Attachment DIRECTV5

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

IBFS_SESMOD2004022700295_389217

Federal Communications Commission DA 04-2526 Before the Federal Communications Commission Washington, D.C. 20554 In the Matters of 1 1 Application of DIRECTV Enterprises, LLC 1 File No. SAT-STA-20040107-00002 1 Call Sign: S2417 Request For Special Temporary Authority for the 1 DIRECTV 5 Satellite 1 1 Application of DIRECTV Enterprises, LLC 1 File No. SES-LFS-20040112-00023 1 Call Sign: E040024 Request for Blanket Authorization for 1,000,000 1 Receive Only Earth Stations to Provide Direct 1 Broadcast Satellite Service in the U.S. using the ) Canadian Authorized DIRECTV 5 Satellite at the 1 72.5” W.L. Broadcast Satellite Service Location 1 ORDER AND AUTHORIZATION Adopted: August 12,2004 Released: August 13,2004 By the Chief, Satellite Division, International Bureau: I. INTRODUCTION 1. By this Order, we grant DIRECTV Enterprises, LLC’s (“DIRECTV”) application for Special Temporary Authority (“STA”) to relocate its DIRECTV 5 satellite to the 72.5” W.L. orbital location.’ That request is pursuant to an agreement between DIRECTV and Telesat Canada (“Telesat”). We also grant DIRECTV’s request for a blanket authorization for 1,000,000 receive only earth stations, which will be used to provide “local-into-local”2signals to U.S. consumers using the DIRECTV 5 ~atellite.~ That satellite will operate at the 72.5” W.L. orbital location pursuant to a Canadian space station authorization issued to Telesat. The term “72.5’ W.L. orbital location,” as used in this Order, refers to the nominal orbital position for the relevant Canadian frequency assignment under the International Telecommunication Union (“ITU”) Region 2 Plan for B SS and Feeder Link Assignments, as contained in Appendix 30/30A of the Radio Regulations, and to any specific orbital location within the cluster defined by such assignment. 2 The term “local-into-local,” as used in this Order, refers to provision via satellite retransmission of local broadcast channels to subscribers who reside in the local TV station’s market, which is defined as a Designated Market Area, or “DMA”. See 17 U.S.C. 6 122(j)(2)(A). 3 This action is taken pursuant to Section 25.132 of the Commission’s Rules. See 47 C.F.R. 9 25.132(j) (requiring receive-only Earth stations that would operate with non-U.S. licensed space stations to request a license). Any Earth station authorizations required for tracking, telemetry, and command functions in connection with operations of the DIRECTV 5 satellite will be addressed separately.

Federal Communications Commission DA 04-2526 11. BACKGROUND A. The Transaction Between DIRECTV and Telesat Canada 2. The proposed relocation of the DIRECTV 5 is pursuant to an agreement between DIRECTV and Telesat concerning the use of DIRECTV 5 and another DIRECTV satellite, DIRECTV 3: at orbital locations assigned to Canada under the ITU Region 2 Plans for the BSS and associated feeder-links.' DIRECTV agreed to move the DIRECTV 5 satellite to the 72.5" W.L. orbital location, subject to the successful launch and in-orbit testing of the DIRECTV 7 s satellite, and subject to necessary governmental approvals. DRECTV 7s has since been launched and has replaced the DIRECTV 5 satellite at the 119" W.L. orbital location.6 The agreement provides DIRECTV with an exclusive right to use all of the capacity on the DIRECTV 5 satellite at the 72.5" W.L. orbital location until at least September 30, 2008. Under the agreement, DIRECTV may, under certain circumstances, move the DIRECTV 5 satellite to one of its FCC licensed orbital location^,^ upon 5 days notice to Telesat, in the event that DIRECTV 5 is needed to replace some or all of the capacity of certain DIRECTV satellites due to a satellite or launch failure. Upon the exercise of certain options outlined in the agreement, operations of DIRECTV 5 at the 72.5" W.L. orbital location may continue until June 30,2013. 3. The agreement contemplates that, once DIRECTV 5 is at the 72.5" W.L. orbital location, it will be operated by Telesat pursuant to a separate operations agreement. DIRECTV will perform telemetry, tracking, and control functions (TT&C fbnctions) under Telesat's direction and control, until Telesat has developed and installed the necessary facilities in Canada to perform such functions, which shall occur within 12 months after receipt of regulatory approvals necessary to relocate DIRECTV 5 to the 72.5" W.L. orbital location. On December 17, 2003, Industry Canada provided Telesat with an approval in principle to develop and operate a broadcast-satellite space station at the 72.5" W.L. orbital location? B. Procedural History 4. On October 7,2003, DlRECTV filed a copy of its agreement with Telesat and requested that it be withheld from public inspection pursuant to Sections 0.457 and 0.459 of the Commission's rules.' On January 7, 2004, DlRECTV filed its STA request to relocate the DIRECTV 5 satellite. On January 12, 2004, DIRECTV filed its request for a blanket Earth station authorization. The Satellite Division issued a 4 The DIRECTV 3 satellite was addressed in a separate proceeding. DIRECTV, Inc., Order, DA 04-1761 (Int'l. Bur., Sat. Div., released June 23,2004). 5 The Plan for the Broadcasting-Satellite Service (BSS) in the Band 12.2-12.7 GHz in Region 2 is contained in Appendix 30 of the ITU Radio Regulations, and the associated Plan for the feeder-links in the frequency band 17.3- 17.8 GHz for the broadcasting-satellite service in Region 2 is contained in Appendix 30A of the ITU Radio Regulations. See DIRECTV Enterprises, Inc., Order and Authorization, 19 FCC Rcd 7954 (Int'l Bur. 2004). DIRECTV holds licenses to operate satellites pursuant to the U.S. assignments for the 101, 1 10 and 119" W.L. orbital locations under the ITU Region 2 Plan for BSS and Feeder Link Assignments. DIRECTV STA Request at Exhibit 1. Also available at http://strategis.gc.ca/epic/internet/insmt- gst.nsf/vwapj/ignacy-e.pdf/$FILE/ignacy-e.pdf. 9 47 C.F.R. $5 0.457, 0.459. See DIRECTV Enterprises, LLC, Notification of Filing of Request for Confidential Treatment, filed October 2 1, 2003, and DIRECTV Enterprises, LLC, Request for Confidential Treatment, filed subject to a confidentiality request on October 7, 2003, both in File No. SAT-STA-20030903-00300. DIRECTV extended this request to cover documents related to its agreement with Telesat that were filed with the Commission on December 17,2003, January 13,2004, March 1,2004, June 23,2004, and June 29,2004. 2

Federal Communications Commission DA 04-2526 public notice of DIRECTV’s STA request on January 15, 2004.’’ On February 17, 2004, Pegasus Development Corporation (“Pegasus”) and Echostar Satellite, LLC (“EchoStar”) filed petitions to deny the STA.” DIRECTV and Telesat filed an opposition to these pleadings on March 3, 2004, to which Pegasus, Echostar and SES Americom replied on March 10, 2004.12 On March 15, 2004, DIRECTV and Telesat provided portions of previously confidential contracts for inclusion in the public file.I3 5. On March 22, 2004, we released a Protective Order that permitted conditional access to the confidential documents submitted by DIRECTV, in their entirety, and gave commenters a period of time in which to file any additional comments that might result from review of those document^.'^ Pursuant to the Protective Order, Pegasus and Echostar filed supplemental comments on April 5 , 2004, to which DIRECTV, SES, and Telesat replied on April 12,2004. 6. Separately, on March 25, 2004, we issued a Public Notice establishing a comment deadline concerning DIRECTV’s request for a blanket Earth station authori~ation.’~ On April 26, Pegasus filed a Petition to Deny the blanket Earth station application, and Echostar filed comments concerning that application. DIRECTV and SES responded on May 6, 2004. 7. On May 14,2004, DIRECTV submitted summaries of exparte meetings,I6 and on May 26, 2004, DIRECTV submitted a letter responding to a question from Commission staff concerning operations of DIRECTV 5.17 On June 23,2004, DlRECTV submitted a copy of its agreement with Telesat concerning Operational Services.’* On July 6, 2004, DJRECTV submitted portions of its agreement with Telesat, previously treated as confidential, for inclusion in the public file.” Io Report No. SAT-00187 (released January 15,2004). 11 In addition, SES Americom, Inc. (SES Americom) filed a “Petition to Defer and Comments,” and Rainbow DBS Company LLC filed a brief letter, on February 17, 2004. These comments both concerned the relationship between DIRECTV’s STA request and the DIRECTV’s request for a blanket Earth station authorization. Our subsequent action issuing a public notice concerning the blanket Earth station authorization, and our action today addressing both requests simultaneously, renders those concerns moot. 12 The status of DIRECTV’s STA request under the Commission’s ex parte rules was modified to “permit but disclose,” pursuant to 47 C.F.R. 6 1.1200(a), on March 12, 2004. Report No. SAT-00201, DA 04-749 (released March 19,2004). 13 Letter from Gary Epstein, Counsel for DIRECTV, to Marlene H. Dortch, Secretary of the FCC, dated March 15, 2004. 14 Order Adopting Protective Order, DA 04-755 (rel. Mar. 22, 2004) (Protective Order). In the Protective Order, the International Bureau (Bureau) required DIRECTV to disclose documents associated with both DIRECTV 5 and another satellite, DIRECTV 3, pursuant to a non-disclosure agreement. We considered the DIRECTV 3 application in another Order. See DIRECTV, Inc., Order, DA 04-1761 (released June 23,2004). I5 Report No. SES-00590 (released March 25, 2004). That public notice also modified the status of the proceeding under the Commission’s ex parte rules to a “permit but disclose” proceeding, pursuant to 47 C.F.R. 5 I . 1200(a). 16 Ex Parte Notification from William Wiltshire, Counsel for DIRECTV (May 14, 2004). 17 Letter from William Wiltshire, Counsel for DIRECTV to Thomas Tycz, Chief, Satellite Division, dated May 24, 2004, File No. SAT-STA-20040107-00002. 18 Letter from William Wiltshire, Counsel for DIRECTV, to Marlene H. Dortch, Secretary, FCC, dated June 23, 2004. 19 Letter from William Wiltshire, Counsel for DIRECTV, to Marlene H. Dortch, Secretary, FCC, dated July 6,2004. 3

Federal Communications Commission DA 04-2526 111. DISCUSSION 8. We find that granting the STA and associated blanket earth station authorization is in the public interest. These actions will provide satellite capacity for the provision of local-into-local services in 24 markets in which DIRECTV currently does not provide such service:’ thereby improving the quality of service to U.S. consumers?’ We discuss below the basis for this conclusion, and various issues raised by parties to these proceedings. 9. DZSCO ZZ Framework The Commission’sDISCO IZ Order adopted a framework under which the Commission would consider requests for non-U.S. licensed satellite systems to serve the United States.22 To implement this framework, the Commission, among other things, established a procedure by which a service provider in the United States could request immediate access to a foreign in-orbit satellite that would serve the U.S. market.23 This procedure requires the service provider to apply for an earth station license that would list the foreign satellite as an authorized point of communication. Under the DISCO ZI framework, for direct-to-home services such as those involved in this case, we examine whether there are effective competitive opportunities for U.S.-licensed satellites to serve the home market of the non-U.S. satellite seeking access to the United States. We examine in particular whether there are de jure or de facto barriers to entry for the provision of analogous service, and whether any such barriers would cause competitive distortions in the United States. These factors are considered together with other public interest considerations to determine whether grant of the request would serve the public interest. 10. DBAC Order and Competition Issues. The DISCO ZZ framework, as applied in the DBAC case24 is relevant in this case?5 In DBAC, we authorized a U.S. earth station operator to access a Canadian- authorized satellite to provide direct-to-home service to the United States. In finding that authorization to be in the public interest, we first examined whether there were de jure or de facto barriers to entry in the 20 See Letter from William Wiltshire, Counsel for DIRECTV to Thomas Tycz, Chief, Satellite Division, dated May 24,2004, at page 2, File No. SAT-STA-20040107-00002. 21 DIRECTV will continue to be considered a “DBS provider,” pursuant to Section 25.701 of the Commission’s Rules, 47 C.F.R. 0 25.701, in connection with the operations of the DIRECTV satellite at the 72.5” W.L. orbital location. 22 See Amendment of the Commission’s Regulatory Policies to Allow Non-U.S. Licensed Satellites Providing Domestic and International Service in the United States, Report and Order, IB Docket No. 96- 1 1 1, 12 FCC Rcd 24094 (1997) (DISCO ZZ or DISCO ZZ Order). 23 See DISCO ZZ, 12 FCC Rcd at 24174, 7 186. For a more detailed summary of the DISCO IZ framework, see Amendment of the Commission’s Regulatory Policies to Allow Non-U.S.-Licensed Space Stations to Provide Domestic and International Satellite Service in the United States, First Order on Reconsideration, IB Docket No. 96-1 11, 15 FCC Rcd 7207’7209-10,74-5 (1999) (DISCO ZZ First Reconsideration Order). 24 Digital Broadband Applications Corp. , Order, 18 FCC Rcd 9455 (Int’l. Bur. 2003) (DBAC). 25 Echostar argues that this case presents issues which should be resolved in a rulemaking proceeding. Echostar STA Comments at 4-7 (rulemaking needed to address standards applied to request from DBS providers to access the U.S. market from non-U.S. DBS slots, and to examine what public interest showing is needed to overcome the lack of reciprocity with Canada); Echostar Blanket Earth Station Comments . Other parties disagree. See, e.g., SES STA Reply Comments; SES Blanket Earth Station Reply Comments. As indicated in DBAC, the Commission has already established through rule making proceedings the standards and procedural mechanisms for considering requests for access to the United States market using a foreign authorized satellite. See DBAC, citing 47 C.F.R. 9 25.137; Amendment of the Commission’s Regulatory Policies to Allow Non-U.S. Licensed Satellites to Provide Domestic and International Service in the United States, Report and Order, IB Docket No. 96-1 1 1, FCC 97-399, 12 FCC Rcd 24094 (1997), recon. 15 FCC Rcd 7207 (1999), recon. denied 16 FCC Rcd 19794 (2001). 4

Federal Communications Commission DA 04-2526 Canadian market for services analogous to the services DBAC was seeking authority to provide in the United States. We found that such de jure barriers do exist. However, we also concluded that there was a compelling public interest justification for authorizing such service in the United States, and that grant of the authorization would enhance, rather than distort or harm, competition in the United States, by facilitating entry by a new competitor. Several parties note that this case differs from the DBAC case because DIRECTV, unlike DBAC, is an established competitor in the market for delivery of multi- channel video programming, and, therefore, grant of DIRECTV’s request would not provide the benefits associated with entry of a new competitor into that market. For the reasons discussed below, we conclude that the benefits from grant of DIRECTV’s proposal are nonetheless compelling and warrant favorable action on DIRECTV’s request. 11. In DBAC, we considered, first, whether competitive distortions might result from authorizing DBAC to provide the services proposed. We found that competitive distortions would be likely to result only under a number of conditions: (1) through use of the Canadian satellites, the Applicant would have access to cost savings, subsidies or quality-enhancing assets not available to other U.S. service providers; (2) those cost savings, subsidies, or quality-enhancing assets would be sufficiently large to enable the Applicant to offer prices and quality of services that would cause some or all of the incumbent U.S. DTH/DBS providers to exit the market; (3) following exit of some or all of the domestic DTH/DBS providers, the Applicant would be able to raise the price of service to U.S. customers; and (4) entry barriers exist such that neither the incumbent U.S. DTH/DBS providers or new U.S. DTH/DBS providers could enter the market, thereby defeating the price increase.26 We also noted that competitive distortions related to predatory pricing are a rare phenomenon, in part because of the high risk that they will be unsuc~essful.~~ In this case, while this authorization will provide DIRECTV with access to quality- enhancing assets, i.e., satellite capacity for the provision of local-into-local services in 24 markets in which DIRECTV is not currently providing this service, there is no evidence that this access will create a competitive distortion by allowing DIRECTV to carry out a predatory strategy. 12. In DBAC, we then considered whether there was a compelling public interest justification for authorizing service. We found that, since DBAC had not yet entered the markets for DBS or multi- channel video programming distribution (MVPD) services, authorization of DBAC to provide these services using Canadian satellites would increase competition in DBS services and in MVPD services generally.28 Here, we find that there is a compelling public interest justification for granting DIRECTV’s application because it will facilitate DIRECTV’s efforts to provide local broadcast channel service. DIRECTV states that it will use the satellite capacity of DIRECTV 5 at 72.5” W.L. to enhance its DBS service by providing satellite-delivered local broadcast channels in additional designated market areas (DMAs). The Commission recently approved the transfer of control of various Commission licenses and authorizations held by Hughes Electronics Corporation and its wholly or majority owned subsidiaries, including DIRECTV, to the News Corporation (News Corp.). In approving the transfer of control, the Commission recognized the importance of local broadcast television to its goal of fostering localism in media and concluded that availability of local broadcast channel service in additional DMAs would serve the public intere~t.2~ Inasmuch as there is no competitive distortion associated with this authorization and 26 DBAC at 9462-63,l 16. 27 Id. 28 Id. 29 As a condition for the approval of the transfer of control to News Corp., the FCC required that DIRECTV provide, by year end 2004, local broadcast channel services in an additional 30 DMAs beyond what had been previously fbnded, projected or planned by HughedDIRECTV. General Motors Corporation, et al., Memorandum Opinion and (continued.. ..) 5

Federal Communications Commission DA 04-2526 grant of this authorization will facilitate the increase in provision of local broadcast channel service, we find that the benefits associated with grant of DIRECTV's proposal are compelling and warrant approval of the request.30 13. We note that Pegasus filed a petition for reconsideration of the HughedNews Corp. transfer, alleging in part that there are adverse competitive effects resulting from DIRECTV's use of the 72.5" W.L. orbital location, and that these effects warrant overturning the grant of its transfer appli~ation.~~ To avoid pre-judging the reconsideration proceeding, we condition the blanket earth station license on the outcome of the reconsideration proceeding. With respect to Pegasus' allegations that DIRECTV lacked we have reviewed DIRECTV's course of conduct in connection with the STA and Blanket Authorization requests, and do not find any lack of candor.33 DIRECTV's action in this STA and earth station licensing proceeding were consistent with the licensee's obligations of candor, whether or not there may have been a difference of views as to whether certain materials were appropriate for confidential treatment. 14. Pegasus also notes that it and other companies have attempted to develop satellite services to compete with DIRECTV, and that DIRECTV's arrangements with Telesat effectively foreclose those opportunities by making unavailable orbital locations at which there are Canadian assignments in the ITU Regional BSS Plan?4 Pegasus's concerns were addressed in a separate proceeding, insofar as they relate to the 82 and 91" W.L. orbital 10cations.~~With respect to the 72.5" W.L. orbital location, Pegasus maintains that DIRECTV's arrangements with Telesat preclude the use of spectrum at 72.5" W.L. by Pegasus or by other corn petit or^.^^ Pegasus also raises concerns that DIRECTV's arrangement precludes it from working directly with Telesat to develop the 72.5" W.L. location, and that the terms of DIRECTV's arrangement with Telesat provide DIRECTV with a right to use the location "in perpet~ity~,.~~ (...continued from previous page) Order, 19 'FCC Rcd 473, 616, T[ 332, Appendix F, Conditions, Condition VI (released January 14 ,2004) (HughedNews Order), recon. petition pending. 30 We emphasize that we cite the Hughes/News Order in support of our conclusion that providing local channel service to additional DMAs provides a public interest benefit. We do not reach the issue of whether DIRECTV has met the conditions in the Hughes/News Order concerning provision of additional local channel service. 31 Pegasus Petition for Reconsideration at 16-17. Pegasus attached the petition for reconsideration as an exhibit to its petition to deny DIRECTV's STA, and relied upon it in their petition to deny the DIRECTV blanket Earth station authorization. 32See Pegasus Petition for Reconsideration at 14-15. Pegasus argues that from May 2003 to September 2003 DIRECTV actively sought to avoid public disclosure of its arrangement with Telesat concerning the 82"W.L. and 72.5" W.L. orbital positions and that these matters were thus not considered in the HughesINews proceeding. 33 We express no view as to whether DIRECTV adequately disclosed information in the HughedNews proceeding, as resolution of that issue is more appropriately undertaken in connection with that proceeding. As indicated above, our action here is conditioned upon action in that proceeding. 34 See Pegasus Petition to Deny STA at 5-8. Pegasus Consolidated Reply at 6-7. 35 DIRECTV, Inc., Order, DA 04-1761, I T [ 13-15 (released June 23, 2004). It appears that the feasibility of these plans may have been negatively impacted by the partial failure of Telesat's Nimiq 2 satellite. Id. at f(n 3-4 (noting the malfunction of Nimiq 2). 36 Pegasus Consolidated Reply of March 10,2004, at 6. 31 Pegasus Reply and Supplemental Comments of April 5,2004, at 12. 6

Federal Communications Commission DA 04-2526 15. Pegasus and Telesat both participated in a proceeding initiated by Industry Canada seeking expressions of interest in developing the 72.5” W.L. orbital location. Industry Canada selected Telesat to develop that position.38 Furthermore, and as indicated by Telesat, the ability to initiate service promptly, including bringing into use a Canadian ITU filing at the location by July 14, 2005, was a matter of some concern to Industry Canada.39 Although Pegasus argues that the arrangements between Telesat and DIRECTV precluded any cooperative arrangement between Pegasus and Telesat;’ nowhere does Pegasus indicate that it can provide a satellite in a timely manner that would enable Telesat to develop the 72.5” W.L. orbital location consistent with Industry Canada’s goals. There is no indication that Pegasus or any other competitor of DIRECTV has undertaken to procure the physical hardware available to commence service from that location immediately, or put forward any other realistic option for commencement of service in the near future fiom the 72.5” W.L. orbital location? DIRECTV and Telesat’s arrangement, and Industry Canada’s action approving them, do not raise substantial concerns under these circumstances, as there is no current or reasonably foreseeable service offering that might be foreclosed. The record indicates that, absent the arrangement to move the DIRECTV 5 satellite into the 72.5” location, DBS services to either the Canadian or U.S. markets from this location would not be available. 16. With respect to Pegasus’s concern that DIRECTV’s arrangement may foreclose potential competitive service from the 72.5’ W.L. orbital location “in perpetuity,” Telesat’s license from Industry Canada contemplates that DlRECTV 5 is an interim satellite, to be replaced by a new satellite, no later than December 3 1, 2008. Telesat’s license provides that fifty percent of the new satellite’s capacity will be available for “foreign broadcast needs,” i.e. uses such as those provided for in the TelesatDIRECTV contract. The license also provides that the other 50 percent of the satellite’s capacity will be available for use at Telesat’s discretion, consistent with Canadian needs. It is possible, therefore, that new capacity will be available to accommodate additional use as a result. In any event, we will limit the term of DRECTV’s blanket Earth station authorization to a period terminating on September 30, 2008. This date coincides with the terms of the TelesatDIRECTV arrangement. At this time it is unclear whether, on that date, DIRECTV would need to specifL a new satellite as a point of communication, and at that time we can evaluate whether technological developments, such as the deployment of more efficient spot beam satellites to provide local channel service, may facilitate additional use of the 72.5” W.L. orbital location. 17. International CoordinationlRelationshipto DBS Spacing Issues. The ITU Region 2 Plans for the BSS and associated feeder-links includes an assignment to Canada at the 72.5” W.L. orbital location. This location is 4.5 degrees removed from an assignment proposed by Mexico at the 77” W.L. orbital location. Echostar urges that we should consider the impact of operations at the 72.5” W.L. orbital location on potential operations from the 77” W.L. orbital location.42 They note that the spacing of DBS satellites at 38DIRECTV STA Request at Exhibit 1. Also available at http://strategis.gc.ca/epic/internet/insmt- gst.ns f/vwapj/ignac y-e.pdf/$FILE/ignac y-e .pdf. 39 See Telesat Opposition, filed March 3,2004, at 2-3. 40 Pegasus Petition for Reconsideration at 7-8. 41 Pegasus indicated in its proposal to Industry Canada the “near impossibility” of meeting a June 2005 bringing into use deadline. See Pegasus Petition for Reconsideration at 7. The record does not include any additional information as to the date by which Pegasus proposed to initiate service, nor is there any information of which we could take official notice concerning this date. See Pegasus Development Corporation, Response to Industry Canada ’s Call for Expressions of Interest in Broadcasting Satellite Orbital Positions (DGRB 002-003), redacted version available at https://strategis.ic.gc.ca/epic/interne~insmt-gst.nsf/vwapj~egasus~O31 106.pdf/$FILE/Pegasus-O3 1 106.pdf. 42 See, e.g., Echostar STA Comments. 7

Federal Communications Commission DA 04-2526 4.5 degrees is the subject of a petition for rule making filed by DIRECTV,43and of a Public Notice44 seeking comment on technical issues related to such operations. 18. There are no co-frequency U.S. BSS assignments within 9 degrees of the 72.5” W.L. orbital location, and no current BSS operations by any country within 9 degrees of the 72.5” W.L. orbital location. Thus, while we agree that operations at the 72.5” W.L. orbital location and potential operations at the 77” W.L. orbital location may involve some common technical issues with the issues raised by proposals to operate at other orbital locations, operations at the 72.5” W.L. orbital location do not present an immediate potential for disruption or degradation of currently operating DBS service. 19. With respect to the impact of operations at the 72.5” W.L. orbital location on possible future operations at the 77” W.L. orbital location, we are not in a position to address or resolve any issues that may be presented, as this is a matter which must be resolved in the first instance by discussions between Canada and Mexico. We note that both Canada and Mexico filed modifications to the Region 2 BSS Plan in 1996, and neither administration commented on the other’s filing pursuant to the ITU’s procedures. In 2003, both Canada and Mexico filed further modifications, neither of which has been published for comment by the ITU. DIRECTV indicates that DIRECTV 5 can operate within the envelope created by the 1996 Canadian filing, designated CAN-BSS3.45 DIRECTV also indicates that “unless a BSS system that is entitled to protection comes into operation, DIRECTV plans to operate at levels that exceed those notified in the CAN-BSS3 filing on a non-harmful interference basis pursuant to Article 4.4 of the ITU Radio Regulations.’’6 DIRECTV indicates that these higher levels will be “fully enveloped” by Canada’s 2003 filing, designated CAN-BSS6, and that “if necessary DIRECTV will be able to switch to the lower- power operations while maintaining the 24 additional markets without any service interruption to consumers.’’ We will condition the blanket Earth station authorization consistent with these representations. Accordingly, we also reject contentions that the requested operations of DIRECTV 5 will in any way improperly limit hture service from Mexican or other BSS 10cations.4~ 20. Confidential Documents. Pegasus cites the need for public disclosure of the DIRECTV/Telesat agreements, despite the availability of these documents pursuant to the Protective Order. Pegasus argues that the Protective Order unfairly impairs the ability of interested parties to comment effectively in this proceeding, and that the Commission should require DIRECTV and Telesat to publicly disclose the contents of these documents.48 The Protective Order specifically provided a basis for all parties to participate in the STA and blanket Earth station licensing proceeding^.^^ Furthermore, substantial portions of the agreements between DIRECTV and Telesat have been released for public inspection. For these reasons we see no need to address further confidentiality issues for purposes of reaching a decision in this case. 43 Petition of DIRECTV Enterprises, LLC for a Rulemaking on the Feasibility of Reduced Orbital Spacing in the U.S. Direct Broadcast Satellite Service, filed Sept. 5, 2003. 44 Public Notice, “International Bureau Seeks Comment on Proposals to Permit Reducing Orbital Spacing Between U.S. Direct Broadcast Satellites,” Report No. SPB-196 (released Dec. 16,2003). 45 Letter from William M. Wiltshire, Counsel for DIRECTV Enterprises, LLC, to Thomas Tycz, Chief, Satellite Division, dated May 24,2004, at 2. 46 Id. 47 See, e.g., Echostar Blanket License Comments at 5. 48 Pegasus Supplemental Comments at 15- 1 8 . 49 See Protective Order at 2,12. 8

Federal Communications Commission DA 04-2526 21. Exchange of Letters with Industry Canada. We have exchanged letters with Industry Canada in order to ensure that there is a mutual understanding regarding the operation of the DIRECTV 5 satellite. The understandings, and the factual background for these understandings, are provided as Annex A and are material considerations for the authorization contained in this Order. In general, the exchange of letters indicates that DRECTV 5 space station operations at the 72.5" W.L. orbital location will be pursuant to authorization of Telesat by Industry Canada. 22. Disposition of the DIRECTV 5 FCC License. DIRECTV 5 will not be operating pursuant to an FCC authorization once it begins operating at the 72.5" W.L. orbital location. Accordingly, we are terminating the DIRECTV 5 license (Call Sign Sign S2417) effective upon DIRECTV 5 reaching the 72.5" W.L. orbital location. IV. CONCLUSION AND ORDERING CLAUSES 23. Based on the foregoing, we find that grant of DIRECTV's requests will serve the public interest by improving the quality of local channel services in 24 markets. 24. Accordingly, IT IS ORDERED, that the application of DIRECTV Enterprises, LLC File No. SAT-STA-20040107-00002 (Call Sign: S24 17) is GRANTED, and DIRECTV Enterprises, LLC is authorized for a period of 180 days to relocate DIRECTV 5 to the 72.5" W.L. orbital location and to conduct space station Telemetry, Tracking and Command communications related during the movement of the satellite to the 72.5" W.L. orbital location, subject to the following conditions: i.) DIRECTV Enterprises, LLC shall coordinate all drift orbit Telemetry, Tracking, and Control operations with other potentially affected in-orbit operators. ii.) During relocation of the DIRECTV 5 satellite, DIRECTV Enterprises, LLC's operations shall be on a non-harmful interference basis, i.e., DIRECTV Enterprises, LLC shall not cause interference to, and shall not claim protection from interference caused to it by, any other lawfully operating satellites. iii.) In the event that any harmful interference is caused as a result of DIRECTV Enterprises, LLC's operations during the relocation of the DIRECTV 5 satellite, DIRECTV Enterprises, LLC, shall cease operations immediately upon notification of such interference and shall inform the FCC in writing immediately of such an event. iv.) DIRECTV Enterprises, LLC shall provide the Chief, Satellite Division, International Bureau, with 30 days notice (confirmed email considered sufficient) prior to commencement of use of Telesat Canada's earth stations to provide the Earth station segment of Telemetry, Tracking, and Command communications. 25. IT IS FURTHER ORDERED, that, pursuant to Section 25.137 (c) of the Commission's rules, the application of DIRECTV Enterprises, LLC, File No. SES-LFS-20040112-00023, IS GRANTED, and DIRECTV Enterprises, LLC IS AUTHORIZED to use 1,000,000 receive-only Earth stations to receive transmissions in the 12.2-12.7 GHz frequency band from the DlRECTV 5 satellite at the 72.5" W.L. orbital location, which is authorized to Telesat Canada by Industry Canada, until September 30, 2008, consistent with the technical parameters specified in its application, and subject to the following conditions: i.) This authorization is without prejudice to any action the Commission may deem appropriate, including cancellation, or adoption of additional conditions, in connection with petitions for reconsideration filed in MB Docket No. 03-124. 9

Federal Communications Commission DA 04-2526 ii.) Operations shall be consistent with applicable coordination agreements; to the extent such agreements have not been reached, operations shall be on a non-harmful interference basis, Le., operations of the DIRECTV 5 satellite shall not cause interference to, and shall not claim protection from, interference caused to it by any other lawfully operating satellites. 26. IT IS FURTHER ORDERED, that, effective upon the date when the DIRECTV 5 satellite reaches the 72.5" W.L. orbital location, the license for that satellite (Call Sign S2417) IS TERMINATED. 27. DIRECTV Enterprises, LLC, shall inform the Commission, through a letter to the Chief, Satellite Division, FCC, within five business days following the date on which the DIRECTV 5 satellite reaches the 72.5" W.L. orbital location. 28. DIRECTV Enterprises, LLC is afforded thirty days to decline these authorizations as conditioned. Failure to respond within this period will constitute formal acceptance of the authorizations as conditioned. 29. This Order is issued pursuant to Section 0.261 of the Commission's rules, 47 C.F.R. 9 0.261 and is effective upon release. FEDERAL COMMUNICATIONS COMMISSION Thomas S. Tycz Chief, Satellite Division International Bureau 10

Federal Communications Commission DA 04-2526 Annex A Federal Communications Commission Washington, M: 20554 August 3 , 2 a Dear Ms.Beaumier: 11

Federal Communications Commission DA 04-2526 2, Any aptmitiom of ohc DirwTV 5, ather tfim a the 92.5" W.L. orbital location, will be subject to licensing by the FCC, including m y operations 8s a result of equipment failwe in the satellitethat result in the inability IQ maintain the satellite within a. I degrees of its assigned position at the 72.5" W.L. arblul 1oca.tion. 12

Federal Communications Commission DA 04-2526 3 13

Federal Communications Commission DA 04-2526 If the furegoing compcsnds to your understandingof the i n f o m i mngements between ow two agencies concerning the various t e c h i d issues involved in the oper;atiun o f DimW 5 , please confirm by rehm letter. Thank you. Chief Satellite Division 14

Federal Communications Commission DA 04-2526 Canadz 15

«2 . Finaily, I want to express my appreciation for the support your administration is giving to this kind of commercial arrangement to facititate the delivery of important and valuable services in our respective countries. /v Chantal Beaumier Director, Space and International Regulatory Activities <c: Paul Bush, Telesat Canada


Document Created: 2004-08-13 15:54:53
Document Modified: 2004-08-13 15:54:53
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