Attachment reply to opposition

reply to opposition

REPLY TO OPPOSITION submitted by AT&T Wireless

reply to opposition

2001-11-13

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

IBFS_SATSTA2001072400064_456811

RECEIVED Before the NoV 13 2001 FEDERAL COMMUNICATIONS COMMISSION _ Washington, DC 20554 Prevserectlosteomnanl ) In the Matter of ) ) Smws Sareturme Rapto, Inc. ) rie ndfRestazonromatorss ) Request for Special Temporary Authority ) To Operate Satelite Digital Audio Radio ) Service Complementary Terrestrial ) Repeaters ) ReqeineiIRRIIECAAEEARNETT Repuy voOreostrioy to AppLication ror ReviEew AT&T Wireless Services, Inc. (*AWS®), pursuant to Section 1.115(d)ofthe Commission‘s rules,‘ hereby responds to the Opposition of Sirius Satellite Radio, Inc. ("Sirius") to AWS* Application for Review of the International Bureau‘s grant of special temporary authority (°STA") to Sirius. . Sirlus first argues matters of procedure: AWS lacks standing to seek review ofthe order,its arguments are moo, and it fails to present a "clear question® for Commission review. Finally responding to the questions AWS does raise, it simply follows the Bureau‘s lead, misapplying the requirements of Section 25.120(b) and turning a blind eye to the inescopable fact that without a planned commercial launch date, it could neither establish "circumstances requiring immediate .. 1 # Cru insd * Sirius Satelite Radio Inc. Applicaion for Special Tenporary Authorization o Operate Satelze Digtl Audio Radiosrvice Conplementary TerresrialRepeaters, File No. SAT—STA—20010724— 00064, DA O1—2171 (Sept 17,2001}GTA Order;Sris Saelite RadioIn: Applicaionfor SpecialTemporary Aubhorizaion to OperateStelite Diial Audio Radio Service Conplemenmary Terretral Repeeters, File No. SAT—STA—20010724—00064, DA O1—2383 (Ost 15, 2001) (STA Modification Orde)

. use of facilities" nor demonstrate that "delay in the insttution ofthese temporary operations would seriously prefudice the public interest."" A. Procedural Issues Sirius‘s procedural challenges are easily dismissed. AWS‘ recently announced decision to transition its existing WCS customers to alternate providers, Sitius asserts, extinguishes any "legitimate interest" in Sirius‘ use of adjacent spectrum. Accordingly Sirius would have the Commission find that AWS lacks administrative standing. Certainly this would be a novel ruling, breaking new ground and reducing the Commission‘s workload by significantly limiting those who may appear before i. The simple truth is that AWS remains a lcensee. Because AWS retains the rights and responsibilities attendant to itslicense, ts interest in preserving the integrity of its spectrum is no less. Moreover, AWS will continue to use its WCS licenses to provide service until it can complete the transition of thousands of customers to wireline alternatives. Accordingly, it is "aggrieved" by the Bureau‘s action. Sirius next suggests that AWS‘ arguments are moot because final rules, yet to be adopted in a separate rulemaking proceeding, will "obviate" AWS® concerns. While AWS and Sirus are partiesto a rulemaking proceeding concerning blanketing interference from SDARS terrestrial repeaters to WCS receivers, this proceeding concerns the grant of special (‘extrordinary" or "out of the ordinary") temporary authority authorizing commercial operations by an individual lcensee. AWS® application for review does not argue policy concerning resolution of interference;it & #CBRYLNSOA®.

argues that the grant of an STA did not comply with the requirements of Section 25.120. The rulemaking has no bearing upon the requirements of Section 25.120.° Concluding its procedural attacks, Sirius clams that AWS has not presented a "elear question" for review. In footnote 15 of ts Opposition, Sirius correetly recites the "factors" listed in Section 1.115 supporting an application for review.. As it acknowledges, among the possible factors a party may raise is that "the action taken pursuant to delegated authority is in conflict with . .. regulation. "* Yet even as Sitius alleges that the application failsthese "basic pleading requirements,"it actually cites the application‘s charge that "the Bureau acted in derogation of the Commission‘s rule." AWS can only presume that Sirius did not read the lengthy discussion in the Application for Review of (1) the legal requirements to obtain STA that are set forth in Section 24.120, and (2) AWS® analysis of the Bureau‘s fuilure to apply those requirements to Sirius‘s application for STA. To the extent that Sirius is alleging that Section 1.115 requires bullet points listing each "factor" and each "question," we disagree. D. Substantive Issues Nonetheless, Sirius manages to respond to AWS® charge that the Bureau erred in its finding of "extraordinary circumstances." Sirius merely recites the Bureau‘s suggestion that Commission delay in the pending rulemaking "created the extraordinary circummstances required by the statute and our rules to justify grant of an STA."* TF it is true that the duration of a rulemaking alone creates "extraordinary circumstances," any bureau will be able to grant STA based upon its prediction of the outcome of a * Generallyan argument is considered moot when theissos it resentshave otherwisebeen resolved. Blacks Law Dictionay,Fith Ediion, 1986. Supgesting that an issu "s" moot because ofa posible resolution that may occur in thefoturerequires innovativeiterpreation of the movementoftime. Wnceriiisn®0 * Siries Oppostion at 9, citing STA Order at 17.

rulemaking that has been pending for some time — a not uncommon occurrence. This would be an unprecedented extension of the Commission‘s STA precedent. Responding to AWS‘s argument that the Bureau‘s grant of STA is premature, Sirius assertsthat "t faced the impminent prospect of sacrificing quality of service or delaying initiation of high—qualty nationwide satellite DARS®" and that the STA provides "the missing link needed to allow Sirius to begin to offer services to subscribers."* This ignores the fact that when Sirius made its request for STA in July, it had no planned date for a commercial launch other than an estimate of the fourth quarter of 2001." Like the Bureau Order, Sirius simply does not respond to this point. In the Application for Review, AWS noted that Sirius had subsequently announced further delayinto 2002. Because this fact extinguishes any claim of exigeney, Sitius did not respond, but rather chastised AWS for raising "new facts." Of course Section 1.115() expressly allows such information where "evidence.. . has become available only since the original taking of evidence." Finally, Sitius responds that the Buresu correetly concluded that Sirius had. provided the "full particulars of[ts] proposed operation," despite the factthat it had listed only high power repeaters. At the time of ts application, Sirus indicated that it "has not included this information for the low power (Le., EIRP of 2 KW or less) it seeks to operate pursuant to the STA." AWS alleged in the application for review that information on all repeaters was required to satisfy the requirement that an applicantfor STA disclose the "full particulars of[its] proposed operation" as required by Section 25.120(@). Afterit received its STA, Sitius revealed that "Sirius is investigating the 14 9 emphasis addad) 1 at 10 (emphasisadded) Application for Review, t 2

deployment of several repesters less than 2 KW,""° suggesting but not affirmatively stating that it had not deployed any low power repeaters pursuant to the STA. This uncertainty only underscores the fact that the Bureau approved an STA in violation of Section 25.120, not knowing precisely what (if anything) it had authorized. For the reasons stated above, the Commission must grant the application for review and reverse the Bureau‘s grant ofthe STA. + Respectfully submited, AT&T Wireuess Services, Inc. By: zfimfléfi, ‘illiem M. Wiltshire Karen L. Gulick Hanus, Wirsure & Granuisur 1200 Eighteenth Street, N.W. Washington, DC 20036 202—730—1300 DouglasL Brandon AT&T Wireurss Services, Inc. 1150 Connecticut Avenue, N.W. 4" Floor Washington, DC 20036 202—223—0222 Dated: November 13, 2001 * Letter from CarlR. Frank, Counsei for Srius Satelite Radi, nc. o Wiliom M. Witshire(dted September 25, 2001)

CERTIFICATE OF SERVICE T hereby certify that on this 13® day of November, 2001, a copy ofthe foregoing Reply to Opposition to Application for Review was served by first class mail, postage prepaid, upon: Carl R. Frank Wiley Rein & Fielding LLP 1776 K Street, NW. Washington, DC 20006


Document Created: 2005-09-27 16:13:31
Document Modified: 2005-09-27 16:13:31
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