Attachment 2001EchoStar-Hawaii

2001EchoStar-Hawaii

COMMENT submitted by State of Hawaii

c

2001-12-17

This document pretains to SAT-STA-20011025-00091 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2001102500091_845248

                                          Before the                                        e
                    FEDERAL COMMUNICATIONS COMMISSION                            AECEiV EL
                                  Washington, DC 20554

                                                                                               Mess
 In the Matter of                            )
                                             )
 EchoStar Satellite Corporation              )
                                             )
 Application for Authority to Make           )
 Minor Modifications to Direct               )
 Broadcast Satellite Authorization           )
                                             )
 Application for Special Temporary           3
 Authority to Operate a Direct Broadcast     )
 Satellite Overthe Even—Numbered             )
 Channels at the 148° Orbital Location       )


                                 COMMENTS OF
                              THE STATE OF HAWAII

        The State of Hawaii ("the Sttate”),1 by its attorneys and pursuant to Section 25.154

of the Commission‘s Rules, 47 C.F.R. § 25.154, hereby comments on the above—

captioned applications of EchoStar Satellite Corporation (“EchoStar”) to make

modifications to its DBS authorizations and for limited waiver of the Commission‘s

geographic service rules."

        The State has no objection to the conditional grant of EchoStar‘s applications.

The State observes, however, that a major reason why EchoStar needs a waiver of the

geographic service rules is because, after almost four years of delay, the Commission has


‘ The State herein comments through the Hawaii Department of Commerce and
Consumer Affairs ("the Department"). A division of the Department—the Cable
Television Division — is the State‘s cable franchise administrator.

 See Public Notice, "Satellite Policy Branch Information: Application Acceptedfor
Filing," Report No. SAT—00090 (Nov. 16, 2001).


 not yet clarified its rules through the issuance of an order in the Part 100 rule making

 proceeding. In consolation, however, the State also observes that one of the justifications

 that EchoStar uses in support of its waiver request provides instructive guidance for the

 Commission in reaching a conclusion in the Part 100 proceeding.


 I.      THE COMMISSION SHOULD RELEASE AN ORDER IN THE PART 100
         PROCEEDING THAT ENDS THE AD HOC PROCESS OF ENFORCING
         THE GEOGRAPHIC SERVICE RULES ON A CASE—BY—CASE AND
         APPLICATION—BY—APPLICATION BASIS.

         As noted above, the State has no objection to the conditional grant of EchoStar‘s

 above—captioned request for modification of its DBS fleet and waiver of the geographic

 service rules. In issuing such a waiver, the Commission should impose the same

 conditions on EchoStar‘s operations as were adopted for EchoStar‘s previous waiver

reques’c.3

        The State accedes to EchoStar‘s wavier request because, while EchoStar‘s service

to consumers to the State is not in compliance with the Commission‘s regulations, it has

improved significantly in recent years. EchoStar makes available its America‘s Top 100

subscriber package in Hawaii for about the same cost as on the mainland. The major

remaining shortcoming in EchoStar‘s service is that Hawaii residents are unable to

receive EchoStar‘s America‘s Top 150 package on terms that are remotely comparable to

those in the mainland.



 See EchoStar Satellite Corporation, Directsat Corporation and EchoStar DBS
Corporation, 13 FCC Red. 8595, 8609 (1998) (©1998 EchoStar Waiver Order")
(indicating that any satellite replacing the satellite that is the subject of the waiver at 148°
W.L. will immediately be subject to 47 C.F.R. §100.53 (b) obligations; (2) if EchoStar stops
providing service to Hawaii from 119° W.L., any EchoStar satellite at 148° W.L. will
immediately incur 47 C.F.R. §100.53(b) obligations; and (3) for all other satellites subject to
§100.53, EchoStar‘s requirements remain).


         While the State is not objecting to EchoStar‘s current waiver request, however,

 the State observes that it has been forced to file numerous pleadings in recent years

 involving a long list of DBS application proceedings initiated by both EchoStar and

 Directv. The State has been compelled to participate in these proceedings for three

 reasons.

        First, DBS licensees, particularly Directyv, have resisted compliance with the

 Commission‘s geographic service rules and have directly challenged their scope,

 sometimes arguing that the rules require nothing more than the broadcast of a test pattern

 to consumers in the State.

        Second, the existing geographic service rules focus on specific orbital locations,

rather than on the entire package of services that each DBS licensee provides with its

network. For example, Section 100.53(b) of the Commuission‘s rules requires the

provision of DBS service to Alaska and Hawaii from any orbital position that is acquired

after January 19, 1996, if such service is technically feasible from the acquired orbital

location.*

       Because of the technical focus of the existing rules, DBS licensees have argued

that the Commission must focus on individual satellites when assessing compliance with

the rules, but these same operators point to the efficiencies of their entire network when

defending individual acts of non—compliance. At the same time, the State has been forced




* 47 C.F.R. § 100.53(b) (2000). In addition, Section 100.53(a) of the Commission‘s rules
requires the provision of DBS to Alaska and Hawaii from any one of a licensee‘s orbital
positions if those positions were acquired prior to January 19, 1996. See 47 C.F.R. §
100.53(a) (2000).


 to carefully monitor the fleet management of the DBS licensees — an unwarranted

 expense to the State‘s coffers.

         The third reason why the State has been compelled to participate in so many DBS

 application proceedings is because the Commission has been unable to complete an order

 in its Part 100 rule making proceeding that clarifies and improves the geographic service

 requirements. The Commission should not belabor the Part 100 proceeding any longer.

 Instead, the Commission should promptly issue an order that reinforces its geographic

service rules. Fortunately, an objectively clear approach to revising the Commission‘s

geographic service requirements can be found within EchoStar‘s own waiver application.


II.     THE GEOGRAPHIC SERVICE RULES SHOULD REQUIRE THE
        PROVISION OF A DBS LICENSEE‘S "BACKBONE CABLE AND
        SUPERSTATION" PROGRAMMING PACKAGES TO CONSUMERS IN
        ALL FIFTY STATES.

        The State has long argued that the Commuission‘s existing geographic service

rules mandate the provision of "full service" to consumers in Alaska and Hawaii —

meaning the provision of comparable, but not necessarily identical, programming. In

making this argument, the State has repeatedly urged the Commission to enforce its

geographic service rules by focusing on the core programming packages that EchoStar

and Directv make available to customers in every one of the mainland forty—eight states.

       EchoStar endorses this same approach in its waiver request. EchoStar argues that

its waiver request is justified because it is providing its "backbone cable and superstation

package to residents of Alaska and Hawaii from its 119° W.L. orbital location.""



° Application for Minor Modification ofDBS Authorization, FCC File No. SAT—MOD—
20011025—00090, at 10 n.18 (Oct. 25, 2001).


        Furthermore, as EchoStar observes, the International Bureau also endorsed this

 approach when it granted EchoStar a previous waiver of the geographic service rules.

 The Bureau concluded that the waiver would "serve the public interest because it will

 enable subscribers in Hawaii to receive the same backbone programming as subscribers

in the mainland.‘""

      Of course, such a regulatory approach raises a fundamental question: how to define

and identify the core "backbone cable and superstation" programming packages that

would be covered by such a rule? The answer is easy. The Internet advertising for

EchoStar and Directyv identify their core programming packages available in every one of

the forty—eight mainland states. For example, EchoStar advertises AT 40, AT 100 and

AT 150," while Directyv offers Total Choice, Total Choice Movies and Total Choice

Platinum.

      As indicated in the following charts, EchoStar provides some of its core

programming packages to consumers in Hawaii, while Directyv offers none of them.

Instead, Directyv offers a different programming package called Hawaii Choice, which

lacks many of Directv‘s most popular and informative programming, such as CNN,

Headline News, The Weather Channel, Discovery Channel, ESPN, ESPN 2, TBS, TNT

and USA Network.




° Id. (quoting 1998 EchoStar Waiver Order at $599).

" See http://www.dishnetwork.com,/content/programming/packages/index.shtml.

8 See http://www.directv.com/packages/packagespages/0,1336,516,00.html.


                        EchoStar‘s Core Programming Packages

   Programming Package           Available in Forty—eight       Available in Hawaii
                                     Mainland States
             AT 50                          Yes                          Yes
            AT 100                          Yes                          Yes
            AT 150                          Yes                          No
  America‘s Everything Pack                 Yes                          No



                        Directv‘s Core Programming Packages

   Programming Package           Available in Forty—eight       Available in Hawaii
                                     Mainland States
         Total Choice                       Yes                          No
     Total Choice Movie                     Yes                          No
    Total Choice Platinum                   Yes                         No


        The solution to this problem is clear. The Commission should adopt immediately

a revised geographic service rule that prohibits discrimination against residents in Alaska

and Hawaii by requiring DBS licensees to make available the same programming in

Alaska and Hawaii as is made available to consumers in all forty—eight mainland states.

Enforcement of such a rule would be as simple as reviewing the DBS licensee‘s websites,

and checking off the tables provided on the previous page of these comments.

Furthermore, adoption of this clear and concise regulatory requirement would finally

bring an end to the long series of contested proceedings that has been necessitated by the

failure of DBS licensees to comply with the Commission‘s existing geographic service

requirements.


 III.   CONCLUSION

        The State has no obj ection to the conditional grant of EchoStar‘s modification

 application and requested waiver of the Commission‘s geographic service rules. The

 State urges the Commission to eliminate the need for such waivers, however, by

 promptly adopting an order in the Part 100 rule making proceeding, which clarifies and

 improves the Commission‘s geographic service requirements. Furthermore, the State

 urges the Commission to adopt a new geographic service rule that focuses on the core

programming packages made available by DBS licensees to consumers in the forty—eight

mainland states, but not to consumers in Alaska and Hawaii.

                            Respectfully submitted,

                            THE STATE OF         HAWAII




Kathryn Matayoshi                                     Herbert E. Marks
Director                                              Bruce A. Olcott
Department of Commerce &                              Angela M. Simpson
 Consumer Affairs                                     Squire, Sanders & Dempsey, L.L.P.
                                                      1201 Pennsylvania Ave., N.W.
Clyde Sonobe                                          P.O. Box 407
Cable Administrator                                   Washington, D.C. 20044
Cable Television Division                             (202) 626—6600

Naomi Cole                                            Its Attorneys
Staff Counsel
Cable Television Division

STATE OF HAWAIL
1010 Richards Street
Honolulu, Hawaii 96813
(808) 586—2620

December 17, 2001


                                    Certificate of Service

       I, Shenita V. Fauntleroy, do hereby certify that on this 17th day of December, 2001, I
have caused a copy of the foregoing "Comments of The State of Hawaii" in SAT—MOD—_
20011025—00090 and File No. SAT—STA—20011025—00091 to be served by first class mail to:


             David K. Moskowitz
             Senior Vice President and General Counsel
             EchoStar Satellite Corporation
             5701 South Santa Fe
             Littleton, CO 80120

             and

             Pantelis Michalopoulos
             STEPTOE & JOHNSON LLP
             1330 Connecticut Avenue, N.W.
             Washington, D.C. 20036
             Counsel for EchoStar




                                               %MVW
                                                 Shenita V. Fauntleroy



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Document Modified: 2019-04-09 03:03:30

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