Attachment Petition

Petition

PETITION submitted by Mobile Satellite Ventures Subsidiary LLC

Petition

2006-12-22

This document pretains to SES-STA-20061221-02207 for Special Temporal Authority on a Satellite Earth Station filing.

IBFS_SESSTA2006122102207_541070

CVUP:(oav:— Before the — FILED/AccEPteD _wachington,D.C.20884_ DEC 2 2 2006 In the matter of ) | %m'o%mwmémgmemmm Amtech Systems LLC ; File No. SEé-STA-INTR2006-034OO Amtech Systems LLC ; File No. SEé-STA-INTR2006-03399 PETITION TO HOLD INABEYANCE Mobile Sateilite Ventures Subsidiary LLC ("MSV") herpby files this Petition to Hold in Abeyance the above—referenced applications for a 60-Speciél Temporary Authority ("STA") filed by Amtech Systems LLC ("Amtech") to operate mobile earth tefinifials ("MET‘s") with the Inmarsat 3F4 satellite which has recently been relocated to‘ 142°W.‘ The International Bureau ("Bureau") should not grant the applications until after (i) the Bureau requires Amtech to disclose which frequencies it will use on the Inmarsat 3F4 satellite and precludes Amtech from using "loaned" L band frequencies or any other frequencies coordinated for MSV or MSV Canada; (ii) Inmarsat Ventures Limited ("Inmarsat") coordinates the operation of the Inmarsat 3F4 satellite at 142°W with MSV and other L band operators to mitigate the significant risk of interference from its uncoordinated operation; and (iii) Amtech seeks a waiver of the Commission‘s longitudinal station keeping rule. ‘ See Amtech Systems LLC, File Nos. SES—STA—INTR2006—03400, SES—STA—INTR2006—03399 (December 21, 2006). Amtech has filed two identical applications. MSV is filing this Petition with respect to both applications out of an abundance of caution. As one of the L band Mobile Satellite Service ("MSS") operators in North America which could be subjected to harmful interference from grant of this application, MSV is a "party in interest" with standing to file this Petition. See 47 U.S.C. § 309(d)(1). Moreover, MSV has standing as a competitor in the MSS market. See FCC‘ v. Sanders Brothers Radio Station, 309 U.S. 475, 477 (1940).

Background MSV. MSV is the entity authorized by the Commission in 1989 to construct, launch, and operate a United States MSS system in the L band." MSV‘s licensed satellite (AMSé-l 01: | MSAT—2) was launched in 1995, and MSV began offering service in 1996. MSV is also the sucéessor to TMI Communications and Company, Limited Partnership ("TMI") with respect to TMI‘s provision of L band MSS in the United States. Today,‘MSV offers a full range of mobile satellite services, including voice and data, using both its own U.S.—licensed satellite and the Canadian—licensed L band satellite (MSAT—1) licensed to Mobile Satellite Ventures (Canada) Inc. ("MSV Canada"). In May 2005, the Bureau licensed MSV to launch and operate a replacement L band MSS satellite at 101°WL (called "MsSV—1~3" L band coordination process. Spectrum in the L band in North America is shared primarily among five operators: MSV, MSV Canada, Inmarsat, and Mexican and Russian systems.4 The five Administrations that license these systems reached an agreement in 1996 for a framework for future coordination of the L band spectrum in North America, called the Mexico City Memorandum of Understanding ("Mexico City MoUl ‘)." Under the Mexico City MoU, the L * Order and Authorization, 4 FCC Red 6041 ( 1989); remanded by Aeronautical Radio, Inc. v. FCC, 928 F.2d 428 (D.C. Cir. 1991); Final Decision on Remand, 7 FCC Red 266 (1992); aff‘d. Aeronautical Radio, Inc. v. FCC, 983 F.2d 275 (D.C. Cir. 1993); see also AMSC Subsidiary Corporation, Memorandum Opinion and Order, 8 FCC Red 4040 (1993). * See Mobile Satellite Ventures Subsidiary LLC, Order and Authorization, DA 05—1492 (May 23, 2005) ("MSY—1 Order‘"). * The L band spectrum in North America is also shared with Japan‘s MTSAT satellite, but only in and near the Pacific Ocean. 5 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").

band operators are each assigned certain specific frequem.:i’e's to uée on their specific satellites through multi—party operator agreements, called Spéctrum éharing Arrangements ("SSA"). Since 1999, all the L band operators, only recently with 'the ¢xception of Inmarsat, have been operating on a non—interference basis using spectrfim assijgnm’ents listed in the 1999 SSA for specific satellit;.eé, orbital locations, earth stations, servi.ces i'(carrier types and emission levels), satellite antenna beams and the associated main beam apd s,i.delobe roll—off, and service areas. At the last L band operators meeting, held in 1999, Inmafsat committed to abide by the terms of the 1999 SSA.° Indeed, Inmarsat‘s statement made in its April 200:5 securities filing that "the amount of spectrum available to each operator is currently}fi'ozit‘en at the levels agreed in 1999,"" is consistent with its earlier commitment to respect the 1999: SSA. Amtech Appflication. Amtech is authofized to operate mobile earth terminals ("METs") with MSAT—1 and MSAT—2. In the above—referenced application, Amtech seeks an STA to operate its MET‘s with the Inmarsat 3F4 satellite in the event MSAT—2 experiences an outage. The Inmarsat 3F4 satellite was relocated earlier this year to 142°W to replace an uncoordinated Inmarsat—2 satellite at 142°W that, according to Inmarsat, was "running out of fuel" and would be "decommissioned shortly."* ° Indeed, even more recently, the Commission was under the impression that "the parties continue to operate under the 1999 assignments pending further negotiations." See Flexibilityfor Delivery of Communications by MSS Providers, Report and Order, IB Docket No. 01—185, 18 FCC Red 1962, n.144 (February 10, 2003) ("A7TC Order"). * See Inmarsat Global Ltd., Form F—20 (April 29, 2005) (http://www.sec.gov/Archives/edgar/data/ 1291 396/0001 0474690501 2474/a2 1 565522z20—f.htm). 8 See Telenor Communications, Inc., Request for Special Temporary Authority, File No. SES— STA—20060118—00055 et al (January 18, 2006), Norton Declaration at «| 2.

Discussion As an initial matter, Amtech‘s applicatipn does not specify which L band frequencies it will use to communicate with the Inmarsat 3F4 satellite. Absent specific frequencj; iilfonf;altion, the Bureau cannot conclude that grant of this STA will not result in harmful interference. For exar'nple, to the extent Amtech is seeking to use on the Inmarsat 3F4 satellite "loaned" L band frequencies or any other frequencies coordinated for MSV or MSV Canada, such operations will result in harmful interference to the customers of MSV and MSV Canada." The Bureau should require Amtech to specify the frequencies it will use and preclude Amtech from using "loaned" L band frequencies or any other frequencies coordinated for MSV or MSV Canada. The Amtech application should be held in abeyance until after Inmarsat coordinates the operation of its Inmarsat 3F4 satellite at 142°W with MSV and other North American L band operators. MSV did not learn of Inmarsat‘s proposal to move the Inmarsat 3F4 satellite from 54°W to 142°W until Inmarsat‘s distributors filed a series of emergency STA requests to operate with another uncoordinated Inmarsat satellite that is now operating at the nominal orbital location that the Inmarsat 3F4 satellite has vacated.‘" Moreover, Inmarsat‘s licensing Administration (the United Kingdom) has never notified the United States that it deems the Inmarsat 3F4 satellite at 142°W to be coordinated. Inmarsat‘s proposed operation of the Inmarsat 3F4 satellite at 142°W is the latest in a growing number of uncoordinated satellite ° The Bureau has defined "loaned" L band frequencies as "those bandwidth segments that were loaned to Inmarsat by MSV and [Mobile Satellite Ventures (Canada) Inc.], either as part of the Revised 1999 Spectrum Sharing Arrangement (October 4, 1999), or later as bilateral arrangements between Inmarsat and MSV and Inmarsat and MSV Canada." See, e.g., Stratos Communications, Inc., Request for Special Temporary Authority, File No. SES—STA—20060310— 00419 (filed March 10, 2006; granted with conditions on May 12, 2006). !© See, e.g., Stratos Communications. Inc., Request for Special Temporary Authority, File No. SES—STA—20051216—01760 et al (December 16, 2005).

inated operations Inmarsat is cbnducting in North America; w'hicél‘l will nsw include uncoc')rd authorize satellites operating at 52.75°W, 98°W, 142°W, and '143.5°E‘.: In fact, a decision tb service at this uncoordinated location would unfairly fav'd.r!lnmz‘irsatv over all of the other satellite operators — both U.S.— afid non—U.S. licensed —— that diligently ‘f0110w the ITU coordination procedures. Such a Aecision Would undermine the Commi_ssio?fis obligations under the World Trade Organizatidn (WT@).Agreement on Basic Telecqnnfifinications Services‘‘ as well as the Commission‘s own ‘commitments made in the DISCO TT ,O;der to.:create a level regulatory 4 playing field among satellite operators.‘2 Accordingly, th:e_ B.urtjaau should defer action on this application until after Inmarsat coordinates the Inmarsat 31;"4 sa&el]itc at its new location with MSV and the other North American L band operators. Absent priof coordination, there is a significant risk of intgrference to other L band operators from Inmaréat’s uncoordinated operations. While Inmarsat has operated an Inmarsat—2 satellite at 142°W, Inmarsat never coordinated this satellite with MSV and the other North American L band operators. There is no established and agreed—to technical basis for the operation of the Inmarsat—2 safel]ites after the Mexico City MoU among the five North American L band MSS operators and their respective Administrations. From a technical perspective, the ‘ Amendment ofthe Commission‘s Regulatory Policies to Allow Non—U.S. Licensed Satellites Providing Domestic and International Service in the United States, Report and Order, 12 FCC Red 24094 (1997) ("DISCO II Order"), at «| 22 (explaining that the "critical aspect" of national treatment analysis under the WTO Basic Telecom Agreement "is whether the treatment accorded modifies the conditions of competition in favor of certain foreign or domestic suppliers"). * in the DISCO II Order, in which the Commission adopted policies governing the ability of foreign—licensed satellite systems to serve the U.S. market, the Commission was careful to require "non—U.S. satellite operators to comply with all Commission rules applicable to U.S. satellite operators" because "[t]o do otherwise would place U.S. and foreign operators on an uneven competitive footing." See DISCO II Order at § 173. The Commission explained that "this overall approach does not violate U.S. national treatment obligations because we will be treating foreign service suppliers identically to U.S. service suppliers with respect to their provision of service within the United States." 1¢.

Inmarsat 3F4 satellite is materially different than the Inmarsat—2 satellite it is allegedly replacirllg, and is more likely both to cause interference to'and to suffer interference from other L band systems relative to the Inmarsat—2 satellite. For example, the Inmarsat—2 satellite at'.1;2°\?\./“lias a global beam only; the Inmarsat 3F4 sate}lite has a global beam as well as regional beams. The lnm'arsat 3F4 satellite has substantially more RF power than the Inmarsat—2 satellite, and to the extent it is used to carry services with low and fi1edium gain rfiobile terminals (the very services that can only operate in spot beam mode), such use could materially inflate Inmarsat‘s demand for L band spectrum. Such services cannot reuse spectrum via orbital separation of the Inmarsat satellites. Thus, there is no basis to conclude that the Inmarsat—2 and Inmarsat—3 satellites are technically and operationally consistent. Assuming Inmarsat uses the regioflal beams on the Inmarsat 3F4 satellite at 142°W, Inmarsat will be required to use additional spectrum because Inmarsat cannot operate regional and global beams using the same frequencies. Even if Inmarsat uses only the global beam of the Inmarsat 3F4 satellite, the Inmarsat 3F4 satellite has a higher aggregate EIRP than the Inmarsat—2 satellite. Thus, even if Inmarsat had coordinated the Inmarsat—2 at 142°W, the Inmarsat 3F4 satellite is technically different than the Inmarsat—2 satellite, making it infeasible for Inmarsat to operate the new satellite within the parameters of its old satellite." In addition, although not mentioned in Amtech‘s STA request, previous applications seeking to operate with the Inmarsat 3F4 satellite at 142°W reveal that the satellite operates with " Amtech does not claim that the Inmarsat 3F4 satellite at 142°W is a replacement satellite under the Mexico City MoU. The Mexico City MoU does not contemplate the operation of the Inmarsat 3F4 satellite at any orbital location other than 54°W.

+0.1° East-Wegt sta‘tion‘.keeping.M In acting on MSV‘s a‘pplicatio:n to operate an MSS satellite with £+0.1° East—West _station keeping, the Bureau He]d fl?at'.MSV was reduired t§ justify a waiver of the rule requiring Fixed Satellite Service ("FSS") satellites to operate with +0.05° East—West station keeping.‘" MSV has spught reconsideration of this dequsiof;, asking the Bureau to clarify that the rule requifing FSS satellites to operate with :t0.0S?’E‘a’s‘t-West station—keeping does not apply to MSS satél]ites.'g This proceeding is pending. ;To"the extent the Bureau authorizes Inmarsat 3F4 for s&vice in the United States with :t0.1°'Ee;st-We'st station keepingAwithout seeking a waiver, thé Bureau must afford similar 1reatme;1§ to Q:fher MSS satellites propovsing to serve the U.S. market, such as MSV—1. Conversely, if the Bureafi on reconsideration ofthe MSV—1 Order upfiqlds its decision that MSS satellites are required to comply wfth +0.05° East— West station—keeping, the Amtech application should be dismisééd for failing to seek a waiver of this rule."" * See Telenor Satellite, Inc., Application, File No. SES—MFS—20060725—01253 (Call Sign E980136) (July 25, 2006). 5 See MSV—1 Order §| 21. ° See MSV, Petition for Clarification and Partial Reconsideration, File Nos. SAT—LOA— 19980702—00066 et al (June 22, 2005). ‘‘ See Letter from Thomas S. Tycz, FCC, to John K. Hane, Pegasus Development Corporation, DA 03—3665 (November 19, 2003) (dismissing application for failing to seek waiver of Commission‘s East—West station—keeping rule).

Conclusion Based on the foregoing, the Bureau should not grant the applications until after (i) the > Bureau requires Amtech to disclose which frequencies it will use on the Inmarsat 3F4 satelli;e and precludes Amtech from using "loaned" L band flequcncie§ or any other frequencies cc;ordinated for MSV or MSV Canada; (ii) Inmarsat coordinat%s the operation of the Inmarsat 3F4 satellite at 142°W with MSV and other L band operators to mitigate the significant risk of interference from its uncoordinated operation; and (iii) Amtech seeks a waiver of the Commission‘s longitudinal station keeping rule. Respectfully submitted, _ [\_— Brice D. Jacobs } Jennifer A. Manner David S. Konczal Vice President, Regulatory Affairs PILLSBURY WINTHROP MOBILE SATELLITE VENTURES SHAWPITTMAN LLP SUBSIDIARY LLC 2300 N Street, NW 10802 Parkridge Boulevard Washington, DC 20037—1128 Reston, Virginia 20191 (202) 663—8000 ‘(703) 390—2700 Dated: December 22, 2006

Deélaration of Jennifer A. Manner I am the Vice President, Regulatory Affairs of Mobile Satellite Ventures Subsigiiary.LLC. 1 have read the foregoing Petition to Hold in Abeyance the application of Amtech Systems LLC. I have personal knowledge of the facts stated in the Petition.to Hold in Abeyance. The facts set forth in the Petition,other than those of which official notice may be taken, are true and correct to the best of my knowledge, information, and belief. I declare under penalty of perjury that the foregojng is true and correct. [Lc——_—_—— Jefhnifer A. Manner Executed on December 223 2006

Technical Certification 1, Richard O. Bvans, Senior Engmeer of Mobile SatclhtcVentures Subsidiary LLC, certify under penalty of perjury that: I am the technically qualified person with overall responsibility for the technical information contained in this Petition to Hold in Abeyance. I am familiar with the Commission‘s rules, and the information contained in the Petition to Hold in Abeyance is true and cortect to the best ofmy knowledge and belief. Richard O. Evans Dated: December23 2006

CERTIFICATE OoF SERVICE I, Sylvia A. Davis, of the law firm of Pfl]sbury Wmthrop Shaw Pittman LLP hereby . certify that on this 22nd day of December 2006, 1 served atrue copy of the foregoing by _. > electronic mail upon the following: . Barbara Beam ' Oennifer Hindin Amtech Systems LLC + Chin Yoo— . 8158 Adams Drive " 2 Wiley Rein & Fielding LLP Suite 200 . > 1776 K Street, NW Hummelstown, PA ]7036 1 ' Washingiq'n;DC 20006


Document Created: 2006-12-28 12:10:24
Document Modified: 2006-12-28 12:10:24
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