Attachment New DBSD-Order DA 10

This document pretains to SES-T/C-20091211-01575 for Transfer of Control on a Satellite Earth Station filing.

IBFS_SESTC2009121101575_842926

Federal Communications Commission DA 10—1881 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) New DBSD Satellite Services G.P., Debtor—in— ) File No. SES—T/C—20091211—01575 Possession, Transferor, ) Call Sign: E070272 ) File No. SES—T/C—20091211—01576 New DBSD Satellite Services G.P., Transferee ) Call Signs: E070290; E0O70291; EO80035; ) E080070 Transfer of Control of Earth Station and Ancillary ) File No. SAT—T/C—20091211—00144 Terrestrial Component Licenses and Conforming ) Call Sign: S$2651 Modifications to Commission Records ) ORDER Adopted: September 29, 2010 Released: September 29, 2010 By the Chief, International Bureau: I. INTRODUCTION 1. In this Order, we grant New DBSD Satellite Services G.P., Debtor—in—Possession‘s (New DBSD DIP) request to transfer the above—referenced earth station licenses to New DBSD Satellite Services G.P. (New DBSD). This action will allow New DBSD to emerge from bankruptcy, pursuant to a reorganization plan that has been approved by the Bankruptcy Court. II. BACKGROUND 2. New DBSD DIP is a debtor—in—possession in bankruptcy under Chapter 11 of the United States Bankruptcy Code. On December 11, 2009, New DBSD DIP filed applications to transfer control of earth station licenses for operations of its 2 GHz mobile satellite service system to New DBSD.‘ The licenses include an authorization for an ancillary terrestrial component (ATC). The bankruptcy—related reorganization plan was approved by the U.S. Bankruptcy Court for the Southern District of New York in December 2009 and would result in a change of ownership of New DBSD‘s parent company, DBSD North America, Inc., formally known as ICO North America, Inc." On December 16, 2009, the applications concerning the earth stations were placed on public notice." ‘ File Nos. SES—T/C—20091211—01575 and SES—T/C—20091211—01576. New DBSD DIP also filed a request for authority to transfer control of a "spectrum reservation" in IBFS File No. SAT—T/C—20091211—00144. In re DBSD N. Am., Inc., 421 B—R. 133 (Bankr. S.D.N.Y., Nov. 23, 2009)(NO. 09—13061)(REG), affd Memo. and Order, In re DBSD N. Am., Inc., Case Nos. 09—10156, 09—10372, 09—10373 (S.D.N.Y. Mar. 24, 2010). Sprint sought and was denied a stay of the Confirmation Order from both the District Court and the Bankruptcy Court See Memo. and Order, In re DBSD N. Am., Inc., Case Nos. 09—10156 (S.D.N.Y. May 7, 2010); In re DBSD N. Am., Inc., Case No. 09—13061 (Bankr. S.D.N.Y. May 18, 2010), appeal pending, In re: DBSD North America, Inc., Case No. 10— 1352 (2d Cir.). * See Policy Branch Information, Actions Taken, Public Notice, Report No. SES—01202, rel. Dec. 16, 2009. The filing concerning the "spectrum reservation," File No. SAT—T/C—20091211—00144, was not placed on public notice. The spectrum reservation filing and its substantive and procedural status are discussed infra. at « 7.

Federal Communications Commission DA 10—1881 3. In response to the public notice, Sprint Nextel Corporation (Sprint Nextel) filed a petition to deny the applications on January 14, 2010.‘ Sprint Nextel claims that New DBSD has no plans to build out its ATC system, has not yet found a strategic partner, and has no plans for commencing operations or generating revenue before 2014." Sprint Nextel also asks that, in the event the Commission grants the transfer requests, the grant should include a condition concerning reimbursement of costs arising from the relocation of incumbent Broadcast Auxiliary Service (BAS) in the 2 GHz frequency bands.° Specifically, Sprint Nextel seeks reimbursement from ICO Global Communications (Holdings) Limited (ICO Global), previously a controlling parent company of ICO North America, Inc., and a proposed owner of New DBSD upon emergence from bankruptcy. Alternatively, Sprint Nextel argues that the Commission shou17d delay grant of the transfer, pending appeal of the bankruptcy court‘s approval of the reorganization plan. 4. New DBSD DIP argues, in its Opposition to Petition to Deny, that Sprint Nextel lacks standing to oppose the application." New DBSD DIP also states that Sprint Nextel‘s allegations regarding New DBSD‘s financial status are irrelevant and unfounded. New DBSD DIP argues that grant of the transfer applications should not be conditioned on adjudication that ICO Global is liable to Sprint Nextel for band clearing costs. Sprint Nextel responded to New DBSD DIP‘s Opposition to Petition to Deny, ° reiterating its points as to why the applications should be denied. ‘° * Petition to Deny of Sprint Nextel Corporation, IBFS File Nos. SES—T/C—20091211—01575 et al. (Jan. 14, 2010) (Sprint Nextel Petition to Deny). ° Id. at 9—13. ° Id. at 17. Reimbursement of BAS relocation costs is also the subject of a separate Commission proceeding. See Improving Public Safety Communications in the 800 MHz Band, WT Docket No. 02—55, ET Docket No. 00—258 and ET Docket No. 95—18 (BAS Relocation Proceeding). ‘ Sprint Nextel Petition to Deny at 17. 8 See Opposition to Petition to Deny of New DBSD Satellite Services G.P., IBFS File Nos. SES—T/C—20091211— 01575 et al. (January 25, 2010) (New DBSD Opposition}. ° Reply of Sprint Nextel Corporation to Opposition of New DBSD Satellite Services G.P. to Petition to Deny, IBFS File Nos. SES—T/C—20091211—01575 et al., at 11 (Feb. 3, 2010) (Sprint Nextel Reply). * In the course of this proceeding, the parties have made a number of ex parte presentations to the Commission. Letter from Suzanne H. Malloy, New DBSD DIP, to Marlene H. Dortch, FCC (Mar. 19, 2010); Letter from Suzanne H. Malloy, New DBSD DIP, to Mindel De La Torre, FCC (Apr. 20, 2010); Letter from Peter A. Corea, New DBSD DIP, to Mindel De La Torre, FCC (May 27, 2010); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Mindel De La Torre, FCC (June 1, 2010); Letter from Peter A. Corea, New DBSD DIP, to Marlene H. Dortch, FCC (June 18, 2010); Letter from Peter A. Corea, New DBSD DIP, to Mindel De La Torre, FCC (July 13, 2010); Letter from Lawrence R. Krevor, Sprint Nextel, to Mindel De La Torre, FCC (July 14, 2010); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (July 27, 2010); Letter from Charles W. Logan, Counsel for Sprint Nextel, to Marlene H. Dortch, FCC (July 28, 2010); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (July 28, 2010), Letter from Howard J. Symons, Counsel for ICO Global, to Marlene H. Dortch, FCC (July 30, 2010); Letter from Charles W. Logan, Counsel for Sprint Nextel, to Marlene H. Dortch, FCC (July 30, 2010); Letter from Howard J. Symons, Counsel for ICO Global, to Marlene H. Dortch, FCC (Aug. 2, 2010); Letter from Peter A. Corea, New DBSD DIP, to Marlene H. Dortch, FCC (Aug. 4, 2010); Letter from Howard J. Symons, Counsel for ICO Global, to Marlene H. Dortch, FCC (Aug. 4, 2010); Letter from Howard J. Symons, Counsel for ICO Global, to Marlene H. Dortch, FCC (Aug. 4, 2010) (providing a correction to their Aug. 2, 2010 letter); Letter from Cheryl A. Tritt, Counsel to New DBSD DIP, to Marlene H. Dortch, FCC (Aug. 5, 2010); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Aug. 6, 2010); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Aug. 9, 2010) (transmitting appeals court oral argument transcript); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Aug. 10, 2010); Letter from Cheryl A. Tritt, Counsel to New DBSD DIP, to Marlene H. Dortch, Secretary, FCC (Aug. 12, 2010); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Aug. 17, 2010); Letter from Howard J. Symons, Counsel for ICO Global, to Marlene H. Dortch, FCC (Aug. 23, 2010); Letter from Howard (continued....) 2

Federal Communications Commission DA 10—1881 III. DISCUSSION A. Preliminary Matters 5. Sprint Nextel as a party in interest. In its Opposition, New DBSD DIP argues that Sprint Nextel lacks standing to oppose the transfer of control applications because they have not demonstrated a direct injury or a causal link between any claimed injury and a grant of the transfer of control applications.‘‘ New DBSD DIP also claims that Sprint Nextel‘s arguments about the separate dispute over relocation reimbursements cannot confer Sprint Nextel with standing in this proceeding because it is (...continued from previous page) J. Symons, Counsel for ICO Global, to Marlene H. Dortch, FCC (Aug. 26, 2010); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Aug. 26, 2010); Letter from Howard J. Symons, Counsel for ICO Global, to Marlene H. Dortch, FCC (Aug. 27, 2010); Letter from Cheryl Tritt, Counsel for New DBSD, to Marlene H. Dortch, FCC (Aug. 27, 2010); Letter from Peter A. Corea, Counsel for New DBSD, to Marlene H. Dortch, FCC (Aug. 27, 2010); Letter from Marc S. Martin, Counsel to Sprint, to Marlene H. Dortch, FCC (Aug. 30, 2010)(regarding teleconference with advisor to Cmm‘r Clyburn); Letter from Marc S. Martin, Counsel to Sprint, to Marlene H. Dortch, FCC (Aug. 30, 2010)(regarding teleconference with advisor to Cmm‘r McDowell); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Sept. 1, 2010); Letter from Andrew M. LeBlanc, Counsel to Highland Capital, to Marlene H. Dortch, FCC (Sept. 1, 2010); Letter from Howard J. Symons, Counsel for ICO Global, to Marlene H. Dortch, FCC (Sept. 1, 2010); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Sept. 2, 2010)(regarding meeting with Austin Schlick); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Sept. 2, 2010)(regarding meeting with John Giusti); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Sept. 2, 2010)(regarding separate teleconferences with Commissioners McDowell and Copps); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch , FCC (Sept. 3, 2010)(submitting letters exchanged between John Culver and Yosef Riemer); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Sept. 3, 2010)(responding to ICO Global‘s Sept. 1 ex parte communication); Letter from Howard J. Symons, Counsel for ICO Global, to Marlene H. Dortch, FCC (Sept. 3, 2010); Letter from Yosef Riemer, Counsel for New DBSD, to Marlene H. Dortch, FCC (Sept. 3, 2010); Letter from Howard J. Symons, Counsel for ICO Global, to Marlene H. Dortch, FCC (Sept. 9, 2010); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Sept. 10, 2010); Letter from Howard J. Symons, Counsel for ICO Global, to Marlene H. Dortch, FCC (Sept. 10, 2010); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Sept. 13, 2010)(regarding meeting with Legal Advisor to Commissioner Baker); Letter from Mare S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Sept. 13, 2010)(regarding meeting with Legal Advisor to Commissioner Clyburn); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Sept. 14, 2010); Letter from Howard J. Symons, Counsel for ICO Global, to Marlene H. Dortch, FCC (Sept. 14, 2010); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Sept. 15, 2010); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Sept. 16, 2010); Letter from Phuong N. Pham, Counsel for New DBSD, to Marlene H. Dortch, FCC (Sept. 16, 2010); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Sept. 17, 2010)(responding to ICO Global‘s Sept. 14 ex parte communication); Letter from Joseph D. Weinstein to Howard J. Symons, Counsel for ICO Global (Sept. 17, 2010); Letter from Howard J. Symons, Counsel for ICO Global, to Marlene H. Dortch, FCC (Sept. 17, 2010)(responding to Sprint‘s Sept. 10 ex parte communication); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch , FCC (Sept. 17, 2010)(submitting extension of debtor—in—possession financing for New DBSD); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Sept. 21, 2010)(responding to ICO Global‘s Sept. 17 ex parte communication); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Sept. 21, 2010)(submitting a Motion filed by DBSD in the U.S. Bankr. Ct., SDNY); Letter from Mare S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Sept. 22, 2010); Letter from Howard J. Symons, Counsel for ICO Global, to Marlene H. Dortch, FCC (Sept. 22, 2010); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Sept. 24, 2010); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (September27, 2010); Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (September 27, 2010)(transmitting pleading Sprint Nextel submitted to the Bankruptcy Court, Southern District of New York). ‘‘ New DBSD Opposition at 3—4.

Federal Communications Commission DA 10—1881 the subject of another proceeding."" In response, Sprint Nextel claims that it does have standing because the reimbursement obligations on MSS entrants are inextricably tied to the licenses in question. 6. We take a "rather generous attitude" toward standing in opposition to transfer and assignment applications in order to enable interested parties to bring to the Commission‘s attention matters bearing upon the public interest of which the Commission might not be otherwise aware."" To that end, whether we conclude that Sprint Nextel has "standing," or whether we treat the Petition to Deny as an informal objection,‘" we believe that the issues raised in Sprint Nextel‘s filings are of sufficient public ilr?portance that they should be considered on their merits, rather than summarily rejected without review. 7. Ripeness ofthe Spectrum Reservation Filing. In an ex parte filing, Sprint Nextel notes that only two of New DBSD DIP‘s three applications appear ripe for action, because only two have been placed on public notice.""‘ The third application involves the letter of intent filing, and the Commission‘s decision in response to that filing to reserve spectrum for eventual use by the ICO/New DBSD system." We disagree with Sprint Nextel‘s argument that the third application must be placed on public notice prior to action. The instruments involved in that application are not construction permits or licenses subject to the notice and prior transfer approval requirements of Section 309(b) and 310(d) of the Communications Act.‘" The public notices regarding the earth stations have provided an adequate opportunity for raising any public interest concerns with respect to the transaction. Concurrently with action on New DBSD DIP‘s earth station license transfers, we will take the administrative action of ° Id. at 4. } Sprint Nextel Reply at 17—19. 4 See Broadcast Enterprises, Inc. v. FCC, 390 F.24 483, 485 (D.C. Cir. 1968). " See, e. g., In the Matter of DirecTV Enterprises, LLC, Order, DA 10—113, 25 FCC Red 440, 442, [ 5 (Sat. Div., Int‘l. Bur. 2010) (noting that there is no standing requirement for informal objections, and that the Commission has discretion to consider such objections). © To support its claim that Sprint Nextel lacks standing, New DBSD DIP cites In re Applications to Assign Wireless Licenses from WorldCom, Inc.(Debtor—in—Possession) to Nextel Spectrum Acquisition Corp., Memorandum Opinion and Order, 19 ECC Red 6232, 2004 WL 718999 (Apr. 2, 2004), where the Commission rejected a petition to deny on both standing and mootness grounds. There, however, the objection was based on a refusal to extend an unrelated facilities agreement, and claims that the applicant had violated unrelated procedural rules («« 9—10), and the Commission noted that it had already resolved the issues in another proceeding (([ 21). Here, in contrast, Sprint Nextel makes a claim of direct injury in fact, the matters at issue are pending in unresolved administrative and judicial proceedings, and Sprint Nextel seeks to protect its position in those proceedings through its Petition to Deny. Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (August 9, 2010), at 2. * The letter of intent/spectrumreservation mechanism was developed to facilitate the participation of non—U.S. licensed satellite systems in the FCC licensing process, even though such systems were not seeking a U.S. space station license. As such, favorable action on a letter of intent filing is in the nature of a policy statement or declaratory ruling with respect to the availability of spectrum for future licensing of U.S. earth stations that would operate with the non—U.S. licensed space station. 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—111, 12 FCC Red 24094, 24173 (para. 184). Once an earth station license is issued, however, our practice is to maintain the Letter of Intent file for informational purposes, as it contains satellite technical information that aids in the evaluation of earth station license applications. ? 47 U.S.C. §§ 309(b), 310(d).

Federal Communications Commission DA 10—1881 modifying the company name in which the files for the letter of intent/spectrum reservation documents are listed. B. Grant of New DBSD‘s applications serves the public interest 8. In its Petition to Deny, Sprint Nextel argues that a grant of the transfer of control applications would not serve the public interest and would offer no public benefit. Sprint Nextel contends that during the bankruptcy proceeding, New DBSD DIP confirmed that it had no plans to provide commercial service until 2014 at the earliest and does not have the financial ability to complete construction of the ATC component of their network."" Sprint Nextel argues that the lack of financial resources would result in effectively mothballing the MSS/ATC system since New DBSD would not have the financial capability to complete it."‘ Sprint Nextel also cites to New DBSD‘s lack of success in finding a strategic partner as another reason that granting the transfer of control applications would not be in the public interest." 9. In response, New DBSD DIP argues that a grant of its applications will serve the public interest because New DBSD‘s satellite system had been successfully launched and tested before gaining full access to the MSS spectrum.*" New DBSD DIP further states that grant of the applications will serve the public interest by enabling them to emerge from bankruptcy protection and be better able to attract strategic partners and their current financial resources are not indicative of whether it will be able to fully implement its system."* 10. We believe that granting New DBSD DIP‘s transfer of control applications will serve the public interest. Although we must make our own public interest determination under the mandate of the Communications Act, the Commission seeks, where possible within the framework of the requirements of the Communications Act, to accommodate the policies of the Bankruptcy Code and the findings of bankruptcy courts."" The Commission has held in the past that allowing a company to consummate its court—approved bankruptcy reorganization plan will "serve the public interest by furthering the equitable purposes of the Federal Bankruptcy Act.""° Further, the Commission recognizes that as a general matter approving transfer of control or assignment applications for purposes of post—bankruptcy restructuring will strengthen the commercial viability of the applicant in the provision of service.""‘ 11. With respect to Sprint Nextel‘s specific assertions that New DBSD DIP is not financially qualified to hold a Commission license, the Commission‘s rules do not require any specific showing of financial qualifications on an application to transfer control."" Further, Sprint Nextel has not presented *° Sprint Nextel Petition to Deny, at 10—11. *‘ Id. at 15—16. * Id. at 8—9. * New DBSD Opposition at 5. * Id. at 6. * See LaRose v. FCC, 494 F.2d 1145, 1146 n.2 (D.C. Cir. 1974). * Space Station System Licensee, Inc., Assignor, and Iridium Constellation LLC, Assignee, Memorandum Opinion and Order, 17 FCC Red 2271, 2289 (2002). *‘ International Authorizations, Public Notice, 19 FCC Red 4079 (2004) (granting the assignment or transfer of control of Commission licenses relating to the operation of the Globalstar MSS system from Globalstar LP, Debtor— in—Possession to L/Q Licensee, Inc.). * Section 25.119 of the Commission‘s rules, 47 C.F.R. § 25.119, spells out the requirements for satellite license transfers of control, and makes no mention of a required financial showing. Section 25.165 of the Commission‘s (continued....) 5

Federal Communications Commission DA 10—1881 any evidence or arguments regarding the future financial stability of New DBSD DIP that were not also presented to the bankruptcy court in connection with the confirmation of New DBSD DIP‘s reorganization plan. The bankruptcy court was required under the Bankruptcy Code to make a finding that the proposed plan was feasible and that the proposed plan is not likely to be followed by liquidation or need for further financial reorganization of the debtor or successor of the debtor under the plan."" The bankruptcy court reviewed the contested evidence on feasibility that was presented by Sprint Nextel and other parties and made specific findings that the proposed plan met these requirements, noting that New DBSD DIP had firm financing commitments for two years of operations and that upon exit from bankruptcy, New DBSD DIP would be in a better position to attract new investments and strategic partners."" Consistent with our general respect for bankruptcy proceedings and because the bankruptcy court‘s findings are consistent with the record here, we likewise reject Sprint Nextel‘s arguments concerning New DBSD DIP‘s financial capability. C. Sprint Nextel‘s request that the transfer order be conditioned on payment of relocation reimbursements to Sprint Nextel by ICO Global 12. Sprint Nextel asks that, should the Commission grant the pending transfer of control applications, the grant should be conditioned on the payment of relocation reimbursement costs incurred by Sprint Nextel."‘ Sprint Nextel recognizes that the licensee, New DBSD DIP and various affiliates are in bankruptcy, and that the automatic stay imposed by the Bankruptcy Code prohibits Sprint Nextel from seeking reimbursement of costs directly from New DBSD DIP outside of the bankruptcy claims process."" Sprint Nextel asserts, however, that ICO Global is also liable for payment of the relocation reimbursements to Sprint Nextel." ICO Global is not a party to the pending New DBSD DIP bankruptcy case and Sprint Nextel asserts that ICO Global, therefore, is not protected by the Bankruptcy Code‘s automatic stay."* Accordingly, Sprint Nextel requests that we impose, as a condition for the out of bankruptcy transfer, a requirement that ICO Global pay the relevant relocation reimbursements to Sprint Nextel."" ICO Global‘s potential liability to Sprint Nextel is addressed in a separate Order in the BAS Relocation Proceeding and we will not revisit the issue here."" (...continued from previous page) rules, 47 C.F.R. §25.165(a), which imposes a bond requirement on the grant of new satellite licenses, makes no mention of transfers of control. * 11 U.S.C. § 1129(a)(11). 5 In re DBSD North America, et al., Case No. 09—13061 (REG) (Jointly Administered) (Bankr. S.D.N.Y., October 26, 2009) at 12—21. *‘ See Sprint Nextel Petition to Deny at 17—21. * See Sprint Nextel Petition to Deny at 18 n. 38. * Id. at 19. * 1d. * Td * Improving Public Safety Communications in the 800 MHz Band, WT Docket No. 02—55, ET Docket No. 00—258 and ET Docket No. 95—18, Fifth Report and Order, Eleventh Report and Order, Sixth Report and Order, and Declaratory Ruling, FCC 10—179 (released September 29, 2010).

Federal Communications Commission DA 10—1881 D. Sprint Nextel‘s request that the Commuission delay approval of the transfer applications until resolution of its pending appeal of the confirmation order 13. Sprint Nextel requests that the Commission defer ruling on the applications until the Sprint Nextel‘s pending judicial appeal of the confirmation order has been resolved.""‘ Responding to Sprint Nextel, New DBSD DIP has made several ex parte requests urging the Commission to decide the pending applications as quickly as possible."" Sprint Nextel also requests in the alternative that the Commission defer the effective date of the order granting the transfer applications to give Sprint Nextel an opportunity to seek a stay of the bankruptcy confirmation order from the United States Court of Appeals for the Second Circuit, where Sprint Nextel‘s appeal of the confirmation order is pending."" The grant of the pending applications is a condition precedent to the effective date of confirmation under the reorganization plan."" Sprint Nextel argues that granting the transfer applications will trigger the effective date in the reorganization plan, which raises the potential for prudential mootness preventing the Court of Appeals from deciding the pending bankruptcy appeal."" The appeal has now been fully briefed and argued and is awaiting decision by the Court of Appeals." 14. We do not believe that the public interest will be served by delaying the pending transfer applications until the Second Circuit rules on the merits. However, we also do not intend our grant of the applications to interfere with the ability of the Court of Appeals to decide the pending case or to consider a timely stay request filed by Sprint Nextel. New DBSD DIP has taken steps to assure the Commission that it will not interfere with the filing of a timely stay request by Sprint Nextel. New DBSD DIP has committed to the Commission that it will not consummate the plan of reorganization earlier than four business days after release of the Order approving the transfer applications." Building on these assurances from New DBSD DIP, and to ensure Sprint Nextel an adequate opportunity to present its request for a stay to the Second Circuit and receive a ruling on the stay request prior to the closing of the exit financing and the consummation of the Plan, we will defer the effective date of this Order for seven calendar days after its release. This will ensure Sprint Nextel an opportunity to be heard by the Court of Appeals while imposing only a minimal additional burden on Sprint Nextel, if any: New DBSD DIP‘s commitment not to close for four business days after the release of this Order would amount to a waiting period of between four and seven calendar days, depending on intervening weekends and holidays. * See Sprint Nextel Petition to Deny at 21; Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Aug. 10, 2010) at 6. * See Letter from Cheryl A. Tritt, Counsel to New DBSD DIP, to Marlene H. Dortch, FCC (Aug. 5, 2010) at 2. * See Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Aug. 17, 2010), at 2. * In re: DBSD North America, Inc., Case No. 09—13061(REG) (Jointly Administered) (Bankr. S.D.N.Y., Nov. 23, 2009) (Findings of Fact and Conclusions of Law and Order Confirming Debtors‘ Second Amended Joint Plan of Reorganization Pursuant to Chapter 11 of the United States Bankruptcy Code), Attachment B —— Plan of Reorganization, Article X.A.5 at p.46 ("Reorganization Plan"). * See Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Aug. 17, 2010), at 2. * See Letter from Marc S. Martin, Counsel to Sprint Nextel, to Marlene H. Dortch, FCC (Aug. 9, 2010)(transmitting appeals court oral argument transcript), at Attachment A. * Letter from Peter A. Corea, counsel for New DBSD, to Marlene H. Dortch, FCC (Aug. 27, 2010) at 2—3.

Federal Communications Commission DA 10—1881 IV. ORDERING CLAUSES 15. Accordingly, the applications of New DBSD Satellite Services G.P., Debtor—in— Possession, IBFS File Nos. SES—T/C—20091211—01575 and SES—T/C—20091211—01576, ARE GRANTED. 16. IT IS FURTHER ORDERED, that application File No. SAT—T/C—2009121—00144 IS GRANTED to the extent of modifying the name in which the records associated with Call Sign $2615 are listed in the International Bureau Filing System. 17. This Order is issued pursuant to Section 0.261 of the Commission‘s rules on delegated authority, 47 C.F.R. § 0.261, and is effective seven (7) calendar days following release. FEDERAL COMMUNICATIONS COMMISSION /;ndel De La Torre £,, xq Chief International Bureau


Document Created: 2019-04-08 12:41:42
Document Modified: 2019-04-08 12:41:42
© 2024 FCC.report
This site is not affiliated with or endorsed by the FCC