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REPLY TO OPPOSITION submitted by Alaska Broadcasters Association/Hawaii Association of Broadcasters

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2007-04-13

This document pretains to SAT-STA-20061107-00131 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2006110700131_561187

                                           Before the
                        Federal Communications Commission
                                Washington, D.C. 20554

Application of
SIRIUS SATELLITE RADIO, INC.
                                                          File No. SAT—STA—20061107—00131
For Special Temporary Authority to Operate
Four SDARS Terrestrial Repeaters in
Alaska and Hawaii


TO: Office of the Secretary
      For delivery to the Chief, International Bureau

                  REPLY TO OPPOSITION TO PETITION TO DENY

       The Alaska Broadcasters Association and the Hawaii Association of Broadcasters

(collectively "Alaska/Hawaii Broadcasters") hereby timely file this Reply (the "Reply") to the

Opposition (the "Sirius Opposition") to Alaska/Hawaii Broadcasters‘ earlier Petition to Deny

(the "Petition") the above captioned application for Special Temporary Authority ("STA") to

permit Sirius Satellite Radio, Inc. ("Sirius") to operate four Satellite Digital Audio Radio

Service ("SDARS") terrestrial repeaters (the "Repeaters") in Alaska and Hawaii.

1.         The Sirius Opposition provides no fact or law to refute the basic premise that the

STA Sirius seeks will initiate service that is contrary to law and established policy. Sirius

says nothing to refute the clear rule of law that requires a SDARS licensee to actually provide

satellite—transmitted service and have customers who actually require such supplementary

service to overcome earthbound physical blockages or multipath interference. These needs

must be identified BEFORE the Commission grants authority to supplement satellite service

with Repeaters.


2.           Lacking the ability to actually deliver such service (and, as a result, maintain a

customer base in the two non—mainland states), Sirius seeks to skip over the inconvenient step

of expanding its satellite service first. Instead, it seeks the STA to provide terrestrial service

in the most densely populated parts of the two states —— authorizations that will do nothing to

bring service to villages and communities from these urbanized areas. As Sirius itself states:

"These benefits should be experienced by all U.S. citizens." Sirius Opposition at 4. But,

apparently Sirius is not interested in bringing service to those who lack much media service,

but only in taking profits from more well—endowed urban areas, without the inconvenience

and expense of actually building facilities capable of providing the satellite service for which

it is licensed.

3.           Nonetheless, Sirius attempts to cast the terrestrial broadcasters, who provide

crucial local news, information and community contact, as bad guys who are trying to keep

the benefits of satellite—delivered audio from the underserved populations of the 49°" and 50

states. But, as the Alaska/Hawaii Broadcasters emphatically stated in their Petition, they do

not oppose SDARS; rather, they oppose the terrestrial service that Sirius proposes here — a

broadcast service that would arrive without satellite delivery. People in the Alaskan bush and

Hawaii‘s outlying communities would be delighted to receive SDARS service — if only Sirius

would deliver it the way its authorization requires: by Satellite. Allowing Repeater service,

in the absence of actual satellite signals, in metropolitan areas such as Anchorage and

Honolulu will do nothing for listeners in Fort Yukon or Pakala Village.

4.           Sirius fools no one when it attempts to confuse the matter. When stating, "Sirius‘s

service area covers the entire United States, including Alaska and Hawaii," Sirius Opposition

at 2, it is playing verbal games. Yes, its service area does include all 50 states — but its actual


service footprint, where one of its heavily marketed receivers will receive programming by

satellite excludes all of Hawaii and most of Alaska. The Commission must not be fooled by

such equivocation — and Alaska/Hawaii Broadcasters trust that it will not be. Just because the

FCC authorizes a service area does not mean service is provided — and provision of satellite—

delivered service is the benchmark. Until Sirius meets that requirement, it cannot have

authority to deliver programming by Repeater as it simply has no transmissions to repeat.

5.         Sirius, now attempting to eliminate competition through a merger with its only

SDARS competitor, XM, also states that Alaska/Hawaii Broadcasters stand in "opposition to

competition in any form."    Sirius Opposition at 1. But such scurrilous attacks are belied by

Sirius‘s own statements in pursuit of its SDARS monopoly. The "audio entertainment

marketplace today is characterized by a diversity and multiplicity of options that, despite

some differentiation, offer consumers similar content and features." Form K—1, filed by Sirius

Satellite Radio, Inc., SEC File No. 0—24710, Mar. 20, 2007 at 24. Alaska/Hawaii

Broadcasters successfully face such competition every day, and provide local content that is

unparalleled. They are not seeking government protection from legitimate competition. They

only want Sirius to compete within rules that have been calibrated to ensure the public

interest. That means Sirius must provide satellite signals first, then, and only then, may it

obtain repeater authorization. As noted in the Petition, any shortcut that eliminates the

satellite delivery requirement in Alaska and Hawaii would hinder the public interest in

localism. Sirius is certainly free to deliver programming via the Internet in Alaska and

Hawaii. Alaska/Hawaii Broadcasters are ready and able to meet such legitimate competition.

But, until Sirius provides spot beams capable of providing primary service from the sky to its

dedicated radio receivers, it must not be permitted to cireumvent the basic regulatory regime


that ensures the public interest, convenience and necessity. The STA proposal simply fails to

do so because it would allow for terrestrial delivery before Sirius ever would be required to

provide satellite—delivered service.

6.         Finally, Sirius haggles over procedural matters, claiming that Alaska/Hawaii

Broadcasters did not file affidavits demonstrating their "standing," as required. While

precedent is clear — Alaska/ Hawaii Broadcasters have standing, see FCC‘ v. Sanders Bros.

Radio Station, 309 U.S. 470 (1940) — in the interests of taking this non—issue off the table,

Alaska/Hawaii Broadcasters submit Declarations‘ attesting to their standing (attached hereto

at Exh. A). In this way, the Commission need not be distracted by attacks on the messenger,

when the real issue is found in the message: Sirius must not be allowed to circumvent the

public interest in satellite—delivered SDARS service available to all Americans, by skipping

over the investment—intensive satellite transmission requirement and, instead, delivering pay

programming terrestrially ONLY in more populous urban areas of Alaska and Hawaii. Such

an outcome would leave the bulk of the two state‘s land area with no SDARS service at all —

something that was clearly not intended when the Commission established SDARS to bring

benefits, as Sirius notes, to "all U.S. citizens, including residents of the 49"" and 50°" states."

Sirius Opposition at 4. The STA would not only harm localism, as discussed at length in the

Petition, but it will deprive the rest of these two states‘ populations of SDARS benefits while

Sirius reaps gains from the easier to service urban areas without investing the kind of

everywhere service that goes with SDARS licenses.




1      One declaration is provided by the Executive Director of the Alaska Broadcasters
Association, the second declaration is provided by the president of the Hawaii Association of
Broadcasters.


7.        For all the reasons discussed above, and in the Petition, the Commission must

deny or dismiss Sirius‘s STA request.

                                    Respectfully submitted,
                                    ALASKA BROADCASTERS ASSOCIATION
                                    HAWAII ASSOCIATION OF BROADCASTERS
                                        wfiA ;%\fi\j}vu@ \}j          ("%;L\


                                    Frank R. Jazzo
                                    Michael W. Richards
                                    Their Counsel



FLETCHER, HEALD & HILDRETH, P.L.C.
1700 North 17th Street
11th Floor
Arlington, VA 22209
(703) §12—0400

April 13, 2007


Exhibit A

Standing


                             DECLARATION OF SUSII HEARST


1, Susit Hearst, under penalty of perjury under the laws of the United States, hereby
declare and state that the following is true and correct to the best of my personal _
knowledge, information and belief:

    1.     I am President of the Hawaii Association of Broadcasters (the "Association").

   2.      The Association is a membership organization that represents broadcast
           station licensees in the State of Hawail.

   3.      Among the Association‘s members are licensees of radio stations with
           primary contours in areas in which Sirius Satellite Radio, Inc. proposes
           terrestrial repeater service pursuant a special temporary authority ("STA")
           request now pending before the FCC. The business of these members would
           be affected by the STA, should it be granted.

                                               sigea on beharf Ptinesby/sPreer s
                                                             Susii Hearst

                                                                4//%/o .
                                                             Date


                         DECLARATION OF DARLENE SIMOGNO


I, Darlene Simono, under penalty of perjury under the laws of the United States, hereby
declare and state that the following is true and correct to the best of my personal
knowledge, information and belief:

   1.     1 am cxecutive director of the Alaska Broadcasters Association (the
          "Association").

   pA     The Association is a membership organization that represents broadcast
          station licensees in the State of Alaska.

   3.     Among the Association‘s members are licensees of radio stations with
          primary contours in areas in which Sitius Satellite Radio, Inc. proposes
          terrestrial repeater service pursuant a special temporary authority request now
          pending beforc the FCC. The business of these members would be affected
          by the STA, should it be granted.




                                                           Darlene Simono


                                                                04/1&}9_007
                                                           Date


                            CERTIFICATE OF SERVICE

I, Carla Whitlock, a secretary at Fletcher, Heald & Hildreth PLC, hereby certify that a
true and correct copy of the foregoing "PETITION TO DENY" was sent this 13th day of
April 2007, First—Class United States mail, postage prepaid to the following:

                      Patrick L. Donnelly, Esq.
                      Exec. Vice President and General Counsel
                      Sirius Satellite Radio, Inc.
                      1221 Avenue of the Americas
                      36‘" Floor
                      New York, NY 10020

                      Robert B. Jacobi, Esq.
                      Richard A. Helmick, Esq.
                      Cohn & Marks LLP
                      920 N Street, NW
                      Suite 300
                      Washington, DC 20036

                      Larry Walke, Esq.
                      National Association of Broadcasters
                      1771 N Street, NW
                      Washington, DC 20036



                                            (Pards
                                             Carla Whitlock



Document Created: 2007-04-19 12:11:29
Document Modified: 2007-04-19 12:11:29

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