Attachment EchoStar2

This document pretains to SES-MOD-20040227-00295 for Modification on a Satellite Earth Station filing.

IBFS_SESMOD2004022700295_373649

ST E P TO E &Jo H N s o N LLP ATTORNEYS AT LAW Rhonda M. Bolton 1330 Connecticut Avenue. NW 202.429.6495 Washington. DC 20036-1795 rbolton@sreptoe.com Tel 202.429.3000 Fax 202.429.3902 steptoe.com REDACTED - FOR PUBLIC INSPECTION April 5,2004 Via HAND DELIVERY Ms. Marlene Dortch Secretary Federal Communications Commission 445 12th Street SW Washington D.C. 20554 Re: In the Matter of DIRECTV Enterprises, LLC, Request for Special Temporary Authority to Relocate DIRECTV 3 to 82 O W.L. and to Conduct Telemetry, Tracking and Command Operationsfor an Interim Period, File No. SAT-STA-20030903-00300; Order Adopting Protective Order; In the Matter of DIRECTV Enterprises, LLC, Requestfor Special Temporary Authority to Relocate DIRECTV 5 to 72.5" W L. and to Conduct Telemetry, Tracking and Command Operationsfor an Interim Period, File No. SAT-STA- 20040107-00002 Dear Ms. Dortch: Enclosed for filing in the above-referenced matters are Comments of EchoStar Satellite LLC. In accordance with the Protective Order, DA 04-755, released on March 22,2004 in File No. SAT-STA-20030903-00300, a copy of this redacted filing is being provided to the Secretary's office for the Commission's public file. The confidential version of the submission is being filed under separate cover. We also enclose an additional copy of this submission, which we ask you to date-stamp and return with our messenger. If you have questions regarding this filing, please contact me. Respectfully submitted, ekM4f-h.bW Rhonda M. Bolton Counselfor EchoStar Satellite LLC W A S H I N C TON PHOENIX LOS A N C k L € S LONDON B R I!S S E L S

REDACTED - FOR PUBLIC INSPECTION Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 RECEIVED APR -5 2004 1 In the Matter of FEDERAL COMMUNICATIONS COMMI%IOh’ OFFICE OF THE SECRETARY ) DIRECTV Enterprises, LLC i Request for Special Temporary Authority to File No. SAT-STA-20030903-00300 Relocate DIRECTV 3 to 82” W.L. and to Conduct Telemetry, Tracking and Command ) Operations for an Interim Period 1 Order Adopting Protective Order ) 1 In the Matter of DIRECTV Enterprises, LLC Application for Special Temporary Authority to ) File No. SAT-STA-20040107-00002 Relocate DIRECTV 5 to 72.5” W.L. and to ) Conduct Telemetry, Tracking and Command 1 Operations for an Interim Period ) To: The International Bureau COMMENTS OF ECHOSTAR SATELLITE, LLC WITH RESPECT TO INFORMATION FILED PURSUANT TO PROTECTIVE ORDER In accordance with the Order Adopting Protective Order issued by the International Bureau (“Bureau”) in File No. SAT-STA-20030903-00300, DA 04-755 (rel. Mar. 22,2004), EchoStar Satellite LLC (“Echostar”) submits these comments concerning the information filcd by DIRECTV Enterprises, LLC (“DIRECTV”) pursuant to the Protective

REDACTED - FOR PUBLIC INSPECTION Order. This information reinforces Echostar’s view that the issues raised in the above-captioned proceedings are best resolved by rulemaking rather than piecemeal adjudication. The Bureau directed DIRECTV to make available for inspection by parties to certain proceedings the agreements DIRECTV has reached with Telesat Canada regarding use of DIRECTV satellites at Canadian-licensed orbital slots. These agreements concern the use of DIRECTV 3 at 82” W.L. and DIRECTV 5 at 72.5” W.L. Both satellites are the subject of pending requests by DIRECTV for Special Temporary Authority (“STA”) to move the satellites to the orbital slots in question and operate them in those locations. With respect to the latter STA request, EchoStar has filed comments expressing its view that DIRECTV’s proposal to provide Direct Broadcast Satellite (“DBS”) service to the United States from the 72.5” W.L. orbital location would most appropriately be considered in the context of a rulemaking to address the overarching policy question of access to the U.S. market via non-U.S. DBS slots.’ More specifically, EchoStar suggested that the Commission provide some guidance as to the standard for allowing service to the U.S. from a Canadian-licensed DBS satellite. To ensure a level competitive playing field, EchoStar maintained that such standards must be announced and applied uniformly industry-wide; it follows that such standards are most appropriately developed through rulemaking rather than piecemeal adjudication. EchoStar further observed that there are other pending proposals to serve the U S . from foreign-licensed DBS satellites at reduced orbital spacings. These proposals raise issues interrelated to those implicated by the 72.5” W.L. STA application, including the role such proposals could play in curing DBS providers’ bandwidth deficit, and the potential number and ’ See Comments of EchoStar Satellite L.L.C., In the Matter of DIRECTV Enterprises, LLC, Application for Special Temporary Authority To Relocate DIRECTV 5 to 72.5” W L. and to Conduct Telemetry, Tracking and Command Operationsfor an Interim Period, File No. SAT- STA-20040107-00002 (filed Feb. 17,2004). -2-

REDACTED -- FOR PUBLIC INSPECTION location of reduced-space DBS satellites. DIRECTV has filed a petition requesting that the feasibility of reduced orbital spacing for DBS satellites be addressed in a rulemaking.* Should the Commission grant that petition, it should also consolidate the two proceedings. The agreements associated with DIRECTV’s plan to relocate DIRECTV 3 to Canada’s 82” W.L. orbital slot reinforce Echostar’s belief that the planned use of Canadian orbital slots should be the subject of a rulemaking. These documents contemplate . In particular, DIRECTV’s December 23,2003 Memorandum of Agreement (“MOA”) with Telesat Canada states that .3 While DIRECTV has asserted that DIRECTV 3 will only be used at the Canadian orbital locations to serve Canada,4 the DIRECTV 3 Satellite Location and Lease Agreement nonetheless contemplates 5 ’See Petition of DIRECTV Enterprises, LLC for a Rulemaking on the Feasibility of Reduced Orbital Spacings in the U.S. Direct Broadcast Satellite Service (filed Sept. 5,2003). Memorandum of Agreement Between Telesat Canada and DIRECTV Enterprises, LLC (dated Dec. 23,2003) (“Telesat MOA”), fl A.2. See id See Letter from James H. Barker 111, Counsel to DIRECTV, to Marlene H. Dortch, Secretary, FCC (dated Feb. 19,2004) enclosing unredacted responses to the Bureau’s Dec. 8, 2003 list of questions to DIRECTV, response to Question 1 1. See Satellite Location and Lease Agreement, fl 4.4 (“DIRECTV 3 Lease Agreement”) (appended as Exh. B to the Telesat MOA and also to Letter from James H. Barker 111, Counsel to DIRECTV, to Marlene H. Dortch, Secretary, FCC (dated Feb. 19,2004). -5-

REDACTED - FOR PUBLIC INSPECTION EchoStar does not question the legitimacy of such a provision. The point, however, is that this provision does not foreclose . The Bureau has recognized this. In an inquiry to DIRECTV Concerning its request for STA to relocate DIRECTV 3 to 82" W.L., the Bureau questioned DIRECTV's assertion that use of that satellite at 82" W.L. would be limited to Canadian service "particularly in light of the provisions concerning consent to provision in the United States in Paragraph A.2. of the Memorandum of Agreement between Telesat Canada and DIRECTV Enterprises, LLC, dated August 27, 2003 .'76 What does this possibility mean? If the Commission were to authorize DIRECTV to provide service to the U.S. from DIRECTV 5 at 72.5" W.L. and then other requests were received, either from DIRECTV or another entity, to provide service to the U.S. from DIRECTV 3, the Commission would have little choice but to grant that request as well. If the Commission were to do so, and still were to find that Canada does not satisfy the ECO-Sat test, that test would effectively be nullified.' EchoStar does not take a position on whether this would be appropriate. Letter from Thomas S . Tycz, International Bureau, to James H. Barker 111, Counsel to DIRECTV (dated Dec. 8,2003), Question 11. In response, DIRECTV has characterized this provision as a mere non-compete requirement to prevent Telesat Canada from using DIRECTV's own satellite to provide DBS service to the U.S. in competition with DIRECTV. See Letter from James H. Barker 111, Counsel to DIRECTV, to Marlene H. Dortch, Secretary, FCC (dated Feb. 19,2004) enclosing unredacted responses to the Bureau's Dec. 8,2003 list of questions to DIRECTV, response to Question 11; see also Consolidated Opposition to Petitions for Reconsideration, Application of General Motors Corp., Hughes Electronics Corp., and The News Corporation Limited for Authority to Transfer Control (dated Mar. 19,2004), at 10, n.23. EchoStar notes in that respect that the Commission very recently granted the request of Pegasus Development Corporation to serve the U.S. using earth stations that will communicate with Canadian satellites. See Pegusus Developmeni Corporuiion, ConsoliduiedApplications for Authority to Operate One US. Transmit/Receive Fixed Earth Station (Call Sign EO1 0320) and 1,000,000 Receive-Only Earth Stations (Call Sign E020022) With The Canadian-Licensed Nimiq -4-

REDACTED -- FOR PUBLIC INSPECTION It is certain, however, that such a result can best be evaluated in a rulemaking, not by piecemeal adjudication. Respectfully submitted, Pantelis Michalopoulos Rhonda M. Bolton Steptoe & Johnson LLP 1330 Connecticut Avenue, NW Washington, DC 20036 (202) 429-3000 Counself o r EchoStar Satellite LLC April 5, 2004 ~~ ~ ~~ I and Nimiq 2 Satellites to Offer Direct Broadcast Satellite Service Throughout the United States, Order, File Nos. SES-LIC-2001112 1-02 186 and SES-LIC-20020 1 1 1-00075, DA 04-909 (Int’l Bur. rel. Mar. 3 1,2004). -5-

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served this 5th day of April 2004 via first-class mail, postage pre-paid (or by hand, indicated by *) upon: Gary M. Epstein* James H. Barker Latham & Watkins LLP 555 I lthStreet, NW, Suite 1000 Washington, D.C. 20004 Counsel for DIRECTV Enterprises, LLC Bruce D. Jacobs Tony Lin Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037 Counsel for Pegasus Development Corp. Benjamin J. Griffin Christopher R. Bjornson Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 701 Pennsylvania Avenue, NW Washington, DC 20004 Counselfor Rainbow DBS Company LLC Phillip L. Spector Diane C. Gaylor Paul, Weiss, Rifkind, Wharton & Garrison LLP 1615 L Street, NW Suite 1300 Washington, DC 20036 Counselfor SES Americom, Inc. Rhonda M. Bolton


Document Created: 2004-04-07 16:28:08
Document Modified: 2004-04-07 16:28:08
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