Attachment Motion to Strike

Motion to Strike

MOTION TO STRIKE submitted by "Satamatics"

Motion to Strike

2006-02-09

This document pretains to SES-MFS-20051202-01665 for Modification w/ Foreign Satellite (earth station) on a Satellite Earth Station filing.

IBFS_SESMFS2005120201665_482899

RECEIVED FEB ~9 2 Before the FEDERAL COMMUNICATIONS COMMISSION conmunicaton Commsste Washington, D.C. 20554 Offceal Seiny In the Matter of Satamatics, Inc. File No. SES—MFS—20051202—01665 Application for Modification of Blanket (Call Sign £020074) License to Operate Mobile Earth Terminals with Inmarsat 4F2 at 52.75° W RECEIVED FEB 1 4 2006 To: International Bureau Setelite Diision ‘Bureeu Satamaties, Inc. (*Satamaties") urges the Bureau to strike the Petition to Hold in Abeyance (°MSV Petition") filed by Mobile Satellite Ventures Subsidiary LLC (MSV") on January 27, 2006 against the above—captioned application ("the Satamatics Application"). The Bureau should strike those portions ofthe MSV Petition, which rely on confidential materialthat MSV refuses to provide to Satamatics even pursuantto a protective order. SinceSatamaticsis not able to respond effectively to 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 Satamaties® due process rights. ‘ Concurrently with this Motion to Strike, Satamatics is filing an Opposition to the MSV Petition based on the non—redacted portions ofthat pleading. See Satamaties Opposition (filed Feb.9,2006). By filing a response, Satamatics is in no way conceding thatit is being afforded an adequate opportunity to effectively respond to the MSV Petition. Further, to the extent that Satamaties is given access to the confidential portions ofthe MSV Petition at a later date, Satamaties reserves the right to amend its Opposition as necessary.

L. BACKGROUND On December 2, 2006, Satamatiesfiled an application to modify its existing authority to operate mobile carth terminals to provide Inmarsat D+— service in order to add the new Inmarsat 4F2 satellite located at 52.75° W.L.. as a point of communication. Satamatics seeks authority to access the new Inmarsat 4F2 satellte,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 approximately three years. Inmarsat will be transitioning the Inmarsat D+ service from the third generation satellite at 54° W.L. o the new Inmarsat 4F2 satellte. On January27, 2006, MSV filethe MSV Petition against the Satamatis Application. Significant portions the MSV Petition are redacted from the public version of the pleading, including Discussion Section 1° and the Background section." MSV has sought confidentialtreatment of this material because of ts purported relationship to the Mexico City Memorandum of Understanding for L—band operations.* Satamaties has not been given access to this redacted material. Satamatics understands thatin a related proceeding, Stratos Communications, Inc. (*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 ito a confidentiality agreement and/or protective order to do * See MSV Petition at 8—19. * See MSV Potitionat 1—8. * See Letter from Jennifer A. Manner to Marlene H. Dortch, Re: Petition of Mobile Satellite Ventures Subsidiary LLC to Hold in Abeyance Applications of Satamaties, Inc., File No. SES—MFS—20051202—01665 (Call Sign ©020074) (Jan. 27, 2006).

so. MSV refused to provide Stzatos with a complete version of that petition.® Satamaties has no reason to believe that MSV will provide Satamatics with a complete non—redacted version of the MSV Petition now. 11. RELIANCE ON CONFIDENTIAL INFORMATION WITHHELD FROM SATAMATICS WOULD VIOLATE THE COMMUNICATIONS ACT The Communications Act provides that "t}he applicant shall be given an opportunity to file a reply [to a petition againstits application]."* However, it is impossible for Satamatics to effectively reply to claims made by MSV against the Satamatics Application because the MSV Petition has substantial redactions throughout that go to the heart ofits arguments against the Satamatics Application. For example in Discussion Section 1, the MSV Petition provides: [Redaction of several lines of text} () it is not replacing another satellite; (i) it has much larger on—board power and will cause greater interference to other L band operators, even when being used exclusively to provide earlier—zeneration services; and (i) it will require areater protection from other L. band operators, even when being used exclusivelyto provide carlier—generation services."" Similarly, MSV claims that "Satamaties states that Inmersat 4F2 will have inefficient global L band beams, [rest of sentence and footnote redacted]."* It is simply not possible for Satamaties to effectivelyrespond to such arguments and other parts ofthe MSV ° See File Nos. SES—LRS—20050826—01 175, SES—AMD—20050922—01313, and ITC—214— 20050826—00351, Motion to Strike Portions ofthe MSV Petition, Declaration of Mare A. Paul (filed: Nov. 10, 2005). 647 u.s.C. § 3000(0). " MSV Petition at 9—10 (citations omitted). * MSV Petition at 10. In addition, most of tfootote associated with this sentence is redacted as well

Petition, as is ts right under the Telecommunications Act,without knowing what specific assertions MSV is making againstthe Satamatics Application. IHI. RELIANCE ON CONFIDENTIAL INFORMATION WITHHELD FROM SATAMATICS WOULD VIOLATE THE APA In addition to violating Satamatics‘ rights under the Communications Act, reliance on confidential information withheld from Satamaties would violate the Administrative Procedures Act (°APA") The APA govers Satamatics‘ rights in an adjudicative proceeding like a icense application." The APA clearly provides that a "party is entitled to present his case or defense by oral or documentaryevidence,to submit rebuttal evidence, and to conduct such cross— examination as may be required for full and true disclosure of the facts.""" The Commission has held that t"Administrative Proceduzes Act and the Due Process Clause ofthe Consttution generally entitle parties in administrative proceedings to have access to the documents necessary for effective participation in those proceedings.""" an This general principle clearly applies in the context of Title HI license applications."" ° Under the APA, lcense applications are subject to the hearing procedures outline under the Act. See S U.S.C. § 558(c). See also International Record Carriers‘ Scope ofOperations in the Continental United States Including Possible Revisions to the Formula Prescribed Pursuant o Section 222 ofthe Communications Act, Memorandum Opinion and Order, 5 F.C.C.2d 183, 185, 1 5 (1976) (*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 ofthe Bands 825—845 Mz and 870—890 Mfor Cellular Communications Systems: andAmendment ofParts 2 and 22 ofthe Commission‘s Rules Relative to Celtular Communications Systems, 86 FCC 2d 469, 9 67 (1981) ("Our paper [license] hearing procedures satisfy the general statutoryprovisions relevant to hearing procedures to be employed in adjudicative adminisrative proceedings as setforth in Sections 554 and 556 ofthe Administrative Procedure Act (APA) . 5 U.S.C. § 556(0). ‘ In the Matter of Open Network Architecture Tarifs ofBell Operating Companies, Order, 10 FCC Red 1619, 1621, 9 13 (1995). See also In re applications of Mobile Communications Holdings, Inc. and ICO Global Communications (Holdings) Limitedfor Transfer ofControl; Constellation Communications Holdings, Inc. and ICO Global

in those unusual cases where a party has not made confidential material available to other parties in a proceeding subject to a protective order,"" the Commission has struck such materialfrom the record."" In this regard, the current situation is similar to the confidentiality issues raised when the California Public Utilties Commission ("CPUC®) petitioned the Commission to maintain rate regulation authorty over CMRS carriers. In that case, the CPUC sought to strike a study submitted by a CMRS carrier that purported to demonstrate, based on Communications (Holdings) Limitedfor Transfer ofControl, Disclosure Order, 18 FCC Red 133, 134, 4 5 (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 ..."). "* See In the Matter ofExamination of Current 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 gencrally 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 "itle I1! license, the rationale is equally applicable to information supplied to challenge a license application.) See /n the Matter ofPetition ofthe People of the State ofCalifornia and the Public Uillities Commission ofthe State ofCalifornia to Retain Regulatory Authority over Intrastate Cellular Service Rates, Report and Order, 10 FCC Red 7486, 7508, 4% 43 (1995) (°CPUC Report and Order") (holding petitioner and challengers to the same standard as faras access to confidential information). " Confidential material in Commission proceedings is usuallymade available to parties subject to a protective order. There are numerous examples ofthe use of protective orders in Commission proceedings. See, eg, /n the Matter ofApplicationsfor Consent to the Assignment and/or 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 Red 10751 (2005). The Commission has recognized that "release ofconfidential 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.". /n the Matter ofExamination of Current Policy Concerning the Treatment ofConfidential Information Submitted to the Commission, Notice of Inquiry and Notice of Proposed Rulemaking, 11 FCC Red 12406, 12424, 36 (1996), In the absence of a protective order or giving Satamatics access to the confidential version of the MSV Petition, Satamaties will not have "the opportunity to fullyrespond" to the claims of MSV "* See CPUC Report and Order, 10 FCC Red at 7506—7508, ¥9 38—44.

confidential data not provided to the CPUC, a correlation between regulation and CMRS pricing in Califomia. The CPUC elaimed that it had "effectively been denied its opportunity to respond to the new study and data.""" 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."* If anything, Satamatics‘ inability to review a complete version of the MSV Petition, presents a more serious impedimentto Satamatics‘ ability to prepare a meaningfl response than the difficulties faced by the CPUC as a result onot having access to the underlying data for a study. At Teast the CPUC knew what claims were being made againstits petition and could present its own evidence to counter those claims. Here, Satmatics does not knowall ofthe specific arguments being made against its application and thus has no effective way to respond to them."" "* See In the Matter ofPetition of the People ofthe State ofCalifornia and the Public Ulities Commission of the State of California to Retain Regulatory Authority over Inirastate Cellular Service Rates, Motion by California to Strike Ex Parte Filings Made by Airtouch (Mar. 16, 1995 ‘* See CPUC Report and Order, 10 FCC Red at 7508, % 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 Red at 7506—7507, 9 40. ‘" Even if Inmarsat were able to review and respond to a full version ofthe MSV Petition, it would in no way serve to ensure that Satamatics is able to effectively participate in this proceeding. Satamatics can only meaningfully protect all of ts interests, which may not necessarily be the same as those of Inmarsat, if t is able to review and respond to all of the arguments and supporting materials made by MSV in the MSV Petition. See /n the Matter of Instapage Networks L1d ‘s Informal Requestfor Retroactive Bidding Credits, 19 FCC Red. 20356, 20350, % 10 (Wireless Telecommunications Bureau 2004) ("[T}hird party standing contravenes a basic prudential principle that a partygencrally must assert his own legal rights and interests, and cannot rest his clim to rlief on the legal rights or interests ofthird parties.") citing Warth v. Seldin, 422 U.S. 490, 499 (1975). See also In the Matter of Weblink Wireles Inc., Petition for Reconsideration ofDA 01—1143, 17 ECC Red 24642, 4 14 (Wireless Telecommunications Bureau 2002). While these cases discuss third party standing, the same public policy concems —— namely the ability of a third party to effectively protect the interests of

‘The Bureau should also strike the portions of the MSV Petition that are based on confidential information not provided to Satamaties because the Bureau eannot relyon such information as a basis for its decision in the Satamatics Application. In US. Lines, fnc. w 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 carriets."" In particular, the Federal Maritime Commission based its finding atleast in part on "reliable data reposing in the files of the Commission.""" The D.C. Cireuit stated thatit has "required information in agency files or reports identifed bythe agency as relevant to the proceeding to be disclosed to the parties for adversarial comment."*" 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 im While in the US. Lines, Inc. v. Federal Maritime Commission case, tD.C. Circuit remanded the case to the Federal Maritime Commission in part because the Federal Maritime Commission relied on information in its fles not available to the parties, the rationale is equally applicable to relying on confidential information in the MSV Petition. In both cases, another —— would be applicable here if the Bureau were to deem the ability of Inmarsatto respond to a full version ofthe MSV Petition sufficient to protectall ofthe interests of Satamaties. "* See US. Lines, Inc. v. Federal Maritime Comm., 584 F.2d 519 (D.C. Cir.1978) (°US Lines"). See also Air Products & Chemicals, Inc. v. FERC, 650 F.2d 687, 698—699 (5" Cir. 1981) (following US. Lines). ® US. Lines. at 533. ®* 1. "i

parties to the proceeding are deprived ofthe "opportunities guaranteed them bystatute meaningfullyto participate."" Satamaticsi 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 confidentiainformation not subject to "adversarial comment" by Satamatics as a basis for its decision on the Satamatics Application, 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 SATAMATICS APPLICATION In the absence of a decision to strike the portions ofthe MSV Petition that rely on confidential information, or to provide Satamaties with access to the confidential version of the MSV Petition, the Bureau, at the very least, should not base its decision on anyconfidential material presented or redacted arguments made by MSV and withheld from Satamaties. 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 itspetition because it contained information conceming the Mexico CityMemorandum of Understanding."".In that case, the Commission appropriately did not rely on any of the confidentil information as a basis for its decision on the MSS applications" *" See Comsat Corp. et al., Memorandum Opinion, Order and Authorization, FCC 01 272,% 106 (2001) *‘ See Id. at § 107 ("In particular, one matter raised involves what appears to be a disagreement among the operators concerning both the interpretation of a provision ofthe Mexico City Agreement, and itsutlity 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 viewthat granting these applications would serve the public interest. Other material submitted consists of statisties concerning the number of Inmarsat A terminals in use. ‘The information submitted does not rebut Inmarsat‘s showing on this issue, or the determination made above, concerning Inmarsat Standard A terminals.").

% CONCLUSION For the foregoing reasons, Satamaticsrespectfully requests that the Bureau strike Discussion Section I and parts of the Background section of the MSV Petition that rely on confidential information which has not been provided to Satamaties Respectfully submitted, Satamaties, Inc. Mare A. Paul Brendan Kasper Steptoe & Johnson LLP 1330 Comnectiout Avente, NW Washington, DC 20036 (202) 429—3000 Counselfor Satamatics, Inc February 9, 2006

CERTIFICATE OF SERVICE 1, Mare A. Paul, an attorney with the lawfirm of Steptoe & Johnson LLP, hereby certify that on this 9" dayof February, 2006, served a true copy ofthe foregoing Motion to Strike by first class mail, postage pre—paid (or as otherwise indicated) upon the following: James Ball® Andrea Kelly* 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 Cassandra Thomas® Scott Kotler® International Bureau Interational Bureau Federal Communications Commission Federal Communications Commission 445 12" Street, S.W. 445 12" Street,SW Washington, DC 20554 Washington, DC 20554 Howard Griboff® Karl Kensinger® Interational Bureau International Burcau Federal Communications Commission Federal Communications Commission 445 12" Street, S.W. 445 12"Street, S.W. Washington, DC 20554 Washington, DC 20554 Fem Jarmulnck® John Martin® Intemational Burcau Interational Bureau Federal Communications Commission Federal Communications Commission 445 12" Street, S.W. 445 12" Street, S.W. Washington, DC 20554 Washington, DC 20554 Stephen Duall® Jennifer A. Manner International Bureau VicePresident, Regulatory Affairs Federal Communications Commission Mobile Satellte 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 Communi ions Commission Pillsbury Winthrop Shaw Pittman LLP 445 12" Street,SW. 2300 N Street, N.W. Washington, DC 20554 Washington, DC 20037—1 128

JoAnn Ekblad® John P. Janka International Bureau Jeffiey 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. Comnell Vice President, Government Affairs Inmarsat, Inc. 1100 Wilson Bivd, Suite 1425 Arlington, VA 22200 EL * by Hand Delivery


Document Created: 2006-02-14 12:40:34
Document Modified: 2006-02-14 12:40:34
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