Attachment Petition to Deny

Petition to Deny

PETITION TO DENY submitted by Inmarsat

Petition to Deny

2008-04-04

This document pretains to SES-AMD-20080118-00075 for Amended Filing on a Satellite Earth Station filing.

IBFS_SESAMD2008011800075_635857

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 APR - 4 2008 In the matter of 1) File No. SES-LIC-2007 1203-01646 'seral Communicationsb m m h b of the Secretary New IC0 Satellite Services G.P. ) File No. SES-AMD-20080118-00075 ) File No. SES-AMD-20080219-00172 PETITION TO DENY Inmarsat Global Limited (“Inmarsat”) petitions the Commission to deny the application of New IC0 Satellite Services G.P. (“ICO”) for an Ancillary Terrestrial Component (,‘ATc”> license. I IC0 currently holds a reservation of spectrum from the Commission for a geostationary MSS spacecraft in the 2 GHz band. IC0 has not yet launched that spacecraft, and has two pending requests to further extend the deadline to bring that MSS system into operation.* In this application, IC0 seeks authority to add an ATC component to its MSS authorization. ICO’s ATC application is premature because IC0 has not satisfied one of the ATC gating criteria that must be met before the Commission will issue an ATC license. In particular, IC0 fails to demonstrate that it will have a ground spare satellite available within one year of commencing ATC operations. Inmarsat has standing as a competing provider of MSS. FCC v. Sanders Brothers Radio Station, 309 U.S. 470,471,476-77 (1940) (current competitor has standing to participate in a proceeding involving application submitted by a potential new competitor). See File Nos. SAT-MOD-20070806-001 IO, SAT-AMD-20071109-00 155. When the Commission last granted IC0 a milestone extension, the Commission warned IC0 that “any further delays [with respect to ICO’s 2 GHz MSS system] would be a cause for concern, and any further extension requests would face a substantial burden of persuasion.” New I C 0 Satellite Service G.P., 22 FCC Rcd 2229,2235 at 7 19 (rel. Feb. 2, 2007).

The Commission’s rules include a number of “gating criteria” that an ATC applicant must meet prior to receiving ATC a ~ t h o r i t y .Those ~ gating criteria include requirements to: (1) satisfy geographic and temporal MSS service requirements; (2) maintain a replacement satellite at the ready within one year of commencing commercial ATC operations; (3) have commercial MSS service available; (4) offer an integrated MSS/ATC service; and ( 5 ) operate ATC in the same band as the applicant’s MSS operation^.^ The Commission will consider granting ATC authority before an applicant actually satisfies each of the ATC gating criteria only in “limited ~ i r ~ ~ m ~ t aand n only ~ e ~where , ’ ~ the ~ applicant makes a “satisfactory, prospective and substantial showing that [it] will soon meet the gating criteria.”6 The Commission requires a “detailed showing” that the applicant is “near to meeting the gating riter ria,"^ and any applicant that has not actually satisfied a given gating criterion must “show substantial progress toward meeting that gating criterion before receiving a grant of ATC authority.”’ The Commission’s policy not to grant ATC authority until an applicant makes a substantial, detailed showing that it has met, or will soon meet, each ATC gating criterion serves important public interest goals. The Commission considered and rejected the concept of granting 47 C.F.R. 5 25.149; see Flexibility for Delivery of Communications by Mobile Satellite Service Providers in the 2 GHz Band, the L-Band, and the 1.6/2.4 GHz Bands, 18 FCC Rcd 1962 (2003) (“ATC Order”), modified, Order on Reconsideration, 18 FCC Rcd 13590 (2003) (“First ATC Reconsideration Order”), further modified, Memorandum Opinion and Order and Second Order on Reconsideration, 20 FCC Rcd 461 6 (2005) (“Second ATC Reconsideration Order”). 47 C.F.R. 0 25.149(b)(1)-(5). Second ATC Reconsideration Order, 20 FCC Rcd at 4648-49,187. Id, at 4649,y 89. Id. at 4650,q 90. ’ Id. at 4648-49,787. 2

a “conditional” ATC license based on an applicant’s mere promise to actually meet the gating criteria before commencing commercial ATC service.’ Requiring that the gating criteria be satisfied in advance “reduce[s] the likelihood that Commission staff will be faced with processing speculative, prematurely filed ATC applications.”” More fundamentally, requiring that an applicant satisfy each of the gating criteria in advance of ATC licensing avoids the undesirable situation where an ATC operator commences commercial ATC service based on its own assessment that it has satisfied the gating criteria, when that assessment might fall short of the Commission’s standards. As the Commission recognized, “customers could be deprived of service for which they had contracted if we found that the gating criteria had not been met and required the MSS/ATC operator to cease operations pending satisfaction of the gating criteria.”’ ’ IC0 does not currently satisfy the ground spare satellite requirement, and also fails to demonstrate how it will satisfy that requirement in the near future.I2 Commission rules require that IC0 “maintain a spare satellite on the ground within one year of commencing operations” that is ready for launch in the event of failure of its authorized ~ate1lite.l~ In adopting the ground spare requirement, the Commission found that it is critical to ensuring (i) that an MSS operator maintains technical redundancy to facilitate the continuous provision of ’ Id. at 4648,l 86 (citing First ATC Reconsideration Order, 18 FCC Rcd at 13594-95,l 10). lo First ATC Reconsideration Order, 18 FCC Rcd at 13594-95’7 10. Second ATC Reconsideration Order, 20 FCC Rcd at 4648,l 86. l2 Although IC0 does not currently satisfy the MSS service availability criterion either, that criterion presumably will be satisfied after the successful launch and bringing into operation of ICO’s spacecraft in the next few months. ICO’s ATC application is unlikely to be processed before that time. l3 47 C.F.R. 0 25.149(b)(2)(ii). 3

MSS in the event of a satellite failure, and (ii) that ATC operations remain ancillary to the operator’s MSS service.14 IC0 concedes that it has neither a ground spare under construction, nor a binding contract for the construction of a ground spare. Rather, IC0 vaguely states only that it is still undergoing an “investigation into the most favorable second satellite for its MS S/ATC system” and that it is deciding whether to exercise an option for a spare satellite with the manufacturer of its primary satellite or to contract with another man~facturer.’~ An unexercised option to construct a spacecraft that will be years away from completion if and when the option is exercised by no means constitutes a “substantial showing that [ICO] will soon the ground spare criterion.I7 In sum, IC0 does not satisfy the condition precedent to receiving ATC authority because it does not meet each of the five ATC gating criteria. ICO’s mere statement that it will have a ground spare in place at some undefined point in time is precisely the type of promise that the Commission has indicated is insufficient. Granting ATC authority when IC0 has not complied with the ground spare requirement would undermine the fundamental policy rationale for this requirement, providing for redundancy to ensure continuous service to the public, and ATC Order, 18 FCC Rcd at 2005-06,T[178-84. New IC0 Satellite Services G.P., IB File No. SES-LIC-20071203-01646, Exhibit 1 at 7-8 (filed Dec. 3,2007). Second ATC Reconsideration Order, 20 FCC Rcd at 4649, T[ 89. Even if IC0 uses the same manufacturer and the same satellite design for its spare, and therefore is able to shorten the construction time for the spare satellite, it is completely unrealistic to assume that IC0 will be able to complete construction of a ground spare within a year of commencing commercial ATC operations based on the showing in its application. Typically, construction of a spare satellite that is similar to the primary satellite takes a minimum of three years from the time a binding construction contract has been signed. Moreover, in its application, I C 0 acknowledges the possibility of switching satellite manufacturers and presumably design, which could extend the time even further. 4

would call into question whether ICO’s planned ATC operations are in fact ancillary to its planned MSS service. For the foregoing reasons the Commission should deny ICO’s ATC Application, and should not grant IC0 ATC authority unless and until I C 0 is able to provide a substantial showing that it has satisfied the ground spare requirement. Respectfully submitted, Diane J. Cornel1 Vice President, Government Affairs Jeffrey A. Marks INMARSAT, INC. LATHAM & WATKINS LLP 1101 Connecticut Avenue, NW 555 Eleventh Street, N.W. Suite 1200 Suite 1000 Washington, DC 20036 Washington, D.C. 20004 Telephone: (202) 248-5 155 Telephone: (202) 637-2200 Counselfor Inmarsat Global Limited April 4,2008 5

VERIFICATION I, Diane J. Cornell, hereby certify under penalty of perjury that I ani Vice President, Government Affairs of Inmarsat, Inc., and that the facts presented in the foregoing Petition to Deny tliat are rtot a matter of public record are tiue and correct to the best of iiiy knowledge, inforinntion and belief. Diane J. Cornell Vice President, Government Affairs INMARSAT, TNC. 1101 Connecticut Avenue, NW Suite 1200 Washington, DC 20036 Telephone: (202) 248-5 I55 Executed on April 4,2008.

CERTIFICATE OF SERVICE I, Jeffrey A. Marks, hereby certify that on this 4' day of April, 2008, I caused to be served a true copy of the foregoing Petition to Deny by first class mail, postage prepaid, upon the following: Cheryl A. Tritt Suzanne Hutchings Malloy Morrison & Foerster LLP IC0 Global Communications 2000 Pennsylvania Ave., NW 8 15 Connecticut Avenue, NW Suite 5500 Suite 610 Washington DC 20006 Washington, DC 20006 (202) 887-1500 (202) 330-4005


Document Created: 2008-04-16 12:30:32
Document Modified: 2008-04-16 12:30:32
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