Attachment Reply

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REPLY TO OPPOSITION submitted by Satamatics, Inc. ("Satamatics")

Reply

2006-02-28

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

IBFS_SESMFS2005120201665_485509

Before the RECEIVEp FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 FEB 2 8 2005 FodealCon In the Matter of ) ies Mmmmmmm ) Satamatics, Inc. ) File No. SES—MFS—20051202—01665 Application for Modification of Blanket ): (Call Sizn Eo20074) License to Operate Mobile Earth Terminals ) With Inmarsat 4F2 at 52.75° W.L. ) To: International Burcau REPLY To MSV OPPOSITION TO SATAMATICS MOTION To STRIKE Satamaties, Inc. (‘Satamaties") hercby filesthis Reply to the Opposition to Motion to Strike (°MSV Opposition") filed by Mobile Satellite Ventures Subsidiary LLC ("MSV")in the above—referenced application (*Satamatics Modification Application") MSV claims that the Bureau should deny Satamaties® Motion to Strike Portions of the MSV Petition (*Motion to Strike") because: (1) Satamatics has no right of access to the confidential materials relied on by MSV in its Petition to Hold in Abeyance Or to Grant With Conditions (*MSV Petition"); and (2) Satamatics® interests would not be prejudiced by the Bureau‘s consideration ofthe confidential material in the MSV Petition. MSV‘s fit claim is unavailing. The relevant issue is not whether Satamaties has a right of access to that confidential information, but whether the Bureau can rely on information challenging Satamatics® application when Satamaticsis not even given an adequate opportunity respond to the information. The MSV Opposition fails to demonstrate that the Bureau can relyon such confidential information: MSV‘s second claim is inconsistent with Satamatics® rights under the Communications Act and

the APA. Indeed, the Bureau‘s consideration of the confidential material in the MSV Petiion would prejudice Satamatics‘ interests. 1. DISCUSSION A. The Bureau Must Not Rely on Confidential Material That Has Been Withheld from Satamaties MSV claims that Satamaties has no right of access to the confidential material included in the MSV Petition. However, the issue is not whether Satamaties has a right of access to the confidential information in the MSV Petition, but whether the confidentialinformation can serve as a basis for a decision on the Satamatics Modification Application if Satamatics 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 entitle 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 tothe requirements for adjudications under the APA® and therefore by implication that it is permissible ‘ See In the Matter ofOpen Network Architecture Tarifs ofBell Operating Companies, Order, 10 FCC Red 1619, 1621, $ 13 (1999). See also /n re applications ofMobile Communications Holdings, Inc.; ICO Global Communications (BHoldings) 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 judicial precedent that petiioners to deny generally must be afforded access to all information submitted by licensees that bear upon their applications ...");and /n the Matter ofExamination ofCurrent Policy Concerning the Treatment of Confidential Information Submitted to the Commission, Report and Order, 13 ECC Red 24816, 24837, 1 33 (1998) (Specifically, the Commission indicated "that petiioners 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 Title 11 Hicense, the rationale is equally applicable to information supplied to challenge a license application. * See MSV Opposition at 3—4.

to block Satamatics‘ effective participation in its own license proceeding." But the cases cited in the MSV Opposition do not hold that it is permissible to deny Satamaties a meaningful opportunity to respond to claims made against ts license application." In fact,in one of the decisions cited by MSV, the Commission states "our paper [Kicense] proceeding satisies the general hearing requirements set forth in the APA and the Communications Act."* Thus rather than saying that the Commission does not followthe hearing requirements of the APA in a Hicensing application, the Commission states thatit docs follow those procedures. In the present case,relying on the confidential material in the MSV Petition without allowing Satematics an opportunity to examine and respond to this information would satisfy neither the requirements of the 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 * Itis worth noting that MSV appears to ignore the frst section of the Motion to Strike, which discusses why would be inconsistent with Satamaties‘ rights under the Communication Act to prevent Satamatics from effectively replying to the MSV Petiion. Thus even if MSV were correct that it is permissible under the APA to prevent Satamaties from effectively participating in it own licensing proceeding (which as discussed below is not the case), MSV has not shown that denying Satamatics an opportunity to prepare an effective response is permissible under the Communications Act, See An Inguiry Into the Use of the Bands 825—845 Mz and 870—890 MH:for Cellular Communications Systems; andAmendment ofParts 2 and 22 ofthe Commission‘s Rules Relative to Cellular Communications Systems, 86 FCC 24 469, 4 67 (1981) (*Cellular Licensing Order") (eddressing whether an oral hearing is required for cellular licenses); 47« Corp., 16 FCC Red 13636, 4 29 (2001) (again addressing the requirement for an oral hearing); and Long Asland Lighting Company, 14 FCC Red 16521, 9 15 (addressing burden ofproof in licensing proceeding). 5 Cellular Licensing Order at 1 67. Further the Commission specifically stated that ts "paper hearing procedures satisfy the generalstatutory provisions relevant to hearing procedures to be emplayed in adjudicative administrative proceedings as set forth in Sections 554 and 556 of the Administrative Procedure Act (APA).." Id.

for a full and true disclosure ofthe facts:"* The Communications Act provides that applicants are entitled to file a reply to petitions against theirlicense application." Both ofthese provisions would be violated, if Satamaticsis not given the opportunity to respond to the confidential materials, because, as discussed in the Motion to Strike, Satamatics cannot effectively reply to claims made by MSV if it does not even know what claims MSV has made against the Satamatics Modification Application MSV further claims that "[Satamaties] ignores the confidential nature ofthe Mexico City MoU, and consequently relies on precedent thatis inapplicable tothe instant proceeding."" However,this elaim misses the point. The precedent cited in the Motion to Strike goes directlyto the issue ofwhether confidentiainformation that is not subject to adversarial comment by the 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 ts challenge to California‘s petition toretain rate regulation over CMRS because CTIA failed to provide the underlying confidential data to California." Further in U.S Lines v. Federal Maritime Commission, the D.C. Circuit stated that it has "required information in agency filesor reportsidentified by the agency as relevant to tproceeding to be disclosed to the parties for adversarial comment" because such requirements "ensure that parties to agency 45 U.S.C. § 556(d). " See 47 U.S.C. § 309(0(1). * MSV Opposition at 5. ° See In the Matter ofPetition ofthe People ofthe State ofCalifornia and the Public Uilities Commission ofthe State of California to Retain Regulatory Authority over Intrastate Celludar Service Rates, Report and Order, 10 FCC Red 7486, 7508, 4 43 (1995) (*CPUC Report and Order®) (stating thatthe ®study relies on materials not made part ofthe record or provided to other parties, and to that extent will not be considered.")

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 true,this does not show that this makes it permissible to contravene Satamaties® 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 it FOIA rules"" and providing parties an opportunity to fully respond to that information by employing a confidentiality agreement." It should either do that here or stike the redacted portions of the MSV Petition. B. Satamatis Would Be Prejudiced By the Bureau‘s Consideration ofthe Confidential Materials MSV argues that "[Satamatics] can safely rely on Inmarsat, the entity that provides the space segment of the service proposed by [Satamaties], to address the issues ‘" See US Lines, Inc. v. Federal Maritime Comm., 584 F.2d $19, 533 (D.C. Cir. 1978) (°US. Lines®), ‘" See MSV Opposition at 5. MSV also cites several FOIA request cases in fn 11. None of these cases hold thatinformation that is protected under FOIA can be used to deny an applicant a meaningful opportunity to respond to a petition against ts application. "* See 47 C.F.R. 5§ 0.457 and 0.450. "? See Motion to Strike at fn 13. The Commission has recognized that "release of confidentialinformation 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 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).

presented in the Redacted Materials.""" However, this claim is inconsistent the Communications Act, which provides that "[t}he applicant shall be given an opportunity to a reply [toa petition against ts application.""" Itis also inconsistent with Section 556(d) of the APA."* Satamatiesis not able to effectively reply to the MSV Petition because it does not even know what claims are being made against the Satamatics Modification Application. For example in Discussion Section 1, the MSV Petition provides: [Redaction oftwo and halflines oftext} () it is not replacing another satellite;(i) it will eause greater interference to other L band operators, even when being used exclusively to provide eartier—generation services; and (ii)it will require greater protection from other L band operators, even when being used exclusively to provide earlier—generation services."""" Similarly, MSV claims that "Satamatics states that Inmarsat 4F2 will have inefficient global L band beams, [rest of sentence and footote redacted}.""* 1t is simply not possible for Satamaticsto effectively respond to such arguments and other parts ofthe MSV Petition, in contravention of itsrights under Section 309 of the Communications Act and Section 556(d) of the APA, without knowing what specific assertions MSV is making against the Satamaties Modification Application. ‘The fact that Inmarsat can respond to the issues raised in the redacted portions of the MSV Petition is not relevant. Inmarsat is not the applicant and ts ability to respond to the "* MSV Opposition at 6. " a7 u.s.C. §309@)(0). !* See 5 U.S.C. § 556(d) ("A partyis 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 10 (citations omitted). "* MSV Petition at 10. In addition,the footnote associated with this sentence is redacted as well

redacted portions ofthe MSV Petition does not satisfy the Communieations Act requirement that the applicantis provided an opportunity to respond to petiions againstits application. Further, MSV‘s claim that "it is unlikely that [Satamaties] could provide any relevant information with the respect to the Redacted Materials that Inmarsat has not already provided,""" only serves to demonstrate that the agreed upon mechanism for interational coordination established under the Mexico City MoU, and not the Satamaties Modification Application, is the appropriate forum to address MSV‘s concems 1t CONCLUSION Forthe foregoing reasons, Satamaticsrespectfully requests that the Bureau strike the MSV Petition Discussion Sections I and partsofthe Background section that rely on confidential information that has not been provided to Satamaties. Respectfully submitted, Satamaties,Inc. "_ C Alfred M. Mamlet & Mare A. Paul Brendan Kasper Steptoe & Johnson LLP 1330 Connecticut Avenve, NW Washington, DC 20036 (202) 429—3000 Counselfor Satamaties, Inc. February 28, 2006 " MSV Opposition at7.

CERTIFICATE OF SERVICE 1, Mare A. Paul, an attomey with the lawfirm of Steptoe & Johnson LLP, hereby certify that on this 28th day of February, 2006, served a true copy of the foregoing Reply by first lass mail, postage pre—paid (or as otherwise indicated) upon the following: Robert Nelson® Andrea Kelly* International 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, S.W. Washington, DC 20554 Washington, DC 20554 Howard Gribof®® 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 Fem Jarmulnck® John Martin® Interational Burcau Interational Burcau Federal Communications Commission Federal Communications Commission 445 12" Street,SW. 445 12" Street, S.W. Washington, DC 20554 Washington, DC 20554 Stephen Duall® Jennifer A. Manner Interational Bureau Vice President, Regulatory Affairs Federal Communications Commission Mobile Satellite Ventures Subsidiary LLC 445 12" Street,SW. 1002 Park Ridge Boulevard Washington, DC 20554 Reston, Virginia 20191 James Ball® 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 Interational Bureau Joffrey 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 Vice President, Govemment Affairs Inmarsat,Inc. 1100 Wilson Blyd, Suite 1425 Arlington, VA 22200 .0 & * by Hand Delivery


Document Created: 2006-03-02 12:28:27
Document Modified: 2006-03-02 12:28:27
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