Attachment Opposition

Opposition

OPPOSITION TO MOTION TO STRIKE submitted by MSV

Opposition

2006-02-14

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

IBFS_SESMFS2005120701709_483122

Before the Federal Communications Commission Washington, D.C. 20554 In the Matters of ) ) SkyWave Mobile Communications, Corp. ) File No. SES—MFS—20051207—01709 Application for Blanket License to ) (Call Sign EO30055) Operate Mobile Earth Terminals with ) Inmarsat 4F2 at 52.75° W ) ) Satamatics, Inc. ) File No. SES—MFS—20051202—01665 Application for Modification of Blanket ) —(Call Sign EO20074) License to Operate Mobile Earth Terminals ) With Inmarsat 4F2 at 52.75° W ) ) CONSOLIDATED OPPOSITION TO MOTIONS TO STRIKE Mobile Satellite Ventures Subsidiary LLC ("MSV") hereby files this Consolidated Opposition to the Motions to Strike filed by SkyWave Mobile Communications, Corp. ("SkyWave") on February 2, 2006 ("SkyWave Motion")‘ and Satamatics Inc. ("Satamatics," collectively with SkyWave, "Applicants") on February 9, 2006 ("Satamatics Motion" > in connection with their above—referenced applications. Applicants seek to strike portions of the Petitions to Hold in Abeyance filed by MSV in connection with each of the above—referenced applications." These portions have been kept confidential pursuant to the terms of the Mexico \ See SkyWave Mobile Communications, Corp., "Motion to Strike the Portions of the MSV Petition," File No. SES—MFS—20051207—01709 (Call Sign E030055) (filed Feb. 2, 2006) ("SkyWave Motion"). The Certificate of Service accompanying the SkyWave Motion erroneously represents that the SkyWave Motion was served upon MSV on January 2, 2006. Since service actually occurred on February 2, 2006, thus MSV‘s Opposition is timely filed. 2 See Satamatics, Inc., "Motion to Strike the Portions of the MSV Petition," File No. SES—MFS— 20051202—01665 (Call Sign E020074) (filed Feb. 9, 2006) ("Satamatics Motion"). * See MSV, Petition to Hold in Abeyance SkyWave Application, File No. SES—MFS—20051207— 01709 (Call Sign E030055) (filed Jan. 20, 2006); MSV, Petition to Hold in Abeyance Satamatics Application, File No. SES—MFS—20051202—01665 (Call Sign E020074) (filed Jan. 27, 2006)

City Memorandum of Understanding ("Mexico City MoU"), an international agreement among the five administrations that license L band operators serving North America." As discussed herein, the Bureau should deny both the SkyWave Motion and Satamatics Motion because (i) Applicants have no right to access, or block the Commission‘s consideration of, these confidential materials; and (11) Applicants‘ interests would not be prejudiced by the Commission‘s consideration of these confidential materials, since Inmarsat Ventures Limited ("‘Inmarsat") has access to the materials and is an active participant in the proceeding in support of the applications. Background MSY Petitions. On January 20, 2006, MSV filed a Petition to Hold in Abeyance the above—referenced application filed by SkyWave, and on January 27, 2006, MSV filed a Petition to Hold in Abeyance the above—referenced application filed by Satamatics. See MSY Petitions. In the petitions, MSV made reference to the Mexico City MoU, a framework agreement executed in 1996 by the five administrations that license L band systems serving North America. Pursuant to procedures established in the Mexico City MoU, the five North American L band operators are each assigned certain frequencies to use on their specific satellites. The Mexico City MoU provides that the agreement, and certain related materials, are confidential to the parties and operators." Accordingly, MSV sought confidential treatment of those portions of the petitions (collectively, "MSY Petitions"). Both confidential and public versions of both petitions were filed with the Commission and provided to Inmarsat. * See Memorandum of Understandingfor the Intersystem Coordination of Certain Geostationary Mobile Satellite Systems Operating in the Bands 1525—1544/1545—1559 MHz and 1626.5— 1646.5/1646.5—1660.5 MHz, Mexico City, Mexico, 18 June 1996 ("Mexico City MoU"). * Mexico City MoU; see also COMSAT Corporation et. al., Memorandum Opinion, Order and Authorization, 16 FCC Red 21661,« 111 (2001) ("COMSAT Order") ("The Mexico City Agreement and related coordination documents, such as minutes of coordination meetings, are considered confidential.").

(the "Redacted Materials") addressing the Mexico City MoU and related materials. Neither Applicant has ever contacted MSV to request access to the Redacted Materials, although both Applicants note that in the past, MSV has informed other carriers that it is not at liberty to provide such access. SkyWave Motion at 2—3; Satamatics Motion at 2—3. SkyWave and Satamatics Motions. On February 2, 2006, SkyWave filed a "Motion to Strike the Portions of the MSV Petition." See SkyWave Motion. On February 9, 2006, Satamatics filed a "Motion to Strike the Portions of the MSV Petition." See Satamatics Motion. In the motions, which are virtually identical, Applicants argue that (i) without access to the Redacted Materials, they cannot fashion an effective response to MSV‘s Petition pursuant to procedures specified in the Communications Act (SkyWave Motion at 3—4; Satamatics Motion at 3—4); (ii) the Administrative Procedures Act ("APA") guarantees access to the Redacted Materials (S§kyWave Motion at 4—6; Satamatics Motion at 4—6); and (1iii) in the absence of such access, the Commission must strike the Redacted Materials from the record (SkyWave Motion at 6—8; Satamatiecs Motion at 6—8). Discussion I. APPLICANTS HAVE NO RIGHT TO ACCESS THE REDACTED MATERIALS Applicants claim that the APA — and more specifically, the procedures specified therein for formal adjudicatidns — entitles them to access the Redacted Materials. SkyWave Motion at 3; Satamatics Motion at 3. In fact, however, the Commission‘s licensing proceedings are not formal adjudications under the APA and, as such, are not subject to these procedural requirements.6 Tellingly, neither Applicant cites a single case demonstrating that the APA‘s ° An Inquiry Into the Use ofthe Bands 825—845 MHz and 870—890 MHzfor Cellular Communications Systems; and Amendment ofParts 2 and 22 ofthe Commission‘s Rules Relative to Cellular Communications Systems, 86 FCC 2d 469, at «[ 67 (1981) ("Cellular Inquiry"); see also, e.g., AT&T Corp. 16 FCC Red 13636, at 4 61 (2001) (finding that the "fact that Congress

requirements for formal adjudications do apply; in fact, the cases they do cite reach the opposite conclusion.‘ Similarly, neither Applicant cites a single case demonstrating that the Commission may not rely on confidential information legitimately withheld from parties to the proceeding. To the contrary, Applicants themselves suggest that a protective agreement — which would necessarily restrict their access to the Redacted Materials while permitting the Commission to consider those materials — would be an appropriate option in the instant proceeding. SkyWave Motion at 5 n.13; Satamatiecs Motion at 5 n. 13. Moreover, the Freedom of Information Act ("FOIA") affirmatively grants the Commission the right to withhold certain materials — including materials that address sensitive matters of foreign relations, administration bargaining positions, and international coordination — did not in Section 214 require an oral hearing ... is evidence that Congress was leaving it to the discretion of the Commission to decide what procedure to use"); Long Is/land Lighting Company, 14 FCC Red 16521, at «[ 15 (1999) (finding that "Applicants‘ reliance on the APA in this instance is misplaced [as] Section 556 by its own terms is applicable only in proceedings which require resolution by a hearing on the record"). " Applicants quote these cases out of context, and with apparent disregard for the actual findings of the Commission. For example, Applicants cite International Record Carriers for the proposition that Section 309 proceedings are formal adjudications implicating the formal procedures specified in Section 556 of the APA. In that case, however, the Commission actually concluded that proceedings under Section 222 of the Communications Act are not formal adjudications, after distinguishing U.S. v. Storer Broadcasting Co., 351 U.S. 192 (1956), a case decided under now—obsolete application hearing procedures. See International Record Carriers‘ Scope ofOperations in the Continental United States Including Possible Revisions to the Formula Prescribed Pursuant to Section 222 ofthe Communications Act, 61 FCC.2d 183, at « 5 (1976) ("International Record Carriers"). Applicants cite only the language distinguishing Storer, but not the language establishing the present inapplicability of Section 556. Cf. SkyWave Motion at 4 n.9; Satamatiecs Motion at 4 n.9. Applicants also cite the Commission‘s Cellular Inquiry, in which the Commission concluded that its "paper hearing" procedures satisfy the requirements of Sections 554 and 556 of the APA. The Applicants, however, fail to mention that the Commission reached this conclusion because nothing in Sections 309(e) or 409 of the Communications Act triggers the need for the formal adjudicatory procedures specified in Section 556 in the first place, since nothing in those sections requires a decision "on the record." See Cellular Inquiry at "| 67.

from public inspection." It follows that confidential materials properly submitted for the record may be considered by the Commission on par with public materials; any contrary rule would be inconsistent with the Commission‘s obligation to consider all record evidence, and would render FOIA a virtual nullity." Pursuant to FOIA, the Commission already has afforded confidential status to the Mexico City MoU and related documents.‘" Further, under FOIA, the Commission may restrict access to confidential documents even if those documents would assist a party in prosecuting its interests before the Commission; the applicability of the FOIA exemptions is not dependent on the particular circumstances of a FOIA requester or its litigation or other needs."‘ In this respect, FOIA qualifies any right that the Communications Act may ordinarily give a party to file a responsive pleading. Applicants ignore the confidential nature of the Mexico City MoU, and consequently rely on precedent that is inapplicable to the instant proceeding. Applicants rely principally on the Commission‘s CPUC Report and Order and the D.C. Circuit‘s decision in U.S. Lines, Inc. v. 8 See 5 U.S.C. §552; 47 C.F.R. § 0.457. Of course, "generally" information submitted to the Commission does not fall within a FOIA exemption, and as such other parties must "generally" be given access to this information. Notwithstanding, FOIA exempts certain materials from the "general" rule, although this point is overlooked by Applicants. See Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the Commission, 13 FCC Red 24816, at [« 33—34 (1998) (finding that applicant‘s need for confidential treatment may trump petitioners‘ need to access submitted materials); Mobile Communications Holdings, Inc. and ICO Global Communications (Holdings) Limited, 18 FCC Red 133, at «[ 5 (following "general" rule permitting public inspection of submitted materials where no FOIA exemption applied); cf. SkyWave Motion at 4 n.11; Satamatics Motion at 4 n.11. ° In this particular case, the Commission is under further obligation to consider the Redacted Materials by virtue of the Mexico City MoU, which creates affirmative legal obligations that cannot be ignored or stricken simply because Applicants may be unaware of the substance of these obligations. 9 See COMSAT Order, 16 FCC Red 21661, at « 111 (2001) ("The Mexico City Agreement and related coordination documents, such as minutes of coordination meetings, are considered confidential."); see also Robert J. Butler, 6 FCC Red 5414, at « 17 (1991). See Robert J. Butler; see also U.S. Dep‘t ofJustice v. Reporters Committeefor Freedom ofthe Press, 489 U.S. 749 (1989); North v. Walsh, 881 F.2d 1088, 1096 (D.C. Cir. 1989).

Federal Maritime Commission. In the CPUC Report and Order, the Commission refused to consider the results of a study which relied on data which had not been provided to other parties to the proceeding, even though the submitting party had the legal authority to do so.> In U.S. Lines, the D.C. Circuit rejected a Federal Maritime Decision which relied upon certain "reliable data reposing in the files of the Commission" that had not been placed in the record." Critically, however, the data in these cases was not subject to an international agreement requiring that it be kept confidential. IL. APPLICANTS‘ INTERESTS ARE NOT BE PREJUDICED BY THE COMMISSION®‘S CONSIDERATION OF THE REDACTED MATERIALS Although it is clear that Applicants have no legal right kto the Redacted Materials, it is also worth noting that neither Applicant‘s interests are prejudiced by the materials remaining undisclosed, since Inmarsat, which MSV has provided with a copy of the non—redacted Petitions, is an active participant in these proceedings."* Applicants can safely rely on Inmarsat, the entity that provides the space segment of the service proposed by Applicants, to address the issues presented in the Redacted Materials. Inmarsat has a strong incentive to vigorously prosecute the applications and to respond to MSV‘s positions in the Redacted Materials, as Inmarsat would benefit from Applicants‘ provision of service in the U.S., and the Redacted Materials pertain entirely to Inmarsat‘s failure to abide by its obligations under the Mexico City MoU. Under these 2 See Petition ofthe State ofCalifornia and the Public Utilities Commission ofthe State of California to Retain Regulatory Authority over Intrastate Cellular Service Rates, 10 FCC Red 7486 (1995) ("CPUC Report and Order‘). } U.S. Lines v. Federal Maritime Commission, 548 F.2d 519 (D.C. Cir. 1978). 4 See Inmarsat Ventures Limited, Response, File No. SES—MFS—20051123—01634 (January 26, 2006).

circumstances, it is unlikely that Applicants could provide any relevant information with respect to the Redacted Materials that Inmarsat has not already provided."" Conclusion For the foregoing reasons, MSV respectfully requests that the Commission deny the Motions to Strike filed by SkyWave and Satamatics. Respectfully submitted, FLMJLA Bruce D. Jacobs ‘ hLstit/o. * Aennifer A. Manner ASHL David S. Konczal | Vice President, Regulatory Affairs Jarrett S. Taubman MOBILE SATELLITE VENTURES PILLSBURY WINTHROP SUBSIDIARY LLC SHAW PITTMAN LLP 10802 Parkridge Boulevard 2300 N Street, NW Reston, Virginia 20191 Washington, DC 20037—1128 (703) 390—2700 (202) 663—8000 *Admitted in NY. Not admitted in DC. Supervised by members of the DC Bar. Dated: February 14, 2006 As noted above, the Commission need not afford Applicants access to the Redacted Materials — either to comply with the APA or to protect Applicants‘ interests. However, should the Commission determine that it cannot consider the Redacted Materials without disclosing those materials to Applicants, disclosure pursuant to a protective order would be preferable to striking the Redacted Materials from the record.

CERTIFICATE OF SERVICE I, Sylvia A. Davis, a secretary with the law firm of Pillsbury Winthrop Shaw Pittman LLP, hereby certify that on this 14th day of February, 2006, I served a true copy of the foregoing by first—class United States mail, postage prepaid, upon the following: Roderick Porter* Gardner Foster* 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 James Ball* Cassandra Thomas* 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 Richard Engelman* John Martin* 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 Karl Kensinger* Fern Jarmulnek* 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 Robert Nelson* Andrea Kelly* International Bureau International Bureau Federal Communications Commission Federal Communications Commlssmn 445 12"" Street, S.W. 445 12"" Street, S.W. Washington, DC 20554 Washington, DC 20554 Stephen Duall* Howard Griboff* 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 Scott Kotler*® Kathyrn Medley* 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

Alfred M. Mamlet Diane J. Cornell Steptoe & Johnson LLP Vice President, Government Affairs 1330 Connecticut Avenue, NW Inmarsat, Inc. Washington, DC 20036 1100 Wilson Blvd, Suite 1425 Arlington, VA 2220 Counsel for SkyWave Mobile Communications, Corp. and Satamatics, Inc. John P. Janka Jeffrey A. Marks Latham & Watkins LLP 555 Eleventh Street, NW. Suite 1000 Washington, DC 20004 «& ylvia A. Davis *Via electronic mail


Document Created: 2006-02-15 14:21:51
Document Modified: 2006-02-15 14:21:51
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