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REPLY submitted by "Stratos"

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2006-02-10

This document pretains to SES-MFS-20051122-01614 for Modification w/ Foreign Satellite (earth station) on a Satellite Earth Station filing.

IBFS_SESMFS2005112201614_482923

RECEIVED Fee 1/6 4 204 RECEIVEp Before the Fee a Sateite Diision FEDERAL COMMUNICATIONS COMMISSION s 0 2006 InternatonalBureau Washington, D.C. 20554 In the Matter of Stratos Communications, Inc. File No. SES—MEFS—20051122—01614 Application for Modification of Blanket (Call Sign E000180) License to Operate Inmarsat M—4 Mobile Earth Terminals with Inmarsat 4F2 at 52.75° W Stratos Communications, Inc. File No. SES—MEFS—20051122—01615 Application for Modification of Blanket (Call Sign 2010050) License to Operate Inmarsat C Mobile Earth Terminals with Inmarsat 4B2 at 52.75° W Stratos Communications, Inc. File No. SES—MEFS—20051122—01616 Application for Modification of Blanket (Call Sign EO10048) License to Operate Inmarsat Mini—M Mobile Earth Terminals with Inmarsat 4F2 at 52.75¢ W Stratos Communications, Inc. File No. SES—MFS—20051122—01617 Application for Modification of Blanket (Call Sign £010049) License to Operate Inmarsat B Mobile Earth Terminals with Inmarsat 4F2 at 52.75° W Stzatos Communications, Inc. File No. SES—MEFS—20051122—01618 Application for Modification of Blanket (Call Sign £010047) License to Operate Inmarsat M Mobile Earth Terminals with Inmarsat 4F2 at 52.75° W To: International Burcau REPLY TMSV OPPOSITION To STRATOS MOTION TO STRIKE Stratos Communications, Inc. (‘Stratos") hereby files this Reply to the Opposition to Motion to Strike (°MSV Opposition‘) filed by Mobile Satellite Ventures Subsidiary LLC (MSV")in the above—referenced applications (*Stratos Applications"). ‘ See MSV Opposition (filed Jan. 31, 2006)

MSV claims that the Bureau should deny Stratos‘s Motion to Strike Portions of the MSV Petition (*Motion to Strike") because: (1) Stratos has no right of access tothe confidential materials relied on by MSV in its Petition to Hold in Abeyance Or to Grant With Conditions (°MSV Petition"); and (2) Stratos‘s interests would not be prejudiced by the Bureau‘s consideration of the confidential material in the MSV Petition. MSV‘s first claim is unavailing. The relevant issue is not whether Stratos has right of access tothat confidential information, but whether the Bureau can rely on information challenging Stratos‘s application when Stratos is not even given an adequate opportunity respond to the information. The MSV Oppositionfails to demonstrate that the Bureau can rely on such confidential information. MSV‘s second claim is inconsistent with Stratos‘s rights under the Communications Act and the APA. Indeed, the Bureau‘s consideration of the confidential material in the MSV Petition would prejudice Stratos‘s interests. L. DISCUSSION 4. The Bureau Must Not Rely on Confidential Material That Has Been Withheld from Stratos MSV claims that Stratos has no right of access to the confidential material included in the MSV Petition, However,the issue is not whether Stratos has a right of access to the confidential information in the MSV Petition, but whether the confidentialinformation can serve as a basisfor a decision on the Stratos Applications if Stratos is never given access to such information. As discussed in the Motion to Strike, the Commission has held that the "Administrative Procedures Act and the Due Process Clause of the Constitution generally entile

parties in administrative proceedings to have access to the documents necessary for effective participation in those proceedings."" MSV, however, contends that license applications are not subject to the requirements for adjudications under the APA® and therefore by implication that it is permissible to block Stratos‘s effective participation in its own license proceeding.* But the cases cited in the MSV Opposition do not hold thatit is permissible to deny Stratos a meaningful opportunity to respond to claims made againstits license application." In fact, in one ofthe decisions cited * See In the Matter ofOpen Network Architecture Tarifs ofBell Operating Companies, Order, 10 FCC Red 1619, 1621, 4 13 (1995). See also In re applications ofMobile Communications Holdings, Inc; ICO Global Communications (Holdings) Limitedfor Transfer ofControl; Constellation Communications Holdings, Inc. and ICO Global Communications (Holdings) Limitedfor Transfer ofControl, Disclosure Order, 18 FCC Red 133, 134, 5 (2003) ("The Commission has inferred from judicia! precedent that petitioners to deny generally must be afforded access to all information submitted by licensees that bear upon their applications ..");and Inthe Matter ofExamination ofCurrent Policy Concerning the Treatment of Confidential Information Submitted to the Commission, Report and Order, 13 FCC Red 24816, 24837, 4 33 (1998) (Specifically, the Commission indicated "that petitioners 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 Title III license, the rationale is equally applicable to information supplied to challenge a Hicense application. * See MSV Opposition at 3. * Itis worth noting that MSV appears to ignore the frst section of the Motion to Strike, which discusses why it would be inconsistent with Stratos‘ rights under the Communication Act to prevent Stratos from effectively replying to the MSV Petition. Thus even ifMSV were correct thatitis permissible under the APA to prevent Stratos from effectively porticipating in its own licensing proceeding (which as discussed below is not the case), MSV has not shown that denying Stratos an opportunity to prepare an effective response is permissible under the Communications Act. 5 See An Inguiry Into the Use ofthe Bands 825—845 Mz and 870—890 MH:for Cellular Communications Systems; and Amendment ofParts 2 and 22 ofthe Commission‘s Rules Relative to Cellular Communications Systems, 86 FCC 2d 469, 4 67 (1981) (*Cellular Licensing Order") (addressing whether an oral hearing is required for cellular licenses); AT&T Cor., 16 FCC Red 13636, 4 29 (2001) (again addressing the requirement for an oral hearing); and Zong Island Lighting Company, 14 FCC Red 16521, § 15 (addressing burden of proofin a licensing proceeding)

by MSV, the Commission states "our paper [cense] proceeding satisfies the general hearing requirements set forth in the APA and the Communications Act "* Thus rather than saying that the Commission does not follow the hearing requirements ofthe APA in a icensing application, the Commission states that it does follow those procedures in the present ease, relying on the confidential material in the MSV Petition without allowing Stratos an opportunity to examine and respond to this information would satisfy neither the requirements ofthe APA nor the requirements ofthe Communications Act. The APA 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 cross—examination as may be required for a fll and true disclosure ofthe facts. "" The Communications Act provides that applicants are entiled tofile a reply to petitions against theirlicense application." Both of these provisions would be violated, if Stratos is not given the opportunityto respond to the confidential materials, because, as discussed in the Motion to Strike, Stratos cannot effectively reply to claims made by MSV iit does not even know what claims MSVhas made against the Stratos application. MSV further claims that "Stratos ignores the confidential nature of the Mexico City MoU, and consequently relies on precedent that is inapplicable to the instant proceeding."" However, this claim misses the point. The precedent cited in the Motion to Strike goes directly to the issue of whether confidentialinformation that is not subject to adversarial comment bythe * Cellular Licensing Order at% 67. Further the Commission specifically stated that ts "paper hearing procedures satisythe general statutory provisions relevant to hearing procedures to be employed in adjudicative administrative proceedings as set frth in Sections 554 and 556 of the Administrative Procedure Act (APA)..." [d "s U.S.C. § 556(0) * See 47 U.S.C. §309@)(1). ° MSV Opposition at 4.

applicant can serve as basis to deny an application. For example, in CPUC Report and Order, discussed in the Motion to Strike, the Commission struck a study submitted by CTIA to support its challenge to Califoria‘s petition to retain rate regulation over CMRS because CTIA failed to provide the underlying confidential data to California."" Purther in U.S. Lines v. Federal Maritime Commission, the D.C. Cireuit stated that it has "required information in ageney files or reportsidentified by the agency as relevant to the proceeding to be disclosed to the parties for adversarial comment" because such requirements "ensure that parties to ageney proceedings are afforded the opportunities guaranteed them by statute [APA] meaningfully to participate in those proceedings ... Nothing cited by MSV demonstrates that the Bureau can rely on information challenging a license application where the applicant is not given a meaningful opportunity to respond to that information. MSV states that the Mexico City MoU is protected by the FOIA. * However, even if rue, this does not show that this makes it permissible to contravene Stratos‘s right to meaningfully reply to the MSV Petition. As discussed in the Motion to Strike, the Commission typically balances the need to protect information that is confidential under ts FOIA rules" and providing parties an opportunity to fullyrespond to that information by ‘ See In the Matter ofPetition ofthe People of the State of California and the Public Ulities Commission ofthe State of California to Retain Regulatory Authority over Intrastate Cellular Service Rates, Report and Order, 10 FCC Red 7486, 7508, % 43 (1995) (°CPUC Report and Order") (stating that the "study relies on materials not made part of the record or provided to other parties, and to that extent will not be considered."). "" See US. Lines, Inc. v. Federal Maritime Comm., 584 F.2d 519, 533 (D.C. Cir. 1978) (°US. Lines"). "" Id. MSV also cites several FOIA request cases in fn 9. None of these cases hold that information that is protected under FOIA can be used to deny an applicant a meaningfl opportunity to respond to a petiion against its application: " See 47 C.F.R. §§ 0.457 and 0.459.

employing a confidentility agreement."* Tt should either do that here or strike the redacted portions of the MSV Petition. 8 Stratos Would Be Prejudiced By the Bureau‘s Consideration ofthe Confidential Materials MSV argues that "Stratos can safely relyon Inmarsat, the entity that provides the space segment of the service proposed by Stratos, to address the issues presented in the Redacted Materials.""" However, his claim is inconsistent the Communications Act, which provides that "(the applicant shall be given an opportunity to a reply [to a petition against ts application].""" It is also inconsistent with Section 556(d) of the APA."" Stratos is not able to effectively reply to the MSV Petition because it does not even know what claims are being made against tStratos Applications. For example in Discussion Section 1, the MSV Petition provides: "[Redaction of two and half lines oftext] ()it is not replacing another satellite;(i) it will cause greater interference to other L band operators, even when being used exclusively to provide earlier— generation services; and (ii) it will equire greater protection from other L. band operators, even when being used exclusively to provide earlier—generation services.""* Similarly, MSV claims !* See Motion to Strike at fa 13. The Commission has recognized that "release of confidental information under a protective order or agreement can often serve to resolve the conflict between safegarding 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 of Confidential Information Submitted to the Commission, Notice of Inquiry and Notice of Proposed Rulemaking, 11 FCC Red 12406, 12424, 9 36 (1996) !* MSV Opposition at 5 * a7 .s.C. §309d)01). !" See 5 U.S.C. § 556(d) ("A party is entitled to present his case or defense by oral or documentary evidence, and to conduct such cross—examination as may be required for a full and true disclosure of the facts.") "* MSV Petition at 9 (citations omitted)

that "Stratos states that Inmarsat 4F2 will have inefficient global L band beams, [rest of sentence and footmote redacted}.""" t is simply not possible for Stratos to effectively respond to such arguments and other partsofthe MSV Petition, in contravention ofitsrights under Section 309 ofthe Communications Act and Section 556(d) of the APA, without knowing what specific assertions MSV is making against the Stratos Applications "The fact that Inmarsat can respond to the issues raised in the redacted portions of the MSV Petition is not relevant. Inmarsatis not the applicant and its ability to respond to the redacted portions ofthe MSV Petition does not satistythe Communications Act requirement that the applicantis provided an opportunityto respond to petitions against its application.. Further, MSV*s claim that "it is unlikely that Stratos could provide any relevant information with respect to the Redacted Materials that Inmarsat has not already provided,""" only serves to demonstrate that the agreed upon mechanism for intermational coordination established under the Mexico City MoU, and not the Stratos Modification Applications, is the appropriate forum to address MSV*s concemns. ‘" MSV Petition at 9—10. In addition, the footote associated with this sentence is redacted as well ® MSV Oppositionat 5.

11. CONCLUSION For the foregoing reasons, Stratos respectfully requests that the Bureau strike the MSV Petition Discussion Sections I and parts ofthe Background section that rely on confidential information that has not been provided to Stratos. Respectfully submitted, Stratos Communications, Inc. _ 0 Alfred M. Mambet C Mare A. Paul Brendan Kasper Steptoe & Johnson LLP 1330 Connecticut Avenue, NW Washington, DC 20036 (202) 420—3000 Counsel for Stratos Communications, Inc. February 10, 2006

CERTIFICATE OF SERVICE 1, Mare A. Paul, an attommey with the lawfirm of Stepto& Johnson LLP, hereby certify that on this 10th day of February, 2006, served a true copy of the foregoing Reply by first class mail, postage pre—paid (or as otherwise indicated) upon the following: James Ball® Andrea Kelly* International Bureau Interational Burcau 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 International Bureau Federal Communications Commission Federal Communications Commission 445 12"Street, S.W. 445 12" Street, S.W. Washington, DC 20554 Washington, DC 20554 Howard Gribofi® Karl Kensinger® Interational Bureau Interational Bureau Federal Communications Commission Federal Communications Commission 445 12" Street, S.W. 445 12"Street, S.W. Washington, DC 20554 Washington, DC 20554 Fom Jarmulnek® John Martin® International Bureau Interational Burcau Federal Communications Commission Federal Communications Commission 445 12" Street, SW 445 12" Street, S.W. Washinaton, DC 20554 Washington, DC 20554 Stephen Duall® Jennifer A. Manner International Bureau VicePresident, RegulatoryAfairs 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,SW. 2300 N Street, N.W. Washington, DC 20554 Washington, DC 20037—1128

JoAnn Ekblad® John P. Janka Interational Bureau Jeffrey A. Marks Federal Communications Commission Latham & Watkins LLP 445 12" Street, S.W. 555 Eleventh Street, N.W., Suite 1000 Washington, DC 20554 Washington, D.C. 20004 Diane J. Comell Vie President, Government Affairs Inmarsat,Inc. 1100 Wilson Blvd, Suite 1425 7°_0 & Arlington, VA 22200 _ * by Hand Delivery


Document Created: 2006-02-14 14:06:57
Document Modified: 2006-02-14 14:06:57
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