Attachment Opposition

Opposition

OPPOSITION submitted by MSV

Opposition to Motion to Strike

2005-11-23

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

IBFS_SESAMD2005092201313_599512

RECEIVED Before the NOV 2 8 2005 Federal Communications Commission 2 3 2005 Satellite Division Washington, D.C. 20554 IntemationalSureau Fedw/h m r n u n i m CommlsbJ Office of S ecw In the Matter of 1 Stratos Communications, Inc. ) File No. SES-LFS-20050826-01175 Application for Title I11 Blanket License ) File No. SES-AMD-20050922-0 1313 to Operate Mobile Earth Terminals with Inmarsat 4F2 at 52.75”W 1 Stratos Communications, Inc. ) File No. ITC-214-20050826-0035 1 Application for Section 2 14 Authorization ) to Operate Mobile Earth Terminals with Inmarsat 4F2 at 52.75”W OPPOSITION TO MOTION TO STRIKE Mobile Satellite Ventures Subsidiary LLC (“MSV”) hereby files this Opposition to the “Motion to Strike Portions of the MSV Petition” filed by Stratos Communications, Inc. (“Stratos”) on November 10,2005 in connection with the above-referenced applications.’ Stratos seeks to strike portions of MSV’s “Petition to Hold in Abeyance or Grant with Conditions” the above-referenced applications,* which have been kept confidential pursuant to the terms of the Mexico City Memorandum of Understanding (“‘MexicoCity MoU”), an international agreement among the five administrations that license L band operators serving ’ See Stratos Communications, Inc., Motion to Strike Portions of the MSV Petition, File Nos. SES-LFS-20050826-0 1175; SES-AMD-20050922-01313; ITC-2 14-20050826-0035 1 (filed Nov. 10, 2005) (“Stratos Motion”). See Mobile Satellite Ventures Subsidiary LLC, Petition to Hold in Abeyance or Grant with Conditions, File Nos. SES-LFS-20050826-01175; SES-AMD-20050922-013 13; ITC-214- 20050826-0035 1 (filed October 28,2005) (“MSVPetition”). Both confidential and public versions of the Petition were filed with the Commission.

North A m e r i ~ a .As ~ discussed herein, the Bureau should deny the Motion because (i) Stratos has no right to access these confidential materials and (ii) Stratos’ interests would not be prejudiced by the Commission’s consideration of these confidential materials, since Inmarsat Ventures Limited (“Inmarsat”) has access to the materials and is an active participant in the proceeding in support of Stratos’ applications. Background MSVPetition. On October 28,2005, MSV filed a “Petition to Hold in Abeyance or Grant with Conditions” the above-referenced applications filed by Stratos to operate terminals with an uncoordinated Inmarsat-4 L band satellite. In the Petition, MSV made reference to the Mexico City MoU, a framework agreement executed in 1996 by the five administrations that license L band systems serving North America. Under the Mexico City MoU, the five North American L band operators are each assigned certain frequencies to use on their specific satellites. The Mexico City MoUprovides that the agreement, and certain related materials, are confidential to the parties and operator^.^ Accordingly, MSV sought confidential treatment of those portions of its Petition (the “Redacted Materials”) addressing the Mexico City MoU and related materials. Stratos Request. On November 1,2005, Stratos contacted MSV to request access to the Redacted Materials. Counsel for MSV informed Stratos that MSV was not at liberty to provide such access. MSV suggested that Stratos contact the Commission directly to obtain assistance. See Stratos Motion, Declaration of Marc A. Paul. See Memorandum of Understandingfor the Intersystem Coordination of Certain Geostationary Mobile Satellite Systems Operating in the Bands 1525-1544/1545-1559 MHz and 1626.5- 1645.Y1646.5-1660.5 MHz (1996) (“MexicoCity MoU”). 4 Mexico City MoU; see also COMSAT Corporation et. al., Memorandum Opinion, Order and Authorization, 16 FCC Rcd 2 1661,T 111 (2001) (“COMSAT Order”) (“The Mexico City Agreement and related coordination documents, such as minutes of coordination meetings, are considered Confidential.”). 2

Stratos Motion. On November 10,2005, Stratos filed a “Motion to Strike Portions of the MSV Petition.” Stratos argues that (i) without access to the Redacted Materials, it cannot fashion an effective response to MSV’s Petition (Stratos Motion at 2-3,5-6); (ii) the Administrative Procedures Act (“APA”) guarantees access to the Redacted Materials (Stratos Motion at 3-4); and (iii) in the absence of such access, the Commission must strike the Redacted Materials from the record (Stratos Motion at 4-7). Discussion I. STRATOS HAS NO RIGHT TO ACCESS THE REDACTED MATERIALS Stratos claims that the APA - and more specifically, the procedures specified therein for formal adjudications - entitles it to access the Redacted Materials. Stratos Motion at 3-4. In fact, however, the Commission’s licensing proceedings are not formal adjudications under the APA and, as such, are not subject to these procedural requirements.’ Stratos implicitly concedes as much by suggesting that a protective agreement - which would necessarily restrict Stratos’ access to the Redacted Materials - would be an appropriate option in the instant proceeding. Stratos Motion at 7. Moreover, the Freedom of Information Act (“FOIA”) affirmatively grants the Commission the right to withhold certain materials - including materials that address sensitive matters of foreign relations, administration bargaining positions, and international coordination - An Inquiry Into the Use of the Bands 825-845 MHz and 870-890 MHz for Cellular Communications Systems; and Amendment of Parts 2 and 22 of the Commission’s Rules Relative to Cellular Communications Systems, 86 FCC 2d 469, at 7 67 (1981); see also, e.g., AT&T Corp. 16 FCC Rcd 13636, at 7 61 (2001) (finding that the “fact that Congress did not in Section 214 require an oral hearing ... is evidence that Congress was leaving it to the discretion of the Commission to decide what procedure to use”); Long Island Lighting Company, 14 FCC Rcd 16521, at 7 15 (1999) (finding that “Applicants’ reliance on the APA in this instance is misplaced [as] Section 556 by its own terms is applicable only in proceedings which require resolution by a hearing on the record.”). 3

from public inspection.6 Pursuant to FOIA, the Commission already has afforded confidential status to the Mexico City MoU and related document^.^ Further, under FOIA, the Commission may restrict access to confidential documents even if those documents would assist a party in prosecuting its interests before the Commission; the applicability of the FOIA exemptions is not dependent on the particular circumstances of a FOIA requester or its litigation or other needs.’ Stratos ignores the confidential nature of the Mexico City MoU, and consequently relies on precedent that is inapplicable to the instant proceeding. Stratos relies principally on the Commission’s CPUC Report and Order and the D.C. Circuit’s decision in U S . Lines, Inc. v. Federal Maritime Commission. In the CPUC Report and Order, the Commission refused to consider the results of a study which relied on data which had not been provided to other parties to the proceeding, even though the submitting party had the legal authority to do SO.^ In U.S. Lines, the D.C. Circuit rejected a Federal Maritime Decision which relied upon certain “reliable data reposing in the files of the Commission” that had not been placed in the record.” Critically, however, the data in these cases was not subject to an international agreement requiring that it be kept confidential. See 5 U.S.C. $552; 47 C.F.R. $ 0.45. See COMSAT Order, 16 FCC Rcd 21661, at 7 111 (2001) (“The Mexico City Agreement and related coordination documents, such as minutes of coordination meetings, are considered confidential.”); see also Robert J. Butler, 6 FCC Rcd 5414, at 7 17 (1991). ’See Robert J. Butler; see also Reporters Committeefor Freedom of the Press v. Department of Justice, 109 S. Ct. 1468, 1480 (1989); North v. Walsh, 881 F.2d 1088, 1096 (D.C. Cir. 1989). 9 See Petition of the State of California and the Public Utilities Commission of the State of California to Retain Regulatory Authority over Intrastate Cellular Service Rates, 10 FCC Rcd 7486 (1995) (“CPUC Report and Order”). lo US. Lines v. Federal Maritime Commission, 548 F.2d 5 19 (D.C. Cir. 1978). 4

11. STRATOS’ INTERESTS WOULD NOT BE PREJUDICED BY THE COMMISSION’S CONSIDERATION OF THE REDACTED MATERIALS Although it is clear that Stratos has no legal right to the Redacted Materials, it is also worth noting that Stratos’ interests are not prejudiced by the materials remaining undisclosed, since Inmarsat, which does have access to the non-redacted Petition, is an active participant in this proceeding.’’ Stratos can safely rely on Inmarsat, the entity that provides the space segment of the service proposed by Stratos, to address the issues presented in the Redacted Materials.’* Inmarsat has a strong incentive to vigorously prosecute Stratos’ application and respond to MSV’s claims in the Redacted Materials, as Inmarsat would benefit from Stratos’ provision of service in the U.S., and the Redacted Materials pertain entirely to Inmarsat’s failure to abide by its obligations under the Mexico City MoU. Under these circumstances, it is unlikely that Stratos could provide any relevant information with respect to the Redacted Materials that Inmarsat has not already provided. l 3 I1 See Inmarsat Ventures Limited, Response, File Nos. SES-LFS-20050826-0 1175, SES-AMD- 20050922-013 13, ITC-214-20050826-0035 1 (November 10,2005). l 2 Stratos attempts to forestall this obvious alternative to striking the Redacted Materials from the record by citing the Commission’s determination that it normally will not recognize “third-party standing.” Stratos Motion at 5-6, n. 18. The Commission’s “third-party standing” precedent, however, addresses only whether a party may claim standing based on the interests of another party. This precedent does not restrict a party from prosecuting the interests of another party if standing is not in issue, particularly where the interests of the two parties coincide. Thus, Stratos’ attempts to draw parallels between the Commission’s “third-party standing” precedent and the instant proceeding are misguided. l 3 Asnoted above, the Commission need not afford Stratos access to the Redacted Materials - either to comply with the APA or to protect Stratos’ interests. However, should the Commission determine that it cannot consider the Redacted Materials without disclosing those materials to Stratos, disclosure pursuant to a protective order would be preferable to striking the Redacted Materials from the record. 5

Conclusion For the foregoing reasons, MSV respectfully requests that the Commission deny the Stratos “Motion to Strike Portions of the MSV Petition.” Respectfully submitted, Y David S. Konczal Vice President, Regulatory Affairs Jarrett S. Taubman* MOBILE SATELLITE VENTURES PILLSBURY WINTHROP SUBSIDIARY LLC SHAW PITTMAN LLP 10802 Parkridge Boulevard 2300 N Street, NW Reston, Virginia 20 191 Washington, DC 20037-1 128 (703) 390-2700 (202) 663-8000 *Admitted in NY. Not admitted in DC.Supervised by members of the DC Bar. Dated: November 23,2005 6

CERTIFICATE OF SERVICE I, Sylvia A. Davis, a secretary with the law firm of Pillsbury Winthrop Shaw Pittman LLP, hereby certify that on this 23rd day of November 2005, served a true copy of the foregoing by first-class United States mail, postage prepaid, upon the following: Roderick Porter* Gardner Foster* International Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 1 2 ' ~Street, S.W. 445 1 2 ' ~Street, S.W. Washington, DC 20554 Washington, DC 20554 James Ball* Cassandra Thomas* International Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 1 2 ' ~Street, S.W. 445 12" Street, S.W. Washington, DC 20554 Washington, DC 20554 Karl Kensinger* Fern Jarmulnek* International Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 12" Street, S.W. 445 121hStreet, S.W. Washington, DC 20554 Washington, DC 20554 Robert Nelson* Howard GribofP International Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 1 2 ' ~Street, S.W. 445 12'~Street, S.W. Washington, DC 20554 Washington, DC 20554 Andrea Kelly* Scott Kotler* International Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 12'~Street, S.W. 445 Street, S.W. Washington, DC 20554 Washington, DC 20554 JoAnn Ekblad* Alfred M. Mamlet International Bureau Phillip L. Malet Federal Communications Commission Marc A. Paul 445 12" Street, S.W. Steptoe & Johnson LLP Washington, DC 20554 1330 Connecticut Avenue N.W. Washington, D.C. 20036 Counsel for Stratos Communications. Inc. Diane J. Cornel1 John P. Janka Vice President, Government Affairs JeMey A. Marks Inmarsat, Inc. Latham & Watkins LLP 1100 Wilson Blvd, Suite 1425 555 Eleventh Street, N.W. Arlington, VA 22209 Suite 1000 Washington, DC 20004 *By Electronic Mail


Document Created: 2007-10-19 10:11:14
Document Modified: 2007-10-19 10:11:14
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