Attachment Telesat

Telesat

RESPONSE TO REPLY COMMENTS submitted by Telesat Canada

telesat

2004-04-12

This document pretains to SAT-STA-20030903-00300 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2003090300300_369803

BEFORE THE FEDERAL COMMUNICATIONS COMMISSION RECEIVED WASHINGTON, D.C. 20554 APR 1 2 2004 ~~ In the Matter of FMERAL COMMUNlCATlONS COMM1561N OFFU OF THE SECRETARY DJRECTV Enterprises, LLC Request for Special Temporary Authority to Relocate DIRECTV 3 to File No. SAT- STA-20030903-00300 82” W.L. and To Conduct Telemetry, Tracking and Command (“TTAC”) Operations for an Interim Period RESPONSE OF TELESAT CANADA TO COMMENTS WITH RESPECT TO INFORMATION FILED PURSUANT TO PROTECTIVE ORDER Telesat Canada (“Telesat”), by its attorneys, hereby responds to comments filed by EchoStar Satellite LLC (“Echostar”) and Pegasus Development Corporation (“Pegasus”) allegedly based on confidential information provided pursuant to protective order in the above- referenced proceeding.’ These comments do not support further Commission delay in approving the relocation of DIRECTV 3 to a Canadian orbital location, where it will be used as a back-up and to provide service solely in Canada. Now that this supplemental pleading cycle is complete, and all parties have had the opportunity to review the confidential information submitted by DIRECTV, the Commission should promptly conclude its review and grant DIRECTV’s long- pending request for special temporary authority (“STA”) to relocate DIRECTV 3 to 82” W.L. Any such grant can be issued without prejudice to any subsequent action on the also pending ’ ~ The comments largely reiterate prior concerns that could have been, and in many cases were, addressed prior to the release of the confidential information. Indeed, Telesat’s response to these comments contains no confidential information.

request for STA to relocate DIRECTV 5 to 72.5” W.L. and to provide service into the U.S. from that location.* I. THE BUREAU SHOULD PROMPTLY GRANT STA FOR THE RELOCATION OF DIRECTV 3 TO A CANADIAN ORBITAL LOCATION The comments filed do not raise any issues that would warrant further delay in granting STA for the relocation of DIRECTV 3 to a Canadian orbital location. As Telesat has noted previously, the relocation of DIRECTV 3 to 82” W.L. (and ultimately to 91” W.L.) will provide I back-up and additional capacity in Canada only.3 Bell ExpressVu, Telesat’s’BSS customer, has contracted for all of the available frequencies at 82” W.L. and 91” W.L., albeit some frequencies are not currently being used because of an anomaly on the Nimiq 2 satellite. The co-location of DIRECTV 3 will allow Telesat to restore service to Bell ExpressVu across 711 of the available frequencies, improve the power performance by enabling high-power operations) and provide emergency back-up as contemplated by long standing inter-Governmental agreements. As also previously noted, Bell ExpressVu has publicly stated that it needs all the available frequencies at those orbital locations for its Canadian service. Pegasus’, and to a lesser extent Echostar’s, desire to create a regulatory link between the pending requests for STA to relocate DIRECTV 3 and DIRECTV 5 to Canadian orbital locations fundamentally misconstrues DIRECTV’s commercial arrangements with T e l e ~ a t .The ~ See DIRECTV Enterprises, LLC, Request for Special Temporary Authority to Relocafe DIRECTV 5 to 72.5” W.L. and To Conduct Telemetry, Tracking and Command (“VAC’1) Operationsfor an Interim Period, File No. SAT-STA-20040107-00002 (filed Jan. 7,2004). See, e.g., Opposition of Telesat Canada, File No. SAT-STA-20030903-00300 (filed Nov. 12, 2003); Letter from Bert W. Rein, counsel to Telesat Canada, to Marlene H. Dortch, Secretary, FCC (dated Mar. 15,2004). 4 See Pegasus Development Corporation, Reply and Supplemental Comments, MB Docket No. 03- 124, FCC 03-330, SAT-STA-20040 1 07-00002, STA-STA-20030903-0030 at 10 (filed Apr.5, 2004) (“Pegasus Supplemental Comments”). Although) Pegasus’ counsel filed its entire pleading as a confidential document, the pleading in fact contains extensive public information. 2

DIRECTV 3 and DIRECTV 5 arrangements anticipate two separate transactions. The relocation of DIRECTV 3 to 82" W.L. (and ultimately 91" W.L) will proceed following acquisition of the necessary regulatory approvals even if regulatory approvals are never obtained for the relocation of DIRECTV 5 to 72.5" W.L Thus there is nothing in the arrangements between DIRECTV and Telesat that would limit the realization of the benefits for the relocation of DIRECTV 3 even if the DIRECTV 5 STA remains pending. To the contrary, as noted above, given the immediate need for back up capacity and to enhance service at 91 W.L., the FCC should promptly grant the O DIRECTV 3 STA request, with a condition that the grant is without prejudice to any FCC action on DIRECTV 5.5 Pegasus further claims that DIRECTV and Telesat have somehow locked up all the Canadian BSS orbital capacity and thus foreclosed competitive entry by Pegasus or others that seek to provide service to the United States from Canadian BSS orbital locations.6 This is patently false, There is nothing in the DIRECTV-Telesat arrangement that restricts other U.S. service providers from accessing capacity on the Nimiq satellites at the 82" W.L. and 91" W.L. positions, or any other Canadian BSS positions. However, as has been made clear in this and EchoStar Satellite LLC, Comments, File Nos. SAT-STA-20030903-00300 and SAT-STA- 200401 07-00002 at 4 (filed Apr. 5,2004) ("EchoSlar Comments"). In addition, if the FCC gives credence to allegations of U.S. service from DJRECTV 3, which would require further regulatory approval, the FCC could impose a condition or otherwise limit the scope of the STA to permit only service to Canada. See Echostar Comments at 4 (expressing concern that Section 4.4 of the DIRECTV and Telesat Satellite Relocation and Lease Agreement does not foreclose the possibility of U.S. service). Although EchoStar redacted this concern from its public version, Section 4.4 has been released to the public. See Letter from J. Barker, counsel for DIRECTV Enterprises LLC to T. Tycz, FCC at attached Dec. 23,2003 Telesat Canada and DJRECTV Enterprises, LLC Satellite Relocation & Lease Agreement at 5 , s 4.4 (filed Mar. IS, 2004). 'Pegasus Supplemental Comments at I I -I 4. 3

other proceeding^,^ all of the available capacity at the 82” W.L. and 91” W.L. orbital locations is already committed to and used by Bell ExpressVu. The co-location of DIRECTV 3 with a Nimiq satellite in either of these orbital locations will not result in any additional frequencies becoming available for service to the United States. Because there is no previously uncommitted capacity or new capacity made available under the DIRECTV 3 arrangement, there can be no foreclosure of any U.S. service provider. In any event, additional Canadian BSS capacity still exists. Industry Canada currently has issued a further call for exiression of interest I due May 14,2004 for BSS capacity in the 12 GHz band at 129”W.L and 138” W.L., which offer coverage of the United States, including Ala~ka/Hawaii.~ In addition, several Canadian orbital locations with 17 GHz BSS frequencies will become available in the future. 11’ Furthermore, EchoStar suggests that the FCC should commence an amorphous general rulemaking regarding the scarcity of Canadian frequencies for U.S. operator^.^ Any such See In the Matter of Pegasus Development Corporation, DA 04-909,n 12 (rel. Mar.3 1,2003) (“Pegasus Order”) (acknowledging that granting Pegasus authority to access ithe Nimiq 1 and Nimiq 2 satellites “does not guarantee successful deployment of the proposed DBS system” because Telesat indicted that it “has sold all capacity on the Nimiq 1 and Nimiq 2 satellites to Bell Express Vu, a Canadian DTH service provider, and that Bell ExpressVu ‘needs all capacity available at the 82’ W.L. and 91 ” W.L. orbital locations’”); In the Matter of Digital Broadband Applications Coup., Order, I 8 FCC Rcd 9455 (2003) (“DBAC Order”). Indeed, Telesat would consider partners other than DlRECTV for development of these orbital locations to the extent that such arrangements make commercial sense and contribute to a proposal that would meet all of Industry Canada’s licensing conditions. Echostar Comments at 3. Such rulemaking is very likely unnecessary because the DISCO II framework is already in place to cover that situation. Amendment of fhe Commission’s Regulatory Policies to Allow Non-US. Licensed Space Stations to Provide Domestic and International Satellite Service in the Uniied States, Report and Order, 12 FCC Rcd 24094 (1997), recon. denied, 16 FCC Rcd 19794 (2001). In fact, the Bureau has already twice authorized the use of Canadian BSS orbital locations for service to the U.S. See DBAC Order; Pegasus Order. In addition, the Canadian BSS orbital positions are already part of JTU Region 2 BSS Plan and thus do not raise the same issues as “reduced orbital spacing”, which may be the subject of a future rulemaking. See Public Notice, International Bureau Seeks Comment On Proposals to Permit Reduced Orbital Spacing Between U.S. Direct Broadcast Satellites, Report No. SPB-I 96, DA 03-3903 (Dec. 16,2003). 4

rulemaking would have no relevance to the DIRECTV 3 STA request because it does not seek service to the United States. The remainder of Pegasus’ pleading is dedicated to complaining about its access to confidential material rather than raising any substantive concerns about DIRECTV’s pending STA request. The relevant regulatory agencies, the FCC and Industry Canada, however, have always had full visibility into the arrangements. Other parties were also given sufficient details to understand the nature and scope of arrangements but the details were kept confidential from competitors, which is a normal business practice exercised by all.’’ In any event, Pegasus’ counsel has now reviewed all of the confidential materials and, quite tellingly, has failed to identify any issue warranting delay in granting the pending DIRECTV 3 STA request. 11. CONCLUSION In sum, none of the “red herrings” raised by Pegasus and EchoStar provide any reason to delay grant of the pending DIRECTV 3 STA. Accordingly, Telesat respectfully requests that the Bureau promptly grant DlRECTV STA to relocate DIRECTV 3 to a Canadian orbital location to provide urgently needed back-up capacity and service restoral. RESPECTFULLY SUBMITTED, TELESAT CANADA Bert W. Rein Jennifer D. Hindin WJLEY REIN & FIELDING LLP 1776 K Street, N.W. Washington, DC 20006 April 12,2004 202.7 19.7000 loBy way of example, Pegasus heavily redacted its own proposal to Industry Canada. See Opposition and Reply Comments of DIRECTV Enterprises, LLC, File No. SAT-STA-20040107- 00002 (Mar. 3,2004), Exhibit A (heavily redacted Pegasus Response to Industry Canada’s Call for Expressions of Interest in Broadcasting Satellite Orbital Positions (DGRB-002-03)). 5

CERTIFICATE OF SERVICE I, Christopher E. Ryan, a legal assistant at the law firm of Wiley Rein & Fielding, LLP, do hereby certify that copies of the foregoing Response of Telesat Canada were served by first- class mail, postage prepaid on this 12* day of April 2004 to the following: Marlene H. Dortch (hand delivery) Bruce D. Jacobs Secretary Tony Lin Federal Communications Commission Shaw Pittman LLP 445 Twelfth Street, S.W. 2300 N Street, NW Washington, D.C. 20554 Washington, DC 20037 Thomas S. Tycz (by hand delivery) Pantelis Michalopolous 1 International Bureau Rhonda M. Bolton I Federal Communications Commission Steptoe & Johnson LLP 445 1 2 ' ~Street, sw 1330 Connecticut Avenue, NW Washington, DC 20554 Washington, DC 20036 Jay Whaley (by hand deli Benjamin J. Griffin International Bureau Christopher R. Bjornson \ Federal Communications Commission Mintz, Levin, Cohn, Ferris!, Glovsky and 445 1 2 ' ~Street, sw Popeo, P.C. Washington, DC 20554 701 Pennsylvania Avenue, NW Washington, DC 20004 Phillip L. Spector Gary M. Epstein Diane C. Gaylor James H. Barker Paul, Weiss, Rifiind, Wharton & Garrison Latham & Watkins I LLP 5 5 5 I lth Street, NW 1615 L Street, NW Suite 1000 Suite 1300 Washington, DC 20004 Washington, DC 20036


Document Created: 2004-04-20 15:01:30
Document Modified: 2004-04-20 15:01:30
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