Attachment moo

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MEMORANDUM OPINION AND ORDER submitted by IB,FCC

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2005-06-03

This document pretains to SAT-STA-20050321-00068 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2005032100068_434993

Federal Communications Commission pa osse Federal Communications Commission Washington, D.C. 20554 EchoStar Satelite LLC. Application for Special Temporary Authority File No. SAT—STA—20050321—00068 to Conduct Telemety, Tracking and Command Operations during the Relocation ofEchoStar 4 to the 77° W.L. Orbitl Location Application for Modifcation of File No. SAT—MOD—20050513—00103 Direct Broadcast Satelite Authorization CallSign: S2621 To Permit Long—Term Cessation ofOperations at the 157° W.L. OrbitalLocation Application for Modification of Earth Station File No. SES—MES—20050527—00662 Authorization to add the Echostar 4 Satelite at Cll Sign: ©020306 77° W.Las a Point ofCommunication MEMORANDUM OPINION AND ORDER Adupted: June 2, 2005 Released: June 3, 2005 By the Chief, International Bureau: . INTRODUCTION 1. By this Order, we deny a request for special temporary authority filed by EchoStar Satelfite, LLC. ("EchoStar")." EchoStar seeks authority to conduct tracking, telemetry and command operations during the relocation of EchoStar 4 from the 157° W.L. orbital location, at which it is authorized by the Federal Communications Commission t provide service on three DBS channels to the 77° Worbitallocation._ At the new orbital location, any operations of the satellite would be pursuant to an authorization granted by Mexico. Based on the information provided by EchoStar in the record, the sole immediate purpose of the relocation is to bring into use an ITU filing by the Mexican Administration. Consistent with precedent, we conclude that the bringing into use of an TT filing, by itsef, does not constitute a public interest reason sufficient to justify grant of an authorization. Accordingly we deny EchoStar‘s request, and dismiss a related request by EchoStar which seeks to modify ts authorization for tiree channels at the 157° W.L.orbital location in order to permit long—term cessation of operations at that location" We also dismiss a request to modify an earth sttion suthorization to add Echostar 4 at 77° W.L. as a pointofcommunication. m BACKGROUND Pile No.SAT—STA—20050521—00068 (‘EchoStar STA Request". * File No.SAT—MOD—20050513—00103.

Federal Communications Commission pa os—1s04 2. Procedural History. EchoStar filed ts STA Request on March 21, 2005. On April 13, 2005, the Chief of the Satelite Division requested additional information concerning the proposed transaction, the technical status of the EchoStar 4 satelite,and other mattrs On April 22, 2008, the EchoStar STA Request was placed on public notice.‘ On April 26, 2005, EchoStar provided a partial response to the April 15 Information Request. On May 4, 2005, DIRECTV Enterprises LLC (DIRECTV®) filed a leter in which it noted that it currently offers "local—ito—local" signals to 25 markets in the United States using the Canadianicensed DIRECTV 5 satellte operating at the 72.5° W.L. orbital location. DIRECTV requested, in light ofthe fac that EchoStar 4 would operate within 4.5° of the DIRECTV 5, that EchoStar make available technical information conceming the planned s of the EchoStar 4 satelite at the 77° W.L. orbital location.. On May 10, EchoStar provided technical information conserning EIRP contours for operations of EchoStar 4 at the 77° W.L. orbital location. On May 13, EchoStar provided information in response to the April 13 Information Request On May 13, EchoStar also filed a request to modify ts authorization for the 157° W.L. orbital location, so that, despite the removal of the EchoStar 4 satellte from that location, the Hicense would not sutomatically lapse® On May 23, 2005, the comment period closed on the EchoStar STA Request. No comment, other than DIRECTV‘s May 4 leter, were filed...On May 24, 2005, EchoStar filed a letter requesting expedited consideration. On May 27, 2005, Echostar fled a request to modify an carth station authorization o lst the Echostar 4 satelite at 77° W.L.as an authorized point ofcommunication. 3. The Transaction. ‘The proposed relocation of EchoStar 4 is pursuant to two agreements between EchoStar and SES Global Latin America S.A. (‘SES"),a Societe Anonyme organized under the laws of Luxembourg.. The frst agreement, dated November 17, 2004 (the "Framework Agreement®), and submitted with EchoStar‘s STA Request, provides a framework for the pursult and maintenance, by SES, of a Mexican concession to operate a satelite atthe 77° W.L. orbital ocation, and the use, initilly and on an interim basis, of the EchoStar 4 satellte at that location. ‘This framework agreement also provides for additional agreements,including an agreement for a new satelite to be located at the 77° W.L. orbital location. The framework agreement also provides for additional defintive agreements concerning the operations of EchoStar 4 at the 77° W.L. orbial location. On February 2, 2005, SES‘s affliate, QuetzSat, Sdde RLde C.V, a Mexican entity, obtained a concession from the Mexican Secretariat of Communications and Transportation (the "Concession") to operate a satelite at the 77° WL. orbital location. EchoStar and SES subsequently entered into a Satellite Relocation and Use Arcement for the 77° W.L. orbital location (Definitive Agreement®), effective May 13, 2005," that provides for use of EchoSta 4 at the 77° WL. orbital location. 7 Leterfom Thomas 5. Tyez, Chit Stelite Division,to Patels Michloponlos, Counse for EchoStr (April 13,2008) (‘April 13 Information Request?. * Report No. SAT—00286. C ‘The term *local—ito—local,"asused in this Order, refersto provision via stelite retrnsmission oflocal broudcastchannelst subscribers who reside in a local TV station‘s market. See 17 U.S.C.§ 122G)2)(A) € File No.SAT—MOD:20050513—00103. See als 47 CR $ 25.161(). * Letefom Pantels Michalopolos, Counsefor EchoStr, to Marlene H. Dortch, Secrcury, FCC, dated May 13, 2005.

Federal Communications Commission pa os—1s04 4. Under the Interntional Telecommunication Union‘s Plans for Broadeast Satellte Services, and Associated Feeder Links,® Mexico is assigned frequenciesfor use by the broadcast satelite service at the 78° W.L. orbital location.. On or about April 22, 1996, Mexico filed a request for modification of that assignment, using the network names MEX—TDHIA and MEX—TDHIB, o, among other things, change the orbital location to 77° W.L. The date by which the modification must be brought into use is July 10, 2005." 5. The EchoSta 4 satelite is a Lockheed Martin model A2100 spaceczaft aunched on May 7, 1998 (GMT). One of two solar arays on the satellite failed to deploy, which resulted in a decrease in available power, and a higher than normal accumulation of spacecraft momentum. Consequently, the spacecraft required increased fuel usage for momentum unloading. ‘The solar array fully deployed in September of 2004, returning fuel use to nomina levels. The spacecraft has also experienced failires or significant performance issues in three low thrust thrusters, as well as in both the primary and backup valve heater cireuits servicing all of ts are—et thrusters. As a result, there are some limitations on the spacecraft‘s abilty to conduct north—south station—keeping maneuvers, since such maneuvers must be planned to coincide with ideal thermal conditions. In addition, 38 of 44 traveling wave tube amplifiers (TWTAs), which are used to amplify radio—frequency signals, have failed." Because of "operational limitations and equipment failures" on the satelite, EchoStar not rely on the satelite to provide service to its subscribers, but instead duplicates the service provided on EchoStar 4 on a satellte located atthe 148° W.L. orbitallocation." i. DisCUssION 6. In order to grant a request for authority, the Commission must find that such a grant would serve the public interet." Based on a review of the record, we conclude that EchoStar has not stated a sufficient public interest reason for grant of its request.. The stated purpose for locating the EchoStar 4 satellte at the 77° W.L. orbial location atthistime is to provide a basis for claiming that an TTU deadline for bringing into use certain ITU filings has been met. In particular, we note that QuetzSat‘s Concession clearly indicates that, i order to provide Directto—Home Service, an actual service to consumers, that service must be provided either through an existing concessionaire for such a service, or through the issuance of a new concession." Both the Framework Agreement and the * Interational Telecommunication Uion Radio Regulations, Appendices 30 and 30A. * On November 4, 2003,tAdministrtion ofMexico filed a new modification request with the ITU, using the retwork names MEX—TVD1 and MEX—TVD2, that is idenical to the original requesas published by the TTU in December 1999. ® See Leter rom Pantelis Michalopoulos, Counsefor EchoStr, o Thomas S. Tycz, Chief, Satellte Division, dated May 13, 2005, at Atachment3. * See Fle No.SAT—MOD:20050813—00103, ts * a1usc. 530; 47 CER 525. 120. Concessionat 1.3

Federal Communications Commission na.os—1s04 Definitive Agreement acknowledae this requirement." and EchoStar has also expressly indicated that such a concession would be required." EchoStar subsequently indicated its view, however, that an additional concession is not needed for purposes of bringing into use the 77° W.L. orbital location.®" It appears, therefore, that bringing ito use would not be claimed based on the actual provision ofdirect—to— home service. 7. This case, therefore,is unlike other cases in which the Commission has granted authority to move an FCC Hicensed satellte to a non—U.S. DBS location in order to address capacity needs and concemns with continuity of service.. For example, in the DIRECTY 3 case,"" tsatelite moved to a Canadian location, and commensed operations pursuant to a Canadian license, in order to address a pressing capacity need resultng from technical anomalies in Canadian satelftes. The satelite provided for immediae improvement in the quality and reiabilty oan existing service provided to direct—to—home subscribers in Canada." In granting that request, we noted that helping "to assure continuity of service" served the public interest by comporting "with cooperation between U.S. and Canadian satelte providers in times of emergency or capscity need."" n this case, there are no considerations conceming capacity needs for continuity ofexisting service. 8. This case is also unlike other cases in which a U.S. satelite was used to bring into use a non—U.S. location. For example,in the DIRECTY 5" case, te satelite moved to a location assigned to Canada under the ITU BSS Plan. However, there was an immediate public iterest benefit because the satelite was used to provide local—ito—local service o U.S. DBS subscribers in 25 markets. The fact that the satelite move also allowed the location to be "broughtinto use" for ITU purposes was an incidental benefit. Here, while EchoStar indieates that service may be provided to the United States from the 77° W.L. orbital location in the future, it does not have a currently pending request to provide such service, and it may well be that such service would be provided only if a new satelit is launched into the 77° WL. orbital location. Under these circumstances, the potential benefits from such service, at best, are purely speculative. 9. Further, in a number of recent decisions, we have consistently declined to premise favorable public interest determinations on the fact that issuance of an suthorization might faciltate A Framework Agreement at Aricle 1(D; Defintive Agreementat 1.B(1). * Leterfrom Pantels Michalopoolos, Counse! fr EchoStr, o Thomas S.Tyz, Chief, Satelte Division, dated May 13,2005,at Atachment2. C Lete fom Pantels Michaloponlos, Counsefor EchoSur,to Thomas S. Tycz, Chief, Satlfte Division, dated May 24,2005. T DIRECTV,Inc. Order and Authorization, 19 FCC Red 11035 (2004). See also FilNo. SAT—STA— 20030324—0030 (Galiny MR sateliteused o provide iterm capaciy, pending Ianch ofa replacement satelit, pursuant o a Canadian Tcense) * 14 se 34, 10 * 14 yi0. * DIRECTV, nc, Order andduthoriation, 19 FCC Red 15529 (ntBur.2008) a

Federal Communications Commission pa os—1s04 meeting an ITU bringing into use deadline.. For examplein one case we expressly declined to grant an extension of a licensee‘s milestone condition where the licensee argued that the extension would faciltate bringing into use a U.S. filmg atthe ITU. We noted that U.S. public would not necessarily lose service if the filing was not brought into use, since the Commission‘s policies are favorable to market entry by systems ready, willing, and able to provide service, regardless of the national origin of the system."!— As indicated in another recent decision, we treat considerations related to TTU bringing into use as irrelevant to our public interest determinations." We see no reason to treat requests from U.S. entiiessecking to bring into use TT filings from other Administrations any differenty. Iv. CoNCLUSION 10. Because there is no conerete basis presented in the record for making a fivorable public interest determination, we will deny the EchoStar STA Request, and dismiss EchoStar‘s related requests i) to cease operations, for an unspecified period longer than 90 days, at te 157° W.L. orbita location," to modify an earthstation suthorization t specify Echostar 4 at the 77" W. L. as an authorized point ofcommunication. v. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED that EchoStar Satelite LL.C. application, SAT—STA— 20050321—00068 (Call Sign S2621), Is DENIED. 12. IT 18 FURTHER ORDERED that EchoStar Satellte LLC.‘s application, SAT—MOD— 20050513—00103, s pismissEp. 13. T IS FURTHER ORDERED that EchoStar Satelite LL.C.‘s application, File No. SES— MFS—20050527—00662 (Call Sign EO20306),1s DISMISSED. 14. This Order and Authorization is issued pursuant to Section 0.261 of the Commission‘s rules on delegations ofauthorit, 47 C.FR. § 0.261, and is effective upon release. FEDERAL COMMUNICATIONS COMMISSION enllollan Donald Abelson Chicf,Intermational Bureau 8 VisienSta Incorporated, Memorandim Opinion and Order, 19 FCC Red 14820,§11 (It Bur, 2008 * SES Americom, IncMemorandm Opinion and Order, 20 FCC Red 436, . 39 (InI Bur. 2005 2. FileNo. SAT—MOD—20080513—00103, n8 (ndicating that, ifthe EchoStar STA Requestisdenied the modifeation applcation becomes moot and can e disnised) 5


Document Created: 2005-06-03 11:48:51
Document Modified: 2005-06-03 11:48:51
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