Attachment Comments

Comments

COMMENT submitted by "DIRECTV"

DIRECTV comments on the Petition for Reconsideration filed by EchoStar.

2005-06-20

This document pretains to SES-MFS-20050527-00662 for Modification w/ Foreign Satellite (earth station) on a Satellite Earth Station filing.

IBFS_SESMFS2005052700662_438260

Before the FEDERAL COMMUNICATIONS COMMISSIORECEIVED Washington, D.C. j JuN 2 0 2005 U 2 ) 1 2005 redun Communicaton Comision Jn the Matter of ) Plcy Brancy Offect Secriny 4 IMleMatoralBuroay EcoSrarSarevume Liuc. ) File No. SAT—STA—20050321—00068 ) Application for Special Temporary ) Authority to Move EchoStar 4 to 77° W.L.. ) ) Application for Modification ) File No. SAT—MOD—20050513—00103 of Direct Broadcast Satellte Authorization ) Call Sign: $2621 To Permit Long—Term Cessation of ) Operations on Three DBS Channels ) At the 157° W.L. Orbital Location ) ) Application for Modification of ) File No. SES—MEFS—20050527—00662 Earth Station Authorization to add the ) Call Sign: 2020306 EchoStar 4 Satelliteat 77° W.L. as a ) Point of Communication ) taeernanas commENTs on PETITION FoR RECONSIDERATION DIRECTV Enterprises, LLC ("DIRECTV®) hereby comments on the Petition for Reconsideration filed by EchoStar Satellte L.L.C. (‘EchoStar") in the above referenced proceedings.‘ EchoStar‘s basic contention is that the Commission has failed to treat its application in the same manner as an allegedly "similar" application by DIRECTV. As the object of EchoStar‘s comparison, DIRECTV feels compelled to address this contention. As the Commission found in its Denial Order," EchoStar‘s original proposal for occupation of a Mexican—licensed Broadcast Satellite Service (‘BSS") slot was markedly and !— RettionforReconsidertion, File Nos. SAT—STA—20050321—00068, SAT—MOD—20050513:00103, and SES— MFS—20050527—00662 (Rled June $, 2005)(‘Pertion) * Echour SatellteLLC, DA OS—1S81 (rl une 3, 2008)(‘Denial Order").

materially different from DIRECTV‘s proposals for operation from two Canadian—licensed BSS slots. And to the extent EchoStar has now modified ts proposal t come more into line with the DIRECTV precedent, the Commission should process that modified proposal in the same way that it processed DIRECTV‘s applications —e, assessing both the request for special temporary authorization ("STA") to relocate the satellite and the application for blanket earth station authorization for service into the U.S. from the foreign—licensed orbital location in a single, consolidated proceeding. Discusston . TiCommisston Prorery Founb That EctoStar‘s OrtGinat Prorosat Was Very Dirrerent Frow DIRECTV‘s Prorosats At the time the Denial Order was issued, EchoStar had proposed to relocate it EchoStar 4 satellite to the 77° W.L., but did not propose to provide service into the U.S. from that location. Nor, for that matter, did EchoStar offer any evidence that the satellte would be used to provide service into Mexico from that location. Moreover, as the Denial Order noted, a further authorization from the Mexican government would be necessary before such a service could be provided into Mexico.". From all appearances, then,the sole purpose ofEchoStar‘s request was to conduct very limited operations at 77° W.L. in an effort to perfect the Mexican government‘s elaim to use of that slot under international rules. As the Commission further explained, such considerations are irrelevant to determining the public interest merits of a pending application." EchoStar asserts that the Commission misapplied its precedent and, as a result, unfairly treated EchoStar less favorably than it had treated DIRECTV in connection with similar * See Derial Orderat16 5o t arg9

applications. That assertion is clearly erroncous, because DIRECTV‘s applications were not remotely similar to EchoStar‘s. DIRECTV‘s proposals involved the use oftwo Canadian BSS slots by satelites that had been launched by DIRECTV. The first satellite was to be used by a Canadian operator to ensure continuity ofservice from a location with ongoing satellite operations. While this did not involve any service into the U.S., it id involve actual, authorized service into Canada — service, moreover, that was neeessary to avoid disruption to existing Canadian DTH subscribers. The second satellte was to be used to augment DIRECTV‘s local—into—local services to the U;S., serving 30 or more additional markets that otherwise would not have had satellte access to their local broadeast stations. That application was accompanied by an application for blanket earth station authorization to allow market access from this foreign—licensed BSS slot. The public interest benefits osuch service, DIRECTV believes, are self—evident and were recognized by the Commission as "compelling" in approving DIRECTV‘s proposal.? Thus, both ofDIRECTV‘s applications involved concrete proposals for immediate service to eal subscribers, who otherwise might lose or never gain access to valuable programming. And pursuant to the authorizations granted to DIRECTYV, both satelltes are providing services to consumers today. This is a stark contrast o the proposal put forward by EchoStar, which did not involve any cognizable service in either Mexico or the U.S. Under the Commission‘s rules, an STA applicant such as EchoStar must demonstrate "that there are extraordinary circumstances requiring temporary operations in the public interest and that delay in the institution ofthese * See DIRECTY Enterprises, LLC, 19 FCC Red. 15829, 15833—34 (InI Bur, 2004).

temporary operations would seriously prejudice the public interest."* DIRECTV‘s application made such a showing by demonstrating that the satellites were to be used immediately to take over for an ailing Canadian BSS satelit serving millions ofcustomers and to initiate local service in 30 U.S. markets where local signals otherwise would not have been available. EchoStar‘s proposal did not even attempt to make such a showing orto explain any basis for urgency other than meeting Mexico‘s bringing into use requirements under ITU rules. In these circumstances, the Commission correctly recognized the distinctions between the STA requests filed by EchoStar and DIRECTV. 1t EcioSrar‘s New Prorosats SnouLo Bz Consipern in tue Save Manner as Were DIRECTV‘s Prorosats In its Petition, EchoStar submits two new and additional "facts" that it contends will make its request "indistinguishable" from the STA applications previously filed by DIRECTV." First, EchoStar asserts ts understanding that the Mexican government will promptly grant a pending application that will authorizeservice to Mexican consumers from EchoStar 4 at 77° W.L® To date, however, there is no indication that the Mexican government actually has granted such an authorization." Second, EchoStar states thatit has determined thatit can also provide service to portions of the U.S. from EchoStar 4 at 77° W.L.‘*. EchoStar does not state the basis for this * arcrR g2s120000. Portionat2 +4 (On June 142005, EchoSar filed a Supplementto Pettonfor Reconsidention(*Supplement"), which repents EEchoStar‘ asserion tht QueteSat Direto will eceivea Mexican concession "very soon," but docs not provide any frtherinformation. See Supplement t S *"xt

determination, nor any ofthe particulars of U.S. operations it believes are now feasible. DIRECTV would note, however, that the antenna gain pattem provided with the Petition is somewhatdifferent —Le, shifted to the north and east — from the one previously provided by EchoStar." In any event, EchoStar‘s STA request —as amended by itslatest Petition and Supplement —still does not provide information with which the Commission and interested partics can adequately assess the potential for harmful interference and other public interest aspects ofthe proposal. DIRECTV has raised this concem before."" EchoStar states that it will file an application shortly for a blanket earth station authorization to provide service to U.S. consumers from this foreign—licensed slot," which would presumably include detailed information on its proposed operations in the U.S.. But it has not yet done so, effectively precluding any meaningful analysis atthis point. EchoStar‘s proposal for U.S. service is an integral part ofthe proposal to relocate the satellite to 77° W.L.,just as DIRECTV‘s proposal for U.S. service was an integral part ofits proposal to relocate DIRECTV 5 to 72.5° W.L. The Commission should, consistent with ts treatment of DIRECTV‘s applications for use of a Canadian BSS slot," process EchoStar‘s See Leter fom Pantels Michalopouls to Marlene 1. Dorch, Atichment A, FCC File No. SAT—STA— 20050321—00068 (dred May 10, 2005). DIRECTV alsonotesthat Echoar‘s atest Supplement refer to the anterna pattem submited on May 10 rather than the diagram subrmited withthe Petiion see Supplementat 5 110which iselfwas subsequently amended byleter datedJune 9,2005. Thisnconsistency further demonstates the nee for complete and defintve dta on EchoSar‘s plamned operations from 77° W.L., which would bepart ofEchoStar‘s matketaccesspettion 5.: See Leter fom Willam M. Wilshire to Thomas Tyez, FCC Fil No SAT—STA—20050221—00068 (May 4, 2005) (expressingconcem tht Echoar had notfiled suficient information to enble DIRECTV o nalyze porentl interference o the opertion of ts DIRECTV 5 steitat 72.5° W L.) See Pettionat7n9. ©*. DIRECTV Enterpries, 19 ECC Red.at 25832 (Rndingthat "granting the STA and associated blankeeath station cuthorization is in th public interes®"(emphass added).

amended STA request as a package with its blanket earth station application if and when such application is filed. Only in this manner would the Commission fruly be applying "the same basic rulesto all similarly situated applicants." Although EchoStar would very much like to analogize its proposals to the applications granted for DIRECTV, review of the record confirms that the cases are entiely different. To the extent EchoStar and DIRECTV achieved disparate results, it is because they presented the Commission with very different facts and circumstances. Now that EchoStar secks to provide service in the U.S. from this foreign—licensed orbital location, the Commission should process that request as part and parcel ofthe request to relocate EchoStar 4 — just as it did when DIRECTV soughtto relocate a satellie to provide U.S. service from a non—U.S. BSS slot Evenhanded treatment requires no less. Respectfully submitted, DIRECTV Entermnises, LLC William M Itshire Michael D. Nilsson Haus, Wiursnie & Granits Lur 1200 Eighteenth Street, N.W. Washington, DC 20036 202—730—1300 Counselfor DIRECTVEnterprises, LLC June 20, 2008

CERTIFICATE OF SERVICE herebycertify that, on this 20th day ofJune, 2005, a copy of the foregoing Comments on Petition for Reconsideration was delivered by hand to: Pantelis Michalopoulos Philip L. Malet Brendan Kasper Steptoe & Johnson LLP 1330 Connecticut Avenue, N.W. Washington, DC 20036 Jennifer Ansélmo


Document Created: 2005-06-22 08:39:11
Document Modified: 2005-06-22 08:39:11
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