Attachment Motion

Motion

MOTION submitted by Stratos

Motion to strike the portions of the MSV petition withheld from Stratos

2006-01-19

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

IBFS_SESMFS2005112201614_599474

                                    Before the
                     FEDERAL COMMUNICATIONS COMMISSION
                              Washington, D.C. 20554

In the Matter of

Stratos Communications, Inc.                                 File No. SES-MFS-2005 1 122-01614
Application for Modification of Blanket                      (Call Sign EO00180)
License to Operate Inmarsat M-4 Mobile Earth
Terminals with Inmarsat 4F2 at 52.75” W

Stratos Communications, Inc.                                 File No. SES-MFS-20051122-01615
Application for Modification of Blanket                      (Call Sign E010050)
License to Operate Inmarsat C Mobile Earth
Terminals with Inmarsat 4F2 at 52.75’ W

Stratos Communications, Inc.                                 File No. SES-MFS-2005 1122-01 6 16
Application for Modification of Blanket                      (Call Sign E010048)
License to Operate Inmarsat Mini-M Mobile Earth
Terminals with Inmarsat 4F2 at 52.75” W

Stratos Communications, Inc.                                 File No. SES-MFS-2005 1122-01617
Application for Modification of Blanket                      (Call Sign E010049)
License to Operate Inmarsat B Mobile Earth
Terminals with Inmarsat 4F2 at 52.75” W

Stratos Communications, Inc.                                 File No. SES-MFS-2005 1122-0161 8
Application for Modification of Blanket                      (Call Sign E010047)
License to Operate Inmarsat M Mobile Earth
Terminals with Inmarsat 4F2 at 52.75” W


To: International Bureau


                      MOTION TO STRIKE THE PORTIONS OF
                   THE MSV PETITION WITHHELD FROM STRATOS

               Stratos Communications, Inc. (“Stratos”) urges the Bureau to strike the Petition to

Hold in Abeyance (“MSV Petition”) filed by Mobile Satellite Ventures Subsidiary LLC

(“MSV”) on January 6,2006 against the above-captioned applications (collectively “the Stratos

Modification Applications”). The Bureau should strike those portions of the MSV Petition,


which rely on confidential material that MSV refuses to provide to Stratos even pursuant to a

protective order. Since Stratos is not able to respond effectively to these portions of the MSV

Petition, any reliance by the Bureau on this confidential information and redacted arguments

would violate the Communications Act, the Administrative Procedures Act, and Stratos' due

process rights.'

I.      BACKGROUND

                   On November 22, 2006, Stratos filed applications to modi@ its existing authority

to operate mobile earth terminals to provide Inmarsat M, M4, Mini-MyByand C service in order

to add the new Inmarsat 4F2 satellite located at 52.75" W.L. as a point of communication.

Stratos seeks authority to access the new Inmarsat 4F2 satellite, licensed by the United Kingdom

at 52.75" W.L. in order to continue to provide authorized Inmarsat services, which it has been

providing to consumers in the U.S. for over four years. Inmarsat will be transitioning the

Inmarsat MyM4, Mini-MyB, and C services from the third generation satellite at 54" W.L. to the

new Inmarsat 4F2 satellite.

                   On January 6, 2006, MSV filed the MSV Petition against the Stratos Modification

Applications. Significant portions the MSV Petition are redacted from the public version of the

pleading, including Discussion Section I* and the Background ~ e c t i o n .MSV
                                                                            ~   has sought

confidential treatment of this material because of its purported relationship to the Mexico City

          Concurrently with this Motion to Strike, Stratos is filing an Opposition to the MSV
Petition based on the non-redacted portions of that pleading. See Stratos Opposition (filed Jan.
19,2006). By filing a response, Stratos in no way is conceding that it is being afforded an
adequate opportunity to effectively respond to the MSV Petition. Further, to the extent that
Stratos is given access to the confidential portions of the MSV Petition at a later date, Stratos
reserves the right to amend its Opposition as necessary.

         See MSV Petition at 8- 18.

         See MSV Petition at 2-8.


                                                   2


Memorandum of Understanding for L-band         operation^.^   In a related proceeding, Stratos

attempted to obtain from MSV a confidential non-redacted version of the MSV Petition to Hold

in Abeyance or Grant with Conditions the Stratos BGAN Applications and offered to enter into a

confidentiality agreement and/or protective order to do so, MSV refused to provide Stratos with

a complete version of that p e t i t i ~ n .Stratos
                                            ~       has no reason to believe that MSV will provide

Stratos with a complete non-redacted version of the MSV Petition now

11.     RELIANCE ON CONFIDENTIAL INFORMATION WITHHELD FROM
        STRATOS WOULD VIOLATE THE COMMUNICATIONS ACT

                The Communications Act provides that “[tlhe applicant shall be given an

                                                                     However, it is impossible for
opportunity to file a reply [to a petition against its appli~ation].”~

Stratos to effectively reply to claims made by MSV against the Stratos Applications because the

MSV Petition has substantial redactions throughout that go to the heart of its arguments against

the Stratos Applications. For example in Discussion Section I, the MSV Petition provides:

               [Redaction of two and half lines of text] (i) it is not replacing
               another satellite; (ii) it will cause greater interference to other L
               band operators, even when being used exclusively to provide
               earlier-generation services; and (iii) it will require greater
               protection from other L band operators, even when being used
               exclusively to provide earlier-generation service^.^



          See Letter from Jennifer A. Manner to Marlene H. Dortch, Re: Petition of Mobile
Satellite Ventures Subsidiary LLC to Hold in Abeyance Applications of Stratos Communications
Inc., File No. SES-MFS-20051122-01614 (Call Sign EOOO180), SES-MFS-20051122-01615
(Call Sign E010050), SES-MFS-20051122-01616 (Call Sign EO10048), SES-MFS-20051122-
016 17 (Call Sign E010049), SES-MFS-20051122-01618 (Call Sign EO 10047) (Jan. 6,2006).

         See File Nos. SES-LFS-20050826-01175, SES-AMD-20050922-01313, and ITC-214-
20050826-0035 1, Motion to Strike Portions of the MSV Petition, Declaration of Marc A. Paul
(filed: Nov. 10,2005).

         47 U.S.C. 5 309(d)( 1).

         MSV Petition at 9 (citations omitted).


                                                   3


Similarly, MSV claims that “Stratos states that Inmarsat 4F2 will have inefficient global L band

beams, [rest of sentence and footnote redacted].”* It is simply not possible for Stratos to

effectively respond to such arguments and other parts of the MSV Petition, as is its right under

the Telecommunications Act, without knowing what specific assertions MSV is making against

the Stratos Applications.

111.   RELIANCE ON CONFIDENTIAL INFORMATION WITHHELD FROM
       STRATOS WOULD VIOLATE THE APA

       In addition to violating Stratos’ rights under the Communications Act, reliance on

confidential information withheld from Stratos would violate the Administrative Procedures Act

(“APA”). The APA governs Stratos’ rights in an adjudicative proceeding like a license

application? The APA clearly 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 full and true disclosure of the facts.”” The Commission

has held that the “Administrative Procedures Act and the Due Process Clause of the Constitution

generally entitle parties in administrative proceedings to have access to the documents necessary

           MSV Petition at 9- 10. In addition, the footnote associated with this sentence is redacted
as well.

             Under the APA, license applications are subject to the hearing procedures outline under
the Act. See 5 U.S.C. 8 558(c). See also International Record Carriers’ Scope of Operations in
the Continental United States Including Possible Revisions to the Formula Prescribed Pursuant
to Section 222 of the CommunicationsAct, Memorandum Opinion and Order, 5 F.C.C.2d 183,
1 8 5 , 1 5 (1 976) (“However, that case dealt specifically with applications under Section 309 of
the Act for broadcast licenses of which Congress has defined to be adjudication.”) and 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’sRules Relative to Cellular
Communications Systems, 86 FCC 2d 469,y 67 (198 1) (“Our paper [license] hearing procedures
satisfy the general statutory provisions relevant to hearing procedures to be employed in
adjudicative administrative proceedings as set forth in Sections 554 and 556 of the
Administrative Procedure Act (APA) ...”).

       lo   5 U.S.C. 0 556(d).


                                                  4


for effective participation in those proceedings.”” This general principle clearly applies in the

context of Title I11 license applications.’*

               In those unusual cases where a party has not made confidential material available

to other parties in a proceeding subject to a protective order,I3 the Commission has struck such




          In the Matter of Open Network Architecture Targs of Bell Operating Companies,
Order, 10 FCC Rcd 1619, 1621, 113 (1995). See also In re applications of Mobile
Communications Holdings, Inc. and IC0 Global Communications (Holdings) Limited for
Transfer of Control; Constellation Communications Holdings, Inc. and I C 0 Global
Communications (Holdings) Limited for Transfer of Control, Disclosure Order, 18 FCC Rcd
 133, 134,15 (2003) (“The Commission has inferred from judicial precedent that petitioners to
deny generally must be afforded access to all information submitted by licensees that bear upon
their applications .. .”).

         ’2 See In the Matter of Examination of Current Policy Concerning the Treatment of
Confidential Information Submitted to the Commission, Report and Order, 13 FCC Rcd 248 16,
24837,133 (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 I11 license, the rationale is equally applicable to information supplied to challenge a license
application.) See In the Matter of Petition of the People of the State of California and the Public
Utilities Commission of the State of California to Retain Regulatory Authority over Intrastate
Cellular Service Rates, Report and Order, 10 FCC Rcd 7486,7508,lv 43 (1995) (“CPUC Reporl
and Order”) (holding petitioner and challengers to the same standard as far as access to
confidential information).

        l 3 Confidential material in Commission proceedings is usually made available to parties
subject to a protective order. There are numerous examples of the use of protective orders in
Commission proceedings. See, e.g., In the Matter of Applications for Consent to the Assignment
andor Transfer of Control of Licenses; Adelphia Communications Corp., Assignor and
Transferor to Time Warner Cable, Inc. and Comcast Corp., Assignees and Transferees, Order
Adopting Protective Order, 20 FCC Rcd 10751 (2005). The Commission has recognized that
“release of confidential information under a protective order or agreement can often serve to
resolve the conflict between safeguarding competitively sensitive information and allowing
interested parties the opportunity to fully respond to assertions put forth by the submitter of
confidential information.” In the Matter of Examination of Current Policy Concerning the
Treatment of Confidential Information Submitted to the Commission, Notice of Inquiry and
Notice of Proposed Rulemaking, 11 FCC Rcd 12406, 12424,T 36 (1996). In the absence of a
protective order or giving Stratos access to the confidential version of the MSV Petition, Stratos
 #’.;not have “the opportunity to fully respond” to the claims of MSV.


                                                 5


material from the record. l4 In this regard, the current situation is similar to the confidentiality

issues raised when the California Public Utilities Commission (“CPUC”) petitioned the

Commission to maintain rate regulation authority over CMRS carriers. In that case, the CPUC

sought to strike a study submitted by a CMRS carrier that purported to demonstrate, based on

confidential data not provided to the CPUC, a correlation between regulation and CMRS pricing

in California. The CPUC claimed that it had “effectively been denied its opportunity to respond

to the new study and data.”’5 The Commission agreed and held 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.” M

                 If anything, Stratos’ inability to review a complete version of the MSV Petition,

presents a more serious impediment to Stratos’ ability to prepare a meaningful response than the

difficulties faced by the CPUC as a result of not having access to the underlying data for a study.

At least the CPUC knew what claims were being made against its petition and could present its

own evidence to counter those claims. Here, Stratos does not know all of the specific arguments

being made against its application and thus has no effective way to respond to them.”


        l4   See CPUC Report and Order, 10 FCC Rcd at 7506-7508,11 38-44.

        l 5 See In the Matter of Petition of the People of the State of California and the Public
Utilities Commission of the State of California to Retain Regulatory Authority over Intrastate
CeZlular Service Rates, Motion by California to Strike Ex Parte Filings Made by Airtouch (Mar,
16, 1995).

        I6See CPUC Report and Order, 10 FCC Rcd at 7508,B 43. The Commission also struck
another affidavit submitted by an expert for CTIA when CTIA failed to produce the underlying
data. See CPUC Report and Order, 10 FCC Rcd at 7506-7507,T 40.

        ” Even if Inmarsat were able to review and respond to a full version of the MSV Petition,
it would in no way serve to ensure that Stratos is able to effectively participate in this
proceeding. Stratos can only meaningfblly protect all of its interests, which may not necessarily
G; the same as those of Inmarsat, if it is able to review and respond to all of the arguments and
supporting materials made by MSV in the MSV Petition. See In the Matter of Instapage

                                                  6


                     The Bureau should also strike the portions of the MSV Petition that are based on

confidential information not provided to Stratos because the Bureau cannot rely on such

information as a basis for its decision in the Stratos Applications. In US. Lines, Inc. v. Federal

Maritime Commission, the D.C. Circuit held that the Federal Maritime Commission had

improperly relied on unspecified materials known only to the Federal Maritime Commission in

reaching its decision to grant exemption from antitrust laws for an anticompetitive agreement

between two common carriers.18 In particular, the Federal Maritime Commission based its

finding at least in part on “reliable data reposing in the files of the Commi~sion.”’~
                                                                                    The D.C.

Circuit stated that it has “required information in agency files or reports identified by the agency

as relevant to the proceeding to be disclosed to the parties for adversarial                Further,

the court held that such requirements “ensure that parties to agency proceedings are afforded the

opportunities guaranteed them by statute [APA] meaningfully to participate in those proceedings

...,921

Networks Ltd. s Informal Request for Retroactive Bidding Credits, 19 FCC Rcd. 20356,20359,1
 10 (Wireless Telecommunications Bureau 2004) (“[Tlhird party standing contravenes a basic
prudential principle that a party generally must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or interests of third parties.”) citing Warth v.
Seldin, 422 U.S. 490,499 (1975). See also In the Matter of Weblink Wireless, Inc., Petition for
Reconsideration ofDA 01-1143, 17 FCC Rcd 24642,T 14 (Wireless Telecommunications
Bureau 2002). While these cases discuss third party standing, the same public policy concerns --
namely the ability of a third party to effectively protect the interests of another -- would be
applicable here if the Bureau were to deem the ability of Inmarsat to respond to a full version of
the MSV Petition sufficient to protect all of the interests of Stratos.

          See US. Lines, Inc. v. Federal Maritime Comm., 584 F.2d 519 (D.C. Cir. 1978) (“US.
          l8
Lines”). See also Air Products & Chemicals, Inc. v. FERC, 650 F.2d 687,698-699 (5‘h Cir.
1981) (following US. Lines).

          l9   US. Lines. at 5 3 3 .

          *O   Id.
          2 1 Id.




                                                     7


                 While in the US. Lines, Inc. v. Federal Maritime Commission case, the D.C.

Circuit remanded the case to the Federal Maritime Commission in part because the Federal

Maritime Commission relied on information in its files not available to the parties, the rationale

is equally applicable to relying on confidential information in the MSV Petition. In both cases,

parties to the proceeding are deprived of the “opportunities guaranteed them by statute

meaningfully to participate.” Stratos is in the same position as United States Lines -- it is not

able to effectively respond to the claims in the MSV Petition. Because the Bureau cannot rely on

the confidential information not subject to “adversarial comment” by Stratos as a basis for its

decision on the Stratos Applications, it is appropriate to strike those portions of the MSV Petition

that rely on such information.

IV.    AT A MINIMUM, THE COMMISSION SHOULD NOT RELY ON THE
       CONFIDENTIAL INFORMATION IN DECIDING THE STRATOS
       APPLICATIONS
                 In the absence of a decision to strike the portions of the MSV Petition that rely on

confidential information, or to provide Stratos with access to the confidential version of the MSV

Petition, the Bureau, at the very least, should not base its decision on any confidential material

presented or redacted arguments made by MSV and withheld from Stratos. Indeed, in its 2001

order granting Inmarsat access to the U.S. domestic market, MSV similarly opposed certain MSS

applications, but did not disclose to those MSS applicants a confidential version of its petition

because it contained information concerning the Mexico City Memorandum of Understanding.22




       22   See Comsat Corp. et al. ,Memorandum Opinion, Order and Authorization, FCC 0 1-
r.!?, 7 106 (2001)


                                                  8


In that case, the Commission appropriately did not rely on any of the confidential information as

a basis for its decision on the MSS   application^.^^
V.     CONCLUSION

       For the foregoing reasons, Stratos respectfully requests that the Bureau strike Discussion

Section I and parts of the Background section that rely on confidential information that has not

been provided to Stratos.



                                                Respectfully submitted,

                                                Stratos Communications, Inc.



                                                ~l’i;d~i~unlet

                                                Brendan Kasper
                                                Steptoe & Johnson LLP
                                                1330 Connecticut Avenue, NW
                                                Washington, DC 20036
                                                (202) 429-3000

                                                Counselfor Stratos Communications,Inc.

January 19,2006




         23 See Id. at fi 107 (“In particular, one matter raised involves what appears to be a
disagreement among the operators concerning both the interpretation of a provision of the
Mexico City Agreement, and its utility for addressing competing spectrum requirements. We
have addressed the current impasse in the operator-to-operator discussions above, and conclude
that this particular disagreement does not alter our view that granting these applications would
serve the public interest. Other material submitted consists of statistics concerning the number
of Inmarsat A terminals in use. The information submitted does not rebut Inmarsat’s showing on
th‘ i s u e , or the determination made above, concerning Inmarsat Standard A terminals.”).


                                                   9


                                CERTIFICATE OF SERVICE

         I, Marc A. Paul, an attorney with the law firm of Steptoe & Johnson LLP, hereby certify
that on this 19th day of January, 2006, served a true copy of the foregoing Motion to Strike by
iirst class mail, postage pre-paid (or as otherwise indicated) upon the following:

James Ball*                                       Andrea Kelly*
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

Cassandra Thomas*                                 Scott Kotler*
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

Howard Griboffr                                   Karl Kensinger'
International Bureau                              International Bureau
Federal Communications Commission                 Federal Communications Commission
445 12" Street, S.W.                              445 lYhStreet, S.W.
Washington, DC 20554                              Washington, DC 20554

Fern Jarmulnek*                                   John Martin*
International Bureau                              International Bureau
Federal Communications Commission                 Federal Communications Commission
445 12* Street, S.W.                              445 1 2 ' ~Street, S.W.
Washington, DC 20554                              Washington, DC 20554

Stephen Duall*                                    Jennifer A. Manner
International Bureau                              Vice President, Regulatory Affairs
Federal Communications Commission                 Mobile Satellite Ventures Subsidiary LLC
445 12" Street, S.W.                              1002 Park Ridge Boulevard
Washington, DC 20554                              Reston, Virginia 20 19 1

Robert Nelson*                                    Bruce D. Jacobs
International Bureau                              David S. Konczal
Federal Communications Commission                 Pillsbury Winthrop Shaw Pittman LLP
445 12" Street, S.W.                              2300 N Street, N.W.
Washington, DC 20554                              Washington, DC 20037-1 128


JoAnn Ekblad*                          John P. Janka
International Bureau                   Jeffrey A. Marks
Federal Communications Commission      Latham & Watkins LLP
445 1 2 ' ~Street, S.W.                555 Eleventh Street, N. W., Suite 1000
Washington, DC 20554                   Washington, D.C. 20004

Diane J. Cornel1
Vice President, Government Affairs
Inmarsat, Inc.
1100 Wilson Blvd, Suite 1425
Arlington, VA 22209




* by Hand Delivery




                                     -2-



Document Created: 2007-10-19 10:28:26
Document Modified: 2007-10-19 10:28:26

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