARS. To date, AWS has begun to deploy WCS fixed wireless local access networks in thirteen markets. Since XM and Sirius provided information on their repeaters as part of their STA requests, AWS has determined that, if the proposed repeaters are allowed to operate at the power levels indicated: + 15 existing AWS base stations, capable of serving 66,500 houscholds in six markets, will eceive debiltating interference; + 34 additional base stations that are nearing completion, capable of serving 145,450 households in eight markets, will receive debilitating interference; and * approximately another 92.250 houscholds in eight markets willbe within the exclusion zones for customer premises equipment created by the proposed SDARS repeaters. And of course, these numbers will only increase as AWS continues to roll out WCS services in additional areas and markets. The charts attached hereto demonstrate the impact of SDARS high power repeaters on AWS base stations — both existing stations and those stations that should be operational by the end of this year (Ze, during the term of the STAs requested by XM and Sirius). The charts were created using the deciBel Planner software package that the * SeeLeter from Bruce D. Tacobsto Magalie Roman Salas, 1B Docket No. 95.91, dated Aprl 25, 2001, ap. 2.

SDARS licensees have asserted in the SDARS proceeding would provide an accurate predictor of interference, taking into account factors that might mitigate signal propagation. For purposes ofthis analysis, AWS has used the —45 dBmi sensitivity threshold for ts base station equipment and assumed deployment at a height of 30 meters."" For each market where they have an impact,there is a separate chart for XM and for Sitius."* As the foregoing analysis demonstrates, some ofthe proposed terrestril repeaters are certain to degrade seriously the WCS network already deployed or to be deployed within the very near future by AWS. Attachment A lists the individual repeater stations this analysis shows will cause interference to AWS® WCS operations if the Commission authorizes their use by the SDARS licensees. In addition, grant of the requested STAs could also have a more widespread impact on the integrity and enforcement of the Commission‘s rulesi it is viewed as a ratification of an abuse of the Commission‘s experimental authorization regime. The Commission has noted in the past instances in which companies have attempted to abuse its processes using experimental authorizations.." In fact, it has admonished satellite Hicensees in particular notto seek advantage in the regulatory process based on expenditures made on experimental satellte facilit & "The parametersused in thi analysis arethose previously submited by AWS fo is WCS equipment in te SDARS procecting. See Leter from Willam M. Wilshireto Ronald ReposIB Docket No.95—91, dated March 8, 2001;Leter from Willam M. Wilshie to Magalie Roman Silas1B Docket No 95—91,dated April 17, 2001 * AWS would lkean apportunity o erform simlar analyis on thestandard power repestes that XM and Siiusplan to deployonee fll information on thir ocations and characterisies is available. * See, eg, Amendment of Par 5 ofthe Commission‘s Rales to Revise the Experimental Rdio Service Regulaions, 11 FCC Red. 20130, 20136 (1996)

[Wie are aware that by its very nature, building and launching a satellite is costly and, as in the case of any costly experiment, we do not wish to create an expectation that sizeable investments in an experiment necessitate or mandate any particular course of action by the Commission in future proceedings. Part 5 procedures are not a substitute forthe normal Commission licensing process. Indeed, an applicant granted experimental suthority takes the license subject to the discretion of the Commission to change or cancelthe license at any time, should the need arise. 47 C.FR. § 5.68. We emphasize, therefore, that the grant ofa license to permit experimentalsatelite service does not create any future obligation by the Commission to allocate spectrum permanently to grant licenses."" The Commission cannot allow the SDARS licensees to leverage their "experimental" activites into defacto commercial operations. Both XM and Sius have, under the guise of their experimental authorizations, built nationwide networks intended for commercial use, operating atlevels up to 20 times greater than the acknowledged standard in the band, in the absence of final service rules and without even reporting to the Commission the extent of their "experimental" operations. 2‘ Experimental authorizations are granted with the express understanding that such authorization does not confer any right to conduct an activity of a continuing nature."" Accordingly, XM and Sirius have deployed their high power repester networks explicily at their own risk and with no reasonable expectation of continued use. They have no equitable claim to preferable treatment nor any argument that the Commission is somehow estopped from denying them commercial authorizations for their experimental deployments. Policy Statement on Experimentl Stelite Applicaions, 7 PCC Red. 4586 (1992). Commission policy requires the holde ofa blanke experimenta Hcense t ‘notify the FCC] of the specifdetails oech indivdual experiment including eation, nmber ofbase and mobile uns power, emission designtor, and any other pertienttochnialinfrmation not specified by the blanket Heense." Amendnent oPar 5 ofhe Commision‘s Rules to Revise the Experimental Radio ServiceRegulations, 13 ECC Red. 21391, 21304 (1998), n Seed1 CER § 583.

‘The Commission cannot and must not allow the existence of these repeaters to colorits deliberations. Moreover, ifthe Commission decides to grant cither or both ofthe requested STAs, it must do so on a basis totally independent ofthe existing repeater deployment and in a manner that explicily and forcefully reaffirms that those who might seek to gain advantage in the licensing process through the use of an experimental authorization will be unsuccessful C.— Any Grant of an STA Must Include Necessary Safeguards. In these comments, AWS has identified a number ofissues that the SDARS Hicensees must address in order to meet the threshold requirements for grant of an STA. AWS doubts very much whether Sitius in particular can demonstrate "extraordinary circumstances" for an suthorization at this time, given that it does not intend to launch commercialservice for several more months and can continue to testits repeaters under its existing experimental license (as it has stated it intends to do}." Nonetheless, AWS has nodesire to preclude the short—term use of terrestral repeaters where their operation would not affect AWS® own WCS operations. Thus, {f the Commission at some point finds that the SDARS licensees have otherwise made the requisite showing to justify grant of an STA, AWS would not oppose such a grant under the following conditions: & Any such STA must mot include authorization to operate the specific stations identified in Attachment A hereto that demonstrably will cause interference to AWS" existing and soon—to—be—deployed WCS operations. 8 See Siis Requestatp.2. 10

* Each SDARS licensee must provide full disclosure of information on the location and operational characteristics ofall repeaters, including its standard power repeaters (Le., those operating at 2 kW EIRP orless), prir to effectiveness ofthe STA. + The term ofthe STA should be set to expize upon the earier of (a)90 days or (b)isstance of final rules in the SDARS proceeding. Although the Commission can grant an STA for up to 180 days, AWS submitsthat 90 days is a more appropriate term. It should be a sufficient bridge while the SDARS rulesare finalized and adopted, butit will also allow the Commission and all parties to revisit the efficacy of the conditions imposed in the STA in a timely manner. * Terrestrial repeaters must not cause any interference to other licensed services and must acceptinterference from other licensed services, and the recipient must sgree to tumn off any repeater(s) immediately and without debate upon notification of interference from an affected licensee."" In orderto effectuate this condition, the recipient should designate a pointof contact with authority to order the immediate cessation of repeatertransmissions. In recent weeks, both XM and Sitius have filedex parte statements in the record ofthe SDARS proceeding in which they indicate that, once their currentterrestral repeater networks are activated, they will be unable to decrease the power of (or, presumably, stop transmitting altogether from) a terrestrial repeater without causing a disruption in SDARS service."". Any recipient of an STA must * Both XM andSirius appesrto recognize and acceptthis no—intrference Iimittion. See XM Requestat . 2 and Sirius Request atp. 3 * See Lete rom Lon C. Lesinto Donald Abelson and Thomas Sugrue, Docket No. 1B 95.91, dated August 7, 2001 atp. 7; leter rom Jennifer D. Hindin to Magalie Roman Salas, Docket No. 18— 95,dated July31, 2001. 11

explicitly agree to cease transmission regardless of any claim of disruption to its SDARS service. * As discussed above, any STA granted to XM or Sirius must explicitly state that such grant is without prejudice to any decision the Commission might make in the ongaing SDARS oilemaking and wl efeste no eetoppel or equitatle clain to continue operations once the STA has expired."" The Commission should also state clearly that the willingness of AWS and other WCSlicensees to acquiesce to the temporary operation of high power repeaters on a non—interference basis does not give tise to any presumption that they are similarly willing to do so on an ongoing basis. * * * # XM acknowledges this prinipl nits STA requestCXM Request at p.2), but Sirius‘ eguest does notinclude asimilar recognition 12

For the reasons stated sbove, the Commission cannot grant the STA requests as currently submitted. The SDARS licensees will have to augment their applications with significant additionalinformation in order to meet the threshold requirements that could justify grant of their requests. If the applicants are able to make the requisite showing, the Commission should condition any STA granted in these proceedings as outlined. above in order to ensure that AWS and its subscribers are not subjected to disruption of their lifeline services. Respectfully submitted, AT&T Wireuess Services, Inc. illiem M re Karen L. Gulick Hammis, Wirrsume & Gramas tir 1200 Eighteenth Street, N.W. Washington, DC 20036 202—730—1300 DouglasL. Brandon AT&T Wiretess Seavices, Inc. 1150 Connecticut Avenue, N.W. 4" Floor Washington, DC 20036 2022230202 Dated: August 21, 2001 13

ATTACHMENT A XM Interfering Repeaters Market XM37A Cincinnati XM 20B Cincinnati xM 2sc Cincinnati XM43D Cincinnati XM37A Cincinnati XM41A Cincinnati XMoB Houston XM 606A Houston XMisB Houston XM 604A Houston xm 220 Kansas City XM 5A Las Vegas XM 1B Oklahome City XM 008A San Diego xM 007B San Diego xM 002B San Diego Sirius Interfering Repeaters Market Sirius CL1° Cincinnati Sirius CO_1 Columbus Sirius LV_1 Las Vegas Sirins LV_2 Las Vegas Sizins LA_1 Los Angeles Sirins LA_2 Los Angeles Sirins LA_6 Los Angeles Sirins LA_9 Los Angeles Sirius LA_11 Los Angeles Sirius LA_12 Los Angeles Sirius OK_1 Oklahome Sirius SD_1 San Diego " Number refers to order of repeater in each market on the list accompanying Sitius* STA request.

ATTACHMENT B INTERFERENCE PLOTS FOR XM AND SIRIUS HIGH POWER TERRESTRIAL REPEATERS

ATTWS Fed Wiroless Base Saton B Opentonty Yow End B Oponton SDARS Sites © h Powe Recea ze Stations: San Diego Red is the Interferencé Area at —45 dBmi kilometers

ATTWFined Wreless Base Saton B Opntont B Oountalty Yewnd SpaRSttes 0 Mn Pover Repoaur Ste kilometers XM Interference to Base Stations: San Diego Red is the Interference Area at —45 dBmi

I Sirius Interference to Base ATTWS Fed Wireiess Base Staton Stations: Olklahoma City B Oontna B Opontonaty You Ens SoaRs Stes i\ Red is the Interference © t Pover Repoae Ste area at —45 dBmi s is s Emm kilometers

I XM Interference to Base ATTWFxed Wretess Baso Staton Stations: Oklahoma City B penton B Opmatonby Ytrd | SDARS Sites Red is the Interference @ Hgh Pover Repeatr Ste area at —45 dBmi 2s kilometers

T Sirius Interference to Base ATTWS Fned Wroloss Base Staton |Stations: Las Vegas: B Crentonn x B Oorntenaiby Yo ortrs L|—Red is the Interference SoARS Stes @ MPow: Reoa o area at —45 dBmi — 2 L

XM Interference to Base ATTWS Fed Wreiess Base Staton Stations: Las Vegas PME rrace 7 e3 Soans Stes Red is the Interference @ 1 Pome Rupeer Sn area at —45 dBmi s \ / / T

ATTWFxed Wreloss Rase Staton B Openta B Opern ty Yow End SDARS Stes © M Powe Reseate Ste 10 20 kilometers Sirius Interference to Base Stations: Los Angles Area Red is the Interference area at —45 dBmi

T ATTWS Fined Weeloss Base Saton B Ouotva B Coontora ty You Erd SDARS Sites 0 en Pover Pacoaue sn

XM Interference to Base ATTWS Fxed Wreless Baso Staton B Coonteva Stations: Houston B Cpontoraty Yoar Ens \ SDARS Stes Red is the Interference © M Power RepustrSte [area at —45 dBmi

1 ATTWS Fized Wrsiess Base Staton _A B Oventonn B Ooontorlt YoEns e SDARS Stes Sirius Interference to Base e & 1 Powe ResoarSte Stations: Columbus e Red is the Interferenc@ area at —45.dBmi 0 25 5 en kilometers

¥X Sirius Interference to Base T ATTWS Fid Wroless Baso Statons Stations: Cincinnati B Guotent B CrontonattyYeurind SDARS Stes Red is the Interference O Mih Pover Repetr Ste area at —45 dBmi °

XM Interference to Base ATTWS Fiod Wroloss Base Satons Stations: Cincinnati B Ovontrl MB Opeatonalty YoarEnd SDARS Stes © High Pover Repester Ste

CERTIFICATE OF SERVICE T hereby certify that on this 21" day of August, 2001,a copy of the foregoing Comments of AT&T Wireless Services, Inc. was served by hand upon: Bruce D. Jacobs Shaw Pittman LLP 2300 N Street, N.W. Washington, DC 20037—1128 Carl R. Frank Wiley Rein & Fielding LLP 1776 K Street, N.W. Washington, DC 20006 Goexs


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Document Modified: 2005-09-28 15:03:11
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