Attachment opposition

opposition

OPPOSITION submitted by XM Radio

opposition

2001-11-01

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

IBFS_SATSTA2001071200063_456915

ICATED DUPRELCE E Before the IV FEDERAL COMMUNICATIONS COMMISSION NOV: ~ 1 2001 Washington D.C. 20554 mow cmmmonae asmmen In the Matter of ) cmencrne acrent ) XM Radio Inc. ) File No.“. ) Application for Speoial Temporary Authority ) to Operate Satellite Digital Audio Radio ) Service Complementary Terrestrial Repeaters ) OPPOSITION TO APPLICATION FOR REVIEW XM Radio Inc. (*XM Radio®)hereby filesthis Opposition to the Application for Review filed by AT&T Wireless Services Inc. ("AWS") ofthe International Bureau‘s Order in the above—captioned proceeding granting XM special temporary authority ("STA") to operate Satellite Digital Audio Radio Service (‘DARS") terrestrial repeaters in is licensed frequency band, 2332.5—2345 MHz." AWS does not object to the authorization ofrepeaters operating in excess of 2 kW EIRP. Rather, AWS‘s sole objection is that the Bureau acted in violation ofthe Section 25.120(s)ofthe Commission‘s rules by granting XM Radio its STA without requiring XM Radio to disclose the location and technical parameters of repeaters operating at or below 2 kw EiRP The Bureau made the proper decision to grant XM Radio an STA without requiring the prior disclosure ofthe repeaters it planned to operate at 2 kW EIRP or less ("low power repeaters"). As the Bureau noted, during the course of the related rulemaking the WCS licensees limited their concerns to terrestrialrepeaters operating in excess of 2 KW EIRP; thus, the decision not to require disclosure of information regarding low power repeaters was appropriate. AT&T Wireless Services Inc., Application for Review, File No. SAT—STA—20010712— 00063 (Oct. 17, 2001) ("Application for Review").

In addition, contrary to AWS‘s claim, the STA does not give XM Radio unlimited authority to construct and operate low power repeaters, as the Commission specifically bounded the number of low power repeaters operating pursuant to the STA to a list provided by XM Radio. The Bureau addressed any potentialinterference concems of WCS and MDS/ITESlicensees from operation of low power repeaters by specifically requiring XM Radio to provide these licensees with information regarding the location and technical parameters of these low power repeaters. The fact that AWS and other WCS Hicensees refuse to enter into a reasonable non—disclosure agreement governing this information has no bearing on the appropriateness ofthe Burea‘s action in this proceeding. For these reasons, AWS‘s Application for Review should be rejected. Background On July 12, 2001, XM Radio filed a request for temporary authority to operate DARS terrestrial repeaters for commercial service on a non—interference basis pending the outcome of a four—year—old rulemaking regarding terrestrial repeaters." XM Radio‘s request provided location information for over 700 repeaters that XM Radio plans to operate in approximately 60 urban areas at a power level greater than 2 kW EIRP. Consistent with its discussions with Commission staff, XM Radio did not disclose the location ofthe repeaters that t planned to operate at a power level of 2 kW or less." Throughout the ongoing repeater rulemaking, AWS has accepted the operation an unlimited number of repeaters transmitting at no more than 2 KW EIRP (soowmina)® 3. XM Radio Inc., Request for STA, File No. SAT—$TA—20010712—00063 (July 12, 2001). > See Reply Comments of XM Radio Inc. File No. SAT—$TA—20010712—00063, pp. 10—11. * See Letter from William Wiltshire, Counsel for AWS, to Ms. Magalie Roman Salas, FCC, 1B Docket No. 95—91, at 7 (Feb. 20, 2001); Letter from William Wiltshire, Counsel for AWS, to Ms. Magalie Roman Salas, FCC, IB Docket No. 95—91, at 2, 8 (April 30, 2001). To the extent that AWS also advocated prior coordination ofrepeaters, the Footote continued on next page

On September 17, 2001, the International Bureau ("Bureau") issued an Order granting XM Radio‘s STA request to operate terrestrial repeaters for commercial service on a non— interference basis.® In the STA Order, the Bureau required XM Radio to make available to WCS Hicensees, pursuant to appropriate confidentility agreements and reciprocal information sharing concerning WCS facilities, the locations and technical parameters ofrepeaters operating pursuant to the STA, including those operating at or below 2 kW EIRP. S7A Order at§ 14. The Bureau later extended this information sharing condition to MDS/TTES licensees.® The Bureau also required XM to provide WCS licensees and WCA with the name and telephone number of a point of contact to receive reports of actual interference. STA Order at [ 14. Since XM Radio has begun operation, AWS has not indicated any problems with interference from DARS repeaters. Recently, AWS indicated that it is terminating its current WCS business, transitioning all of its fixed wireless customers to other technology in the next few months." On October 17, 2001, AWS filed the instant Application for Review ofthe STA Order. AWS‘sole objection is that the Bureau acted in violation ofthe Section 25.120(a) of the Commission‘s rules by granting XM Radio ts STA without requiring XM Radio to disclose the Footnote continued from previous page Bureau provided for that in the S7A Order by requiring XM Radio to disclose to WCS Hicensees upon request the location and technical parameters of ts low power repeaters. See STA Order at * 14; infra pages 5—6. 5. XM Radio Inc., Order and Authorization, File No. SAT—STA—20010712—00063 (Sept. 17, 2001) ("STA Order"). € XM Radio Inc., Order, File No. SAT—STA—20010712—00063 (Oct. 15, 2001) (*S7A Modification Order"). & See Letter from William Wiltshire, Counsel for AWS, to Ms. Magalic Roman Salas, FCC, IB Docket 95—91 (Oct. 29, 2001).

location and technical parameters ofrepeaters operating at or below 2 kW EIRP. Application for Review at 1—3. AWS also contends that,although WCS licensees have advocated limiting repeater EIRP to 2 kW, WCS licensees have never waived their objection to repeaters operating below 2 kW. 14. at 3. AWS argues that the Bureau‘s grant gives XM Radio blanket authority to construct repeaters below 2 kW without prior consent and that the Commission has no idea ofthe number and location ofthese low power repeaters. 1d. AWS notes that XM Radio‘s STA was granted on a non—interference basis and WCS licensees need to know the location and technical parameters ofXM Radio‘s low power repeaters to determine the source of interference. 14. at 4. Finally, AWS argues that is was inappropriate for the Bureau to suggest that XM Radio could require WCS licensees to enter into a non—disclosure agreement prior to receiving information regarding XM Radio‘s low power repeaters. 1d. at 4—5. Discussion L. THE BUREAU ACTED PROPERLY IN GRANTING XM RADIO®S STA REQUEST WITHOUT REQUIRING PRIOR DISCLOSURE OF INFORMATION REGARDING LOW POWER REPEATERS The Bureau acted properly in granting temporary authority to XM Radio without requiring prior disclosure of the location and technical parameters of the repeaters XM Radio planned to operate at 2 kW EIRP or less. As the Bureau recognized in the STA Order, AWS and other WCS licensees have conceded the operation of repeaters at up to 2 kW EIRP and have stated that the such repeaters do not present an interference concemn." Hence, the only * $TA Order t 9 (‘We agree with XM that because the focus of the party‘s technical interference objections has been on repeaters operating above 2 KW EIRP and because the particulars of those stations have been disclosed, Section 25.120‘s requirements for specificity have been satisfied.."); see also Comments of AT&T Wireless Services, Inc., File No. SAT—STA—20010712—00063 (August 21, 2001) at4 (noting that AT&T Wireless and other WCS licensees have proposed blanket licensing of 2 KW DARS repeaters); Comments of Metricom, File No. SAT—STA—20010712—00063 (August 21, 2001) at 8 Footmote continued on next page

"particulars of the proposed operation * that could have been relevant to WCS licensees were the locations and technical parameters of repeaters operating in excess of 2 KW . Indeed, t is ronic the any WCS licensee would be concerned about operation of 2 KW repeaters considering that WCS licensees themselves have unlimited authority to deploy 2 kW transmitters in their service areas and have no knowledge of the locations and technical parameters of other WCSlicensee‘s transmitters. AWS‘s claim that the S7A Order gives XM Radio unlimited authority to operate repeaters at ess than 2 KW is just wrong. Application for Review at 2—3, 5. The STA Order specificallystates that "{i}n order to imit the scope ofthe STA," XM Radio is required to make available tothe Commission upon request a list of the locations and technical parameters ofthe repeaters with an EIRP of 2 KW or less as ofthe grant date of the STA. STA Order at 17. The Bureau stated that "XM Radio‘s authority with respect to these lower power repeaters extends onlyto those repeaters on this list." 14. Commission staff has requested and XM Radio has provided such a list, thereby assuaging AWS‘s concem that the STA grant was somehow Himitless in scope with respect to low power repeaters. Foomote continued from previous page ("Metricom‘s system can accommodate the operations of SDARS terrestrialrepeaters at power levels at or below 2 kW EIRP"}; Comments of Wireless Communications Association Intenational, Inc., File No. SAT—STA—20010712—00063 (August 21, 2001) at 5—6; Opposition of Worldcom, Inc., File No. SAT—STA—20010712—00063 (August 21, 2001) at 2) * 47 C.RR.§25.1200).

IL THE BUREAU ADDRESSED INTERFERENCE CONCERNS BY REQUIRING XM RADIO TO PROVIDE INFORMATION REGARDING ITS LOW POWER REPEATERS TO WCS AND MDS/TES LICENSEES UPON REQUEST AWSnotes that XM Radio‘s operations pursuant to the STA are on a non—interference basis to other services, but that without information regarding XM Radio‘s low power repeaters, it eannot determine the source of any interference it may suffer. Application for Review at 4—5. The Bureau specifically recognized this concem by requiring XM Radio to provide WCS and MDS/ITES licensees with information regarding its low power repeaters upon request "in order to facilitate coordination."" STA Order at‘§ 14; STA Modification Order at [ 4. As required by the STA Order, XM Radio has offered to provide thisinformation to AWS and other WCS Hicensees in order to faciitate coordination pursuant to a commercially reasonable non—disclosure agreement. AWS, however, has reffused to sign a non—disclosure agreement because it wants to use the information XM Radio provides not for coordination and identifying the source of any harmful interference, but for unspecified purposes in the on—going rulemaking proceeding regarding terrestrial repeaters.‘" If AWS is truly concemed about interference from low power repeaters, then it would have signed the non—disclosure agreement in order to assess those concems." AWs also complains that the Bureau "invited"" XM Radio to require WCS licensees to enter into a nondisclosure agreement. Application for Review at 4. XM Radio did not need an invitation to require such an agreement. Itia standard commercial practice when exchanging !° Letter from William Wiltshire, Counsel for AWS, o Donald Abelson, Chief, Interational Bureau, FCC, File No. SAT—STA—20010712—00063 (Oct. 5, 2001). !‘ XM Radio notes that AWS‘interference concems have grown even more remote given its ecent announcement that it will cease WCS operations shortly. See Letter from Footnote continued on next page

confidentialinformation. In this instance, AWS has no valid reason to use this information for anything other than coordinating and determining the source of any interference from XM Radio‘s low power repeaters Conclusion Based on the foregoing, the Commission should deny AWS‘s Application for Review. Respectfully submitted, xM RADIO INC. e Bruce D. Jacobs dLi&, Es £. triss us Lon C. Levin David S. Konczal Senior VicePresident, Regulatory Shaw Pittman LLP XM Radio Inc. 2300 N St, NW. 1500 Eckington Place, N.E. Washington, D.C. 20037 Washington, D.C. 20002 (202) 663—8000 (202) 380—4000 November 1, 2001 Foomote continued from previous page William Wiltshie, Counsel for AWS, to Ms. Magalie Roman Salas, FCC, IB Docket 95— 91 (Oct. 29, 2001)

CERTIFICATE OF SERVICE 1, Sylvia A. Davis, a secretary to the law form of Shaw Pittman LLP, hereby certify that on this 1st of November 2001, caused copies ofthe foregoing "Opposition to Application for Review" to be mailed via firs—class postage prepaid mail to the following: Donald Abelson® Thomes Sugruc* Interational Bureau Wireless Telecommunications Bureau Federal Communications Commission Federal Communications Commission 445 Twelth Street, S.W. Room 6—C750 445 Twelfth Street, S.W., Room 3—C252 Washington, DC 20554 Washington, DC 20554 Anna Gomez* Ronald F, Netro* International Bureau Wireless Telecommunications Bureau Federal Communications Commission Federal Communications Commission 445 Twelfth Street, S.W. Room 6—C47 445 Twelfth Street, S.W., Room 3—C163 Washington, DC 20554 Washington, DC 20554 Chris Murphy® Rosalee Chiara® Interational Bureau Interational Bureau Federal Communications Commission Federal Communications Commission 445 Twelfth Street,S.W., Room 6—C437 445 Twelfth Street,S.W., Room 6—A521 Washington, DC 20554 Washington, DC 20554 Ron Repasi* Keith Larson® International Bureau Mass Media Bureau Federal Communications Commission Federal Communications Commission 445 Twelfth Street, S.W., Room 6—A505 445 Twelfth Street, S.W., Room 2—C420 Washington, DC 20554 Washington, DC 20554 Mary Nordberg O‘Comnor Robert B. Jacobi Director, Government Regulatory Affairs Cohn and Marks WorldCom Broadband Solutions, Inc. 1920 N Street, N.W., Suite 300 8521 Leesburg Pike Washington, DC 20036 Vienna, VA 22182 Counsel to Mt. Wilson FM Broadcasters, Inc.

Williem M. Wiltshire Dougles 1. Brandon Karen L. Gulick AT&T Wircless Services, Inc. Harris, Wiltshire & Grannis LLP 1150 Connectiout Ave., N.W., 4 Floor 1200 Eighteenth Street, N.W. Washington, DC 20036 Washington, DC 20036 Counsel to AT&T Wireless Services, Inc. James G. Harralson Brign M. Madden Charles P. Featherstrun Leventhal, Senter & Lerman PLL.C. BellSouth Corporation 2000 K Street, N.W. BellSouth Wireless Cable, Inc. Washington, DC 20006 1155 Peachtree St. N.E., Suite 1800 Counsel to Entercom Communications Corp. Atlante, GA 30309 Heary L. Baumann David H. Layer Jack N. Goodman Director, Advanced Enginecring Valerie Schulte NAB Science and Technology Ann W. Bobeck National Association of Broadcasters National Association of Broadcasters 1771 N Street, N.W. 1771 N Street, NW. Washington, DC 20036 Washington, DC 20036 Paul J.Sinderbrand Brign Sutton Wilkinson Barker Knauer, LLP Regulatory Engineer 2300 N Street, N.W., Suite 700 Navini Networks,Inc. Washington, DC 20037 2240 Campbell Creek Blvc., Ste. 110 Counsel to Wireless Communications Richardson, TX 75082 Association International, Inc. Tom W. Davidson Michael K. Hamra Erin L. Dozier Director of Regulatory and Government Akin, Gump, Strauss, Hauer & Feld, LLP Affais 1333 New Hampshire Ave., N.W., Ste. 400 Metricom, Inc. Washington, DC 20036 1825 I Street, N.W.,Suite 400 Counsel to Metricom, Inc. Washington, DC 20006 Randall Schwarte John T. Scott, M Director, Regulatory and Standards Donald C. Britingham BeamReach Networks Inc. Michael P. Samsock 755 North Mathilda Avenue Verizon Wireless Sunnywale, CA 94085 1300 I Street, N.W., Suite 400W Washington, DC 20005 Syivif A. Davis *Via Hand


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Document Modified: 2005-09-27 17:16:06
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