Attachment ex parte

ex parte

Ex PARTE PRESENTATION NOTIFICATION LETTER submitted by EchoStar

ex parte

2005-06-14

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

IBFS_SATSTA2005032100068_439223

CO STEPTOE &JOHNSON« Pb\ attoanys at cav EX PARTE OR taie FILED Pantcls Mictlopootos 1330 Comnectieut Avenve. NW 2omn Ga9e RECEI Washingon. DC 200361798 pmichnl@neproecom BIVED Ter 2024293000 & JUN 1 4 2005 tox2024003002 steproccom Ticsotmemay Fatent onmnicato Conmianin ORIGINAL June 14, 2005 ViA DELIVERY Ms. Marlene Dortch Received Secretary Federal Communications Commissig| 2 3 2005 445 Twelfth Street, SW Washington, D.C. 20554 Polcy Brench Intemational Bureau Re: Notice of Oral Ex Parte Presentation — File Nos. SAT—STA—20050321—00068, SAT—MOD— 20050513—00103, SES—MFS—20050527—00662 Dear Ms. Dortch: In accordance with Section 1.1206 of the Commission‘s Rules, 47 C.F.R. § 1.1206, EchoStar Satellte LL.C. ("EchoStar") submits this letter to report that on June 13, 2005, representatives of EchoStar and SES Americom met with the following International Bureau staff:Andrea Kelly, Gardner Foster, Chip Fleming, Rockie Patterson, Roderick Porter, Thomas Tycz, Karl Kensinger, John Martin, Mark Young, Cindy Spiets, and Hans Zeller At this meeting, EchoStar discussed:(1) additional information about the service to the United States and Mexico that EchoStar proposes to provide from the 77° W.L. orbital location; (2) the willingness of EchoStar to submit the EchoStar 4 satelite to U.S. jurisdiction if the satellite were to be relocated out ofthe 77° W.L. orbital location in the fature; and (3) some ofthe arguments made in the attached PowerPoint presentation. in addition, the undersigned had a telephone conversation with Roderick Porter and Thomas Tyez,lter in the aftemoon. On the call, EchoStar discussed the issues mentioned above. In addition, EchoStar reiterated that no service to anyone will be lost as a resultof the departure of EchoStar 4 from 157° W.L., and no service to Alaska or Hawaii will be lost as a result of the departure. The services provided by EchoStar 4 are duplicative of programming available from 148° W.L., and the satellite operates subject to a waiver of the requirement to serve Alaska and Hawai. EchoStar also explained that EchoStar 4 has limited operational capability. orl waskinoton + New york +/ rmornix +. tos aNotits +/ tonbon +. srusstls

STEPTOE &JOHNSON« Ms. Marlene Dortch June 14, 2005 Page2 In accordance with Section 11206(b)2) of the Commission‘s Rules, EchoStar is submitting the original and one copy ofthi letter and the attached PowerPoint presentation. Respectfully submitted, Bantch»Miihaboperlre/eok Pantelis Michalopoulos Counselfor EchoStar Satellte L.LC. ce: Andrea Kelly Gardner Foster Chip Fleming Rockie Patterson Roderick Porter Thomas S. Tycz Karl Kensinger John Martin Mark Young Cindy Spiers Hons Zeller

ECHOsSIFn~ < COMMISSION JUNE 3 Order "EchoStar has not stated a sufficient public interest reason." «[ 6 EchoStar 4 is unlike DIRECTV 3, which would provide "for immediate improvement in the quality and reliability of an existing service provided to direct—to—home subscribers in Canada." «[ 7 Allowing a foreign country to bring into use an orbital slot was the principal benefit, not an "incidental benefit" as with DIRECTV 5. «[ 8 Potential benefits from service to U.S. "at best, are purely speculative." «[ 8

ECHOSIFA 4— The Order Should Be Reconsidered * The Order has been overtaken by subsequent developments. * The Order was legally and factually incorrect.

EGCHOSIAn~~< The Order has been Overtaken by Subsequent Developments Mexico has expressed authoritatively the Mexican national interest in a June 10 letter to Chairman Martin at the highest level and in the strongest possible terms. EchoStar has decided it is willing and able to serve the U.S. too.

ECGHOSIAMNE~< The Mexican Public Interest The June 10 letter eliminates the distinction between DIRECTV 3 and EchoStar 4 cited by the Commission. On the FCC‘s own standard, this is a stronger case for approval than DIRECTV 3. In the DIRECTV 3 case, the FCC credited assertions of private companies about the Canadian national interest. Here, it has an expression of the Mexican interest by the best expert — the Mexican Government.

ECHOSIAMHR~ < The Mexican Public Interest (cont‘d) * Move of EchoStar 4 will help introduce a second DTH provider and promote the availability of digital services to Mexican schools and libraries. * Mexico stresses the prospect of service to the U.S. from the slot. * Unlike Canada, Mexico has a bilateral DTH agreement with the U.S.

EGHOSIFRE~< Service to the U.S. * EchoStar‘s decision to provide service to the U.S. eliminates the distinction with the DIRECTV 5 case. * The Bureau could reconsider its decision on either of these two developments (benefits to Mexico or service to the U.S.).

ECHOSIAMA~< The June 3 Order Was Incorrect * The Commission does not have authority to evaluate what a satellite will be doing at a foreign orbital slot "For purpose ofregulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible to all the peopleofthe United States... a rapid, efficient, Nation—wide, and world—wide wire and radio communications service . Section 1 of the Communications Act, 47 U.S.C. § 151. — "While the Commission generally does not consider harms resulting from a transaction occurring outside the United States in its public interest analysis of a transaction unless the transaction directly impacts a relevant domestic market, nothing in relevantstatutory or case law would prevent the Commission from consideringthe conduct ofthe Applicants in foreign jurisdictions to determine the likelihood of similar future conduct in the United States." General Motors Corporation, et al., 19 FCC Red 473, 602, 4 297 (2004). — "We find that commenters havefailed to provide persuasive evidence as to why the Latin America MVPD market is relevant to our consideration of the harms resulting from the proposed transaction. As the Applicants indicate, the Commission generally does not consider harms resulting from a transaction occurring outside the United States in our public interest analysis of a transaction, unless the transaction directly impacts a relevant United States market." /d. at 605, * 303.

Echosinn=z This analysis does not change because a U.S. company or licensee will still own the spacecraft If that were so, the Commission‘s jurisdiction would stretch beyond all conceivable boundaries. The Commission would have jurisdiction over Intelsat‘s Ka— band satellites licensed by the U.K. The Commission would have jurisdiction over SES Americom‘s AAP—1 satellite at 108.2E. The Commission would have jurisdiction over PanAmSat‘s Paksat—1/HGS—3 satellite at 38E and various Ka—band satellites licensed by Australia. The Commission would have jurisdiction over DIRECTV 3 at 82 W. 8


Document Created: 2005-06-23 17:56:53
Document Modified: 2005-06-23 17:56:53
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