Attachment opposition

opposition

OPPOSITION submitted by Sirius

opposition

2001-11-01

This document pretains to SAT-STA-20010724-00064 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2001072400064_456810

Before the cory FEDERAL Camf};g)l::ngMWSSION REeEIVED NoV —1 2001 noueriesin In re Application of Sirius Satellite Radio Inc. Request for Special Temporary Authority mrmmmmnnidin Opposition of Sirius Satellite Radio Inc. to AT&T Wireless Services, Inc. Application for Review Richard E. Wiley Carl R. Frank Jennifer D. Hindin of Wiley Rein & Fielding LLP 1776 K Street, NW Washington, D.C. 20008 Attomeys for Sirius Satellte Radio Inc. Dated: November 1, 2001

SUMMARY The Federal Communications Commission ("FCC" or "Commission") should dismiss or deny AT&T Wireless Services, Inc.‘s ("AWS") request for Commission review of the International Bureau‘s decision to grant Sirius Satellite Radio Inc. (*Siius") special temporary authority (‘STA") to operate a nationwide network of satellte digital audio radio service (‘satellite DARS") terrestrial repeaters in the 2320 to 2332.5 MHz band. AWS‘ application must be dismissed because it contains several serious procedural defects. Notably, AWS lacks standing in this proceeding because it no longer intends to provide fixed wireless services in adjacent WCS spectrum and thus the issues raised in its application are moot. Similarly, the Commission‘s adoption ofterrestrial repeater rules will obviate the arguments raised in AWS® application for review. AWS also does not meet the basic requirements for applications for review, set forth in Section 1.115 of the Commission‘s Rules; AWS® application for review fails to present clear questions for Commission consideration and factors supporting such review. It also impermissibly relies on new questions of fact, which the International Bureau has not passed upon. Even if the Commission forgives these procedural shortfalls, AWS® application is substantively without merit and must be denied. The Intemational Bureau acted appropriately in granting Sirius‘ STA by Order and Modified Order on September 17, 2001 and October 15, 2001, respectively, purstiantto its delegated authority contained in Section 309( of the Communications Act of 1934, as amended, and Section 25.120 of the Commission‘s Rules. The International Bureau rightly held that the delay in

concluding the four—year old terrestrial repeater rulemaking established "extraordinary circumstances" such that grant of an STA would serve the public interest by allowing Sirius to provide and consumers to receive uninterrupted satelite DARS pending the adoption of finalrules. Issuance of temporary authority was also consistent with the FCC‘s lon—standing recognition that trrestrial repeaters were a key component of satellite DARS. Moreover, the International Bureau correctly found that Sirius disclosed the "full particulars" ofits proposed operations. This Commission simply should not tolerate AWS‘ erroncous claims that Sirius has failed to make the requisite disclosures, including those established by the Sirius STA Order relating to all (2 kW or below as well) of Sirius‘ repeaters. AWS conveniently omits a criical factthat on September 25, 2001, counsel for Sirius sent AWS® counsel a letter detailing all required information. In its Sirius STA Orders, the Intemational Bureau made clear that Sitius‘ authority was not without limit and included several conditions designed to address interference concems raised by WCS (including AWS), MDS, and ITFS licensees, issues that will, no doubt,be revisited by the Commission in ts terrestrialrepeater rulemaking proceeding. Sirius welcomes these new rules, as an important nextstep to finalizing the regulatory framework for satellte DARS. However, absent these long—awaited rules, the Commission should not reverse the Interational Burean‘s decision that Siius should be afforded temporary authority to operate its licensed facilities and provide satellite DARS service to the public. Accordingly, Sirius respectfully requests that this Commission dismiss or deny AWS® application for review.

TABLE OF CONTENTS BACKGROUND THE COMMISSION SHOULD DISMISS AWs* APPLICATION FOR REVIEW BECAUSE TT IS PROCEDURALLY DEFICIENT A.— AWS Has No Standing to Request Commission Review Because It 1s Not Aggrieved by the International Bureau‘s Action B. The FCC Should Dismiss AWS® Application For Failure to Articulate the Questions Presented and the Factors Warranting Commission Review. C._ Commission Review Would Denythe Interational Bureau An Opportunity to Pass Upon AWS® Proffered New Facts.. ASSUMING, ARGUENDO, THAT THE COMMISSION EXCUSES THE PROCEDURAL FLAWS IN AWS‘ APPLICATION FOR REVIEW, IT SHOULD NONETHELESS BE DENIED ON THE MERITS . A. The International Bureau Correctly Concluded that Sirius Demonstrated "Extraordinary Circumstances Requiring Temporary Operations" B. The Intemational Bureau Correctly Found that Sirius Provided the Commission with the "Full Particulars" ofIts Proposed Operation ofTerrestral Repeaters.. CONCLUSION.

Before the FEDERAL COMMUNICATIONS commisstON Washington, D.C. 20554 ) In re Application of: ) ) Sirius Satellite Radio Inc. ) File No. SAT—STA—20010724—00064 Request for Special Temporary Authority ) ) tmesisGasicninemnansemase Opposition of Sirius Satellite Radio Inc. to AT&T Wireless Services, Inc. Application for Review Sirius Satellite Radio Inc.(‘Siius"),by ts attomeys and pursuant to Section 1.115(d)ofthe Federal Communications Commission‘s ("FCC" or "Commission") Rules,‘ hereby submitsits "Opposition® to AT&T Wireless Services, In.‘s (*AWS") application requesting review ofthe Intemational Bureau‘s decision to grant Sirius special temporary authority (‘STA") to operate a nationwide terrestrial repeater network in the 2320—2332.5 MHz band.".In the first instance, AWS‘ October 23, 2001 announcement that it will discontinue ts already limited offering of fixed wireless services in the adjacent WCS bands seriously undercuts AWS® standing in this proceeding and renders the issues raised by AWS in the context of its fixed wircless services moot. Similarly, the Commission‘s adoption of terrestralrepeaters rules will \ aroRRg1ils0). * Sirius Satellite Radio Inc. Applicationfor Special Temporary Authority to Operate Satellite Digital Audio Radio Service Complementary Terrestrial Repeaters, File No. SAT—$TA—20010724—00064, 2001 FCC LEXIS 4931, DA 01—2171 (Sept. 17, 2001) (Order and Authorization) (‘Sirius STA Order‘); Sirius Sarellie Radio Inc. Application for Special Temporary Authority to Operate Satellte Digital Audio Radio Service Complementary Terrestrial Repeaters, File No. SAT—$TA—20010724—00064, DA 01— 2383 (Oct. 15, 2001) (Order) ("Sirius STA Modification Order").

obviate the arguments raised in AWS® application for review. Furthermore, the Commission should dismiss summarily AWS‘ request on the basis of ts numerous procedural deficiencies, notably the failure to present a clear question for Commission consideration or any factors supporting such review. Even ifthe Commission forgives these procedural defects, AWS® application is substantively without merit and should be denied L BACKGROUND On July 24, 2001, Sirius submitted to the Intemational Bureau a procedurally and substantively sound request for STA under Section 25.120 ofthe Commission‘s Rules, including a detailedstatement of how the STA would serve the public interest. Following a round of comments and replies,the Intemational Bureau granted Sirius‘ STA by Order and Modified Order on September 17, 2001 and October 15, 2001, respectively. In these orders, the bureau determined thatissuance of temporary authority was consistent with the FCC‘s long—standing recognition thatterrestrial repeaters were a key component of the intended service." Moreaver, because the FCC had not yet consluded 5_ Satelite CD Radio,Inc., Applicationfor Authority to Construct, Launch, and Operate Two Satellites in the Satellite Digital Radio Service, 13 FCC Red 7971, 7994 (1997) (Order and Authorization), modified by Sirius Satellite Radio, Inc. for Minor Modification ofLicense to Construct, Launch and Operate a Non—Geostationary Satellite Digital Audio Radio Service System, 16 FCC Red 5419 (2001) (Order and Authorization). In fact, the Commission has expressly defined the satellite DARS service to include such terrestrial augmentation. Satellite DARS is defined as "[a) radiocommunications service in which audio programming is digitally transmitted by one or more space stations directly to fixed, mobile, and/or portable stations, and which may involve complementary repeating terrestral transmitters." 47 C.F.R. §25.201. See also Establishnent ofRules and Policiesfor the Digital Audio Radio Service in the 2310—2350 MHz Frequency Band, 12 FCC Red $754, 5770 (1997) (Report and Order Memorandum Opinion and Order and Further Notice ofProposed Rulemaking) ("Terrestrial Repeater NPRM) (stating "[i}t has been widely known and discussed in the record that DARS providers will need to rely on terrestrial repeaters and gap fillers."). 35.

itsfour year old terrestrial rulemaking proceeding, the agency concluded that Sirius‘ STA presented "extraordinary circumstances" and would serve the public interest by enabling Sirius to begin its iitial commercial rollout and thus allowing consumers to receive uninterrupted nationwide satelite DARS service, pending the outcome ofthe agency‘s rulemaking* The Inteational Bureau also made clear that Sitius® authority was not without limit by including several conditions designed to address interference concems taised by WCS (including AWS), MDS, and ITFS licensees." On October 23", AWS decided to cease using its WCS spectrum, thus eliminating any legitimate interest in Sirius operation ofterrestrial repeaters in adjacent spectrum." 11. THE COMMISSION SHOULD DISMISS AWS‘ APPLICATION FOR REVIEW BECAUSE IT IS PROCEDURALLY DEFICIENT The Commission should dismiss without hesitation AWS® application for review based on itsfailure to follow routine procedures clearly set forth in the Commission‘s Terrestrial Repeater NPRM, 12 ECC Red at S810—12. Sirius has been testing various possible sites for terrestrial repeaters since October 14, 1999 pursuant t its experimental license, call sign WAZXXE. Sirius expects to continue to employ ts experimental license to complete testing of ts service nationwide. Sirius has not received any interference complaints as a result of ts terrestrial repeater transmissions. 5. The Bureau also granted a similar request for STA by XM Radio, Inc. See AM Radio, Inc. Applicationfor Special Temporary Authority to Operate Satellite Digital Audio Service Complementary Terrestrial Repeaters, File No. SAT—STA—20010712— 00063, 2001 FCC LEXIS 4930, DA 01—2172 (Sept. 17, 2001) (Order and Authorization) (*XM STA Order");XMRadio, Inc. Applicationfor Special Temporary Authority to Operate Satellite Digital Audio Radio Service Complementary Terrestrial Repeaters, File No. SAT—STA—20010712—00063, DA 01—2384 (Oct. 15, 2001) (Order) ("XMr STH Modification Order"), AWS filed a nea—identical application for review of this STA on October 17, 2001. AT&T Wireless Services, Inc. Applicationfor Review, File No. SAT— $TA—20010712—00063 (ct. 17, 2001). + Letter from William M. Wiltshize, Counsel For AT&T Wireless Services, Inc. to Magalie R.Salas, Secretary, FCC, IB Docket No. 95—91 (dated Oct. 29, 2001), atching AT&T Wireless Press Release (dated Oct. 23, 2001) ("AIFS Letter and Press Release").

Rules, As discussed below: (1) AWS is not aggrieved by grant of STA to Siius;" (2) AWS® application lacks a clear statement of questions posed and fails to identify factors supporting Commission consideration ofthose questions;® (3) AWS® application relies on new facts;" and (4) AWS‘ application omits proof of service."" Given these significant procedural flaws, the Commission should dismiss AWS® application on its face, with prejudice. A.—— AWS Has No Standing to Request Commission Review Because It Is Not Aggrieved by the International Bureau‘s Action AWS cannot claim thatitis "agerieved" by Sitius‘ operation of terrestrial repeaters pursuant to STA and thus has no standing to request review by the Commission. Under the Commission‘s rules, only a "person agerieved by any action taken pursuant to delegated authority may file an application requesting review of that action by the Commission.""" On October 29, 2001, AWS informed the Commission that it would "exit the fixed wireless business"" in the WCS spectrum adjacent to Sirius‘ satellite DARS spectrum."" Thus, AWS cannot suffer any harm from Sius‘ transmissions. Furthermore, AWS! intent to "warehouse" this spectrum for potential future use does not provide AWS the right to block the imminent provision of service by its spectrum f 47 CBR. §1.115@). 5o0 47CRRqLNS®). *o> aroeRgliiso). ® 47 CBR§147G). A 47 CBR. §1.15@). . AVS Ex Parte Letter at 1 and attached Press Release at 3.

neighbor."" In any event, should AWS decide to use its spectrum, the Commission should require AWS to deploy equipment designed to reduce susceptibility to interference from satellite DARS terrestrial repeaters. In sum, because AWS will experience "no harm" now or in the future, there can be "no foul." B.— The FCC Should Dismiss AWS‘ Application For Failure to Articulate the Questions Presented and the Factors Warranting Commission Review The FCC should dismiss AWS® application for review because it fails to meet the Commission‘s basic pleading requirements. Applications to the Commission for review of an action taken pursuant to delegated authority must include "a precise and plain statement ofthe questions presented for review" and specify the "factors warranting Commission consideration of the questions presented.""* Rather than clearly stating the questions presented for review, however, AWS" pleading regurgitates the same arguments presented to and denied by the Intemational Bureau. AWS even summarizes and incorporates its initial comments on Siius‘ STA request in its application for review. In the absence of a particular question posed to the Commission, one can only guess that AWS would have the Commission review every aspect of the International Bureau‘s decision to grant STA. Furthermore, in liew ofspecifying any "factors""" jas supporting Commission review of this presumed broad scope, AWS jumps straight to the conclusion that the "Bureau 9 1d. ("AWS will continue to hold its WCS licenses..."). 1t 47 CBR. §§1.115@b)(1)—@)Arthur P. Bawngarden, 11 FCC Red 4071, 4072 (1996) (Memorandim Opinion and Order}; 47 C.F.R. §§ 1.115b)(1)—(3). t Such factors include a "conflict with statute, regulation, case precedent or established Commission policy," "question of law or policy which has not previously been resolved by the Commission," "application of a precedent or policy which should be %.

acted in derogation of the Commission‘s rules" and that "grant ofthe STA was in clear violation ofthe Commission‘s rules.""" These conclusory assertions are unsubstantiated by even a single citation to FCC precedent. In fact, AWS® application for review is entirely devoid of factual or legal justification to support AWS® conclusion that the International Bureau erroncously granted STA to Sirius."" Repeatedly, the Commission has dismissed applications for non—compliance with these fuindamental pleading elements and should do so again here."" It simply is not the responsibility of the Commission—or Sirius—to articulate the scope and basis of AWS® request for review. Consideration ofAWS‘ request on the merits thus would impermissibly reduce applications for review to vehicles for "debating matters on which the tribunal has once deliberated and spoken."" overtumed or revised," an "erroncous finding as to an important or material question of fact," or " prejudicial procedural error." 47 C.ER. §§1.115@)(b)G)—v). ® AWS application at 1 and 5. 7 AWS application t 1. 5* KOLAInc., 11 ECC Red 14297, 14302—303 (1996) (Memorandum Opinion and Order) (dismissing an application for review that is ‘tselfprocedurally deficient because it flls to comply with the Commission‘s requirements that such requests for Commission review set out both the specific questionsfor review and the nature ofthe alleged errors made by the delegated authority") (emphasis added); see also Application ofPacific Telesis Mobile Services, 11 ECC Red 19090 (1996) (Order); Chapman S. Root Revocable Trust, 8 FCC Red 4223 (1993) (Memorandum Opinion and Order). y Chapman S. Root Revocable Trust, 8 FCC Red. at 4224 ("By incorporating the Petiion to Deny by reference into the Application for Review, NAACP is doing nothing more than attempting to relitigate the same matters which we heretofore considered and rejected in {sic] License Renewal Applications. It is well established in this regard that the Commission will not grant rehearing ‘merely for the purpose ofagain debating matters on which the trbunal has oncedeliberated and spoken.‘ (citation omitted).")

C._ Commission Review Would Deny the International Bureau An Opportunity to Pass Upon AWS‘ Proffered New Facts Commission review of AWS® application would also contradict the basic tenets of delegated authority because it relies on new facts. In accordance with Section 1.115(c) of its rules, the Commission does not grant applications for review that "rely on questions of faet or law upon which the designated authority [in this case the Interational Bureau} has been afforded no opportunity to pass.""° The FCC interprets this requirement strictly and. dismisses applications that attemptto rely on new facts to support arguments not previously presented to the delegated authority."" In its application, AWS sets forth several new—and erroncous—questions of fact upon which the Interational Bureau has not yet had an opportunity to pass. For example, AWS relies on a statement issued by Sirius "yesterday [October 16, 2001]" to support reversal ofa decision released by the International Bureau on September 17, 2001."" Moreover, AWS claims that since issuance of STA to Sirius "[tlo dae" it had not received certain information regarding Sirius‘ terrestral repeater network." ® 47 CBR. §1.150). * Application ofPacific Telesis Mobile Services, 11 ECC Red at 19094 (citation omitted); see also Heartland Radio,Inc., 11 FCC Red 1698, 1699 (1996) ("Our rules clearly provide that the Commission will not consider an argument like this one, which is based upon facts that the Burea had no opportunity to consider."); Canyon Area Residents, 14 BCRed $152, 8154 (1999) (Memorandum Opinion and Order) ("We cannot allow a party to ‘sit back and hope that a decision will be in itsfavor and, when it isn‘t, to parry with an offer of more evidence. No judging process in any branch of government could operate efficiently or accurately if such a procedure were allowed."") (citation omitted). 4 AWS application at3. " AIWS application at S (emphasis added). In fact, AWS did receive such information. See supra at 11—12.

Accordingly, because AWS proffers new questions of fact—and in tum the application of law—not previously passed upon by the Intemational Bureau in connection with adjudicating Sirius‘ application for STA, the FCC should deny to hear AWS® application forreview."" Finally, AWS did not include proof ofservice with ts application for review— which is a pre—requisiteto FCC action"—or even number the pages of ts pleading. Thus the Commission should dismiss AWS‘ half—hearted attempt to undo the Intemational Bureau‘s grant of STA to Sirius. HHL ASSUMING, ARGUENDO, THAT THE COMMISSION EXCUSES THE PROCEDURAL FLAWSIN AWS® APPLICATION FOR REVIEW, IT SHOULD NONETHELESS BE DENIED ON THE MERITS Even ifthe Commission excuses the procedural deficiencies in AWS® application for review, it should nonetheless be denied on the merits. As demonstrated below, the International Bureau correctly granted Sirius‘ STA request because it was supported by "extraordinary circumstances" and "contained the full particulars ofthe proposed operation.""* #* IAWS truly wants to bring "new facts" to the agency, the appropriate vehicle is a petition for reconsideration by the Intemational Bureau. 47 C.ER. §1.115(¢); 47 C.F.R. §1.106. #f 47 C.FR. §1.115(0) (requiring applications for review, as well as oppositions and replies to these oppositions, to be submitted to all parties to the proceeding); 47 C.F.R. §1.47(g) ("Proofof service, as required in this section, shall be fled before action is taken."); see AWS Corp. v. Business Telecom, Inc, Sprint Communications Company, LP. v. Business Telecom, Inc., ECC 01—282 n30 (Sept. 27, 2001) (Order on Reconsideration) (noting that "Petitioners‘ counsel improperly failed to serve the parties...on the same day that they submitted the Petition to the Commission, and failed to include a proper proof ofservice" and that "these service rule violations might have provided another independent basis for dismissing the Petition."). * 470.5.C.§3090;47CRR§25.120.

A«— The International Bureau Correctly Concluded that Sirius Demonstrated "Extraordinary Circumstances Requiring Temporary Operations® AWS‘ application for review alleges again that Sirius failed to demonstrate the requisite "extraordinary cireumstances" to support grant of STA.. To the contrary, Sirius explained that grant of an STA was dictated at thistime by a four—year delay in the ECC adopting terrestrial repeater rules. In 1997 the Commission recognized "that DARS providers will need to rely on terrestril repeaters and gap fillers" and soughtintial comment on proposed service rules."" Subsequently, the Commission sought and received public comment on the satellite DARS licensees‘ operation ofterestrial repeaters at least two more times over a four—year span.. Yet, no rules have been issued."" Although Sirius indicated its strong preference to operate terrestral repeaters pursuant to rules rather than STA, absent rules, it faced the imminent prospect of sacrificing quality of service or delaying initation of high—quality nationwide satellite DARS."" After considering these arguments, the Intemational Bureau agreed that the Commission‘s failure to complete the terrestrial repeater rulemaking "has created the extraordinary circumstances required by the statute and our rules to justify grant ofan STA.""" This determination is consistent with Section 309(of the Act, which delegates 27 Reply Comments ofSirius Satellite Radio Inc. at4 (filed Aug. 31, 2001) ("Sirius Repby‘). M Sirtus Replyst4. ®— Sirtus Replyst5. ®*— Sirtus STA Order, 17.

authority to grant STA requests, and past FCC precedent finding that delay ofa Commission rulemaking can justify grant of STA."" Furthermore, Sirius‘ application was not filed prematurely as AWS now alleges. As evidenced by this very proceeding, it can take several months to have an STA approved, upheld on appeal or review, and finalized. In fact,Sirius‘ STA application was first filed over three months ago on July 24, 2001.. Perhaps in recognition ofthis practical reality, the rules contain no limits on how far in advance an application for STA may be filed. Furthermore, filing several months in advance is reasonable given that the International Bureau provides public notice and an opportunity to comment priorto granting requests for STA that exceed thity days. Finally, the Sirius STA Order recognizes that thisis not a routine satellite application; this STA will provide the missing link needed to allow Sirius to begin to offer services to subscribers."" Thus, because Siius demonstrated the requisite "extraordinary circumstances" to support grant of an STA under Section 25.120 ofthe Commission‘s Rules, the International Bureau concluded appropriately that grant of STA was warranted and the request was timely. AWS® application for review should be denied. B. The International Bureau Correctly Found that Sirius Provided the Commission with the "Full Particulars® of Its Proposed Operation of Terrestrial Repeaters AWS makes several claims that Sirius failed to supply the "full particulars"" of ts proposed operation ofterrestrial repeaters because it "provided no information 2 47 U.S.C. §309(D; Amendment ofSeetion 73.202, 8 FCC 24 484, 489 (1967) (First Report and Order) (‘KMYR is stll operating under an STA on the new frequency pending the outcome of the pending rulemaking proceeding."). # Sirius STA Order, 4 8—9. —10—

concerning the low power repeaters" that t itends to operate."". AWS also falsely claims that Sirius has not fulfilled ts responsibility to disclose to WCS, MDS, and ITES Hicensees as well as the FCC, the location ofits repeaters "despite a formal request made by AWS one month ago.""* However, in its STA application, Sirius provided complete information aboutall terrestrial repeaters it proposed to operate. For those repeaters above 2 kW, Sitius attached detailed information in Exhibit A to its application. In its original request for STA, Sirius did not provide data for any low—power repeaters (Le., EIRP of 2 kW or less) ‘because it had nor yer deployed these repeaters. Furthermore, opposing partiesto the Sirius and XM STA proceedings had long disclaimed any desire to restrict or regulate such repeaters, and therefore the FCC did not need to consider these repeaters to "justify the temporary authority sought and the public interest therein," which is the litmus test of the rule."" In the Sirius S7A Order, the International Bureau concluded that "Sirius provided sufficient facts in its request to meet the standard required by the statute and our rules.. .. because the focus ofthe 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 specifcity have been satisfied.""" *# AWS application at 1—2. * Matls. "* See Sirius STA Order, 1 12; Comments of AT&T Wireless Services, Inc. at 4 (filed Aug. 21, 2001) at 6—7; Oppositionto STA Request of WorldCom, Inc. at 2 (filed Aug. 21, 2001); WCA Comments at 5—6; Metricom Comments at 8. Repeaters under 2W should be considered as flling within Sirius‘ space segment license. CJ 47 C.FR. § 25.201 (definition ofDARS). * Sirius STA Order, 49. sAfe

However, and contrary to AWS® assertion, Sitius now has supplied all current information regarding repeater sites at or below 2 KW. In the Sirius STA Order and STA Modification Order, the International Bureau required Sirius to: (1) make available to the WCS licensees and to the Commission, immediately upon request, the locations and technical parameters of all repeaters operating pursuantto this STA, including those operating at or below 2 kW EIRP; and (2) provide the name and telephone number of a point ofcontact to all WCS licensees and to WCA prior to commencing operation ... to receive reports of actual interference and to take immediate action to correct it."" On September 18, 2001, AWS requested that Sirius provide thisinformation. On September 25, 2001, Sirius sent a letter providing this information via email t AWS® counsel ofrecord, Mr. Wiltshire, with a copy to the Commission. In that letter,Sitius stated that it s investigating the deployment ofseveral repeaters less than 2 KW prior to December 31, 2001. Sirius agrees to notify you once it has selected sites for such repeaters.""" AWS® fallure to review this information does not support its claim that the particulars were not provided. AWS further complains that "the Bureau‘s analysis could be read to suggest the WCS licensees have ‘waived‘ any objection to repeaters operating at or below 2kW" and that it is not "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 7 Sirius STA Modification Order, 14 (emphasis added). These notification requirements were extended to include notification to MDS and TTFS in the Sirius STH Modification Order. 25 Letter from Carl R. Frank, Counsel for Sitius Satellte Radio Inc. t William M. Wiltshire, Counsel for AT&T Wireless Services, Inc. (dated Sept. 25, 2001). s«

proceeding.""" However,the International Bureau in its very order acknowledges that it has made no final determination regarding any terrestrial repeaters and that "[{Jhe issue of blanketing interference to WCS and MDS/ITES systems will be further and more fully addressed in the final rules adopted by the Commission in its docketed terrestrialrepeater rulemaking proceeding.""" Moreover, the STA is conditioned to expire within 180 days or "on the date on which permanent rules governing repeater operations become effective, whichever occurs first.""" AWS also questions how it is to identify an interfering transmitter operating at 2 kW" for purposes ofnotifying Sirius of"the specific source ofinterference."""" Yet, AWS fails to note that Sirius has already disclosed the full details ofall its existing terrestrial repeaters in an effort to provide AWS with the information it needs to monitor Sirius‘ repeaters. Accordingly, Sirius provided the "full particulars"" necessary to "Justify the temporary authority sought and the public interest therein." Thus, the Commission should deny AWS® application for review on the merits. ® AWS application at4. § Sirius STA Order, § 13. * Sirius STA Order, 117. 4 AWS application at4. 8.

Iv. CONCLUSION Forthe foregoing reasons, Sirius respectfully requests that the Commission dismiss or deny AWS® application for review of Sitius‘ STA. Respectfully submitted, Sirius Satellie Radio Inc. Richird E. Wiley Carl R. Frank Jennifer D. Hindin of Wiley Rein & Fielding LLP 1776 K Street, NW Washington, D.C. 20008 Artomeys for Sirius Satellite Radio Inc. Dated: November 1, 2001 234.

CeRTIFICATE oF SERVICE T hereby certify that on this 1"" day ofNovember 2001, 1 caused copies ofthe foregoing Opposition of Sirius Satelite Radio Inc.to be mailed via frst—class postage prepaid mail t the following: Chairman Michael Powell Commissioner Kathleen Abemathy Federal Communications Commission Federal Communications Commission 445 Twelfth Street, S.W., Room $—B201 445 Twelfth Street, S.W., Room 8—A204 Washington, DC 20554 Washington, DC 20554 Commissioner Michael Copps Commissioner Kevin Martin Federal Communications Commission Federal Communications Commission 445 Twelth Street, S.W., Room 8—A302 445 Twelfth Street, S.W., Room 8—C302 Washington, DC 20554 Washington, DC 20554 Peter Tenhula Bryan Tramont Commissioner Powell‘s Office Commissioner Abemathy‘s Office Federal Communications Commission Federal Communications Commission 445 Twelfth Street, S.W., Room 8—8201 445 Twelfth Street, S.W., Room $—A204 Washington, DC 20554 Washington, DC 20554 Paul Margie Monica Desai Commissioner Copps‘ Office Commissioner Martin‘s Office Federal Communications Commission Federal Communications Commission 445 Twelfth Street, S.W., Room $—A302 445 Twelfth Street, S.W., Room 8—C302 Washington, DC 20554 Washington, DC 20554 Chris Murphy Donald Abelson International Bureau Interational Bureau Federal Communications Commission Federal Communications Commission 445 Twelfth Street, S.W., Room 6—0437 445 Twelfth Street, S.W. Room 6—C750 Washington, DC 20554 Washington, DC 20554 Rosalee Chiara Jennifer Gilsenan InternationalBureau International Bureau Federal Communications Commission Federal Communications Commission 445 Twelfth Street, S.W., Room 6—A521 445 Twelfth Street, S.W., Room 6—A520 Washington, DC 20554 Washington, DC 20554 Rockie Patterson Ron Repasi Interational Bureau Interational Bureau Federal Communications Commission Federal Communications Commission 445 Twelfth Street, S.W., Room 6—B524 445 Twelfh Street, S.W., Room 6—A505 Washington, DC 20554 Washington, DC 20554

Ronald F. Netro Thomas Sugrue Interational Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 Twelfth Street, S.W., Room 3—C163 445 Twelfth Street, S.W., Room 3—C252 Washington, DC 20554 Washington, DC 20554 William M. Wiltshire Robert B. Jacobi Karen L. Gulick Cohn and Marks Haris, Wiltshire & Grannis LLP 1920 N Street, N.W., Suite 300 1200 Eighteenth Street, N.W. Washington, DC 20036 Washington, DC 20036 Counsel to Mt. Wilson FM Broadcasters, Inc. Counsel to AT&T Wireless Services, Inc. Mary Nordberg O‘Connor Douglas 1. Brandon Director, Government Regulatory Affairs AT&T Wireless Services, Inc. WorldCom Broadband Solutions, Inc. 1150 Connecticut Ave.,N: 4" Floor 8521 Leesburg Pike Washington, DC 20036 Vienna, VA 22182 James G. Harralson Brian M. Madden Charles P. Featherstrun Leventhal, Senter & Lerman P.LL.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. Atlanta, GA 30309 Heary L. Baumann David H. Layer Jack N. Goodman Director, Advanced Engineering Valerie Schulte NAB Science and Technology Ann W. Bobeck National Association ofBroadcasters National Association ofBroadcasters 1771 N Street,NW. 1771 N Street, NW. Washington, DC 20036 Washington, DC 20036 Paul J.Sinderbrand Brian Sutton Wilkinson Barker Knauer, LLP Regulatory Engineer 2300 N Street, N.W., Suite 700 Navini Networks, Inc. Washington, DC 20037 2240 Campbell Creek Blvd., 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 Alfairs 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. Scot, M Dizector, Regulatory and Standards Donald C. Brittingham BeamBReach Networks Inc. Michael P. Samsock 755 North Mathilda Avenue Verizon Wireless Sunnyvale, CA 94085 1300 I Street, N.W., Suite 400W Claudia L. Cartagena 0


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