Attachment reply

reply

REPLY submitted by SES Americom

reply

2004-09-29

This document pretains to SAT-STA-20040615-00116 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2004061500116_402474

Before the "ECEvEp FeperaL communications commssion SEP 3 4 Washington, D.C. 20554 dn % 90e In the Matter of § %"%J,"”fibn ) Intelsat North America, LLC, ) File No. SAT—STA—20040615—0016 ) a Request for Extension of ) Reoel‘led Special Temporary Authority ) oct 1 9 2004 To: The Commission gan: intormational Bureau REPLY OF SES AMERICOM TO INTELSAT‘S OPPOSITION TO APPLICATION FOR REVIEW SES AMERICOM, Inc. (‘SES AMERICOM®), by is attomeys and pursuant to Section 1.115 of the Rules of the Rederal Communications Commission (the "FCC"or the "Commission"),‘ hereby submits this Reply to the Opposition of Intelsat North America LLC ("Intelsat")" to SES AMERICOM‘s Application for Review. Intelsat‘s Opposition fails to present a single compelling justification for the order of the International Bureau (the "Bureau") as to which SES AMERICOM is secking review The Bureau‘s order extended until March 14, 2005, a grant of special temporary authority ("STA")to Intelsatto continue providing "additional services," as defined in the ORBIT Act.\ Most notably, Intelsat fails to address the glaring inconsistency between the Bureau‘s decision to extend the STA and the Burea‘s inital ationale for granting the STA, + 47CRRq1113. Intelsat North America LLC, Opposition to Application for Review, File No. SAT—STA— 20040615—0016 (filed Sep. 14, 2004) (the "Opposition"). * SES AMERICOM, Inc., Application for Review, File No. SAT—STA—20040615—0016 (filed Aug. 30, 2004) (the "Application for Review"). * Intelsat North America, LLC Requestfor Estension ofSpecial Temporary Authority, Order, DA—042445 (July 30, 2004). Open—market Reorganization for the Betterment ofIntemational Telecommunications, Pub. L. No. 106—180, 114 Stat. 48 (2000), as amended, Pub. L. No. 107—233 § 1, 116 Stat. 1480, codified at 47 U.S.C. § 646 er seg. (2002) (the "ORBIT Act‘). mervcrsomss

which was "sofely for the purpose ofallowing these [Loral‘s former DTH] customers time to transition to other providers."" Intelsat‘ssilence on thisissue is understandable, given that it has profited handily from the Bureau‘s decision to allow Intelsat to continue offering services that the Bureau previously said that Intelsat must stop offering after September 13, 2004. However, the Bureau‘s decision demands an explanation because the order granting STA —— regardless of its legitimacy in light of SES AMERICOM‘s initia and stll—pending Application for Review"—— provides no basis whatsoever for an extension: Rather than attempt to reconcile the inconsistency of the Bureau‘s actions, Intelsat defends the STA extension on other grounds. First, Intelsat argues that the STA extension was necessary to preserve continuity of service and to prevent contractual disadvantages to customers." However, this defense fails to account for the fact that,by Intelsat‘s own measure, as well as that of the Burea,the inital 180—day period of the STA was ample for Loral‘s former customers to secure adequate replacement capacity." Moreover, Intelsat‘s wamning ofpotential harm to customers remains purely speculative; Intelsat has not cited a single example of a * Loral Satellite, Inc. (Debtor—in—Possession) and Loral SpaceCom Corporation (Debtor—in— Possession}, and Intelsat North America, LLC, Applicationsfor Consent to Assignment of Space Station Authorizations and Petitionfor Declaratory Ruling under Section 3100)(4) of the Communications Act of1934, as Amended, Order and Authorization, DA 04—357, at 1 65 (Feb. 11, 2004) (the "Loral—Intelsat Order®) (emphasis added). SES AMERICOM, Inc., Application for Review, File Nos. SAT—ASG—20030728— 0013800139 (filed March 12, 2004) (the "Initial Application for Review"). Opposition at 6 * In Intelsat‘s Request for Extension of Special Temporary Authority, File No. SAT—STA— 20040615—001 16 (filed June 15, 2004),Intelsat noted thatits customers typically require only two or three months to procure replacement capacity. /. at 4. The Bureau, however, required Intelsat to notify ts customers five months in advance of the STA expiration date. Loral Satellite, Inc. (Debtors—in—Possession) and Loral SpaceCom Corporation (Debtor—in— Possession), Assignors and Intelsat North America, LLC, Assignce, Applicationsfor Consent to Assignments ofSpace Station Authorizations and Petitionfor Declaratory Ruling under Section 310()(4) ofthe Communications Act of 1934, Supplemental Order, DA 04—612 (Mar. 4, 2004).

customer who experienced difficulty in finding replacement capacity during the initial 180—day period of the STA, or even who complained to Intelsat about the 180—day transitionperiod." Intelsatfurther defends the STA extension as preventing customers from prematurely abandoning their relationships with Intelsat,in case the Commission later rules—— in the context o resolving the Initial Application for Review —— that Intelsais entiled to full Hicensing authority under the ORBIT Act to provide "additional services.""" This argument also is unavailing. Even assuming arguendo that the Commission possesses the requisite discretion to rule on matters, such as full lcensing authority for Intelsat, that were not properly raised by any party," the exercise ofthis discretion nonetheless would be inappropriate.. While Intelsat has attempted to mount a collateral challenge to the continued appliability of Section 602(2) of the ORBIT Act, this challenge was neither timely nor properly raised under the Rules ofthe °_ Intelsatitself concedes that its customers might be able "to obtain altemative capacity." Opposition at 7. As SES AMERICOM has pointed out in the instant proceeding, such alternative capacity is available on its and other satellte providers‘ networks. See SES AMERICOM Petition to Deny, File No. SAT—STA—20040615—0016, at 8 & n.31 (filed July 19, 2004). Opposition at 4. * Although Intelsat argues that the Commission has had broad discretion to consider matters other than those specifically raised in an application for review, Opposition at 5 & n.16, the cases that Intelsatcites failto support this argument. In S&L Teen Fospital Shuttle, 16 FCC Red. 8153 (2001), the Commission reviewed the Bureau‘s decision de novo because the applicant requested this in the application for review. In RCA Global Conmunications, Inc., 87 F.C.C.24 526 (1981), the Commission did not engage in a de novo review of the record, but merely referenced an instance in which it did so; even in the cited instance, moreover, the Commission reviewed the record de novo only to ensure that tchallenged decision was not improper on grounds other than those specifically raised by the applicant, see RCA Global Communications, Inc., 86 F.C.C.24 338 (1981). Intelsat cites no instance in which the Commission has reviewed the record de novo in order to address a collateral challenge raised by a party that oppased an application for review.

Commission.". Moreover, the Bureau already has spoken clearly as to the proper appliation of Section 602(a)to Intelsat. In the Loral—Intelsat Order, the Burcau declared that Section 602(a) "specifically prohibits any successor entity of INTELSAT from expanding to provide certain additional services in the transition period prior to privatization," that Intelsat cannot be "privatized"untl t completes itsIPO, and that therefore the "ORBIT Act prohibits the provision of ‘additional services‘ untl Intelsat has completed its TPO.""* The Commission has not been asked by SES AMERICOM —— the only party that sought review of the Loral—Intelsat Order —— to review or reverse this Bureau finding. CONCLUSION Forthe foregoing reasons, the FCC should reject Intelsat‘s Opposition and grant the reliefrequested in the Application for Review. Respectfully submitted, SES AMERICOM, Inc. y By: Nancy Eskenazi Philif L. Spector Viee President & Associate General Counsel Brett M. Kitt SES AMERICOM, INC. Pavt,Weiss, Rimn, 4 Research Way Witairon & Gammison LLP Princeton, NJ 08540 1615 L Street, N.W., Suite 1300 (600) 987—4000 Washington, D.C. 20036 (202) 223—7300 Artorneysfor SES AMERICOM, Inc. September 29, 2004 ® See Application for Review at 7. * Loral—Intelsat Order at f 58, 60—61, 64.

CERTIFICATE OF SERVICE T hereby certify that on this 29th day of September 2004, I caused a copy of the foregoing Reply to Intelsat‘s Opposition to Application for Review to be served by U.S. First— Class Mail, postage prepaid, on the following: Patrick J. Cerra Philip L. Verveer Vice President Willkie Farr & Gallagher LLP Intelsat North America LLC 1875 K Street, NW 3400 Intenational Drive, NW Washington, DC 20056 Washington, DC 20008—3006 Earl W. Comstock Bert W. Rein John W. Butler CarR. Frank Sher & Blackwell LLP Jennifer D. Hindin 1850 M Street, N.W., Suite 900 Wiley Rein & Fielding LLP Washington, D.C. 20036 1776 K St, NW, Suite 400 Washington, D.C. 20006—2304 Kenneth J. Wees Vice President/General Counsel Luurence D. Atlas StarBand Communications, Inc. Vie President, Goverment Relations 1760 Old Meadow Road Loral Space and Communications Lid. MeLean, VA 22102 1735 Jefferson Davis Hwy., Suite 1007 Arlington, VA 22202—3501 Pantelis Michalopoulos Chung Hsiang Mah Steptoe & Johnson LLP 1330 Comnectiout Avenue NW Washington, DC 20036—1795 David K. Moskowite Senior Vice President and General Counsel EchoStar Satellite Corporation 5701 South Santa Fe Littleton, CO 80120 un me Kathieen Amold mervcrsuames


Document Created: 2004-10-20 15:28:17
Document Modified: 2004-10-20 15:28:17
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