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COMMENT submitted by DIRECTV

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2005-06-20

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

IBFS_SATSTA2005032100068_438562

                                             Before the
                   FEDERAL COMMUNICATIONS COMMISSIORECEIVED
                                     Washington, D.C.
                                                          j                        JuN 2 0 2005
                                                              U 2
                                               )                    1 2005    redun Communicaton Comision
Jn the Matter of                               )          Plcy Brancy                Offect Secriny
                                               4      IMleMatoralBuroay
EcoSrarSarevume Liuc.                          )      File No. SAT—STA—20050321—00068
                                               )
Application for Special Temporary         )
Authority to Move EchoStar 4 to 77° W.L.. )
                                               )
Application for Modification                   )      File No. SAT—MOD—20050513—00103
of Direct Broadcast Satellte Authorization     )      Call Sign: $2621
To Permit Long—Term Cessation of               )
Operations on Three DBS Channels               )
At the 157° W.L. Orbital Location              )
                                               )
Application for Modification of                )      File No. SES—MEFS—20050527—00662
Earth Station Authorization to add the         )      Call Sign: 2020306
EchoStar 4 Satelliteat 77° W.L. as a           )
Point of Communication                         )
taeernanas

                   commENTs on PETITION FoR RECONSIDERATION
        DIRECTV Enterprises, LLC ("DIRECTV®) hereby comments on the Petition for
Reconsideration filed by EchoStar Satellte L.L.C. (‘EchoStar") in the above referenced
proceedings.‘ EchoStar‘s basic contention is that the Commission has failed to treat its
application in the same manner as an allegedly "similar" application by DIRECTV. As the
object of EchoStar‘s comparison, DIRECTV feels compelled to address this contention.
        As the Commission found in its Denial Order," EchoStar‘s original proposal for
occupation of a Mexican—licensed Broadcast Satellite Service (‘BSS") slot was markedly and

!—   RettionforReconsidertion, File Nos. SAT—STA—20050321—00068, SAT—MOD—20050513:00103, and SES—
     MFS—20050527—00662 (Rled June $, 2005)(‘Pertion)
*    Echour SatellteLLC, DA OS—1S81 (rl une 3, 2008)(‘Denial Order").


 materially different from DIRECTV‘s proposals for operation from two Canadian—licensed BSS
 slots. And to the extent EchoStar has now modified ts proposal t come more into line with the
 DIRECTV precedent, the Commission should process that modified proposal in the same way
that it processed DIRECTV‘s applications —e, assessing both the request for special temporary
authorization ("STA") to relocate the satellite and the application for blanket earth station
authorization for service into the U.S. from the foreign—licensed orbital location in a single,

consolidated proceeding.
                                            Discusston

.        TiCommisston Prorery Founb That EctoStar‘s OrtGinat Prorosat Was
         Very Dirrerent Frow DIRECTV‘s Prorosats
         At the time the Denial Order was issued, EchoStar had proposed to relocate it EchoStar
4 satellite to the 77° W.L., but did not propose to provide service into the U.S. from that location.
Nor, for that matter, did EchoStar offer any evidence that the satellte would be used to provide
service into Mexico from that location. Moreover, as the Denial Order noted, a further
authorization from the Mexican government would be necessary before such a service could be
provided into Mexico.". From all appearances, then,the sole purpose ofEchoStar‘s request was
to conduct very limited operations at 77° W.L. in an effort to perfect the Mexican government‘s
elaim to use of that slot under international rules. As the Commission further explained, such
considerations are irrelevant to determining the public interest merits of a pending application."
        EchoStar asserts that the Commission misapplied its precedent and, as a result, unfairly
treated EchoStar less favorably than it had treated DIRECTV in connection with similar




*    See Derial Orderat16
5o   t arg9


applications. That assertion is clearly erroncous, because DIRECTV‘s applications were not
remotely similar to EchoStar‘s.
        DIRECTV‘s proposals involved the use oftwo Canadian BSS slots by satelites that had
been launched by DIRECTV. The first satellite was to be used by a Canadian operator to ensure
continuity ofservice from a location with ongoing satellite operations. While this did not
involve any service into the U.S., it id involve actual, authorized service into Canada — service,
moreover, that was neeessary to avoid disruption to existing Canadian DTH subscribers.
        The second satellte was to be used to augment DIRECTV‘s local—into—local services to

the U;S., serving 30 or more additional markets that otherwise would not have had satellte
access to their local broadeast stations. That application was accompanied by an application for
blanket earth station authorization to allow market access from this foreign—licensed BSS slot.
The public interest benefits osuch service, DIRECTV believes, are self—evident and were
recognized by the Commission as "compelling" in approving DIRECTV‘s proposal.?
        Thus, both ofDIRECTV‘s applications involved concrete proposals for immediate
service to eal subscribers, who otherwise might lose or never gain access to valuable
programming. And pursuant to the authorizations granted to DIRECTYV, both satelltes are
providing services to consumers today.
        This is a stark contrast o the proposal put forward by EchoStar, which did not involve
any cognizable service in either Mexico or the U.S. Under the Commission‘s rules, an STA
applicant such as EchoStar must demonstrate "that there are extraordinary circumstances
requiring temporary operations in the public interest and that delay in the institution ofthese



*   See DIRECTY Enterprises, LLC, 19 FCC Red. 15829, 15833—34 (InI Bur, 2004).


temporary operations would seriously prejudice the public interest."* DIRECTV‘s application
made such a showing by demonstrating that the satellites were to be used immediately to take
over for an ailing Canadian BSS satelit serving millions ofcustomers and to initiate local
service in 30 U.S. markets where local signals otherwise would not have been available.
EchoStar‘s proposal did not even attempt to make such a showing orto explain any basis for
urgency other than meeting Mexico‘s bringing into use requirements under ITU rules. In these
circumstances, the Commission correctly recognized the distinctions between the STA requests
filed by EchoStar and DIRECTV.
1t       EcioSrar‘s New Prorosats SnouLo Bz Consipern in tue Save Manner as
         Were DIRECTV‘s Prorosats

         In its Petition, EchoStar submits two new and additional "facts" that it contends will
make its request "indistinguishable" from the STA applications previously filed by DIRECTV."
First, EchoStar asserts ts understanding that the Mexican government will promptly grant a
pending application that will authorizeservice to Mexican consumers from EchoStar 4 at 77°
W.L® To date, however, there is no indication that the Mexican government actually has

granted such an authorization."
         Second, EchoStar states thatit has determined thatit can also provide service to portions
of the U.S. from EchoStar 4 at 77° W.L.‘*. EchoStar does not state the basis for this


*    arcrR g2s120000.
     Portionat2
+4
     (On June 142005, EchoSar filed a Supplementto Pettonfor Reconsidention(*Supplement"), which repents
     EEchoStar‘ asserion tht QueteSat Direto will eceivea Mexican concession "very soon," but docs not provide
     any frtherinformation. See Supplement t S
*"xt


determination, nor any ofthe particulars of U.S. operations it believes are now feasible.
DIRECTV would note, however, that the antenna gain pattem provided with the Petition is
somewhatdifferent —Le, shifted to the north and east — from the one previously provided by
EchoStar."
        In any event, EchoStar‘s STA request —as amended by itslatest Petition and Supplement
—still does not provide information with which the Commission and interested partics can
adequately assess the potential for harmful interference and other public interest aspects ofthe
proposal. DIRECTV has raised this concem before."" EchoStar states that it will file an
application shortly for a blanket earth station authorization to provide service to U.S. consumers
from this foreign—licensed slot," which would presumably include detailed information on its
proposed operations in the U.S.. But it has not yet done so, effectively precluding any
meaningful analysis atthis point.
        EchoStar‘s proposal for U.S. service is an integral part ofthe proposal to relocate the
satellite to 77° W.L.,just as DIRECTV‘s proposal for U.S. service was an integral part ofits
proposal to relocate DIRECTV 5 to 72.5° W.L. The Commission should, consistent with ts
treatment of DIRECTV‘s applications for use of a Canadian BSS slot," process EchoStar‘s

   See Leter fom Pantels Michalopouls to Marlene 1. Dorch, Atichment A, FCC File No. SAT—STA—
   20050321—00068 (dred May 10, 2005). DIRECTV alsonotesthat Echoar‘s atest Supplement refer to the
   anterna pattem submited on May 10 rather than the diagram subrmited withthe Petiion see Supplementat 5
   110which iselfwas subsequently amended byleter datedJune 9,2005. Thisnconsistency further
   demonstates the nee for complete and defintve dta on EchoSar‘s plamned operations from 77° W.L., which
   would bepart ofEchoStar‘s matketaccesspettion
5.: See Leter fom Willam M. Wilshire to Thomas Tyez, FCC Fil No SAT—STA—20050221—00068 (May 4,
   2005) (expressingconcem tht Echoar had notfiled suficient information to enble DIRECTV o nalyze
   porentl interference o the opertion of ts DIRECTV 5 steitat 72.5° W L.)
   See Pettionat7n9.
©*. DIRECTV Enterpries, 19 ECC Red.at 25832 (Rndingthat "granting the STA and associated blankeeath
   station cuthorization is in th public interes®"(emphass added).


amended STA request as a package with its blanket earth station application if and when such
application is filed. Only in this manner would the Commission fruly be applying "the same
basic rulesto all similarly situated applicants."


       Although EchoStar would very much like to analogize its proposals to the applications
granted for DIRECTV, review of the record confirms that the cases are entiely different. To
the extent EchoStar and DIRECTV achieved disparate results, it is because they presented the
Commission with very different facts and circumstances. Now that EchoStar secks to provide
service in the U.S. from this foreign—licensed orbital location, the Commission should process
that request as part and parcel ofthe request to relocate EchoStar 4 — just as it did when
DIRECTV soughtto relocate a satellie to provide U.S. service from a non—U.S. BSS slot
Evenhanded treatment requires no less.
                                               Respectfully submitted,

                                               DIRECTV Entermnises, LLC




                                                      William M      Itshire
                                                      Michael D. Nilsson
                                               Haus, Wiursnie & Granits Lur
                                               1200 Eighteenth Street, N.W.
                                               Washington, DC 20036
                                               202—730—1300
                                               Counselfor DIRECTVEnterprises, LLC
June 20, 2008


                           CERTIFICATE OF SERVICE



       herebycertify that, on this 20th day ofJune, 2005, a copy of the foregoing
Comments on Petition for Reconsideration was delivered by hand to:



              Pantelis Michalopoulos
              Philip L. Malet
              Brendan Kasper
              Steptoe & Johnson LLP
              1330 Connecticut Avenue, N.W.
              Washington, DC 20036



                                                  Jennifer Ansélmo



Document Created: 2005-06-21 17:48:44
Document Modified: 2005-06-21 17:48:44

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