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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