Attachment O&A

O&A

DECISION submitted by FCC,IB

order and authorization

2004-08-13

This document pretains to SAT-STA-20040107-00002 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2004010700002_397119

Federal Communications Commission pa o4—z52e Before the Federal Communications Commission Washington, D.C. 20554 In the Mattrs of ) ) Application ofDIRECTV Enterprises, LLC ) File No. SAT—STA—20040107—00002 ) Call Sign: 82417 Request For Special Temporary Authority for the ) DIRECTV S Sarelite ) ) Application of DIRECTV Enterprises, LC ) Fle No. SES—LES—20040112—00023 ) Call Sign: ©O40024 Request for Blanket Authorization for 1,000,000 ) Receive Only Earth Stations to Provide Direct ) Broadcast Satelite Service in the U.S. using the ) Canadian Authorized DIRECTV 5 Sateliteat the ) 72.5° W.L. Broadcast SateliteService Location ) orper Anp AUTHORIZATION Adopted:. August 12, 2004 Released: August 13, 2004 By the Chiet Satelite Division,International Bureau: 1 INTRODUCTION 1. By this Order, we grant DIRECTV Enterprises, LLC‘s (*DIRECTV") application for Special Temporary Authority (‘STA") to relocate ts DIRECTV 5 satelite to the 72.5° W.L. orbital location." "That request is pursuant to an agreement between DIRECTV and Telesat Canada ("Telesat"). We also grant DIRECTV‘s requestfor a blanket authorization for 1,000,000 receive only earth stations, which will be used to provide "local—into—local"" signals to U.S. consumers using the DIRECTV 5 satelite. That satelite will operate atthe 72.5" W.L. orbitallocation pursuant to a Canadian space station authorization issued to Telesat. ! The term 2.5° W.L.orbital lcation,"asused ithis Order, efers tte nominalorbia posionfr therelevant Canadian frequency assignment under the Intermational Telecormuniction Union(TU) Region 2 Planfor BSS and Feeder Link Assignments, as contained in Appendix 3050A of the Ratio Regulatons, and t any specifie orbial loction wthin thclusterdefied by such assignment * The term local—ino—local," as used in this Orde,refrsto provision viastelite retransmission ofloca broadeast channelsto subscribers who resde in thelocalTV statio‘ marke, whichis defined asa Designated Market Aren, or"DMA% See 17 US.C.§ 1220@( ? This action is tken pursuantto Section25.132 othe Commission‘s Rules. Sce 47 CBR. § 25.132() (rquiring receive—anly Eath stationsthat would operate wth non—U.S. ieensed space stations o equest leensc). Any Earth sttionauthoriztions required for tracking, telemety,and commund fonctions in connection with opentions ofthe DIRECTV 5 stellte willbeaddressed separitel

Federal Communications Commission DA t42s26 m BACKGROUND Ac— The Transaction Between DIRECTV and Telsat Canada 2. The proposed relocation of the DIRECTV $ is pursuant to an agreement between DIRECTV and Telesat concerming the use of DIRECTV 5 and another DIRECTV satellte, DIRECTV 3,‘ at orbital locations assigned to Canada under the TTU Region 2 Plans for the BSS and associated feeder—links DIRECTV agreed to move the DIRECTV 5 satelite to the 725° W.L. orbital location, subject to the successful launch and in—orbit testing of the DIRECTV 78 satelite, and subject to necessary governmental approvals.. DIRECTV 78 has since been launched and has replaced the DIRECTV 5 satellitatthe 119° W.L. orbital location® The agreement provides DIRECTV with an exclusive right to use all of the capscity on the DIRECTV 5 satelite at the 72.5° WL. orbital location untl at least September 30, 2008.— Under the agreement, DIRECTV may, under certain circumstances, move the DIRECTV 5 sateliteto one of its FCC licensed orbital locations," upon 5 days notice to Telesat, in the event that DIRECTV 5 i needed to replace some or al of the capacity ocertain DIRECTV satelites due to a satelite or lainch failre, Upon the exercise ofcerain options outlined in the agreement, operations of DIRECTV 5 atthe 72.5° W.L. orbital location may continue untl Jine 30, 2013. 3. ‘The agreement contemplates tha, once DIRECTV 5 is at the 72.5° W.L. orbital lcation,it will be operated by Telesat pursuant to a separate operations agreement. DIRECTV will perform telemetry, tracking, and contzol funetions (TT&C functions) under Telesat‘s direction and control, untl Telesat has developed and installed the necessary facilitis in Canada to perform such functions, which shall cccur within 12 months after receiptof regulatory approvals necessary to relocate DIRECTV 5 to the 72.5° WL. orbital location. On December 17, 2003, Industry Canada provided Telesat with an approval in principle t develop and operatea broadcast—satelitespace station atthe 72.5° W.L. orbital location® B.—— Procedural History 4. On Ostober 7, 2003, DIRECTV filed a copy of ts agreement with Telesatand requested that it be withheld from public inspection pursuant to Sections 0.457 and 0459 of the Commission‘s rules." On Junuary 7, 2004, DIRECTV filed ts STA requestt relocate the DIRECTV 5 satelite. On January 12, 2004, DIRECTV filts requestfor blanket Earth station authorization. The Satelite Division issued a * The DIRECTV 3 stelite was addressd in a separte proceeding. DIRECTV, Inc. Order, DA O4—1761 (IntL Bur, Sat Div. released Jun 23, 2008 " The Plan forthe BroadeastingSatelite Service (BSS) in the Band 122—12.7 GHe in Repion 2 is contained in Appendix 20 ofthe ITU Radio Regulations,and the assocated Plan forthefeederlinks ithe frequency band 17.3— 178 GHz for the broadeasingsatelite service in Region 2 is contained in Appendix 30A of the ITU Radio Regulations. ° See DIRECTV Entrprises,Inc, Order andduthorization, 19 FCC Red 7954 (It‘ Bur.2004) " DIRECTV holds lcensesto operte steltes pursuant to the U.S. assignments forthe 101, 110 and 119° W.L. orbtallocations underthe T Region 2 Planfor BSS and Feeder Link Assignments * DIRECTV STA Reqest at. Exhibit 1. Also availible at htp/itategisgocnepicintemeinsmt— astnsPwap)/gnacy—epdSFILignacy—e,odf * 47 CER. §8 0457, 0450. See DIRECTV Enterprises, LLC, Notifcation of Filing of Request for Confidental Trestment, filed October 21, 2003, and DIRECTV Enterprises, LLC, Request for Confidental Treatment, ied subject toa confidentality request on October 7, 2003, both in File No. SAT—STA—20030903—00300,_DIRECTV extended this requestto cover dacument related o it greement with Tlesat that were filed wthe Commision on December 17, 2003,January 13, 2004, March 1,2004, June 23, 2004, and June 29,2004

Federal Communications Commission pa o+252 public notice of DIRECTV‘s STA request on January 15, 2004.°. On February 17, 2004, Pegasus Development Corporation (‘Pegasus") and EchoStar Satelite, LLC ("EchoStar®) filed petitions to deny the STA."" DIRECTV and Telesatfiled an opposition to these pleadings on March 3, 2004, to which Pegasus, Echostar and SES Americom replied on March 10, 2004." On March 15, 2004, DIRECTV and Telesatprovided portions of previously confidential contractsfor nclusion in the public fil." 5. _ On March 22, 2004, we released a Protective Order that permitted conditional access to the confidential documents submited by DIRECTV, in their entiety, and gave commenters a period oftime in which to file any additional comments that might result from review of those documents. . Porsuant to the Protective Order, Pegasus and Echostar fild supplemental comments on April S, 2004, to which DIRECTV, SES, and Telesareplied on April 12, 2004. 6. Separztely, on March 25, 2004, we issued a Public Notice establishing a comment deadline concerning DIRECTV‘s request for a blanket Earth station authorization." On April 26, Pegasus filed a Petition to Deny the blanket Earth station application, and Echostar filed comments concerning that application. DIRECTV and SES responded on May 6, 2004. 7 On May 14, 2004, DIRECTV submittd summaries of ex parte meetings," and on May 26, 2004, DIRECTV submitted a ltter responding to a question ffom Commission staff conceming operations of DIRECTV 5. On June 23, 2004, DIRECTV submited a copy of its agreement with Telesat conceming Operational Services." On July 6, 2004, DIRECTV submited portions of ts agreement with Telesat, previously treated as confidentil, fo inclusion in the publi fil." " Report No. SAT—00187 (released Janury 15, 2009) "* in addtion, SES Americom, Inc. (SES Americon)filed "Pettion to Defer and Comments," and Rainbow DBS Company LLC filed a briefleter,on Febrwary 17, 2004. These comments both concemed threlationstip between DIRECTV‘s STA request and the DIRECTV‘s request foa blanket Earth sution authorization. Our subsequent actionissuinga publi notce concemning the blanket Earthsution authorzaton, and our actiontoday addressing both requests simuliancously, rendersthose concems moot " The status of DIRECTV‘s STA request under the Commisson‘s ex parte rles was modified to "permit but disclos," pursuant to 47 CR § 1.1200(), on March 12, 204. Report No. SAT—00201, DA O4—M49 (relesed March 19, 2009 " Leter from Gary Epstein, Counsl for DIRECTV, to Marlen . Dortch, Secretuy of the FCC, dated March 13, 2004. "* Order Adopting Protective Order, DA 04—755 (l. Mar 22, 2004) (Protectve Order) In the Protetive Order the InternationalBureau (Bureau)required DIRECTV to disclose documents assocated with both DIRECTV 5 and another satelit, DIRECTV 3, pursuant to a non—disclosure agreement. We considered the DIRECTV 3 application in another Order. See DIRECTV,Ic., Order, DA O4—1761 (rleased June 23, 2004). © Report No. SES—00500 (released March 25, 2004That public notic also modifed th status of the proceoting under the Commission‘s x part rules o a "permit butdisclose" procecding, pursuantto 47 CBR. § 1.1200() ©* Ex Parie Notifcation rom Wiltam Witshire, Counsefor DIRECTV (May 14, 2004 "" Leter from Wiliam Witshire, Counselfor DIRECTV to Thomas Tyez, Chiet, Satelite Division, dated May 24, 2004, ile No. SAT—STA—20040107—00002. "* Leter from Willam Wilisire, Counsel for DIRECTY, to Marlene H. Dortch, Secrtry, RCC, dated June 23, 200. "* Letter rom Willam Wilshire, Counsefor DIRECTV, to Marlene H. Dorich, Sceretry, FCC,dated July6, 2004

Federal Communications Commission na a+2s2e 111. DISCUSSION 8. We find that granting the STA and associated blanket earth station authorizationis in the public interest. These actions will provide satelite capacity for the provision of loca—into—local services in 24 markets in which DIRECTV currently does not provide such service,"" thereby improving the quality of serviceto U.S. consumersWe discuss below the basisfor his conclusion, and various issues raised by partes to these proceedings. 9. DISCO II Framework. The Commission‘s DISCO II Order adopted framework under which the Commission would consider requests for non—U.S. licensed satelite systems to serve the United States." To implement this framework, the Commission, among other things, established a procedure by which a service provider in the United States could request immediate access to a foreign in—orbit satllte that would serve the U.S. market." This procedure requires the service provider to apply for an earth station Hicense that would listthe foreign satelite as an authorized point of communication. Under the DISCO 7 ffamework, for direct—to—home services such as those involved in this case, we examine whether there are effective competitive opportunities for U.S—licensed satelites to serve the home market ofthe non—U.. satelte secking access to the United States. We examine in particular whether there are deJure or de facto barriers to enry for the provision of analogous service, and whether any such bariers would cause competitive distortions in the United States. These factors are considered together with other public interest considerations to determine whether grant ofthe request would serve the public iterest. 10. DBAC Order and Competition Issues. "The DISCO I1 framework, as applied in the DBAC case"" is relevant in this case.". In DRAC, we authorized a U.S. earth station operator to access a Canadian— authorized satellte to provide direct—o—home service to the United States. In finding that authorization to be in the public interest, we frst examined whether there were d/ure or defacto bartiers to entry in the "* See Leter from Wiliam Wilshire, Counsel for DIRECTV to Thomas Tyez, Chie,Satlite Diviion, dated May 24, 2004,at page 2, File No. SAT—STA—20040107—0002. * DIRECTV will continge to be considered a ‘DBS provider," pursuant to Section 25.701 of the Commission‘s Rules, 47 CRR. § 25.701, in connection with the operations ofthe DIRECTV satliteat he 72.5° W.L. orbial Jocation. "" See Amendment of the Commisson‘s Repulatory Policies to Allow Non—U;S. Licensed Satlites Providing Domestic and Interational Service in the United Stites, Report and Orer,1B Docket No. 96—111, 12 PCC Red 24094 (1997) (DISCO it or DISCO I Order) " se DISCO I1, 12 ECC Red at24174 4 186. ‘For a more detailed summary of he DISCO 1t frmewotk, see Amendment of the Commission‘s Regulatory Policies to Allow Non—US—Licensed Space Stiions to Provide Domesticand International Satelite Service in the United Sites, Arst Order on Reconsideraion, 1B Docket No: 96—111, 13 FCC Red 7207, 7209—10, 44— (1999)(DISCO i1 FrsReconsideration Order). * Digial Broadband Applications Cor», Order, 18 PCRed 9455 (In. u. 2003)(DBAC) ® Echostar argues thatthis case presents isues which should be resolved in a rulemaking proceeding.. Echostar STA Comments at 47 (rlemaking needed to addressstandards applied to request fom DBS providers o access the U.S. market ffom nor—U.S. DBS slos, and to examine what public intrestshowing is needed t overcome the ack ofeciprociy with Canada); Echostar BlankeRarth Staion Comment . Other parties disugrec. Sce, cg, SES STA Reply Comments SES BlanketEarth Sution Reply Comments. As indicated in DBAC the Commission hasalrdy estalishe through ule making proceedingsthe standands and procedural mechanisms forconsidering requents fr access to the United Sttes market using a foreign authorized satlite. See DBAC, ciing 47 CER. § 25.137; Amendment othe Commission‘s Repultary Polies to Allow Non—U.S. Licensed Satelftes to Provide Domesti and International Srvice in the United Sies, Reportand Order, 1B Docket No. 96—111, FCC 97—399, 12 FCC Red 24098 (1997)recon.15 FCC Red 7207 (1999), recon denied 16 FCC Red 19794 (2001)

Federal Communications Commission pa +252 Canadian market for services analogous to the services DBAC was secking authority to provide in the United States. We found that such dejure bariers do exist. However,we also concluded that there was a compelling public interestjustiieation for authorizing such service n the United States, and that grant of the authorization would enhance, rather than distort or harm, competition in the United States, by faclitating entry by a new competitor. Several parties note that this case differs fom the DBAC case because DIRECTV, unlike DBAC, is an established compettor in the market for delivery of multi— channel video programming, and, therefore, grant of DIRECTV‘s request would not provide the benefits associated with entry ofa new competitointo that market. For the reasons discussed below, we conclude that the benefits fom grant of DIRECTV‘s proposal are nonetheless compelling and warrant favormble action on DIRECTV‘s request 11. n DB4C, we considered, first, whether competitive distortions might result from authorizing DBAC to provide the services proposed. We found that competitive ditortions would be likely to result only under a number of conditions: (1) through use ofthe Canadian satelites,the Applicant would have access to cost savings, subsidies or quality—enhancing assets not available to other U.S. service providers; (2) those cost savings, subsidies, or qualiy—enhancing assets would be sufficiently large to enable the Applicant to offer prices and quality of services that would cause some or all of the incumbent U.S. DTH/DBS providers to exit the market; (3) fllowing exit of some or all of the domestic DTH/DBS providers, the Applicant would be able to raise the price of service to U.S. customers; and (4) entry barriers exist such that nither the incurbent U.S. DTH/DBS providers or new U.S. DTE/DBS providers could enter the market, thereby defeating the price increase."" We also noted that competitive distortions related to predatory pricing are a rare phenomenon, in part because of the high risk that they will be unsuccessful" In this case, while this authorization will provide DIRECTV with access to quality— enhancing assets, ie,, satelite capscity for the provision of local—intolocal services in 24 markets in which DIRECTV is not currently providing this service, there is no evidence thatthis access will create a competitive distortion by allowing DIRECTV to carry out predatory strateay. 12. In DBAC, we then considered whether there was a compelling public interest justifcation for authorizing service. We found that, since DBAC had not yet entered the markets for DBS or multi channel video programming distrbution (MVPD) services, authorization of DBAC to provide these services using Canadian satellites would increase competition in DBS services and in MVPD services generally."* Here, we find thatthereis a compelling public interest justification for granting DIRECTV‘s application because it will ficiitate DIRECTV‘s efforts to provide local broadcast channel service. DIRECTV states that it will use the satelite capacity of DIRECTV 5 at 72.5° W.L. to enhance its DBS service by providing satelltedelivered local broadcast channels in additonal desiznated market areas (DMAs).. The Commission recenty approved the transferof ontol of various Commission licenses and authorizations held by Hughes Electronics Corporation and its wholly or majority owned subsidiaries including DIRECTV, to the News Corporation (News Corp,). In approving the transfer of control, the Commission recognized the importance of local broadcast television to is goal of fostering localisn in media and concluded that availabilty of local broadcast channel service in additional DMAs would serve the public interest.".Inasmuch as there is no competitive distortion associated with thi authorization and * praCarsi62—63, 916. w " 14 * As a condition fothe approval ohe transfero contolto Nes Corp. the FCC required thatDIRECTV provide, by year end 2004, local broadeastchannel servicesin an additional 30 DMAs beyond what had been previously finded. prjected or planned by HughesIDIRECTV. General Motrs Corporation,et l Memorandurs Opinion and (continued...

Federal Communications Commi jon pa +252 grant of this uthorization will fiiltate the increase in provision of local broadcast channel service, we find that tbenefits associated with grant of DIRECTV‘s proposal are compelling and warrant approval of the request" 13. We note that Pegasus fled a pettion for reconsideration of the HughesNews Corp. transfer, alleging in part that there are adverse competitve effects resulting from DIRECTV‘s use of the 72.5° WL. orbial location, and that these effects warrant overturming the grant of ts transfer application."" To avoid prejudzing the reconsideration proceeding, we condition the blanket earth station license on the outcome of the reconsidenttion proceeding. With respect to Pegasus® allegations that DIRECTV lacked candor,"" we have reviewed DIRECTV‘s course of conduct in connection with the STA and Blanket Authorization requests, and do not find any lack of candor." DIRECTV‘s action in this STA and earth station licensing proceeding were consistent with the licensce‘s obligations of candor, whether or not there may have been a difference of views as to whether certain materials were appropriate for confidentil treatment. 14. Pegasus also notes that it and other companies have attempted to develop satelite services to compete with DIRECTV, and that DIRECTV‘s arrangements with Telesat effectively foreclose those opportunities by making unavailable orbital location at which there are Canadian assignments in the TTU Regional BSS Plan"* Pegasus‘s concers were addressed in a separate proceeding, insofar as they reate to the 82 and 91° W.L. orbital locations." With respect to the 72.5° W.L. orbital location, Pegasus maintains that DIRECTV‘s arangements with Telesat preclude the use of spectrum at 72.5° W.L. by Pegasus or by other competitrs:". Pegasus also raises concerns that DIRECTV‘s arrangement precludes it from working directly with Telesat to develop the 72.5° W.L. location, and that the terms of DIRECTV‘smst arangement with Telesat provide DIRECTV with a right to use the location "in perpetuty®. (..continued rom previous page) Order, 19 FCC Red 473, 616, 4 332, Appendix F, Condiions, Condition VI (released Janary 14.,2004) (HughesNes Order), recon. pttion perding " We emphasize that we cite the Hughes/News Oe in support of our conclusion that proviing local channel servieeto additional DMAs provides a public iteestbenefit. We do not reach th ssue ofwhether DIRECTV has metth conditionsin the Mughes/News Orderconcerning provisin ofaddiional loeal channesevice. * Pegasus Pettion for Reconsideration at16—17. Pegasus atached the petiion for recansidertion as an exhbitto iss pettion to deny DIRECTV‘s STA,anreled uponit in ther pettion to deny the DIRECTV blanket Earth saion muthorization " See Pegasus Pettion for Reconsideaton at 14—15,. Pegasus argues tht from May 2003 to September 2008 DIRECTV actively sought to avoid public disclosure o ts armingement with Telesat conceming the $2°W.L. and 72. W.L. orbtl poitions and that these maters were thus not considered in the Hughes/News proceeding. ® We express no view as to whether DIRECTV adequately disclosed information in theAughes/ews proceeding, as resolation othat issue is more appropriaely underaken in connection with that proceeding. As indcatedabove, our action hee is conditioned upon action in that proceding. ** SPegasssPettionto Deny STA at 58. Pegasus Consoliated Replyat 677 " DIRECTV, Inc., Order, DA O4—1761, § 13—13 reeased June 23, 2004). It appears hatthe feasbliy ofthese plans may have been negatively impacted by the prta filure ofTelesats Nimiq 2 satelte./. at Y 3—4 (noting the malfinction of Nimig 2) * Pegasus Consolidted Reply of March 10, 2004,at 6 * Pegasus Reply and Supplementl Comment of April 5, 2004, at 12.

Federal Communications Commission a oi2s2e 15. Pegasus and Telesat both participated in a procecding initated by Industry Canada secking expressions of nterestin developing the 72.5° W.L. orbiallocation. Indusry Canada selected Telesat to develop that position.". Furthermore, and asindicated by Telesat, the ability to initiate service prompily, including bringing into use a Canadian ITU filing at the location by July 14, 2005, was a matter of some concerm to Industry Canada." Although Pegasus argues that the arrangements between Telesat and DIRECTV precluded any cooperative arrangement between Pegasus and Telesat," nowhere does Pegasus indieate thatit can provide a satelite in timely manner that would enable Telesat to develop the 72.5° WL. orbitallocation consistent with Industry Canada‘s goals. ‘There is no indication that Pegasus or any other competitor of DIRECTV has undertaken to procure the physical hardware available to commence service from that location immediately,or put forward any other realisic option for commencement of service in the near future from the 72.5° WL. orbital location."" DIRECTV and Telesat‘s arrangement, and Industry Canada‘s action approving them, do not mise. substantial concems under. these ircumstances, as there is no current or reasonably foresceable service offering that might be foreclosed. The record indicates that, absent the arrangement to move the DIRECTV 5 satelite into the 72.5° location, DBS services to either the Canadian or U.S. markets fom thi location would not be available. 16. With respect to Pegssus‘s concemm that DIRECTV‘s arrangement may foreclose potential compettive service from the 72.5° W.L. orbital location "in perpetuity," Telesat‘s license from Industry Canada contemplates that DIRECTV 5 is an interim satelite,to be replaced by a new satelite, no later than December 31, 2008. Telesat‘slicense provides that fiy percent ofthe new satelte‘s capacity will be available for *foreign broadcast needs," . uses such as those provided for in the TelesatDIRECTV contract. The license also provides that the other 50 percent ofthe satelite‘s capacity will be available for use at Telesat‘s discretion, consistent with Canadian needs. Tt is possible, therefore, that new copacity will be available to accommodate additional use as a result. In any event, we will limit the term of DIRECTV‘s blanket Earth station authorization o a period terminating on September 30, 2008. This date coincides with the terms of the TelesatDIRECTV arrangement. At this ime it is unclear whether,on that date, DIRECTV would need to specify a new satelite as a point of communication, and atthat ime we can evaluate whether technological developments,such as the deployment of more efficient spot beam satelltesto provide local channel service, may faciltate additional use ofhe 72.5° W.L. orbital location. 17. International Coordination/Relationship to DBS Spacing Tssues. The TTU Region 2 Plans for the BSS and associated feeder—links includes an assignment to Canada at the 72.5° W .L. orbiallcation. This location is 4.5 degrees removed from an assignment proposed by Mexico atthe 77° W.L.orbital location. Echostar urges that we should consider the impact of operations at the 72.5° W.L. orbital location on potential operations from the 77° W.L. orbiallcation."" They note that the spacing of DBS satelltesat "DIRECTV —STA Request at. Exhibit 1. Also availible. at htpo/itategisgces/epicintemet/insm— astnsPtwap}ignacy—«pdSFILE/gnacy—«,df * See Telesat Oppostion, filed March 3, 2004,at 2.3 °* Pegasus PettionforReconsidentionat74. * Pegasus indieated in ts proposatIndusryCanada th "near impossblity®of mestng a June 2005 bringing into use deadtine. See Pegasus Pettionfor Reconsidentionat 7. The record does not nclude any additionalinformation as tothe date by which Pegasus proposed t initate service, nor is there any information of which we could take ffial notee concerningthis date. See Pegasus Development Corponaton, Responset Industy Canada‘s Callfor Expressions ofIneret in Proadcasting Satelite Orbital Postions (DGRB 002—003), redacted version avilable at htpssIstatepis ie gocalepic/ntemetinsm—gstnotvwapiPegasus_031 106pdPSFILE/Pegasus031106pf. © See, eg.Echostar STA Comments

Federal Communications Commission DA 042526 4.5 degrees is the subject of a petition for rule making filed by DIRECTV," and of a Public Notice®® seeking comment on technical issues related to such operations. 18. There are no co—ffequency U.S. BSS assignments within 9 degrees of the 72.5° W.L. orbital Tocation, and no current BSS operations by any country within 9 degrees of the 72.5° W.L. orbital ocation. Thus, while we agree that operations atthe 72.5° W.L. orbitallocation and potential operations at the 77° W.L. orbitll location may involve some common technical issues with the isstes raised by proposls to operate at other orbital locations, operations atthe 72.5° W.L. orbitl location do not present an immediate potental for disruption or degradation ofcurrently operating DBS service. 19. With respect to the impact of operations at the 72.5° W.L. orbital location on possible future operations at the 77° W.L. orbital location, we are not in a position to address or resolve any issues that may be presented, as this is a matter which must be resolved in the firt instance by discussions between Canada and Mexico. We note that both Canada and Mexico filed modifications to the Region 2 BSS Plan in 1996, and neither administation commented on the other‘s fling pursuant to the TTU‘s procedures. In 2003, both Canada and Mexico filed further modifications, neither of which has been published for comment by the TTU DIRECTV indicates that DIRECTV 5 can operate within the envelope created by the 1996 Canadian filing, designated CAN—BSS3."_DIRECTV also indicates that "unless a BSS system thatis entiled to protection comes into operation, DIRECTV plans o operate atlevels that exceed those notified in the CAN—BSS3 fling on a non—harmfil interference basis pursuant to Article 4.4 of the ITU Radio Regulations."* DIRECTV indicates that these higher levels willbe "fully enveloped" by Canada‘s 2003 filing, designated CAN—BSS6,and that i necessary DIRECTV will be able to switch to the lower— power operations while maintaining the 24 additional markets without any service interruption to consumers." We will condition the blanket Earth: stition. authorization. consistent with these representations._ Accordingly, we also reject contentions that the requested operations of DIRECTV 5 will in any way improperly limitfature service from Mexican or other BSS locations."" 20. Confidential Documents, Pegasus ctes the need for public disclosure of the DIRECTV/Telesat aureements, despite the availabilty of these documents pursuant to the Protective Order. Pegasus argues that the Protective Order unfairly impairs the ability ofinterested parties to comment effectively in this proceeding, and that the Commission should require DIRECTV and Telesat to publicly disclose the contents of these documents® The Protective Order specifically provided a basis for all partis to participate in the STA and blanket Earth station Hicensing proceedings:". Purthermore, substantal portions of the agreements between DIRECTV and Telesat have been released for public inspection.. For these reasons we see no need to address further confidentility issues for purposes ofreaching a decision in this case. © Pettion of DIRECTV Enterprises, LC for a Rulem on the Feasblity of Reduced Orbial Spocing in the U;S, Diret Broadeast Stelit Service, fled Sept.5, 2003 "* Public Notice,"Inermational Bureau Seeks Comment on Proposalsto Pemnit Reducing Orbial Spacing Between U.S. Direct Broadeas Stelies," Report No. SPB—196 (rleased Dec. 16,2003) " Leter fom Wiliam M. Witshire, Counsel for DIRECTV Entrprises, LLC, to Thomas Tycz, Chicf, Sulte Division, dated May 24,2004,at2 * See, eg. Echostar Blankt License Comments at $ * Pegasus Supplemental Commentat15—18. * See Proective Ordest2,42.

Federal Communications Commission na t4252e 21. Exchange ofLeters with Industry Canada. We have exchanged lettrs with Industry Canada in order to ensure that there is a mutual understanding regarding the operation of the DIRECTV 5 satelite. The understandings, and the factual background for these understandings, are provided as Annex A and are material considerations for the authorization contained in this Order._ In general, the exchange of letters indicates that DIRECTV 5 space station operations at the 72.5° W.L. orbital location will be pursuant to authorization ofTelesatby Industry Canada. 22. Disposition of the DIRECTY 5 FCC License. DIRECTV 5 will not be operating pursuant to an FCC authorization once it begins operating at the 72.5° W.L. orbital location. Accordingly, we are terminating the DIRECTV 5 license (Call Sign Sign S2417) effective upon DIRECTV 5 reaching the 72.5° W1L. orbital location. IV.— CONCLUSION AND ORDERING CLAUsES 23. Based on the foregoing, we find that grant of DIRECTV‘s requests will serve the public interest by improving the quality oflcal channel services in 24 markets. 24. Accordinaly, TT IS ORDERED, that the application of DIRECTV Enterprises, LLC File No. SAT—STA—20040107—00002 (Call Sign: S2417) is GRANTED, and DIRECTV Enterprises, LLC is authorized for a period of 180 days to relocate DIRECTV 5 to the 72.5° W.L. orbital location and to conduct space station Telemetry, Tracking and Command communications related during the movement othe satllte tothe 72.5° W.L. orbital location,subject o the following conditions: i) DIRECTV Enterprises, LLC shall coordinate all drift orbit Telemetry, Tracking, and Contrl operations with other potentialy affected i—orbit operators. ii) During relocation of the DIRECTV 5 satelte, DIRECTV Enterprises, LLC‘s operitions shall be on a non—harmfulinterference basi, L., DIRECTV Enterprises, LC shall not cause interference to, and shall not claim protection from interference caused to it by, any other lawhully operating satelites. ii.) In the event that any harmful interference is caused as a result of DIRECTV Enterprises, LLC‘s operations during the relocation of the DIRECTV 5 sutelite, DIRECTV Enterprises, LLC, shall cease operations immediately upon notification of such interference and shallinform the FCC in writingimmediately ofsuch an event. iv.) DIRECTV Enterprises, LLC shall provide the Chief, Satelite Division, International Bureau, with 30 days notice (confirmed email considered sufficien) prior. to commencement of use of Telesat Canada‘s earth stations to provide the Barth station segment of Telemetry, Tracking, and Command communications. 25. TTIS FURTHER ORDERED, that, prsuant t Section 25.137 (c) of the Commission‘s rles, he application of DIRECTV Enterprises, LLC, File No, SES—LFS—20040112—00023, 1S GRANTED, and DIRECTV Enterprises, LLC 18 AUTHORIZED to use 1,000,000 receive—only Earth stations to receive transtnissions in the 12.2—12.7 GHz frequency band from the DIRECTV 5 sateliteatthe 72.5° W.L. orbital Tocation, which is authorized to Telesat Canada by Industry Canad, until September 30, 2008, consistent withthe technical parameters specified in ts application, and subjectto the fllowing conditions: i) This authorization is without prejutice to any action the Commission may deem appropriate, including cancellaion, or adoption of additonal conditions, in connection with peitionsforreconsideration filedin MB Docket No. 03—124.

Federal Communications Commission pa atz2s26 it) Operations shall be consistent with applicable coordination agreements; to the extent such agreements have not been reached, operations shall be on a nor—harmful interference basis.e, operations of the DIRECTV 5 satellt shall not cause inerference to, and shall not claim protection from, interference caused to it by any other lawluily operating satelltes 26. TT 18 FURTHER ORDERED, that, effective upon the date when the DIRECTV 5 satellite reaches the 72.5° W.L. orbitallocation, the cense forthat satelite (Call Sign $2417) 1 TERMINATED. 27. DIRECTV Enterprises, LLC, shall inform the Commission, through a lettr tothe Chief, Stellite Division, FCC, within five business days following the date on which the DIRECTV 5 satelite reaches the 72.5° WL. orbtal location. 28. DIRECTV Enterprises, LC is afforded thity days to decline these authorizatons as conditioned. Failure to respond within this period will constitute formal acceptance of the authorizations as conditioned. 28. This Orderis issued pursuant to Section 0.261 ofthe Commission‘s rules, 47 C.F.R. § 0.261 and is effective upon release. FEDERAL COMMUNICATIONS COMMISSION Cns C Phoass Thomas S. Tycz Chief, Satelite Division International Bureau 10

Federal Communications Commission pa 42526 Aunex A ‘«fi Federal Communications Commission C3 Washington, D 20554 rmoratou tames Augus 3,2004 Ms. Chantal Beaumier Directr, Space and Intemational Regulatary Activides Radiocommunications and Broadeasting Regulatory Branch Indusy Conada 15" Floo, 300 Slater Svect Otava, Onario, Canada icia ocs Re: Opertions ofthe DiecTV 5 Space Sn Dear Ms. Besumir: "Thisleter is t conim the informal undesiandings ofhe Canadian Department of Indusry(ndusty Canada) and the Federal Communieations Commission (FCC)concerning ceriin technical issus imvolved in the apention ofa BroadcnstingSuelit Sevice (RSS) satelte known as DirccTV S by DirecTV Emerpises, LC (DirecTV) and as Nimiq i by ‘Telest Canada (Teesad, parsuant o an apreement between DirecTV and Telesa. The following explaation is derved rom theayreement "The Teanssction Between DirecTV and TelesatCanada DirecTV curenty perats theDiecTV $ stllte atthe 119.3® W.L orttal location, subjectto CC muthority. Undera contritbetween DiecTV and Telest Canada, DirecTV agreedto move the DirecTV 5 stelite t the 72.8° W.L.orbta ocation,‘ subject o the suceessilaunch and in—orbt tesingof the DirecTV 75 stlite, which hassincereplacd the DirecTV S atelit atth 119" W...orbitoeation and subjct o necessy povernmenal approvals. Theagreement provides DirecTV withan exclunveright o use all ofth capocity on the DirecTV 5 stelte at the725° WL. orbialloction untat easSerember 202008 Undertheagreement, DieeTV may, uder cerain cireumstances, movethe DirecTV S satlite to oneofits PCC icensed nsl lcatons,upan $ days notieto Teless, in he even that DirecTV 5is needed to replace some o ll ofthcapacityofcenain DirecTV steies due o a sareliteor Ininch failre. Upon the exerise ocetin options outined in the agreement epentions of DirecTV 5 atthe72.5° WL. orbital location may continue ut Jane 30,2013. ! e tem 725 Woieaton"rfenh neninl ipotionf t reean Comdanfemercy sntpnmenvad t U epe 2 P o BS8 and esd in Aipnments n conuined n Appei 2000 ofie K Repatomsant y apecic ut ncaon vthin t chnerdefrdby c magnment u1

Federal Communications Commission Da 042526 ‘The agreementcontemplates that,once DirecTV 5is at the 72.5" WL.orbtl locaion, it willbe operted by Telesat prsuanttoa separate operations agreement. DirecTV will prform telemety,tacking. and control fuctions (TT&C function) under Teleats irection and contoluntil Telesat has developed and intalled thenecessary fiilies in Canada to prform suchfunctins, whichshall occur wthin 12 months afterreceip ofrequlstry approvals necessiry o relocte DirecTV 5 o the 72 5" W.L. orbtl location: On December 17, 2003, Incusry Canada provided Telesat with n approvalin principle 10 develop and aperatea broadeasatllite space sttionatth 72.5° WL. orbial location. DirecTV has Aled wh CC a request for Special Temporary Authorization to move the DirecTV 3 sateite from itcurrenly authorize loction to the 72.5° W.L. orbitl location and a request o deploy earh stations in the Unied Slates that would receive signals fom DirecTV 5, wnce Heensed by Industy Canada fo opertionsat the 72.5° WL. rbital ocation. ‘The agreement requres DiecTV to takesteps necessiry t comply wth U.S. export contrl repultions. Anformal Understandings Between Indutry Canada and the PCC on certain technical issues concerning operation ofDirecTV 5 Itis my undersianding that our two agencies have concured on the following technical issues oncerningthe opertion ofDirecTV 5: 1.. Atthe 72.5° W.L. locationthe DirecTV 5 spacecra wil operate subjctto Canatian nuthority, Recause hi ocation s a Canadian eniy to the Region 2 Pn ofAppendix 30 /30A ofthe U Radio Regulatios, the Canadian adminstation wll haveresponsibility for compliance with the FTU Radio Repulaions(including the requirement fo Hcensing as specified in Artcl 18. ofthe Radio Regulations, and any applicable agreement— secking procedures) in conneeion with operation oft DirecTV 3 stellite atthe 72.5° W.L oi lcation. 2. Any aperations ofthe DirecTV 3, ther than atth72.5" W.L. orbitallocation, willbe subjet t leensing by the FCC, including any operations s a result equipmentfalure in the satelite thatreslt in the inabilty tmaitainthe stllite within 20. degrees of ts assigned positon athe 72.3° W.L. ortialloction. 3. Industry Canada. through the Diector, Space and Intemational Repulatory Activies, ance th Canadian licensee hs been nformed, will rovide the FCC wth 4 (four) days advance writen ntice (email with confmed receip from the FCC‘s Chick Inernatinal Bureas. Satelite Division, wllbe considered suffcient) ofany planned trminaton or expiration ofthe Canadian Licens fothe DirecTV 5 satelit. 12

Federal Communications Commission DA t4—252e 4. DirecTV‘ abilty to use the DiecTV 5 stelte,in th evento filur ofa DiecTV stelie, wihin th time ame specife in theDirecTVTelsot agesment, a private contractial mater between the DirecTV and Telesa 5. Industry Canada willcondiion the DirecTV 5/Ximiq i Licene to require Telos to mainain, brring catisvophic alire ofssclite components, th capabliy o deortt the DirecTV 5 spaceeraft t anorbitconsisint wth TU Recommendation S.1002—1, Enironmental Protecton ofthe Geonttionary—Satelte Orbi. "Te informat undesandings set fothin ths leter concerning opention ofthe DiecTV sarele d notconsitut aconcurrence by the FCC orthe US, Adiminszation with any Canadian flings w the T Radiocommunication Bureau at the 72.5° W.L. orbitl loction under Appendices 30 or 30A of theU Radio Regulaions. Itis my undersanding the FCC and Industry Canada wll separatol,and as part ofthe apreementsecking process anplcable underthe TL Radio Repulaions, wrk in good flth to complete that process imsofar as nesessry,in connection with the operaion f the DirTV 5seie at he 723° WL. ornial lecation. "The FCC has not isued any ofthe authoricaons that wouldbe necessryto provide direce0—home service o customers in the Unied States using the DirecTV 5 sateliat e 725° W.L. orbitallocaion. The FCC ha received both an appliation for Spocial Temporiy Authority (STA) to relca the DiecTV 5 satellte t the 72.5° W.L. ortial location,and an applcationfo a blanket authorization ofEarth surionsseckingto reeive diecto—home iransmission in the United Sitsfrom the DirecTV 5 stellte at the 72.5° onbloction "These applcations willrequireseparte ation by the PCC, This exchange ofletrs do not consitute approval ofithr ofthese applications in the event of thfilir oa DirecTV stelte, and upon the eeriseby DirecTV ois contactulrights to mave he steite, and in the event that there ae any roviions in Telesa‘s Heme from Incustry Canada, or any proviions in the Canadian lwsand repulaions goversing the telecormmunications opertions ofTelest Canada that would precludeor othervis imhe exersise ofDiecTV‘s contictua ighs wihin the ime fumenspecifd in the DiecTVTelsat sureement the FCC would apprecit the oppertnit o consult with Inusry Canada, rior t any exeriseofsuch lcensig uthoriy, or applicaion ofuch w or repuliion byIndusty Canada. 1 wouldapprecit acknowledgement ofhese views and expression ofy vews which Indusry Canada may have concerningthe mater discussed in tis rragaph. Let me aso expressthe PCC‘s wilingness t discuss this matr further, in the even,at aterdae,it becomes necessiy to do so Last,all notices, inquries, and corespandencs from Indunty Canada concerning those matis should e dircied t the Chie,Stete Diviion,Intemational Borems (hone number 202.4180719) (email ThomasTyez ifecgov, with a copyto KarlKensinger@fcgov, on the par ofthe FCC. The FCC willforward all otices,ingures and coresponderce concemning thesematers t he Diector Spaceand Interational Repulatry Activiies (Phone rumber 13

Federal Communications Commission va d4—2526 613.998,3819) (email beaumirchantal@.gs.ca, on the part ofIndustry Canada. Please letus know ithis address subsequently changes. 1fthforegoing correspondl to your understanding of theinformal amangements btween our wo agencies concering the various technical issus involve in the operation ofDirecTV 3, pleas confirn by retur lete. Thank you. Singerel, Affgrems 8Te Thomas S. Tycr @—/ Chief Satelite Division Pasl Bush Vie Prevident, Comporte Development TelsatCanado Susan Eid DirecTV Enterprises LLC. 14

Federal Communications Commission na orz252e Incusry Canada inoverie Canada 20 teee Cam.ou kinecs Aus 0 4 204 Thomas S. Tyce Chiet Satellte Division Interrational Bureau Federal Communications Commission Washingion, D.C. 20854 Dear Mc Tycr: Thank you for your leter ofAugst 3, 2004 seting out ou informal common undenitndings concerming ceriin technical issuee involved in the operition of a Brosdcasting—Satelite Service (BSS) satllte known as Direc 5 by DirecTV Enterprises, LLC (DirecTV) and as Nimig 3i by Telesat Canada (Telesa) pursuantto a lease agreement between DirecTV and Telsot. I am pleased to provide my confirmation ofou informal understandings and acknowledgement ofth otherviews expressed in your eter. Additionaly, Industry Canade cknowledges tha, in the event of trmination of the lease agrement owing to thefailure ofa DirecTV satllte, DirecTVs abilty t use the DirecTV sateliteat n orbtal positin licensed by the PCC is privaie contrectal mater betwen DirecTV and Telesat. Nonetheless, should there be any provisions in Telesr‘s Heence, or y provisions in the Canidian laws and regulations governing thetelecommunications Tlesat Canade, that would prectudeor otherwise limit the exercise ofDisecTV‘s contractual rghtsto terminate thelease and use the satelite within the time frames specifed n the DirecTV/Telesat agreement,the FCC would beinformed, t te extent possible wnder the cicumstances, io to aay exersise olcensing authoriy,or application oflaw or regulation by Industry Canada. Canad# is

Federal Communications Commission na osz252e Finally,I want to express my apprecition for the support your administation is giving to this ind ofcommercial arrangement to ficitate the delivery ofimportaat and valuable services in our respective counties. Sincerely, GK[ oze /{. Chantal Besumier Director,Space and International Repulatory Activites 0: Paul Bush, Telesat Canada 16


Document Created: 2004-09-25 16:56:58
Document Modified: 2004-09-25 16:56:58
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