Open Range Confident

LETTER submitted by Open Range Communications

Letter

2010-09-16

This document pretains to SAT-STA-20100625-00147 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2010062500147_840511

DrinkerBiddle&Reath Joe D. Edge Partner 202—842—8809 Direct 202—842—8465 Fax joe.edge@dbr.com Law Offices 1500 K Stzeet, NW. September 16, 2010 Washington, DC 20005—1209 202—842—8800 phone Ms. Marlene H. Dortch, Secretary 202—842—8465 fax Federal Communications Commission www.drinkerbiddle.com 445 12th Street, S.W. CaLIFORNIA Washington, D.C. 20554 DELANARE ILLINONS Re: Open Range Communications Inc. Request for Confidential NEw jenSer Treatment Pursuant to Sections 0.457 and 0.459 of the FCC Rules wew vork File No. SAT—STA—20100625—00147 PENNSUINANTA waskimcton DC WICONSIN Dear Ms. Dortch: Open Range Communications Inc., by its attorney, pursuant to Sections 0.457 and 0.459 of the Commission‘s rules, 47 C.F.R. §§ 0.457 & 0.459, respectfully requests that the Commission withhold from public inspection and accord confidential treatment to the attached material which contains commercially sensitive information that falls within Exemption 4 of the Freedom of Information Act ("FOIA").! The attached material sets forth information regarding the financial posture of Open Range. Exemption 4 permits the Commission to withhold from public inspection "trade secrets and commercial or financial information obtained from a person and privileged or confidential categories of materials not routinely available for public inspection." Id. Applying Exemption 4, the courts have stated that commercial or financial information is confidential if its disclosure will either (1) impair the government‘s ability to obtain necessary information in the future; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained. See National Parks and Conservation Ass‘n v. Morton, 498 F.24 765, 770 (D.€. Cir. 1974)(footnote omitted); see also Critical Mass Energy Project v. NRC, 975 F.2d 871, 879—80 (D.C.. Cir. 1992), cert, denied, 507 U.S. 984 (1993). Section 0.457(d)(2) allows persons submitting materials that they wish to be withheld from public inspection in accordance with Section 552(b)(4) to file a request for non— disclosure, pursuant to Section 0.459. In accordance with the requirements contained in Section 0.459(b) for such requests, Open Range hereby submits the following: ! See 5 U.S.C. § 552(b)(4); 47 C.F.R. § 0.457(d). Established 1849 DCO1/ 2565750.1

DrinkerBiddie&Beath Ms. Marlene H. Dortch, Secretary September 16, 2010 Page 2 (1) Identification ofSpecific Information for Which Confidential Treatment is Sought (Section 0.459(b)(1)). Open Range seeks confidential treatment for the above— identified Open Range material which contains information regarding the financial posture of Open Range. (2) Description ofCircumstances Giving Rise to Submission (Section 0.459(b)(2)). Open Range is filing the information as part of an ex parte notice. (3) Explanation ofthe Degree to Which the Information is Commercial or Financial, or Contains a Trade Secret or is Privileged (Section 0.459(b)(3)). The Open Range material contains sensitive commercial information regarding the deployment of Open Range‘s broadband facilities that competitors could use to Open Range‘s disadvantage. The courts have given the terms "commercial" and "financial," as used in Section 552(b)(4), their ordinary meanings. The Commission has broadly defined commercial information, stating that "‘{clommercial‘ is broader than information regarding basic commercial operations, such as sales and profits..." The information in the Open Range submission falls clearly within the definition of commercial. Competitors could use this information to enhance their market position at Open Range‘s expense. (4) Explanation ofthe Degree to Which the Information Concerns a Service that is Subject to Competition (Section 0.459(b)(4)). Substantial competition exists in a number of the broadband markets served or to be served by Open Range. The presence of competitors makes imperative the confidential treatment of sensitive commercial information. (5) Explanation ofHow Disclosure ofthe Information Could Result in Substantial Competitive Harm (Section 0.459(b)(5)). Release of the Open Range information could have a significant impact on Open Range‘s commercial operations. If competitors had access to this information, it could aid them in competing with Open Range to Open Range‘s detriment. (6) Identification ofMeasures Taken to Prevent Unauthorized Disclosure (Section 0.459(b)(6))..Open Range treats the information as confidential commercial information and has not disclosed the information publicly. (7) Identification of Whether the Information is Available to the Public and the Extent ofAny Previous Disclosure ofInformation to Third Parties (Section 0.459(b)(7)). The Open Range information is not publicly available. (8) Justification ofPeriod During Which the Submitting Party Asserts that the Material Should Not be Available for Public Disclosure (Section 0.459(b)(8)). Open Range respectfully requests that the Commission withhold the information in the

DrinkerBiddle&Reath Ms. Marlene H. Dortch, Secretary September 16, 2010 Page 3 Open Range submission from public inspection indefinitely. This information will remain commercially sensitive throughout the deployment and operation of the Open Range system. Slncegjl{' oe D. Edge Counsel for Open Range Communications Inc. JDE/cf

DrinkerBiddlc&Bant} Joe D. Edge Partner 202—842—8809 Direct 202—842—8465 Fax joe.edge@dbr.com Law Offices 1500 K Street, N.W. September 16, 2010 Washington, DC 20005—1209 202—842—8800 phone VIA IBFS 202—842—8465 fax www.drinkerbiddle.com Ms. Marlene H. Dortch, Secretary CALIFORNIA Federal Communications Commission DELAWARE 445 12th Street, S.W. tuumois Washington, D.C. 20554 New JERSEY wew yorx Re: Open Range Communications Inc. (File No. SAT—STA—20100625— rexmsyoanta 00147) waSHINGTON DC wiSCONSIN Dear Ms. Dortch: Yesterday William S. Beans, Keyoumars Saeed, and Chris Edwards of Open Range Communications Inc., David Walsh of One Equity Partrers, James Gorton of Latham and Watkins, Alfred Mottur of Brownstein Hyatt Farber Schreck, Charles Stenholm of Olsson Frank Weeda Terman Bode Matz, and the undersigned met with Edward Lazarus, Zack Katz, and Austin Schlick of the FCC staff regarding Open Range‘s above—referenced request for Special Temporary Authority. Open Range proposed that the Commission grant the Open Range STA request for a period of 180 days and consider renewal ofthe authority if Open Range demonstrates substantial progress towards moving to alternative spectrum. Open Range indicated that the Special Temporary Authority as presently configured would likely not support additional funding by the Rural Utilities Service of the Open Range project and, in any event, would place Open Range in financial jeopardy. Open Range described early reaction to the authority as presently configured and the need for an early resolution to put the matter to rest. Open Range also described its efforts to find alternative spectrum and agreed to keep the Commission informed regarding those efforts on an ongoing basis. In addition, prior to the meeting, Open Range representatives exchanged the attached e—mail correspondence (Attachments A, B, and C) with the Commission staff. UE espectfully submitted, Jbe D. Edge Counsel for Open Range Communications Inc. JDE/cf Established 1849 ce: Edward Lazarus Zack Katz Austin Schlick DCQO1/ 2565711. 1

Attachment A DCO1/ 2565750.1

Confidential and Proprietary DCOI/ 2565750.1

Attachment B DCOL/ 2565750.1

Confidential and Proprietary DCOL/ 2565750.1

Attachment C DCO1/ 2565750.1

Fw: Open Range STA Page 1 of 1 Edge, Joe D. Subject: FW: Open Range STA Attachments: 2291_001.pdf From: Mottur, Alfred E. To: ‘zachary.katz@fee.gov‘ <zachary.katz@fec.gov> Sent: Wed Sep 15 14:01:42 2010 Subject: Fw: Open Range STA Here is a version of the order with very minor edits (referenced on top right corner of cover page) that could help our conversation Look forward to seeing you. To ensure compliance with requirements imposed by the IRS, we inform you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for purposes of (1) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or tax—related matter addressed herein. This transmission and any attachmentis attorney privileged and confidential. Any dissemination or copying of this communication is prohibited. If you are not the intended recipient, please notify us immediately by replying and delete the e— mail. Thank you. 9/16/2010

| I Federal Communications Commission DA 10—1740 4/5 t «9 | Before the 54¥ I Federal Communications Commission ; WASHINGTON, D.C. 20554 ‘ | In the Matter of ) | ) | Globalstar Licensee LLC ) riexo. sarmopsoonmis2s REDACTED | ; ) Call Sign: S2115 ‘ Application for Modification of License ) i to Extend Dates for Coming into Compliance with ) ‘ Ancillary Terrestrial Component Rules J ]‘ ) 1 And ) ) Open Range ) File No. SAT—STA—20100625—00147 ) Request for Special Temporary Authority ) ) ORDER Adopted: September 14, 2010 Released: September 14, 2010 By the Chiefs, International Bureau, Wireless Telecommunications Bureau, and the Office of Enginecring and Technology: TABLE OF CONTENTS Paragraph INTRODUCTION.. — H, GLOBALSTAR MO. Ql A. BACEGROUND .... ..connenmernenemmmnmmmmemeen > 1. ATC Policy and Authorization Procedure. 2. Globalstar‘s ATC License.............. 3. Globalstar‘s Current Extension Request. B. DISCUSSION.................. 1. Framework for Analysis 2. Causes of Delay............ a. Continuous MSS Coverage / Spare Satell Requirements . i) Financial Crisis....... (i) Earthquake in Htaly. (ii) Thruster Production Delay b. Dual—Mode MSS/ATC TeNMNA) ReQUITEM@NIS ...........e.cavmeeseemmrerenne. 3. Duration ofNon—Compliance to Date and Amount of Additional Time Requested . . 4. PubliG IMtEIESt CONSIGERAHIOMS ..........cseceeemrnevererrenrvenmrennvenmenseencern IH, OPEN RANGE REQUEST FOR SPECIAL TEMPORARY AUTHORITY .. A. BACKGROUND . B. DISCUSSION . CONCLUSION ... <3 ORDERING CLAUSES.

18g0 Federal Communications Commission/ DA 10—1740 L. INTRODUCTION 1. In this Order, we deny a request by Globalstar Licensee LLC ("Globalstar") for a 16— month extension to come into compliance with theCommission‘s rules concerning the Ancillary Terrestrial Component ("ATC") of Globalstar‘s—Satellite system. In 2008, the Commission granted Globalstar a temporary waiver of the generaify applicable ATC “gatmgcriteria," providing Globalstar 16 months to come into compliance with the Commission‘s ATC rules.‘ Globalstar now seeks an additional 16 months to come into compliance. We conclude that Globalstar has not justified its request for a further extension of time. Specifically, we‘find that Globalstar has not established that its failure to come into compliance with the ATC gatipg criteria within the established timeframe was due to circumstances beyond its control or othergn%cient justifications. We therefore deny the request and suspend Globalstar‘s ATC authority until such time asit comes into compliance with Commission rules. period of @"days, as detailed below, to provide Open Range additional time to obtain access to other spectrum and to minimize disruption to its customers. 3. This Orderfirst addresses Globalstar‘s request to extend the deadline by which it was required to bring its satellite network into compliance with the ATC rules. The Order then addresses the Open Range request for Special Temporary Authority. IL GLOBALSTAR MODIFICATION REQUEST TO EXTEND ATC DEADLINES A. BACKGROUND 1. ATC Policy and Authorization Procedure 4. ATC consists ofterrestrial base stations and mobile terminals licensed to the operator of a mobile satellite service ("MSS") system. ATC facllmes can be used to offer service together with MSS, re—using frequencies assigned for MSS operations." An MSS operator with a license from the Commnission for certain frequency bands, including the "Big LEO® bands in which Globalstar is licensed to operate, may request blanket authority for operation ofATC stations in the United States. In adopting rules to permit ATC operations, the Commission concluded that authorizing ATC would advance the public interest by facilitating increased network capacity, more efficient use of spectrum, extension of coverage to places where MSS operators have previously been unable to offer reliable service, improved emergency communications, enhanced compefition, and economies ofscale in handset manufacture," ‘ Globalstar Licensee LLC, Applicationfor Modification ofLicensefor Operation ofAncillary Terrestrial Component Facilities, Order and Authorization, 23 FCC Red 15975 (2008) (Copps, Adelstein, and Tate issuing separate statements; Martin and McDowell dissenting) ("Globalstar/Open Range ATC Order"), petition for teconsideration pending, appeal pending sub nom. Jridiun Satellite LLC v. FCC, U.S. Court of Appeals (D.C, Circuit) No. 08—1374. * Flexibilityfor Delivery ofCommunications by Mobile Satellite Service Providers in the 2 GHz Band, the L—band, and the 1.6/2.4 GHz Bands; Review ofthe Spectrum Sharing Plan Among Non—Geostationary Satellite Orbit Mobile Satellite Service Systems in the 1.6/2,4 GHz Bands, Report and Order andNotice ofProposed Rulemaking, FCC 03— 15, 18 FCC Red 1962 (2003) (CA7C Report and Order"), modified by Order on Reconsideration, 18 FCC Red 13590 (2003), reconsidered in part in Memorandum Opinion and Order and Second Order on Reconsideration, FCC 05—30, 20 FCC Red 4616 (2005) ("ATC Second Reconsideration Order""), further reconsideration pending. * ATC Report and Order at f| 2, 20—45, and 210—11.

190 Federal Communications Commigém BA 10—1740 of July 24, 2010 it had [REDACTED] active residential customgrs in markets covering 256,689 households." In its September 2 submission, Open Range mdl ited that as of September 1, 2010 it had [REDACTED] active residential customers in markets coverigg 491,543 households."" Most recently, in its September 13, 2010 submission, Open Range indicated that other markets subsequently had been built ~ or were in the process of being constructed, and it projected that there would be approximately 1,850,000 houscholds covered by the end ofthis year."" B. DISCUSSION 45. As a consequence of the suspension of Globalstar‘s authority for WiMAX ATC stations in the 2483.5—2495 MHz frequency band, which we note was a foreseeable potential risk when Open Range entered into its spectrum leasing agreement with Globalstar, Open Range may not continue to use Globalstar‘s ATC authority to provide service. However, provide Open Range some limited additional time to gain access to other spectrum for use in the provisign of service while also minimizing disruption to its customers, we grant Open Range a limited STA for days in specified markets identified below. We also attach other conditions on this STA. 46. From the outset, Open Range‘s use of Globalstar‘s spectrum pursuant to a spectrum leasing arrangement has been contingent upon Globalstar complying with all of the Commission‘s requirements associated with the deploymentofATC. In granting Globalstar temporary waivers of the ATC rules in the 2008 Globalstar/Open Range ATC Order, the Commission considered the purposes of the ATC gating policy and the concerns expressed by commenters that the interim waiver of those rules might evolve into a long—term exemption of the requirement that the gating criteria be met before ATC can be authorized."" In issuing an interim waiver to permit Iaunching ofATC for an interim period, the Commission made clear that the scope of the waiver was limited and would permit Open Range‘s deployment pursuant to the RUS loan "subject to temuuatlon” if Globalstar‘s required dates for coming into compliance with gating criteria were not met."° In keeping with the limited scope and conditions of this temporary waiver, the Commission also required that Globalstar and Open Range notify their customefusothat their services are subject to mandatory suspension in the eventthat the gating criteria are not met. 47. We further note that Open Range, in notifying the Commission in 2007 of its spectrum leasing arrangementwith Globalstar, recognized that the spectrum lease did not provide Open Range with is Open Range July 28, 2010 exparte submission to Marlene Dortch, Secretary, FCC, from Joe D. Edge, Counsel to Open Range ("Open Range July 28 Submission"), exhibit titled "A Progress Report to the FCC, dated July 24, 2010" at 17 (confidential treatment requested) (filed in response to a letter request from Roderick K. Porter, Deputy Chief, International Bureau, FCC, to Joe D. Edge, Counsel to Open Range, dated July 20, 2010 ("July 20, 2010 Letter Request to Open Range")); Open Range September 14, 2010 exparte submission to Marlene Dortch, Secretary, FCC, from Joe D. Edge, Counsel to Open Range ("Open Range September 14 Submission"). 96 Open Range September 2, 2010 exparte submission to Marlene H. Dortch, Sectetary, FCC, from Joe D. Edge, Counsel to Open Range ("Open Range September 2 Submission"), Attachment A {confidential treatment requested); Open Range September 14 Submission. 9 Open Range September 13, 2010 exparte submission to Marlene H. Dortch, Secretary, FCC, from Joe D. Edge, Counsel to Open Range ("Open Range September 13 Submission"), Attachment A (confidentialtreatment requested); Open Range September 14 Submission. * See Globalstar/Open Range ATC Order at § 20—23. These commenters included CTIA, Iridium, and Sprint, Id. * Id. at 22—23. See also supra para. 17 (ergaments raised by CTIA and Iridium in their petitions to deny). . "Globaistar/Open Range ATC Order at 1| 23. 18

1 go Ssscoo o lorder puetreces _ | Federal Communigfions Commission 9 DA 10—1740 the right to use leased spectrum for the0provisio of terrestrial service if Globalstar, the MSS licensee, failed to meet the ATC gating criteria,""" The ¢xpress terms of the lease/agreement — which Globalstar and Open Range modeled on the Commission‘s spectrom leasing rules5:‘ terrestrial spectrum,‘"and which the Commission found to be consistept with those policies‘" — similarly recognize that, as a spectrum lessee, Open Range does not have any greater rights to use the spectrum than Globalstar, the licensee, would have.""* 48. We nonetheless issue a @@—day STA to Open Rangefto provide additional time to gain access to spectrum that it could use and to minimize disruption to “is customers. We temporarily waive Section 2,106, Table of Frequency Allocations, to permit Open Ra?ge to continue to offer terrestrial fixed and mobile service in the 2483.5—2495 MHz frequency band for the duration of this STA.‘" We specifically reject Open Range‘s request that we provide authorization for a period of 18 months, which would be beyond the 180—day maximum period permitted by stathte.""" We observe that Open Range has been on notice since December 2009, if not longer, that Globalsfar would not be able to meet the July 1, 2010, deadline, and thus already has had significant opportunity to seek access to alternative spectrum. 49. In issuing an STA to Open Range, we adopt cértain conditions, We provide Open Range R i authority to operate only in the specific geographic markets listed in Appendix A. This list includes those 20 markets in which Open Renge either already is providing service or has projected thatit will have launched by the end ofthis year."" IfOpen Range imgd an agreement for accessing alternative spectrum and presents a plan to transition off the 2483.5—2495 MFHz frequencies, we will consider revisiting the terms of the STA to make any appropriate adfustments that would assist Open Range‘s customers in transitioning to the use of this alternative spectrum and associated equipment. IV. CONCLUSION 50. We conclude that Globalstar has not shown good cause for granting the requested 101 Globalstar/Open Range Spectrum Lease Notification at 2 ("an MSS carrier may choose to deploy ATC services through the lease of someor all of its spectrum to a terrestrial provider, so long as the gating criteria contained in the Commission‘s rules governing ATC service are met"). B 1. at 2 (stating that the Globalstar/Open Range lease agreementis "[consistent with the Commission‘s Part 1 rules governing ‘Spectrum Manager® leases," and citing the Commission‘s Part 1, Subpart X rules that apply to terrestrial spectrum leasing arrangements). * Globalstar/Open Range ATC Order at (| 24 (wherein the Commission reviewed the terms of the Globalstar/Open Range lease agreement, the text of which is available as Exhibit 10.3 to Globalstar‘s May 2008 10—Q Report to the Security and Exchange Commission). * See Globalstar May 2008 10—Q Report, Exhibit 10.3 ("Spectrum Manager Lease Agreement"); Promoting Efficient Use of Spectrum Through Elimination of Barriers to the Development of Secondary Markets, Report and Order andFurther Notice ofProposedRulemaking, 18 FCC Red 20604 (2003) at 11 91 {applicable service rules apply to the spectrum lessee in the same manner as they apply to the licensee); see alsoid. at [ 187; 47 C.F.R. §1.9020(k). ‘% 47 C.F.R. §2.106, Because there is no fixed or mobile allocation in the 2483.5—2495 MHz band, we waive the Table of Allocations, 47 C.F.R, §2.106,to grant Open Range a separate authorization to provide service under the limited terms of the STA. 6 47 1.8.C.$309(D. ‘*" See Open Range September 13 Submission, Attachment A (confidential freatment requested). ‘This list includes . all of the markets that Open Range indicated that it had already built or in which construction was in progress and the "market date" would be no later than the end of 2010. 19

Federal Communications Commission DA 10—1740 additional extensions of time for compliance with the continuous—coverage, spare—satellite, and integrated— service gating requirements.""" Consequently, we deny Globalstar‘s extension request. Since Globalstar did not meet the continuous coverage or spare satellite requirements by July 1, 2010, as required by Condition (d) in the Globalstar/Open Range ATC Order, Globalstar is required, by the terms of that Condition, to immediately suspend operation of ATC stations in the S—band. As provided for in Condition (d), the suspended operation may resume at such time that Globalstar complies with the continuous coverage and spare satellite requirements. Further, the requirements specified in Condition (¢) of the Globalstar/Open Range ATC Order, regarding two—way dual—mode MSS/ATC terminals, remain in effect. 51. As a consequence ofthe suspended ATC operations, Open Range may not continue to operate under Globalstar‘s ATC authority. We do, however, grant Open Range an STA, for a period of 60 days, to provide Open Range additional time to obtain access to other spectrum for its service and to minimaize disruption to its existing customers. v. ORDERING CLAUSES 52. Accordingly, pursuant to Section 309 of the Communications Act, 47 U.S.C. § 309, IT IS @ ORDERED that the application for modification oflicense, File No. SAT—MOD—20091214—00152, IS }9 DENIED, Consequently, Globalster Licensee LLC‘s authority for operation of WiMAX ATC statlons in the 2483.5—2495 MHz frequency band IS SUSPENDED. 53. IT IS FURTHER ORDERED that the Motion to Hold Globalstar Applications in / Abeyance filed by Iridium Satellite LLC on December 31, 2009 IS DISMISSED AS MOOT wi pect to the—captioned application. 54. TT IS FURTHER ORDERED that Open Range‘s request for an STA is G! ED IN PART and DENIED IN PART, and that Open Range IS AUTHORIZED, for a period of days, to provide terrestrial fixed and mobile service in the 2483.5—2495 MHz frequency band, subject to the following conditions: (a) Open Range is authorized to provide service only in the markets identified in Appendix A, attached hereto; (b) Open Range is not authorized to provide service in any additional markets; (c) Operations shall be subject to the technical specifications and conditions identified in the Globalstar/Open Range ATC Order, including the conditions specified in paragraphs 35, 36, 41(b) and 41(c) of that Order; and (d) Open Range shall not cause harmful interference to, and shall not claim protection from, any other lawfully operating station. In the event harmful interference results from operation pursuant to this authorization, Open Rangeshall cease operations immediately upon notification of such interference, and shall immediately inform the Federal Communications Commission, in writing, of the incident. ‘*" Because we have acted to deny Globalstar‘s license modification request, we consider Tridium‘s request that we hold Globalstar‘s pending applications in abcyance moot with respect to the instant application. We therefore partially dismiss Iridium‘s request, ‘We will address Iridium‘s request, insofer as it concerns other pending applications, in connection with those other applications. 20


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