Attachment reply & comments

reply & comments

REPLY TO OPPOSITION submitted by National Rural Telecommunications Cooperative

reply & comments

2004-12-09

This document pretains to SAT-STA-20041012-00198 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2004101200198_411225

Before the FEDERAL COMMUNICATIONS COMMI Washington, D.C. 20554 on RECEivEp DEC ~ 9 2om fiemnnmenerammnrpomicomminippeiicimntee. i FadealCom TnkatensComniy Application of ) OfevotSecmtay ) SES Americon, INc. i) File No: sm-s‘rkzofiemlzfimg ec For Special Temporary Authorityto Operate ) the AMC—15 Satellit at 113° W.L. and 117° W.L.. ) DEC 1 5 2004 ol Policy Branch Intormatona!Bureay REPLY OF THE NATIONAL RURAL TELECOMMUNICATIONS COOPERATIVE The National Rural Telecommunications Cooperative (NRTC) hereby replies to the Opposition and Reply Comments of EchoStar Satellite LLC (EchoStar)" and the Reply Comments and Opposition of SES Americom, Inc. (SES)." Despite SES‘s argument that the Intermational Telecommunications Union (ITU) bring—into—use (BIU) dates are "irrelevant" in this proceeding,* there is no doubt that preservation of ITU date priorityis the real purpose behind SES‘s request for special temporary authorty ("$TA®)." EchoStar itself makes clear that the STA — which would allowSES to park its AMC—15 satelliteat 117° W.L. and 113° W.L. for 60 days each while en route to 105° ‘ Se, Pettionto Deny by th National RuralTlecommunications Coopertiv, FilNo. SAT—STA— 20041012.00198 (November22004) (NRTC Peron to Deny) * Oppositon and Reply Comments of EchaSaSatlite LLC,Fle No: SAT—STA—20041012.00198; File No, SES—STA—20041019—01564, Call Sign E030038 (December1, 2004) (RehoStar Opponton) " Reply Comments and Oppositon of SES Americom, In., FilNo. SAT—STA—20041012:00198 (December2, 2004)(SES Oppostton) "SBS Oppostion.p.9 The SES Srequests authoritfo shotterm aperatons of AMC—15 a the117° WLand 112® WL orbital locations while thsatelftetravels to itit eensed dstnaionat105" W.L. The satlite will remainat117° WL and 113° WL for60 daysateach loction, beforefinal postoningat105° WL FCC File No: +20041012:00198,p 2 (SES dpplicarion)

W.L.. —— is nothing more than a vehicle for EchoStar to warchouse these orbital locations internationally. EchoStar argues that the S74 is in the public interest, since the proposed temporary operations will have the effect of"preserving the ITU date priorityofthe U.S Ka—band satellite network fling at each of those locations to the benefit ofall potential U.S. licensees."" But less than four months ago, the Commission specifically re/ected the identical argument (also made by EchoStar) while canceling the Ka—band license of VisionStar (a companycontrolled byEchoStar) for 113° W.L. (one of the slots EchoStar nowseeks to use under the $7A)." In the VisionStarproceeding, the Commission found that "the Administration has not identified maintenance of U.S. priority over orbital locations as a policy goal."" Neither SES nor EchoStar has presented anynew evidence to rebut that recent conclusion Even if the United States were to lose date priority atthe 113° W.L orbital Tocation, the Commission noted in isionStar that the U.S. public would not necessarily lose service from this slot. Under its DISCO // process, non—U.S—licensed space stations would stllbe free to serve the U.S. market from this orbital location." Rather than artificially preserving the U.S.s intemational stellite locations, as EchoStar proposes, the Commission was far more concerned in the PisionStar proceeding * BehoSter Oppostion, pp. 3—4 (see also,p.2) " Memorandum Opinionand Order, FistonStarIncorporated. Application for ModifeaionofAuhorinto Construct Launch andOperatea Ka—band Sutelite Siten in the Pied Satllte Service, 19 ECCRed 14820,¢11 (c Bus 2004) (FitonStarOnder) * VisonStar Order N11 *1d. See Reportand Order,—mendentofthe Conmisson‘s Regulatary Poliis to llow Nov—U.S Licaised SarelitesProviding Domestc and Intemational Service in the UnitedStrs, B Docket No. 96— 111, 12 Foe red 24004 (1997)

that Ka—band services actually be made available to the .. public, regardless of which nation‘s regulatory body licensed the service."". EchoStar‘s failureto deployany type of Ka—band service from 113° W.L. ater more than three years —— while using the S7A in an attemptto preserve that slot and another one internationally—— confirms the Commission‘s worst fears regarding the warchousing oforbital locations through the ITU process." EchoStar has placed the Commission on clear notice that it expects the STH to meet the BIU dates for 117° W.L. and 113° W.L.. As a result, the Commission is compelled to clarify that an artifcialand temporary "y by" does not satisfy the BIU requirements under the facts ofthis case..Instead, as the Commission held in the VistonStar Order, this valuable spectrum should be made available to a trily motivated Hicensee —— whether foreign or domestic —— to provide service to the American public EchoStar argues that NRTC‘s Perition to Deny should be dismissed due to NRTC‘s sifence regarding a separate application filed by Wildblue.""" But as pointed out in NRTC‘s Petition, those two applications are readily distinguishable."" °d Infit fitirecustomersof WildBive Communications, To: "WildBluc?) willb the beneicaies othis plicysince WildBlue curenty plans toprovide Ka—band servie to the Unted Sates from Telesat Canada‘s ANIK F2 seat111.1 W.L. See Order n the Matter of Tlesat Canade Pezionfor DeclartoryRuling Por Inchusion of Anik F2 on the Pernited Space Staton LiPottionfor Declartory Ruling to Servethe US: Market UsingKa.band Capacis on Ank F2, 17 ECCRed. 25287 (InI Bur, 2002) (ZelesatOrder).In ts TelsatOrderthe Commission concluded tat ranofTelsa‘s requestto use the Ka—band capaciy ofAnikF2 to provide two—way broadband communications ervies in the Unted Saes should *stimulate compettion in the United Sttes and expand provisionofbroadband servie in rurl areas" 241 "! visionttar‘sauthorization fothe 113° W L. orbtal oction wasissued by the Commission on October 30,2001. Order and Authoriation,Application ofisionSter,Incorporated, LicnseeShont Howanian TransfrorndBchostar VinstarCorporation, TranfereeFor Consent to Tranifr ofContrl Over Authoriaton to Construct Launch and Operae a Ka—Band Stelite Sisten in the Fived:Sitelite Serice atthe 13° WL OrbialLocation, 16 FCC Red 19187 (t‘ Bur. 2001) " RehoSter Oppostton,p.4,n8; See, ECC Fie No. SAT—STA—20040918—00179, That applicain — which was not opposed —— wassubsequertly wthdraun. See Publc Notice, DA 04—3879 (rl. Nov. 12, 2004

WildBlue has invested over $350 million and several years of effort to develop its Ka—band satellte systemat 109.2° W.L. Due to circumstances beyond its control (e, the bankrupteyof its satellite contractor), WildBlue may not be able to launch its own nearly—completed WildBluc—1 satellte before ts June 2005 BIU date. There is every reason to believe, however, that WildBlue will be in a position to begin regular operations atits licensed orbital location within months afterits BIU date (and certainly far in advance of the two years that would be made available to EchoStar). Thus, WildBlue‘s proposal involved the short—term preservation ofan orbital location by a long—term licensee with a nearly completed satellite and a delay beyond its control. SES‘s STA involves none of these factors. EchoStar does not have a Ka—band satellte (let alone two such satellites) nearing completion. It has not been working diligently for a number of years to develop these slots."* It will not bein a position to begin regular operations at the licensed locations within months after the applicable BIU dates. And, most importantly, it has not been prevented from meeting the BIU dates due to any factors beyond its control. Instead, it has been sitting on the 113° W.L.license for three years and still has nothing to show for it and only recently became interested in the 117° W.L. slou." EchoStar had only seven months remaining on its BIU date when it received the 113° W.L. authorization (although VisionStar was issued the license 2001), and only " NRTC Petion o Dens.p.5,n. 13 !* EchoSta—eontrlled VisionStar‘s cense was cancelld specifcally because it had not met it ilgence requirements with respectto the 113 W.Lslot. HivionStorOrder 1 " OJ Echaar Oppostton,p.3, which purpors to depict EchoSar‘ tellr Ka—band progres to date

seven months left when it applied for the 117° W.L. authorization."* Given the time it takes to desizn and construct Ka—band satellte, EchoStar has no reasonable expectation that it will be able to meet the current BIU dates for either slat. Nonetheless,it nowsecks to use the Commission‘s S7A processes in an attempt to foreclose international development ofthe slot for an additional two years through an artificial,temporary "fly by" of AMC—15. Whether or not temporary operations could be usedto meet a BIU date, there is no equitable justification for facilitating such a scheme under the facts presented in this case EchoStar argues that NRTC‘s observations regarding EchoStar‘s character before the Commission are "unfounded and extrancous tothis proceeding.""" NRTC‘s observations, however, are hardlyunfounded —— they merely quote previous Commission findings."* Nor is EchoStar‘s character extrancous to this proceeding, since the STA is only the latest in a long line of EchoStar‘s dubious dealings with the Commission. Questions of character and integrity always must be weighed carefully by the Commission in determining whether a licensee has any intentions of actually deploying services. With regard to SES, any arguments it offers in support of ts STA have been completely undercut by its customer‘s admissions. SES‘s basic argument—— that the S7A should be granted because it will "meet customer demand byproviding Ka—band " EshoStar onl received iauthority o days ago t relocte its authorized sielit romthe123° W L orbitaloction to th117° W.L. orbial loction. Sce Public Noic, Plicy Branch Information, Actions "Taken, Report No. SAT—00250 DA 04— 2820 (released Decenber 7,2004) " EchoStar Opposton . 3 " NRTC Pertion to Deny,p 5.n 4

services"" —— has been thoroughly diseredited by the admissions of the only customer at issue, EchoStar. EchoStar has confirmed beyond anydoubt that the purpose ofthe STis not to provide Ka—band services, as SES claims, but rather to secure ITU date priority for the United States (and its icensee, EchoStar). The S7A is just an attempt by SES to facilitate EchoStar‘s efforts SES‘s argument that NRTC lacks standing is without foundation and easily dismissed. As NRTC pointed outin its Perition to Deny, NRIC‘s mission since its founding in 1986 has been to provide advanced technologies and telecommunications services to rural America."" NRTC was an early investor in DIRECTV, and last year, NRTC joined Liberty Satelite, LLC and Intelsat USA Sales Corporation in investing $156 million (NRTC itselfinvested $29 million) in WildBlue.. WildBlue is expected to begin offering the first viable Ka—band satellite service in 2008, using technology designed to lower the cost of providing consumers throughout the country with high—speed Internct access via satelite. NRTC‘s plans also include bundling high speed Intemet service with video on a single satelite dish. WildBlue‘s service initilly will be provided using a non—U.S.—licensed satelit—— precisely the sort ofarrangement that would be precluded under SES/EchoStar‘s scheme to foreclose international access to two Ka—band slots for an additional two years. " SES Oppostion.p 8 ® NRPCPartion to Denyp Jn 2

There is no question that NRTC has ample standing to challenge SES‘s abusive TA designed to skirt the ITU‘s Ka—band requirements and further delay deployment of advanced services to rural America."" As demonstrated in EchoStar‘s Opposition, the improper motives behind SES‘s T4 are clear, The Commission should not allow its processes to be manipulated as a means of interational spectrum speculation. The S7A should be DENIED. "! NRTC has a longrecord ofcommenting in Commisionproceedings elting o theimportanceofKa— hnd spectrum resources to rurl America. At lastcount, NRTC has commentd in hree such proceedinas, and t Commission hasneveraccepted any aryuments regardingNETC‘s aleped lackofstanding in such proceedings, despit havingthe opportinity o do so. See Pttion for Reconsidertion ofthe Natonal Rural Telccommunications Coopertive, submitd in esponse t, Order, Second Round Assignnnent of Geontarionary Satelite OrbiLocationsto FzedStelit ServiceSpace Satons in the Ke—Band, 17 FCC Red. 14400 (2002) (Ke—hond Onder};se also Petition to Deny ofthe National Rural Telecomminications Cooperative, sibmited in espons toSAT—MOD—20020430—00075; Leterto Marlene H. Dorch rom the NationalRur Telccommunications Cooperatve, stontarIrcorporated Applicationfor Modiicationof Authorityto Construct, Launch, and Operate a Ka—band SatelteSyston in the Five SatelteSrvice, NotceofatenttoFile Application (dted Aug.8, 2002). I the Xa—hard Onder proceeding, Pesasus Development Cororation (Pegasus)raised an argumentsimilr to SES‘sregarding NRTCs standing. In is Ka—hand Order, the Commision delined to adapt Pegasu‘s view. 4:

Respectfully Submitted, NATIONAL RURAL TELECOMMUNICATIONS COOPERATIVE 2121 Cooperative Way, Suite 500 Herndon, VA 20171 Its Attorneys: m Stephen M. Rya az—~ Muithorti_ Jifft Richards NRTC, General Coun 1 Manatt, Pheips & P ips, LLP One Metro Center 1001 G Street, NW 700 12th Street, NW, Suite 1100 Washington, D.C. 20001 Washington, DC 20008—4075 (202)43¢—4210 (202) ses—ssso Dated: December 9, 2004 Aftachment: Declaration of B. R. Phillips, H

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 ) Application of ) ) SES AmEricont,Inc. ) File No. SAT—$TA—20041012—00198 ) For Special Temporary Authoriy to Operate ) the AMC—15 Satelite at 113° W.L. and 117 WL.. ) mssn PECLARATION remuutes, mt 1, B. R. Philips, II, declare under penalty ofperjury under the laws ofthe United States of America that: 1. am President and Chief Exeeutive Officer ofthe National Rural Telecommunications Cooperative (NRTC). 2. I am familiar with the application ofSES AMERICOM, INC., for Special Temporary Authority to Operate the AMC—15 Satelite at 113" W.L. and 117W.L 3. Ihave personal knowledge ofthe assertions of fact contained in the foregoing Reply of the National Rural Telecommunications Cooperative, and they are true and corzectt the best ofmy knowledge, information and belief Executed on December 7, 2004 mK Phillips,m/é Z z;_ President and Chief Executive Officer NATIONAL RURAL TELECOMMUNICATIONS COOPERATIVE 2121 Cooperstive Way, Suite 500 Hemdon, VA 20171

CERTIFICATE oF SERVICE 1, HERERY CERTIFY that on this 9" day of December, 2004, a true and correct copy of the foregoing Reply of the National Rural Telecommunications Cooperative in the matter ofthe Application of SES AMERICOM,Inc., for Special Temporary Authorityto Operate the AMC—15 Satellite at 113° W.L. and 117° W.L., File No. SAT— STA—20041012—00198, was submitted via hand delivery to the Federal Communications Commission, and served via electronic mail and First Class Mail upon the following Served via Electronic Mail: Served via Electronic M; Donald Abelson Anna M. Gomez Chict, Intemational Bureau Deputy Bureau Chicf, Intemational Federal Communications Commission Bureau 445 Twelfth Street, S.W. Federal Communications Commission Washington, D.C. 20584 445 Twelfth Street, S.W. Washington, D.C. 20554 Tom Tyez Cassandra Thomas Chief Deputy Chie? Satelite Division, Intemational Bureau Satellite Division, Intemational Bureau Federal Communications Commission Federal Communications Commission 445 Twelith Street, S.W., 6th Floor 445 Twelfth Street, . W., 6th Floor Washington, D.C. 205854 Washington, D.C. 20554 Jennifer Gilsenan JoAnn Lucanik Deputy Division Chief Associate Division Chief Strategic Analysis and Negotiations Satellte Division, Intemational Bureau Division Federal Communications Commission Intemational Bureau 445 12"Street, S.W. Federal Communications Commission Room 6—C416 445 Twelfh Street, S.W., 6th Floor Washington, D.C. 20584 Fem Jarmulnek Served via Hand Delivery: Deputy Chief Marlene H. Dortch, Secretary Satellte Division, Intemational Bureau Federal Communications Commission Federal Communications Commission Office ofthe Secretary 445 Twelfth Street,S.W., 6th Floor c/o Natek, Inc.,Inc. Washington, D.C. 20554 236 Massachusetts Avenue, N.E Suite 110 Rosalee Chiara Washington, DC 20002 Satellite and Radiocommunications Division, International Bureau Federal Communications Commission 445 Twelfth Street, S.W., 6th Floor Washington, D.C. 20584

Served via Electronic Mail and First Class Mails Naney J. Eskenazi Viee President and Associate General Counsel SES AMERICOM, Inc. Four Research Way Princcton, NJ 08540 Peter A. Rohrbach Karis A. Hastings HOGAN & HARTSON LLP 555 Thirteenth Street, NW Washington, DC 20004—1109 Counselfor SES AMERICOM, Inc. Panetlis Michalopoutos Chung Hsiang Mah Steptoc & Johnson LLP 1330 Connectiout Avenue, N.W. Washington, DC 20036 Counselfor EchoStarSutellte LLC Revin G. Rupy


Document Created: 2004-12-15 14:21:14
Document Modified: 2004-12-15 14:21:14
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