Attachment Motion to Strike

Motion to Strike

MOTION TO STRIKE submitted by SkyWave Mobile Communications, Corp.

Motion

2006-02-02

This document pretains to SES-MFS-20051207-01709 for Modification w/ Foreign Satellite (earth station) on a Satellite Earth Station filing.

IBFS_SESMFS2005120701709_482115

Before the RECEIVED FEDERAL COMMUNICATIONs commISSION Washington, D.C. 20554 FEB — 2 2006 In the Matter of ) * in_ SkyWave Mobile Communications, Corp. ; File No. SES—MEFS—20051207—01709 Application for Modification of Blanket ): (Call Sizn E030055) withInnosad5oonqocc ; RECEIVED s FEB 0 8 2006 To: International Bureau Satelte Dision InternationalBureau MOTION TO STRIKE PORTIONS OF THE MSV PETITION SkyWave Mobile Communications, Corp.(‘SkyWave") urges the Bureau to strike the Pettion to Hold in Abeyance (MSV Petition") filed by Mobile Satellite Ventures Subsidiary LLC (MSV") on January 20, 2006 against the above—captioned application ("the SkyWave Modification Application"). The Bureau should strike those portions ofthe MSV Petition, which rely on confidential material that MSV refuses to provide to SkyWave even pursuant to a protective order. Since SkyWave is 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 SkyWave‘s due process rights." ‘ Concurrently with this Motion to Strike, SkyWave is filing an Opposition to the MSV Petition based on the non—redacted portions of that pleading. See SkyWave Opposition (filed Feb. 2, 2006). By filing a response, SkyWave is 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 Sky Wave is given access tothe confidential portions of the MSV Petition at later date, SkyWave reserves the right to amend ts Opposition as necessary.

3 BACKGROUND On December 7, 2006, SkyWave filed an application to modify ts existing authority to operate mobile earth 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. Sky Wave seeks suthority to access the new Inmarsat 4F2 satellie, lcensed by the United Kingdom at 52.75° W.L. in order to continue to provide authorized Inmarsat services, which it has been pro ing to consumers in the U.S. for approximately two years.. Inmarsat will be transitioning the Inmarsat D+ service from the third generation satelltat 54° W.L.,tothe new Inmarsat 4F2 satelite, On January 20, 2006, MSV filed the MSV Petition against the SkyWave Modification Application. Significant portions the MSV Petition are redacted from the public version ofthe pleading, including Discussion Section I° and the Background section." MSV has sought confidential treatment of this material because of ts purported relationship to the Mexico City Memorandum of Understanding for L—band operations. SkyWave has not been given access to this redacted material, SkyWave understands that in related proceeding, Stratos Communications, Inc.(‘Stratos") attempted to obtain from MSV a confidential non—redacted version ofthe 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 ? See MSV Potition at 8—19. * See MSV Petition at 1—8. * See Letter from Jennifer A. Manner to Marlene H. Dortch, Re: Petition of Mobile Satellte Ventures Subsidiary LLC to Hold in Abeyance Applications of SkyWave Mobile Communications, Corp., File No. SES—MFS—2005 1207—01 709 (Call Sign £030055) (Jan. 6, 2006).

so. MSV refused to provide Stratos with a complete version ofthat petition." SkyWave has no reason to believe that MSV will provide SkyWave with a complete non—redacted version ofthe MSV Petition now. 1. RELIANCE ON CONFIDENTIAL INFORMATION WITHHELD FROM SKYWAVE WOULD VIOLATE THE COMMUNICATIONS ACT The Communications Act provides that "[{he applicant shall be given an opportunity tofile a reply [to a petition against its application}."* However, it is impossible for SkyWave to effectively reply to claims made by MSV against the SkyWave Application because the MSV Petition has substantial redactions throughout that go to the heart ofits arguments against the SkyWave Application. For example in Discussion Section I, the MSV Petition provides:[Redaction of two and halflines oftext} () 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 require greater protection from other L band operators, even when being used exclusively to provide carlier—generation services."" Similarly, MSV claims that "SkyWave states that Inmarsat 4F2 will have inefficient global L band beams, [rest of sentence and footnote redacted}."* It is simply not possible for SkyWave to effectively respondto such arguments and other parts ofthe MSV Petition, as is ts right under the 5 See File Nos. SES—LFS—20050826—01175, 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). 547 U.s.C. §3090(0). " MSV Petition at 9—10 (citations omitted). * MSV Petition at 10. In addition, the footnote associated with this sentence is redacted as well

Telecommunications Act, without knowing what specific assertions MSV is making against the SkyWave Appliation. 11L RELIANCE ON CONFIDENTIAL INFORMATION WITHHELD FROM SKYWAVE WOULD VIOLATE THE APA In addition to violating SkyWae‘s rights under the Communications Act, reliance on confidential information withheld from SkyWave would violate the Administrative Procedures Act CAPA®). The APA governs SkyWave‘s ights in an adjudicative proceeding like a license application." The APA clearly provides thata "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 for effective participation in those proceedings.""" This general principle clearly applies in the context of Title 11 license applications."" ° Under the APA, lcense applications are subjectto the hearing proceduzes outline under the Act. See 5 U.S.C. § 558(c). See also Infernational Record Carriers‘ Scope ofOperations in the Continental United States Including Possible Revisions to the Pormula Prescribed Pursuant to 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 broadeast licenses ofwhich Congress has defined to be adjudication.") and An Inquiry Into the Use ofthe Bands 825—815 MHz and 870—890 Mzfor Cellular Communications Systems; and Amendment ofParts 2 and 22 ofthe Commission‘s Rules Relative to Cellular CommunicationsSystems, 86 ECC 24 469, 9 67 (1981) ("Our paper [license] hearing procedures satisfy the generalstatutory 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)..") 5 U..C. $ 556(0). ‘" In the Matter of Open Network Architecture Tariffs ofBell Operating Companies, Order, 10 FCC Red 1619, 1621, ¥ 13 (1995). See also Jn re applications ofMobile 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 material from the record."".In this regard, the current stuation 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 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 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 petiioners 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 Title1!l cense, the rationale is equally applicable to information supplied to challengea license ication.) See /n the Matter ofPeition ofthe People ofthe State ofCalifornia and the Public s Commission ofthe State ofCalifornia to Retain Regulatory Authority over Intrastate Cellular Service Rates, Report and Order, 10 PCRed 7486, 7508, 9# 43 (1995) (°CPUC Report and Order") (holding petitioner and challengers to the same standard as far as access to confidentil information). ‘* Confidential material in Commission proceedings is usually made available to parties subject to a protective order. There are numerous examples ofthe use of protective orders in Commission proceedings. See, e.g, /n the Matter ofApplicationsfor Consent to the Assignment and/or Transfer ofControl ofLicenses; Adeiphia 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 of confidentialinformation under a protective order or agreement can often serve to resolve the conflict between safeguarding competiively sensitive information and allowing interested partiesthe opportunity to fully respond to assertions put forth by the submitter of confidential information." /n the Mater ofExamination ofCurrent Policy Concerning the Treatment ofConfidential Information Submitted to the Commission, Notice of Inquiry and Noticeof Proposed Rulemaking, 11 FCC Red 12406, 12424, 4 36 (1996). In the absence of a protective order or giving SkyWave access to the confidential version ofthe MSV Petition, SkyWave will not have "the opportunityto fully respond" to the claims of MSV. "" See CPUC Report and Order, 10 FCC Red at 7506—7508, 99 38—44.

confidential data not provided to the CPUC, a correlation between regulation and CMRS pricing in California. The CPUC claimed thatit had "effectively been denied its opportunity to respond to the new study and data." sas 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.""* Ifanything, SkyWave‘s inabilityto review a complete version of the MSV Petition, presents a more serious impediment to SkyWave‘s 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 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, SkyWave does not know all of the specific arguments being made against ts application and thus has no effective way to respond to them."" "* See In the Matter ofPetition of the People ofthe State of California and the Public Uilities Commission ofthe State ofCalifornia to Retain Regulatory Authority over Intrastate Cellular Service Rates, Motion by Califomnia to Strike Ex Parte Filings Made by Airtouch (Mar. 16, 1995). "* See CPUC Report and Order, 10 FCC Red at 7508, 8 43. The Commission also struck another affidavit submitted by an expert for CTIA when CTIA failed to produce the underlying dat. See CPUC Report and Order, 10 FCC Red at 7506—7507, 9 40. ‘" Even if Inmarsat were able to review and respond to full version ofthe MSV Petition, it would in no way serve to ensure that SkyWave is able to effectively participate in this proceeding. SkyWave can only meaningfully protect all o ts iterests, which may not necessarily be the same as those of Inmarsat, i it is able to review and respond to all of the arguments and supporting materials made by MSV in the MSV Petiion. See /n the Matter of Instapage Networks Lid s Informal Requestfor Retroactive Bidding Credits, 19 FCC Red. 20356, 20359, % 10 (Wireless Telecommunications Bureau 2004) (*[T}hird 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 partis,") citing Warth v. Seldin, 422 U.S. 490, 499 (1975). See also In the Matter ofWeblink Wireless, Inc, Petitionfor Reconsideration ofDA 01—1143, 17 FCC Red 24642, § 14 (Wireless Telecommunications Bureau 2002). While these cases discuss third party standing, the same public policy concems —— namely the abilty 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 confidentialinformation not provided to SkyWave because the Bureau cannot rely on such information as a basis for its decision in the SkyWave Application. In ULS. Lines, Inc. v. Federal Maritime Commission, the D.C. Circuit held thatthe Federal Maritime Commission had improperly relied on unspecified materials known only tothe Federal Maritime Commission in reaching its decision to grant exemption from antitrastlaws for an anticompetitive agreement between two common carriers." In particular,the Federal Maritime Commission based its finding atleast in part on "reliable data reposing in the files ofthe Commission.""" The D.C. Circuit stated thatit 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.""" Purther, 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 aa 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 Pederal Maritime Commission relied on information in itsfiles 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 Inmarsat to respond to a full version ofthe MSV Petition sufficient to protect all of te interests of SkyWae. "* See U.S. 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. n

parties to the proceeding are deprived of the "opportunities guaranteed them by statute meaningfullyto participate." SkyWave 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 SkyWave as a basis for its decision on the SkyWave Application, it is appropriate tostrike 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 SKYWAVE APPLICATIONS In the absence of a decision to strike the portions ofthe MSV Petition that rely on confidentalinformation, or to provide SkyWave with access to the confidential version of the MSV Petition, the Bureau, at the very least,should not base ts decision on any confidential material presented or redacted arguments made by MSV and withheld from SkyWave. 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 concerning the Mexico City Memorandum of Understanding." In that case, the Commission appropriately did not rely on any of the confidential information as a basis for ts decision on the MSS applications."" "" See Comsat Corp. etal., Memorandum Opinion, Order and Authorization, FCC 01— 272, 4 106 (2001) ®" See Id. at 4 107 (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 its utlity for addressing competing spectrum requirements. We have addressed the current impase in the operator—to—operator discussions above, and conclude that this particular disagreement does notalter our view that granting these applications would serve the public interest. Other material submitted consists of statstics concering the number of Inmarsat A terminals in use. The information submitted does not rebut Inmarsat‘s showing on this issue, or tdetermination made above, concerning Inmarsat Standard A terminals.").

v. concLuston For the foregoing reasons, SkyWave 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 SkyWave Respectfully submitted, SkyWave Mobile Communications, Corp. farvdon octA Alfred amlet Mare A. Paul Brendan Kasper Steptoe & Johnson LLP 1330 Connectiout Avenue, NW Washington, DC 20036 (202) 420—3000 Counselfor SkyWave Mobile Communications, Corp February 2, 2006

CERTIFICATE OF SERVICE 1, Brendan Kasper, an attomey with the law firm of Steptoe & Johnson LLP, hereby certify that on this 2nd day ofJanuary, 2006, served a true copy ofthe foregoing Motion to Strike by first class mai, postage pre—paid (oras otherwise indicated) upon the following: James Ball® Andrea Kelly* International Bureau International Bureau Federal Communications Commission Federal Communications Commission 445 12" Street, S.W. 445 12" Strect, S.W. Washington, DC 20554 Washington, DC 20554 Cassandra Thomas® Scott Kotler® 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 Howard Griboft® Karl Kensinger® 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 Fem Jarmulnek® John Martin® Interational Bureau Interational Bureau Federal Communications Commission Federal Communications Commission 445 12" Street, S.W. 445 12" Street,SW. 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 20191 Robert Nelson® Bruce D. Jacobs Interational Bureau David S. Konezal Federal Communications Commission Pillsbury Winthrop Shaw Pittman LLP 445 12" Street, S.W. 2300 N Street, N.W. Washington, DC 20554 Washington, DC 20037—1128

JoAnn Ekblad* John P. Janka International 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 Keith H. Fagan Diane J. Comell Senior Counsel Vice President, Government Affairs Telenor Satellite, Inc. Inmarsat,Inc. 1101 Wootton Parkway 1100 Wilson Blvd, Suite 1425 Rocksille, MD 20852 Arlington, VA 22200 Lanvedan Revage1 * by Hand Delivery


Document Created: 2006-02-08 11:34:07
Document Modified: 2006-02-08 11:34:07
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