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2008-04-24

This document pretains to SES-AMD-20080219-00172 for Amended Filing on a Satellite Earth Station filing.

IBFS_SESAMD2008021900172_637031

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the matter of ) ) File No. SES-LIC-2007 1203-01646 New I C 0 Satellite Services G.P. ) File No. SES-AMD-20080118-00075 ) File No. SES-AMD-20080219-00172 REPLY Inmarsat Global Limited (“Inmarsat”) replies to the Consolidated Opposition and Response (“Opposition”) of New I C 0 Satellite Services G.P. (“ICO”), in which I C 0 responds to the petitions to deny and comments on ICO’s application for an ATC license. In its Petition to Deny, Inmarsat noted that I C 0 failed to make a “satisfactory, prospective and substantial showing that [it] will soon meet” the ATC gating criterion that it have a ground spare fully constructed within one year of commencing ATC operations.’ Specifically, Inmarsat explained: “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 meet’ the ground spare criterion.”* Inmarsat also explained that it should take I C 0 at least three years to construct its ground spare.3 I C 0 does not dispute how long it will take to build a ground spare. Nor does I C 0 explain how it will satisfy the ground spare requirement in a timely fashion. Rather, I C 0 simply reasserts that it is “in the final stages of an extensive investigation” with respect to contracting Inmarsat Petition to Deny at 2 (quoting Flexibility for Delivery of Communications by Mobile Satellite Service Providers in the 2 GHz Bund, 20 FCC Rcd 4616,4649,189 (2005)). Id. at 4. Id. at 4 n.17.

for a ground spare, and argues that such a vague statement should be adequate under Commission p r e ~ e d e n t . ~ As an initial matter, ICO’s assertion that it can have a ground spare ready in time for the commencement of ATC service does not square with the facts. I C 0 explains that it “expects to commence commercial satellite service nationwide as soon as January 2009,” and wishes “to commence both satellite and ATC services at the same time.”5 In order to satisfy the ground spare criterion with this schedule, I C 0 would need to contract for and construct its ground spare in record time-a mere nineteen months from now. That is about a year and a half sooner that any reasonable construction schedule would allow, and that timeline does not factor in the delay that likely would occur if, as I C 0 acknowledges is possible, I C 0 switches satellite manufacturersS6Moreover, I C 0 has not indicated that it is any closer today to entering into a satellite construction contract than five months ago, when I C 0 first claimed to be in the “final stages” of its ground spare “in~estigation.”~ In fact, ICO’s CEO recently confirmed that I C 0 is not yet ready to order a ground spare satellite.* I C 0 Opposition at 2-4. I C 0 notes that it has received grant of its recent milestone extension requests, which Inmarsat indicated were pending at the time. Id. at 2. Stamp-grant occurred just prior to Inmarsat filing its Petition to Deny, and public notice of grant has not occurred. I C 0 Opposition at 7. Inmarsat Petition to Deny at 4 n. 17. I C 0 Opposition at 3 (quoting New I C 0 Satellite Services G.P., IB File No. SES-LIC- 20071203-01646, Exhibit 1 at 7 (filed Dec. 3,2007)). “If we do order a spare satellite it will be, it will be funded. That is, I think getting a spare satellite is obviously of importance and of interest to I C 0 but I don’t think that it outweighs all of the other things that we are doing on the MSS side in launching the first satellite, getting an alpha trial into operation. So that to the extent we were to move down the road with a spare, I think it would be very likely that we’d expect to have that funded about the same time that we made that order.” Comment of J. Timothy Bryan, I C 0 Chief Executive Officer, General Session: Mobile Satellite Services: MSS Industry Leaders Stake Their Claims, Satellite 2008, Washington, D.C. (Feb. 27, 2008). 2

In lieu of demonstrating substantial progress toward constructing a ground spare, I C 0 attempts to liken its situation to that of two other previous ATC applicants-Globalstar and MSV. Those cases are readily distinguishable. When Globalstar sought ATC authority, it had had eight ground spares already constructed and a number of in-orbit satellites that it was attempting to recover from technical anomalies.’ Moreover, Globalstar indicated that it planned to launch at least four and as many as eight of its ground spares within approximately 18 months, at which time it would “have multiple in-orbit spares.”” That is precisely the type of “substantial showing” that Commission precedent requires, and that ICO’s ATC application lacks.’ Furthermore (unlike ICO), Globalstar had been providing commercial MSS over its fleetfor years as its “primary” service prior to seeking ATC authority.I2 There was no question that Globalstar was committed to providing MSS. Similarly, MSV had been providing commercial MSS over its first-generation satellite for years before seeking an ATC license. l 3 MSV sought a “complete waiver” of the ground spare requirement in its ATC appli~ation.’~ In granting MSV’s ATC license, the Commission found that “it would [not] serve the public interest to force MSV to delay implementation of ATC” over its MSS system by requiring that MSV build a ground spare for its 9 Globalstar LLC, 21 FCC Rcd at 41 1 , l I 35-36 (2006). 10 Id. 11 I C 0 is thus mistaken when it argues that Globalstar did not have a spare satellite under construction when the Commission granted Globalstar’s ATC license. See I C 0 Opposition at 3-4 (citing Globalstar LLC, 21 FCC Rcd 398,411,B 36). 12 GZobaZstar LLC, 21 FCC Rcd at 399,411, TIT[ 5, 35 (describing Globalstar’s MSS service and NGSO fleet). 13 MSV, 19 FCC Rcd 221 44,22145-46’7 5 (2004) (describing MSV’s MSS operations). 14 Zd. at 22151-52,l 23. 3

aging in-orbit spacecraft. The Commission found that it would likely be “infeasible and would, in any event, be economically wasteful, for MSV to construct a spare satellite replicating the obsolete design of’ that existing satellite.” However, the Commission obligated MSV to have a ground spare for its second-generation “MSV-1” satellite ready soon after MSV launched MSV- 1. I 6 In lieu of building a ground spare for MSV-1, MSV has since received a waiver to use the second-generation spacecraft operated by MSV Canada as its in-orbit backup.I7 In justifying its subsequent waiver, MSV demonstrated, among other things, that the MSV Canada in-orbit spare was under construction and subject to the contractual requirement that it be delivered within six months of delivery of MSV-1 . I 8 These facts are not present here, and I C 0 has provided no basis for waiving the ground spare gating criterion (nor has it even sought a waiver). Thus, while Globalstar and MSV have satisfied the policy underlying the ground spare requirement, I C 0 simply has not done so. I C 0 easily could have contracted for a duplicate of its state-of-the-art spacecraft to serve as a ground spare, but I C 0 chose not to do so. As a final matter, precedent is clear that Inmarsat has standing as a competitor of I C 0 to participate in this proceeding. I C 0 has launched and is currently bringing into service an MSS spacecraft to compete with Inmarsat.” Moreover, contrary to ICO’s claim,20Inmarsat Id. at 22152-53,y 25. l6 Id. l7 MSV, 22 FCC Rcd 20548 (2007). l8 Id. at 20551,l 11. 19 FCC v. Sanders Brothers Radio Station, 309 U.S. 470,471,476-77 (1940) (“Sanders”) (current operator has standing to challenge authorization of a new competitor); Use of Returned Spectrum in the 2 GHz Mobile Satellite Service Frequency Bands, 20 FCC Rcd 19696, 1971 1, T[fi 33-34 (2005) (IC0 competes with all MSS operators). Sevier Valley Broadcasting, Inc., 10 FCC Rcd 9795, 9796,16 (1995), which I C 0 cites, stands for a proposition not relevant here: a “mere applicant” not currently participating in the marketplace may not have standing to file a petition to deny in certain circumstances. 4

“‘does not need to demonstrate that it will suffer a direct injury from grant’ of an application where standing is based on status as a competitor in the same market.”21 If the Commission nevertheless finds that Inmarsat does not have “standing,” Inmarsat respectfully requests that the Commission take Inmarsat’s concerns into account as “informal objections.”22 ***** For the foregoing reasons, and those set forth Inmarsat’s Petition to Deny, the Commission should deny ICO’s ATC application. 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 Counsel for Inmarsat Global Limited April 24, 2008 2o ICO Opposition at 2 n.4. 2* Waterman Broadcasting Corporation of Florida, 17 FCC Rcd 15742 n.2 (3002) (quoting American Mobiiephone, Inc., 10 FCC Rcd 12297, 12298, T[ 8 (1 997)). Hispanic Information and Telecommunications Network, Inc., 18 FCC Rcd 23872,a 19 (2003), which I C 0 cites, involved an applicant-petitioner who was not a participant in the marketplace, and whose pending application was dismissed. 22 47 C.F.R. 5 25.154(b). 5

CERTIFICATE OF SERVICE I, Jeffrey A. Marks, hereby certify that on this 24'h day of April, 2008, I caused to be served a true copy of the foregoing Reply by first class mail, postage prepaid, upon the following: Cheryl A. Tritt Suzanne Hutchings Malloy Morrison & Foerster LLP I C 0 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 Lawrence R. Krevor Joseph A. Godles Vice President-Spectrum Goldberg, Godles, Wiener & Wright Trey Hanbury 1229 Nineteenth Street, N.W. Director, Government Affairs Washington, DC 20036 Sprint Nextel Corporation 200 1 Edmond Halley Drive Reston, VA 20191 jAkA%W Je frey . Marks


Document Created: 2008-04-28 13:29:08
Document Modified: 2008-04-28 13:29:08
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