Attachment grant

grant

DECISION submitted by IB,FCC

grant

2008-05-06

This document pretains to SAT-STA-20080325-00082 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2008032500082_639223

Approved by OMB 3060-0678 Date & Time Filed: Mar 25 2008 4:45:27:890PM File Number: SAT-STA-20080325-00082 Callsign: FEDERAL COMMUNICATIONS COMMISSION APPLICATION FOR SPACE STATION SPECIAL TEMPORARY AUTHORITY FOR OFFICIAL USE ONLY APPLICANT INFORMATION Enter a description of this application to identify it on the main menu: Application to Renew STA to Operate on Channels 23 and 24 at 6 1.5W 1. Applicant Name: EchoStar Corporation Phone Number: 303-723-1 000 DBA Name: Fax Number: Street: 90 Inverness Circle E. E-Mail: City: Englewood State: co 801 12 - Country: USA Zipcode: Attention: Linda Kinney - (202)293-098 1 1

2. Contact Name: Pantelis Michalopoulos Phone Number: 202-429-6494 Company: Steptoe & Johnson LLP Fax Number: Street: 1330 Connecticut Ave., NW E-Mail: pmichalo@steptoe.com City: Washington State: DC Country: USA Zipcode: 20036 - Attention: Relationship: Legal Counsel (If your application is related to an application filed with the Commission, enter either the file number or the IB Submission ID of the related application. Please enter only one.) 3. Reference File Number SATSTA2007092600133 or Submission ID 4a. Is a fee submitted with this application? @ IfYes, complete and attach FCC Form 159. If No, indicate reason for fee exemption (see 47 C.F.R.Section 1.1114). Q Governmental Entity 0 Noncommercial educational licensee 0 Otherblease explain): I4b. Fee Classification I0 5. Type Request Change Station Location @ Extend Expiration Date Q Other 6. Temporary Orbit Location 7. Requested Extended Expiration Date 2008-09-27 0O:OO:OO.O 2

8. Description (If the complete description does not appear in this box, please go to the end of the form to view it in its entirety.) This application requests renewal of EchoStar Corporation’s special temporary authority to operate a DBS satellite using channels 23 and 24 at the 61.5W orbital location for an additional 180 days. Please see the attached narrative for additional detail. c I I 9. By checking Yes, the undersigned certifies that neither applicant nor any other party to the application is subject @ Yes to a denial of Federal benefits that includes FCC benefits pursuant to Section 5301 of the Anti-Drug Act of 1988, 0 No 21 U.S.C. Section 862, because of a conviction for possession or distribution of a controlled substance. See 47 CFR 1.2002(b) for the meaning of "party to the application" for these purposes. I 10. Name of Person Signing Linda Kinney I11. Title of Person Signing Vice President, Law and Regulation I 12. Please supply any need attachments. I 1 Attachment 1: Narrative I Attachment 2: I Attachment 3: WILLFUL FALSE STATEMENTS MADE ON THIS FORM ARE PUNISHABLE BY FINE AND / OR IMPRISONMENT (U.S. Code, Title 18, Section 100l), AND/OR REVOCATION OF ANY STATION AUTHORIZATION (U.S. Code, Title 47, Section 3 12(a)(l)), AND/OR FORFEITURE (U.S. Code, Title 47, Section 503). 3

FCC NOTICE REQUIRED BY THE PAPERWORK REDUCTION ACT The public reporting for this collection of information is estimated to average 2 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the required data, and completing and reviewing the collection of information. If you have any comments on this burden estimate, or how we can improve the collection and reduce the burden it causes you, please write to the Federal Communications Commission, AMD-PERM, Paperwork Reduction Project (3060-0678), Washington, DC 20554. We will also accept your comments regarding the Paperwork Reduction Act aspects of this collection via the Internet if you send them to jboley@fcc.gov. PLEASE DO NOT SEND COMPLETED FORMS TO THIS ADDRESS. Remember - You are not required to respond to a collection of information sponsored by the Federal government, and the government may not conduct or sponsor this collection, unless it displays a currently valid OMB control number or if we fail to provide you with this notice. This collection has been assigned an OMB control number of 3060-0678. THE FOREGOING NOTICE IS REQUIRED BY THE PAPERWORK REDUCTION ACT OF 1995, PUBLIC LAW 104-13, OCTOBER 1,1995,44 U.S.C. SECTION 3507. 4

Attachment File No. SAT-STA-20080325-00082 EchoStar Corporation’s request, File No. SAT-STA-20080325-00082, IS GRANTED, and EchoStar Corporation (Echostar) IS AUTHORIZED to operate Direct Broadcast Satellite service from its EchoStar 12 satellite over Channels 23 and 24 at the 6 1.5” W.L. orbital location for a period of 180 days, from April 1,2008 to September 29, 2008, subject to the following conditions: 1. Echostar’s use of channels 23 and 24 at the 61 SoW.L. orbital location shall cause no harmful interference to any other lawfully operating radio station and EchoStar shall cease operation on those channels immediately upon notification of such interference. 2. EchoStar shall not claim protection from interference from any other lawfully operated radio station with respect to its operations on channels 23 and 24, and Echostar’s operation on channels 23 and 24 is at its own risk. 3. Upon launch and operation of a replacement satellite for EchoStar 3 at the 6 1.5”W .L. orbital location, the following conditions will apply: N cb a) Echostar: 8 0 i) must inform its customers, in writing, that services using the two unassigned channels at the 61.5” W.L. orbit location will be discontinued upon the termination of Echostar’s temporary authority to operate on these channels; ii) must provide the following language to its customers in its monthly billing statements: “The [name of module(s)] is only temporarily available. Dish Network will discontinue these services upon the termination of Dish Network’s temporary authority to operate on these channels. Therefore, [name of module] will cease to be available to you upon the termination of Dish Network’s temporary authority to operate on these channels without prior notice. If you have any questions, please call us toll-free at [insert telephone number] .” iii) must include in all marketing notification that service is --.-- _..- i J being provided on a temporary basis and may be diminished or

discontinued at any time. Any failure to comply with customer notification procedures will be subject to enforcement action. b) Use of channels 23 and 24 at the 61.5" W.L. orbit location is for free- standing separate programming packages that are not required as a condition of purchasing any other programming packages and that are readily capable of being withdrawn on short notice. Consumers should not have any expectation that the packages that they are purchasing include additional programming provided over channels 23 and 24. Any failure to comply with this programming requirement will be subject to enforcement action. 4. EchoStar must file a report on June 30,2008 describing the status of the replacement satellite for the EchoStar 3 satellite, and the operating status of the EchoStar 3 satellite. In its report, EchoStar should indicate the status of the construction of the replacement satellite, as well as the status of the associated launch vehicle. 5. EchoStar must file a report on June 30,2008 describing any change to the operating status of the satellite since EchoStar filed its Status Report for the EchoStar 3 satellite on March 25, 2008. 6. EchoStar shall cease operations on channels 23 and 24 at the 61.5" W.L. orbit location upon the launch and operation of a satellite regularly licensed to operate on these channels at this location. 7. This Special Temporary Authority is conditioned on the outcome of any rules adopted in the Notice of Proposed Rulemaking Proceeding in IB Docket 06- 160 (DBS License Processing Procedures Rulemaking). 8. This Special Temporary Authority is conditioned on the outcome of the Commission decision on the petition for reconsideration of eligibility restrictions for DBS Channels 23 and 24 at the 6 1.5" W.L. orbital location. 9. This Action is taken pursuant to Section 0.261 of the Commission's rules on delegated authority, 47 C.F.R. 8 0.26 1, and is effective immediately. Petitions for reconsideration under Section 1.106 or applications for review under Section 1.115 of the Commission's rules, 47 C.F.R. $5 1.106, 1.115, may be filed within 30 days of the date of the public notice indicating that this action was taken.

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 ~ __ 1 In the Matter of ) ) ECHOSTAR CORPORATION ) ) File No. SAT-STA-20060324-00029 Request for Renewal of 1 File No. SAT-STA-20070105-00008 Special Temporary Authority to Operate a ) File No. SAT-STA-20070329-00058 Direct Broadcast Satellite Over Channels 23 ) File No. SAT-STA-20070926-00133 and 24 At the 61SoW.L Orbital Location ) File No. SAT-STA-20080325- REQUEST FOR RENEWAL OF SPECIAL TEMPORARY AUTHORITY EchoStar Corporation (“Echostar”) requests renewal of its special temporary authority (“STA”) to operate on channels 23 and 24 at the 61.5” W.L. orbital location for an additional 180 days.’ EchoStar also requests that the Commission grant the requested renewal subject to the same temporary suspension of the customer notification and programming conditions that the International Bureau approved for the 61S o W.L. STA.2 Consistent with that Bureau decision, grant of this renewal request will continue to serve the public interest, and indeed is even more important to EchoStar in light of the recent launch anomaly that frustrated Echostar’s plan to replace EchoStar 3 with the newly launched AMC-14. 1 On January 1,2008, EchoStar Satellite Operating Corporation assigned its STA to operate on the two unassigned channels to EchoStar Corporation (formerly known as EchoStar Holding Corporation) as part of a pro forma corporate reorganization and spin-off. See Public Notice, DA 07-4655 (rel. Nov. 16,2007) (consenting to the transfer of several authorizations as part of the spin-off). See EchoStar Satellite Operating Corporation, Application for Modi$cation of Special Temporary Authority to Operate Direct Broadcast Satellite Service over Channels 23 and 24 at the 61.5” W L . Orbital Location, Order and Authorization, 22 FCC Rcd 2223, ’I[ 5 (rel. Feb. 2, 2007) (“61.5STA Order”).

I. BACKGROUND AND PROCEDURAL HISTORY As Echostar’s predecessor-in-interest, EchoStar Satellite Operating Corporation (“ESOC”) explained in the original STA request, DBS channels 23 and 24 at the 61SoW.L. orbital location have a “unique” history. In stark contrast to the vast majority of DBS spectrum, these channels have remained unassigned and unlicensed. In fact, these channels “are the only two remaining unassigned DBS channels in the 12 GHz band that are assigned to the United States that can provide service to most of the contiguous United state^."^ In an effort to ensure that such valuable spectrum does not lie fallow, the Commission has provided STAs to DBS providers to operate on these channels for the past ten years subject to different conditions. The Commission initially granted Echostar’s predecessor an STA to operate on the unassigned channels as well as 8 channels assigned to Dominion Video Satellite, Inc. and the 11 channels assigned to Rainbow on March 21, 199K4 Rainbow subsequently Rainbow DBS Company, LLC and EchoStar Satellite L.L. C., Memorandum Opinion and Order, 20 FCC Rcd 16868,129 (rel. Oct. 12,2005) (“Rainbow 1 Assignment Order”). 4 See In the Matter of Direct Broadcasting Satellite Corporation, Application for Special Temporary Authority to Operate a Direct Broadcast Satellite Over Channels 1-21 (odd) and 23- 32 (odd and even) at 61.5” W.L., Memorandum Opinion and Order, 13 FCC Rcd 6392 (1998) (“Echostar 1998 STA Grant”). The Commission renewed this authority on September 16, 1998. See In the Matter of Direct Broadcasting Satellite Corporation, Application for Special Temporary Authority to Operate a Direct Broadcast Satellite Over Channels 1-21 (odd) and 23- 32 (odd and even) at 61.5” KL., Letter fkom Thomas S. Tycz to David K. Moskowitz, File No. SAT-STA-19980827-00068 (Sept. 16, 1998). The September 16, 1998 renewal of Echostar’s STA was for 180 days, or with respect to the relevant channels, until “(2) receipt of a license by Dominion Video Satellite, Inc. or R/L DBS to begin service from the 61S o W.L. orbital location ...” The Commission again verbally renewed the authority on March 16, 1999, imposing the same terms and conditions. See File No. SAT-STA-19990305-00026. Dominion received such a license in 1999, and Echostar’s STA with respect to Dominion’s channels expired. (continued on next page) 2

operated on the unassigned channels for a two-year p e r i ~ dbefore ,~ ESOC acquired the Rainbow 1 satellite and regained authority last year.6 On January 1, 2008, ESOC assigned the STA to EchoStar as part of apro forma corporate reorganization under which ESOC’s parent, EchoStar Communications Corporation, spun off its wholly-owned subsidiary, E ~ h o S t a r .The ~ Commission has highlighted repeatedly “the importance of ensuring that spectrum can continue to serve the public rather than lying fallow unnecessarily, even on a temporary basis.”’ During the past ten years, the flexibility provided by this much-needed capacity has proven instrumental to DBS providers. The Commission granted renewal requests for the 11 channels assigned to Rainbow and the 2 unassigned channels in 1999,2000,2001, and 2002. See File Nos. SAT-STA-19990907-00089, SAT-STA-20000308-00066, SAT-STA-20010226-00024, SAT-STA-20010820-00076, and SAT-STA-20020220-00021. In 2003, EchoStar discontinued service on these channels within seven days of receiving notice from the Commission that it must do so. See Letter from Jennifer M. Gilsenan, Chief, Policy Branch, Satellite Division to Pantelis Michalopoulos, Re: Request of EchoStar Satellite Corporation for Renewal of Its Special Temporary Authority to Operate a Satellite Over Channels 1-23 (odd) and 24 the 61SoW.L. Orbital Location - File No. SAT-STA- 20030214-00071 (June 13,2003). Rainbow DBS Company, LLC, received the STA to operate on the unassigned channels in 2003. EchoStar Satellite Corporation and Rainbow DBS Company LLC, Order and Authorization, 18 FCC Rcd 19825 (2003) (“Rainbow STA Order”). The Rainbow STA was assigned to EchoStar Satellite L.L.C. (“ESLLC”) in October 2005 as part of the sale of the Rainbow 1 satellite to Echostar. See EchoStar Satellite L.L. C., File No. SAT-STA-20050930-00183 (granted Sept. 30,2005); see also Rainbow I Assignment Order. The STA was then assigned from ESLLC to EchoStar Satellite Operating Corporation (“ESOC”) in September 2006. See Application for Pro Forma Assignment of Licenses from EchoStar Satellite L.L. C. to EchoStar Satellite Operating Corporation, File No. SAT-ASG- 2005 1129-00256 (granted Sep. 13,2006). See Public Notice, DA 07-4655 (rel. Nov. 16,2007) (consenting to the transfer of several authorizations as part of the Spin-off). ’ Rainbow STA Order, 7 8; see also EchoStar 1998 STA Grant, 7 7 (“fixthering the Commission’s objective to make efficient use of available spectrum.”). 3

The hture of these unassigned channels is, however, also subject to the uncertainty surrounding the Northpoint decision that vacated the Commission’s DBS auction rules, and the DBS freeze implemented by the Commission in response to that decision.’ As a result, a new licensee will not be in a position to provide services from these channels for a number of years. In fact, while the Commission initiated a proceeding in 2006 to establish the mechanism by which these channels could be ultimately licensed and operated, that proceeding is still pending. In March 2006, ESOC sought an extension of its 61.5” W.L. STA, and also requested a modification to relax the STA’s customer notification requirements. ’’ On January 5,2007, ESOC filed a request for expedited action on the pending March 2006 STA application.’* ESOC also sought to waive temporarily the programming condition to which the STA was subject,13 9 Northpoint Technology Ltd. v. FCC, 4 12 F.3d 145 (D.C. Cir. 2005) (“Northpoint”); Public Notice, Direct Broadcast Satellite (DBS) Service Auction Nullijied: Commission Sets Forth Refund Procedures for Auction No. 52 Winning Bidders and Adopts a Freeze on All New DBS Service Applications, FCC 05-2 13 (rel. Dec. 2 1,2005) (“DBS Freeze Notice”). The DBS freeze does not apply to “requests for special temporary authority.” Id. at 2. l o See Amendment of the Commission’s Policies and Rules for Processing Applications in the Direct Broadcast Satellite Service in the United States, Notice of Proposed Rulemaking, 2 1 FCC Rcd 9443 (2006). 11 See File No. SAT-STA-20060324-00029. Specifically, this condition required that ESOC notify subscribers that the services provided using the two unassigned channels are provided pursuant to a grant of temporary authority and may be reduced or discontinued at any time. ESOC was also required to provide billing inserts informing consumers of the services provided on these channels and the expiration date of the temporary authority for the two channels. l2 See File No. SAT-STA-20070105-00008. 13 Specifically, the condition requires that: ‘([Ulse of channels 23 and 24 at the 6 1.5” W.L. orbital location is for free-standing separate programming packages that are not required as a condition of purchasing any other programming packages and that are readily capable of being withdrawn on short notice. Consumers should not have any expectation that the packages they 4

because the deteriorating condition of the EchoStar 3 satellite, co-located at the 61SoW.L. orbital location, made it necessary for ESOC to utilize Channels 23 and 24 in order to maintain regular programming to its subscribers from 61So W .L. In February 2007, the International Bureau granted ESOC’s request to renew its STA to operate Channels 23 and 24 at 6 1S o W.L. and found that it would serve the public interest to suspend temporarily the customer notification and programming condition^.'^ In particular, the Bureau found that “[ sluspending these restrictions will enable EchoStar to avoid any further disruption to its customers as a result of the EchoStar 3 transponder failures. It will also avoid confusion to its customers regarding the continued availability of pr~gramming.”’~ Further, the Bureau held that “[tlemporary suspension will give EchoStar greater flexibility to meet its customers’ needs until it is able to launch its planned replacement satellite into that location later this year.”16 On September 26,2007, ESOC filed a request to renew its STA for an additional 180 days.17 The Bureau granted this request on November 14,2007.” are purchasing include additional programming provided over channels 23 and 24. Any failure to comply with this programming requirement will be subject to enforcement action.” Rainbow STA Order at 7 18. l4 61.5 STA Order, 7 5 . l5 Id., 7 6. l 6 Id., 7 7. l7 See File No. SAT-STA-20070926-00133. ’’See Stamp Grant, File No. SAT-STA-20070926-00133. 5

11. GRANT OF A RENEWAL STA SUBJECT TO THE SAME TEMPORARY SUSPENSION OF THE CUSTOMER NOTIFICATION AND PROGRAMMING CONDITIONS WOULD CONTINUE TO SERVE THE PUBLIC INTEREST The same conditions that led the Bureau to grant renewal of the STA for channels 23 and 24 and to temporarily suspend the customer notification and programming conditions for the STA in the 61.5”STA Order are still applicable. EchoStar 3 continues to operate at diminished capacity due to the earlier transponder failures. As a result, EchoStar still needs to utilize channels 23 and 24 to maintain regular programming from the 61S o W.L. orbital location. Indeed, the requested authority is even more important to EchoStar now. As also explained in the status report filed on March 25, 2008,19the planned replacement satellite for EchoStar 3 at 61.5” W.L. (AMC-14 satellite) launched on March 15,2008, pursuant to Commission authority.2o AMC-14 was designed to be able to use all channels at that orbital location. A launch anomaly, however, has fi-ustrated that plan. Specifically, as a result of a launch anomaly, the AMC-14 satellite did not reach its intended orbit. EchoStar is working with SES Americom (the owner of AMC-14) and Lockheed Martin (the manufacturer of AMC-14) to evaluate the options available to the parties with respect to the AMC- 14 satellite and the future of the 61SoW.L. orbital location. Thus, grant of a renewal STA subject to the same temporary suspension of the customer notification and programming conditions will continue to “enable EchoStar to avoid any further disruption to its customers as a result of the EchoStar 3 transponder failures” and “will give See Confidential Letter from Pantelis Michalopoulos, Counsel to EchoStar Corporation, to Marlene H. Dortch, fiZed in IBFS File No. SAT-STA-20070926-00133 (filed March 25,2008). 2o Stamp Grant, File No. SAT-LOA-20071221-00183 (granted Mar. 12,2008). 6

EchoStar greater flexibility to meet its customers’ needs until it is able to launch its planned replacement satellite,” or bring its launched replacement satellite into use. 111. CONCLUSION The Commission should renew the STA to operate on channels 23 and 24 for an additional 180 days subject to the same terms and conditions provided for in the 61.5”STA Order. Respectfblly submitted, Pantelis Michalopoulos Linda Kinney Petra A. Vorwig Vice President, Law and Regulation Steptoe & Johnson LLP Brad Gillen 1330 Connecticut Avenue N.W. Director and Senior Regulatory Counsel Washington, D.C. 20036 EchoStar Corporation (202) 429-3000 1233 20th Street, N.W. Suite 302 Washington, DC 20036-2396 (202) 293-098 1 Counselfor EchoStar Corporation March 25,2008 7


Document Created: 2008-05-06 16:32:21
Document Modified: 2008-05-06 16:32:21
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