Attachment Motion

Motion

MOTION submitted by Stratos Communications

Motion to Strike Portions of the MSV Petition

2005-11-10

This document pretains to SES-AMD-20050922-01313 for Amended Filing on a Satellite Earth Station filing.

IBFS_SESAMD2005092201313_599174

RECEIVED Before the FEDERAL COMMUNICATIONS COMMISSION NoV 1 0 2005 Washington, D.C. 20554 Faten commnicston Connizson omen ol Secminy In the Matter of Stratos Communications, Inc. File No. SES—LFS—20050826—01175 Application for Title IIl Blanket License File No. SES—AMD—20050922—01313 to Operate Mobile Earth Terminals with Inmarsat 4F2 at 52.75°W Stratos Communications, Inc. File No. ITC—214—20050826—00351 Application for Section 214 Authorization to Operate Mobile Earth Terminals with Inmarsat 4F2 52.75°W n To: International Bureau MOTION To STRIKE PORTIONS OF THE MSV PETITION Stratos Communications, Inc. ("Stratos") urges the Burcau to strike the Petition to Hold in Abeyance Or To Grant With Conditions (‘MSV Petition") filed by Mobile Satellite Ventures Subsidiary LLC ("MSV") on October 28, 2005 against the above—captioned applications (collectively "the Stratos BGAN Applications"). The Bureau should strike those portions of the MSV Petition, which rely on confidential material that MSV refuses to provide to Stratos even pursuant to a protective order. Since Stratos is not able to respond effectively to the MSV Petition, any reliance by the Bureau on this confidentialinformation and redacted arguments would violate Stratos‘ due process rights and the Administrative Procedures Act.‘ ‘ Concurrently with this Motion to Strike, Stratos is filing an Opposition to the MSV Petition based on the non—redacted portions of that pleading. See Stratos Opposition(filed Nov. 10, 2005). Byfiling a response, Stratos in no way is conceding that it is being afforded an adequate opportunity to effectively respond to the MSV Petition. Further, to the extent that

On August 26, 2005, Stratos filed an application for a blanket license to operate 20,000 mobile earth terminals (°METs") with Inmarsat‘s Broadband Global Area Network (*BGAN®) and an application for Section 214 authority to offer the BGAN service. Stratos secks authority to access the new Inmarsat 4F2 satellte, censed by the United Kingdom at 52.75° W.L. and successfully launched into orbit on November 8, 2005. The BGAN service will allow U.S. consumers to obtain an enhanced Mobile Satellte Services (°MSS") offering at much higher data transmission speeds than current MSS product offerings. On October 28, 2005, MSV filed the MSV Petition against the Stratos BGAN Applications. Significant portions the MSV Petition are redacted from the public version of the pleading,including Discussion Sections I° and 11,® and the first argument in Section IHL" In addition, the Background section ofthe MSV Petition contains substantial redactions." MSV has sought confidential treatment of this material because of its purported relationship to the Mexico City Memorandum ofUnderstanding for L—band operations.® While Stratos has attempted to obtain from MSV a confidential non—redacted version of the MSV Petition and has offered to Stratos is given access to the confidential portions ofthe MSV Petition at a later date, Stratos reserves the right to amend its Opposition as necessary. * See MSV Petition at 6—9. * See MSV Petition at 9—10. * See MSV Petition at 10—11 (argument regarding replacement satelltes) 5 See MSV Petition at 4—5. * See Letter from Jennifer A. Manner to Marlene H. Dortch, Re: Petition of Mobile Satelite Ventures Subsidiary LLC to Hold in Abeyance or to Grant with Conditions Application of Stratos Communications Inc., File No. SES—LFS—20050826—01175, File No. SES—AMD— 20050922—01313, File No. ITC—214—20050826—00351 (Oct.28, 2005).

enter io a confidentiality agreement and/or protective order to do so, MSV has refused to provide Stratos with a complete version of the MSV Petition." The MSV Petition has substantial redactions throughout that go to the heart of its arguments against the Stratos BGAN Applications. Stratos cannot even guess as to the basis for some of these arguments. For example, in arguing that BGAN terminals are more likely to cause harmfulinterference in the L band, MSV states that "BGAN terminals operating with Inmarsat 4F2 will use wide band carriers that {remainder of sentence redacted]." Similarly, MSV claims that "Stratos states that Inmarsat 4F2 will have inefficient global L band beams, frest of sentence and footnote redacted}."" Itis simply not possible for Stratos to effectively respond to such arguments and other parts of the MSV Petition without knowing what specific assertions MSV is making against the Stratos BGAN Applications. The Administrative Procedures Act (*APA") governs Stratos‘rights in an adjudicative proceeding like a license application."" The APA clearly provides that a "party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such eross—examination as may be required for a full and true disclosure of the facts.""" The Commission has held that the "Administrative Proceduzes Act and the Due " See attached Declaration of Mare A. Paul. * MSV Poritionat 7. ° MSV Potition at 8. ‘* Under the APA, license applications are subject to the hearing procedures outline under the Act. See 5 U.S.C. § 558(c). See also International Record Carriers‘ Scope ofOperations in the Continental United States Including Possible Revisions to the Formula Prescribed Pursuant to Section 222 ofthe Communications Act, Memorandum Opinion and Order, 5 F.C.C.2d 183, 185, 1 5 (1976) (‘However, that case dealt specifically with applications under Section 309 of the Act for broadcast licenses of which Congress has defined to be adjudication."). " 5 U.S.C. § 556(d).

Process Clause of the Constitution generally entitle parties in administrative proceedings to have access to the documents necessary for effective participation in those proceedings.""". This general principle clearly applies in the context of Title 1II license applications."" In those unusual cases where a party has not made confidential material available to other parties in a proceeding subject t a protective order,"" the Commission has struck such "* In the Matter of Open Network Architecture Tariffs ofBell Operating Companies, Order, 10 FCC Red 1619, 1621, 4 13 (1995). See also In re applications ofMobile Communications Holdings, Inc. and ICO Global Communications (Holdings) Limitedfor Transfer ofControl; Constellation Communications Holdings, Inc. and ICO Global Communications (Holdings) Limitedfor Transfer of Control, Disclosure Order, 18 FCC Red 133, 134, 4 5 (2003) (*"The Commission has inferred from judicial precedent thatpetitioners to deny generally must be afforded access to all information submitted by licensees that bear upon their applications ..."). " See In the Matter ofExamination of Current Policy Concerning the Treatment of Confidential Information Submitted to the Commission, Report and Order, 13 ECC Red 24816, 24837, 1 33 (1998) (Specifically, the Commission indicated "that petiioners to deny generally must be afforded access to all information submitted by licenses that bear upon their applications.". While the Commission was addressing information supplied by the applicant for a Titl11 license, the rationale is equally applicable toinformation supplied to challenge a license application.) See /n the Matter ofPetition ofthe People ofthe State of California and the Public Uilities Commission ofthe State ofCalifornia to Retain Regulatory Authority over Intrastate Cellular Service Rates, Report and Order, 10 RCC Red 7486, 7508, 9# 43 (1995) ("CPUC Report and Order") (holding petitioner and challengers to the same standard as far as access to confidential information). !* Confidential material in Commission proceedings is usually made available to parties subject to a protective order. There are numerous examples ofthe use of protective orders in Commission proceedings. See, e.g. /n the Matter ofApplications for Consent to the Assignment and/or Transfer ofControl ofLicenses; Adelphia Communications Corg., Assignor and Transferor to Time Warner Cable, Inc. and Comeast Corp Assignees and Transferees, Order Adopting Protective Order, 20 FCC Red 10751 (2005). The Commission has recognized that "release of confidential information under a protective order or agreement can often serve to resolve the conflict between safeguarding competitively sensitive information and allowing interested parties the opportunity to fully respond to assertions put forth by the submitter of confidential information." /n the Matter ofExamination ofCurrent Policy Concerning the Treatment ofConfidential Information Submitted to the Commission, Notice of Inquiry and Notice of Proposed Rulemaking, 11 FCC Red 12406, 12424, 1 36 (1996). In the absence of a protective order or giving Stratos access to the confidential version of the MSV Petition, Stratos will not have "the opportunity tofullyrespond"to the claims of MSV.

materialfrom the record."* Inthis regard, the current stuation is similar to the confidentiality issues raised when the California Public Utilities Commission ("*CPUC") petitioned the Commission to maintain rate regulation authority over CMRS carriers. In that case, the CPUC sought to strike a study submitted by a CMRS carrier that purported to demonstrate, based on confidential data not provided to the CPUC, a correlation between regulation and CMRS pricing in California. ‘The CPUC claimed that it had "effectively been denied its opportunity to respond to the new study and date.""" The Commission agreed and held that the "study relies on materials not made part ofthe record or provided to other parties, and to that extent will not be considered.""" If anything, Stratos‘ inability t review a complete version ofthe MSV Petition, presents a more serious impediment to Stratos‘ ability to prepare a meaningful response than the difficulties faced by the CPUC as a result of not having access to the underlying data for a study. At least the CPUC knew what claims were being made againstits petition and could present ts own evidence to counter those claims. Here, Stratos does not know all ofthe specific arguments being made againstits application and thus has no effective way to respond to them."" "* See CPUC Report and Order, 10 FCC Red at 7506—7508, § 38—44. "* See In the Matter ofPetition ofthe People ofthe State of California and the Public Uillities Commission ofthe State ofCalifornia to Retain Regulatory Authority over Intrastate Cellular Service Rates, Motion by Califomia to Strike Ex Parte Filings Made by Airtouch (Mar. 16, 1999). ‘" See CPUC Report and Order, 10 FCC Red at 7508, 9 43. The Commission also struck another affidavit submitted by an expert for CTIA when CTIA failed to produce the underlying data. See CPUC Report and Order, 10 FCC Red at 7506—7507, 8 40. "* Even if Inmarsat were able to review and respond toa full version of the MSV Petition, it would in no way serve to ensure that Stratos is able to effectively participate in this proceeding. Stratos can only meaningfully protectall of ts interests, which may not necessarily be the same as those of Inmarsat, ifit is able to review and respond to all of the arguments and supporting materials made by MSV in the MSV Petiion. See /n the Matter ofInstapage

‘The Bureau should also strike the portions ofthe MSV Petition that are based on confidential information not provided to Stratos because the Bureau cannot rely on such information as a basis for its decision in the Stratos BGAN Applications. In US. Lines, /rc. v Federal Maritime Commission, the D.C. Circuit held that the Federal Maritime Commission had improperly relied on unspecified materials known only to the Federal Maritime Commission in reaching its decision to grant exemption from antitrust laws for an anticompetitive agreement between two common carriers." In particular, the Federal Maritime Commission based ts finding atleast in part on "reliable data reposing in the files of the Commission.""" The D.C. Cireuit stated thatit has "required information in ageney files or reportsidentified by the ageney as relevant tothe proceeding to be disclosed to the partiesfor adversarial comment."*" Further, the court held that such requirements "ensure that partiesto agency proceedings are afforded the opportunities guaranteed them by statute [APA] meaningfully to participate in those proceedings in Networks Lid.‘s Informal Requestfor Retroactive Bidding Credits, 19 FCC Red. 20356, 20359, 4 10 (Wireless Telecommunications Bureau 2004) (‘[T}hird party standing contravenes a basic prudental principle thata party generally must assert his own legal rights and interests, and cannot rest his claim to relieon the legal rights or interests of third parties.") citing Warth v. Seldin, 422 U.S. 490499 (1975). See also In the Matter of Weblink Wireless, Inc, Petiionfor Reconsideration ofDA 01—1143, 17 FCC Red 24642, % 14 (Wireless Telecommunications Bureau 2002). While these cases discuss third party standing, the same public policy concems —— namely the ability of a third party to effectively protect the interests of another—— would be applicable here if the Bureau were to deem the ability ofInmarsat t respond to a full version of the MSV Petition sufficient to protect all of the interests of Stratos. " See U.S. Lines, Inc. v. Federal Maritime Comm., 584 F.2d 519 (D.C. Cir. 1978) (°U.S. Lines"). See also Air Products & Chemicals, Inc. v. FERC, 650 F.2d 687, 698—699 (5"’ Cir 1981) (following U.S. Lines). ® U.S, Lines. at 533. "w *s.

While in the U.S. Lines, Inc. v. Federal Maritime Commission case, the D.C. Circuit remanded the case to the Federal Maritime Commission in part because the Pederal Maritime Commission relied on information in its files not available to the parties, the rationale is equally applicable to relying on confidentiainformation in the MSV Petition. n both cases, parties to the proceeding are deprived of the "opportunities guaranteed them by statute meaningfully to participate.". Stratos is in the same position as United States Lines —— it is not able to effectively respond to the claims in the MSV Petition. Because the Bureau cannot rely on the confidential information not subject to "adversarial comment" by Stratos as a basis for ts decision on the Stratos BGAN Applications, it is appropriate to strike those portions ofthe MSV Petition that rely on such information: In the absence of a decision to strike the portions ofthe MSV Petition that rely on confidentl information, or to provide Stratos with access to the confidential version of the MSV Petiion, the Bureau, atthe very least, should not base its decision on any confidential material presented or redacted arguments made by MSV and withheld from Stratos. Indeed, in its 2001 order granting Inmarsat access to the U.S. domestic market, MSV similarly opposed certain MSS applications, but did not disclose to those MSS applicants a confidential version of ts petition because it contained information conceming the Mexico City Memorandum of Understanding,"" in that case, the Commission appropriately did not rely on any of the confidential information as a basis for its decision on the MSS applications."" * See Comsat Corp. etal., Memorandum Opinion, Order and Authorization, FCC 01— 272, 4 106 (2001) ** See 1d, at 1 107 ("In particular, one matter raised involves what appears to be a disagreement among the operators concerning both the interpretationof a provision ofthe Mexico City Agreement, and its utllityfor addressing competing spectrum requirements. We have addressed the current impassein the operator—to—operator discussions above, and conclude that this particular disagreement does not alter our view that granting these applications would

Forthe foregoing reasons, Stratos respectfully requests that the Bureau strike Discussion Sections I and II and the first argument in Section I1L, and parts ofthe Background section thatrely on confidential information that has not been provided to Stratos. Respectfully submitted, Stratos Communications, Inc. Alfred M. Mamlet ; ’ f Philip L. Malet Brendan Kasper Steptoe & Johnson LLP 1330 Connecticut Avenue, NW Washington, DC 20036 (202) 420—3000 Counselfor Stratos Communications, Inc. November 10, 2005 serve the publicinterest. Other material submitted consists of statistics conceming the number of Inmarsat A terminals in use. The information submitted does not rebut Inmarsat‘s showing on this issue, o the determination made above, concerning Inmarsat Standard A terminals.").

Attachent 1 to Stratos Moton to Strike Before the FEDERAL COMMUNICATIONS CoMMISSION Washington, D.C. 20584 In the Matter of Stratos Communications, Inc. File No. SES—LFS—20050826—01 175 Application for Title III Blanket License File No. SES—AMD—20050922—01313 to Operate Mobile Earth Terminals with Inmarsat 4F2 at 52.75°W Stratos Communications, Inc. File No. TTC—214—20050826—00351 Application for Section 214 Authorization to Operate Mobile Earth Terminals with Inmarsat 4F2 at 52.75°W iennneretcn To: International Bureau DECLARATION OF MARC A. PAUL 1, Mare A. Paul, herby declares as follows: I am OfCounselat Steptoe & Johnson LLP. 1 am one ofthe attomeys at Steptoe & Johnson LLP representing Stratos Communications, Inc. ("Stratos") in the above— captioned proceedings. On November 1, 2005, I spoke with David S. Konezal, an attomey at Pillsbury Winthrop Shaw Pittman LLP. Mr. Konezal is one of the attormeys representing Mobile Satellite Ventures Subsidiary LLC (°MSV") in the above—captioned proceedings. During this telephone conversation with Mr. Konezal, I asked if he could provide me with a non—redacted confidential version of the Petition to Hold in Abeyance or to Grant with Conditions that MSV filed on October 28, 2005 in the above—captioned proceedings (‘MSV Petition®), in order t allow Stratos to prepare a complete response to the MSV

Attachment 1 toStratos Motion to Strike Petition. Mr. Konezalstated thatit was not possible for him to provide me with a non— redacted version of the MSV Petition because the MSV Petition contained confidential information from the Mexico City Memorandum ofUnderstanding (‘Mexico City MoU®) regarding L—band coordination and Stratos was not a party to the Mexico City MoU: 4. 1 then suggested to Mr. Konczal that the attomneys representing Stratos in the above— captioned proceedings would be willing to enter into a protective order or confidentiality agreement to obtain a non—redacted version of the MSV Petition. Mr. Konezal stated that such an agreement or protective order was not within MSV‘s control because ofthe nature of the Mexico City MoU, and he suggested that Stratos contact the Commission directly about the possibilty of entering into such an agreement or protective order to obtain access to the MSV Petition in its entiety . 1, Mare A. Paul, hereby declare under penalty ofperjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge, information and belief Executed on November 10, 2005. Mare A. Paul Steptoe & Johnson LLP

CERTIFICATE OF SERVICE 1, Brendan Kasper, an attommey with the law firm of Steptoe & Johnson LLP, hercby certify that on this 10th day ofNovember, 2005, served a true copy ofthe foregoing "Motion" and "Declaration," by first class mail, postage pre—paid (or as otherwie indicated) upon the following: *Tames Ball *Andrea Kelly Intemational Bureau Intemational Bureau Federal Communications Commission Federal Communications Commission 445 12" Street, S.W. 445 12" Street, S.W. Washington, DC 20554 Washington, DC 20554 *Cassandra Thomes *Scott Kotler Interational Bureau Interational Bureau Federal Communications Commission Federal Communications Commission 445 12" Streat, S.W. 445 12® Street, S.W. Washington, DC 20554 Washington, DC 20554 *Howard Griboft *Karl Kensinger International Bureau Intemational Bureau Federal Communications Commission Federal Communications Commission 445 12" Street, S.W. 445 12" Street, S.W. Washington, DC 20554 Washington, DC 20554 *Fem Jarmulnck Tennifer A. Manner International Bureau Vice President, Regulatory Affairs Federal Communications Commission Mobile Satellite Ventures Subsidiary LLC 445 12" Street, S.W. 1002 Park Ridge Boulevard Washington, DC 20554 Reston, Virginia 20191 *Robert Nelson Bruce D. Jacobs Interational Bureau David S. Konezal Federal Communications Commission Pillsbury Winthrop Shaw Pittman LLP 445 12" Street, S.W. 2300 N Street, N.W. Washington, DC 20554 Washington, DC 20037—1128 *JoAnn Ekblad International Bureau Federal Communications Commission 445 12" Street, S.W. Washington, DC 20554 * Hand Delivered Brendan Kasper P


Document Created: 2005-11-18 16:10:17
Document Modified: 2005-11-18 16:10:17
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