Attachment reply

reply

REPLY submitted by EchoStar

reply

2005-06-21

This document pretains to SAT-STA-20050608-00116 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2005060800116_438422

ol : ORIGINAL FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 RECETVED JUN 2 1 2005 FadralConmuniatont Cammiscn Application of OffecofSerony EcnoSrar Sxreuume LL.C. Call Sign $2179 File No. SAT—STA—20050608—001 16 For Special Temporary Authority to Operate the EchoStar 9 Satellite in the Lower 500 MHz Portion ofthe Ka—band Frequencies at the 121° W.L. ecblvsy Orbital Location. JUy 2 2 23 len C M% REPLY EchoStar Satellie LL.C. ("EchoStar") hereby responds to the Opposition of contactMEO Communications, LLC (*@contact") filed in the above—referenced proceeding on June 17, 2005 (‘Opposition"),‘. For the reasons discussed below, @contact‘s objections to the requested Special Temporary Authority ("STA") are without meritand the Bureau should procced to grant EchoStar‘s application expeditiously. @contact Lacks Standing. EchoStar questions @contact‘s standing to oppose the instant STA request and for this reason alone the International Bureau should reject ts Opposition. @contact‘s pending application to operate a satelite atthe 121° W.L. orbital location for authority to use, among other things, the primary NGSO portion of the Ka—band relates to completely different spectrum than the primary GSO Ka—band frequencies requested by EchoStar in the above—captioned application.* Thus, EchoStar‘s STA request has absolutely no ‘ See Opposition to Application for Special Temporary Authority,filed in SAT—STA— 20050608—001 16 (filed Jun. 17, 2003). * Compare contactMEO Communications, LLC, Amendment at3, SAT—AMD— 20040322—00057 (filed Mar. 22, 2004) (requesting, among other things, authority to operate a

frequency overlap with @contact‘s pending Ka—band application and @contact has not provided any other basis for establishing itsstanding in this proceeding. Grant ofthe Requested STA Would Serve the Public Interest and Is Consistent With Prior Precedent. in any event, contrary to @contact‘s assertions, EchoStar has amply demonstrated the public interest benefis of granting the requested STA —— EchoStar will be able to make almost immediate use of spectrum that would otherwise lifallow. In prior cases, the Bureau has granted STAs to permit satellte operators with existing capacity in orbit to temporarily operate in unused spectrum not assigned to anyone or assigned to another operator pending the launch ofa satellte by the licensee." In those cases, the Bureau found that the grant ofan STA served the publi interest in favor of increased competition‘ and efficient spectrum utlization‘ Indeed., in one ofthose cases, the Bureau rejected objections almost identical tothe geosynchronous satelliteat the 121° W.L. orbital location in the 18.9—19.3 GHz and 28.6—29.1 GHz frequency bands) with EchoStar Satellite LL.C., Application for Special Temporary Authorityat 1, SAT—STA—20050608—001 16 (fled Jun. 8, 2005) (°STA Application") (requesting temporary authority to operate EchoStar 9 in the 18.3—18.8 GHz, 28.35—28.6 GHz and 29.25—29.5 GHz bands) * See STA Application at 2 n.3, cting EchoStar Satellte Corp., Order, 11 FCC Red 5351 (1996) (granting special temporaryauthority for applicant to operate on DBS frequencies assigned to another operator, pending launch of the other operator‘s satellite) (*EchoStar DBS Order"); Direct Broadcasting Satellite Cory.. Memorandum, Opinion and Order, 13 FCC Red 6302 (1998) (°DBSC Order") (same). * See EchoStar DBS Order at % 5 ("The Commission has recently reaffimed ts commitment to fostering competition in the multichannel video programming distribution market, and grant of this STA in the special circumstances of this case will further that objective."); DBSC Order at 5 7 (*[Authorizing temporary] [uJse ofthese channels will also foster competition in the multichannel video program distribution market....") 5 See DBSC Order at 9 7 ("We find that grant of DBSC‘s request for special temporary authority will enable it to provide DBS service on currently unused channels,thus furthering the Commission‘s objective to make efficient use of available spectrum.").

ones raised by @contactin this proceeding." @contact does not mention, let alone address, any ofthese cases in its Opposition. In the present circumstances, the case for the grant of an STA to EchoStar is even stronger. Unlike in the prior Bureau decisions, there is no current licensee for the requested frequencies. Celsat has recently surrendered its Ka—band authorization." Nor would the grant of an STA affect any prospective applicant for permanent authority. Contrary to @contact‘s assertion, the grant ofthis STA would not confer a "preemptive right"" on EchoStar over use of the requested Ka—band frequencies. When Celsat‘s surrender of ts license was placed on public notice on June 17, 2005," all interested parties enjoyed an equal opportunity to apply for the vacant Ka—band spectrum."" The presence ofthe instant STA request prejudiced no would—be applicant for use of these frequencies.. As it turned out, EchoStar was the first and only applicant to apply for the Ka—band spectrum that became available for re—assignment at 121° W.L. But * See EchoStar DBS Order at 3 (*In its opposition, DIRECTV argues that EchoStar offers no adequate public interest basis for ts request.. EchoStar has not, DIRECTV contends, demonstrated that ts use of Tempo‘s channels will enable the public to receive services that are not otherwise available, or that any other unique circumstances justifythis deviation from normal spectrum allocation processes. DIRECTV asserts tat grant of EchoStar‘s request could amount to the effective re—assignment of Tempo‘s spectrum to EchoStar.");id at .7 (°[WJe find that grant of EchoStar‘s request will serve the public interest, convenience and necessity."). * See Public Notice, Report No. SAT—00300, DA 05—1687 (re. Jun. 17, 2005) ("Celsar Public Notice") * Oppositionat 2. ° See Celsat Public Notice. ‘" See Amendment ofthe Commission‘s Space Station Licensing Rules and Policies, FCC 03—102, First Report and Order and Further Notice of Proposed Rulemaking in 1B Docket No. 02—34, and First Report and Order in IB Docket No. 02—54.,18 FCC Red 10760, at 4 113 ("[WJe will consider an orbit location to become ‘available‘ ... upon release of a public notice announcing that a licensee has surrendered itslicense ... . Thus, all parties potentially interested in providing satellite service from the orbit location atissue have an equal opportunity to apply for the license when the orbit location becomes available."). a%s

even if another applicant were to have been first—in—line for the surrendered Ka—band spectrum, the grant of the requested STA would stll have no impact on the prospective licensee because, consistent with the Bureau‘s prior precedent, temporary operations would have to cease upon the Hicensee‘s deployment of a satellite toits assigned orbitallocation." EchoStar Would Not Enjoy Unfair Access to Spectrum From a Grant ofthe Requested STA. Contrary to @contact‘s suggestion,"" EchoStar would not receive any unfair access to spectrum over other applicants as a result ofthe requested STA forat least two reasons: (1) EchoStar is uniquely suited to operate an in—orbit Ka—band satellite at 121° W.L. and no one else currently has the capability to make use ofthe lower Ka—band spectrum; and (2) the grant of the instant STA would not prefudice anyother applicant‘s abilty to obtain authority to operate on the lower Ka—band frequencies. In sum, the public interest will be served bypermitting the immediate, temporary use of spectrum and orbital resources byan operator with existing satellite capacity already in place. Accordingly, for the reasons stated above and in EchoStar‘s Application, the Bureau should grant the requested STA. ‘" See EchoStar DBS Order at 1 5; DBSC Order at 3 12. There would also be no prejudice to EchoStar customers upon cessation of temporary operations, given (1) the short duration of the requested STA, (2) the commercial services proposed by EchoStar, and (3)the fact that EchoStar is tfirst—iline applicant for authority to operate on the lower Ka—band frequencies at 121° W.L. As a result, in this case there is no need to condition the STA on EchoStar giving notice to its customers that service in the lower Ka—band is temporary and may be terminated without prior notice. See EchoStar DBS Order at 1 6 (dispensing with such a condition when not necessary in the circumstances to protect consumers). " Opposition at 3 ("By granting EchoStar an STA to use this spectrum commercially now, the Commission would instantly award EchoStar a unique operational benefit allowing it to secure a critical market advantage over everyone else —— hardly an even playing field in access to valuable spectrum.")

Respectfully submitted, ekele Mflfif 4o David K. Moskowite Pantelis Michalopoulos D Cer Executive Vice President and General Counsel Philip L. Malet EchoStar Satellie LL.C. Chung Hsiang Mah 9601 South Meridian Blvd. Steptoe & Johnson LLP Englewood, CO 80112 1330 Connecticut Avenue N.W. (303) 723—1000 Washington, D.C. 20036 (202) 429—3000 June 21, 2005 Counselfor EchoStar Satellte LLC.

CERTTFICATE OF SERVICE 1 hereby certify that on this 21st day ofJune 2005, a copy ofthe foregoing was served upon the following by hand (as indicated by *) or by first—class mail Thomas S. Tyez* James M. Talens* Chief, Satellite Division,International Bureau 6017 Woodley Road Federal Communications Commission McLean, Virginia 22101 445 12th Street, S.W. Washington, D.C. 20554 David M. Drucker contactMEO Communications, LLC 2539 N. Highway 67 Sedalia, CO 80135 rHsiang Mah


Document Created: 2005-06-22 14:40:38
Document Modified: 2005-06-22 14:40:38
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