*Pages 1--6 from Microsoft Word - 33521* Federal Communications Commission DA 03- 3024 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of EchoStar Satellite Corporation Application for Renewal of Special Temporary Authority to Operate a Direct Broadcast Satellite Over Channels 23 and 24 at the 61.5º W. L. Orbital Location and Rainbow DBS Company LLC Application for Special Temporary Authority to Operate a Direct Broadcast Satellite Over Channels 23 and 24 at the 61.5º W. L. Orbital Location ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) File No. SAT- STA- 20030617- 00117 File No. SAT- STA- 20030623- 00122 ORDER AND AUTHORIZATION Adopted: October 1, 2003 Released: October 1, 2003 By the Chief, International Bureau: I. INTRODUCTION 1. By this Order we grant Rainbow DBS Company LLC’s (“ Rainbow”) 1 request for special temporary authority (“ STA”) to operate on the two unassigned channels, 23 and 24, at the 61.5º W. L. orbit location, for a period of 180 days, or until the channels are assigned, whichever occurs first, subject to certain conditions. We also deny EchoStar Satellite Corporation’s (“ EchoStar”) request to renew its STA to continue to operate a satellite over these same two unassigned channels at the 61.5º W. L. orbit location. Granting Rainbow’s application will promote efficient use of the direct broadcast satellite (“ DBS”) spectrum and will facilitate the expansion of service options to consumers by a new entrant on a temporary basis. II. BACKGROUND 2. There are 32 DBS service channels at the 61.5º W. L. orbit location. Currently, there are two channels at 61.5º W. L., channels 23 and 24, that are not assigned to any DBS licensee. Rainbow 1 R/ L DBS Company, LLC, the initial applicant for the STA, recently changed its name to Rainbow DBS Company LLC. See Letter from Benjamin J. Griffin, Counsel for Rainbow DBS Company LLC, to Marlene H. Dortch, Secretary, Federal Communications Commission (dated July 9, 2003). Rainbow DBS is a wholly- owned subsidiary of Cablevision Systems Corporation. 1 Federal Communications Commission DA 03- 3024 2 is authorized to operate on 11 odd numbered channels (1- 21) at the 61.5º W. L. orbit location. 2 EchoStar is also authorized to operate and is operating a satellite on 11 even numbered channels (2- 22) at 61.5º W. L. Dominion Video Satellite, Inc. (“ Dominion”) is authorized to operate on eight channels (25- 32) at the 61.5º W. L. orbit location and is currently operating on two of these channels, using one of EchoStar’s satellites under a leasing arrangement. EchoStar is leasing the remaining six channels from Dominion. EchoStar is currently operating over the two unassigned channels pursuant to STA. 3 3. On March 21, 1998, EchoStar was granted an STA to operate its EchoStar 3 satellite on the 21 then- unassigned channels at the 61.5º W. L. orbit location. 4 The grant was subsequently extended twice. 5 The EchoStar STA at 61.5º W. L. included certain conditions on EchoStar’s operations. Specifically, the conditions were a non- interference obligation, a notification requirement, and an obligation to cease operations upon the sooner of the following conditions: 1) receipt of a license by Dominion or R/ L DBS to begin service from the 61.5° W. L. orbit location; or 2) assignment of the two unassigned channels. EchoStar ceased operations on all but the two remaining unassigned channels. 6 4. In June 2003, EchoStar filed a request to renew its STA 7 for the two unassigned channels at 61.5º W. L. and Rainbow filed an application for STA to use these same channels. 8 EchoStar requests authority to continue to operate the EchoStar 3 satellite over channels 23 and 24 at 61.5° W. L. pursuant to its STA for a period of 180 days, subject to the same conditions that were imposed in the grant of the original STA. EchoStar states that it plans to continue to offer its customers non-recurring, event type programming such as pay- per- view. Rainbow requests special temporary 2 Rainbow DBS successfully launched its first satellite, Rainbow 1, on July 17, 2003. See Letter from Benjamin J. Griffin, Counsel for Rainbow DBS, to Donald Abelson, Chief, International Bureau, Federal Communications Commission (dated July 24, 2003). 3 In March 2003, the Commission issued a Public Notice announcing an auction of four licenses for the unassigned DBS service channels at the orbit locations of 175º W. L., 166º W. L., 157º W. L., and 61. 5º W. L. (Auction No. 52). Public Notice, Auction of Direct Broadcast Satellite Service Licenses Scheduled for August 6, 2003, Report No. AUC- 03- 52- A, FCC 03- 40 (rel. Mar. 3, 2003) (“ Auction No. 52 Comment Public Notice”). On June 11, 2003, the Wireless Telecommunications Bureau issued a Public Notice announcing that Auction No. 52 would be delayed pending resolution of certain issues on which the Commission had sought comment. Public Notice, Auction of Direct Broadcast Satellite Service Licenses (Auction No. 52) Is Postponed, Report No. AUC- 03- 52- B, DA 03- 1926 (rel. June 11, 2003). 4 In the Matter of Direct Broadcasting Satellite Corporation, Application for Special Temporary Authority to Operate a Direct Broadcast Satellite Over Channels 1- 21 (odd) and 23- 32 (odd and even) at 61.5º W. L., Memorandum Opinion and Order, 13 FCC Rcd 6392 (1998) (“ EchoStar STA Order”). 5 In the Matter of Direct Broadcasting Satellite Corporation, Application for Special Temporary Authority to Operate a Direct Broadcast Satellite Over Channels 1- 21 (odd) and 23- 32 (odd and even) at 61.5º W. L., Letter from Thomas S. Tycz to David K. Moskowitz, File No. SAT- STA- 19980827- 00068 (dated September 16, 1998). The Satellite Division verbally renewed the STA on March 16, 1999. Subsequent requests for renewal were filed by EchoStar. 6 EchoStar is no longer operating pursuant to STA on the channels assigned to Rainbow and Dominion. 7 In the Matter of EchoStar Satellite Corporation Application for Renewal of Special Temporary Authority to Operate a Direct Broadcast Satellite Over Channels 23 and 24 at the 61º W. L. Orbit Location, File No. SAT- STA-20030617- 00117 (filed June 17, 2003) (“ EchoStar STA Renewal”). 8 Rainbow DBS Company LLC Application for Special Temporary Authority to Operate a Direct Broadcast Satellite Over Channels 23 and 24 at the 61º W. L. Orbit Location, File No. SAT- STA- 20030623- 00122 (filed June 23, 2003) (“ Rainbow STA Request”). 2 Federal Communications Commission DA 03- 3024 5 11. Accordingly, IT IS ORDERED that Rainbow DBS Company LLC’s Application for Special Temporary Authority to operate a Direct Broadcast Satellite Over Channels 23 and 24 at the 61.5° W. L. orbit location, File No. SAT- STA 20030623- 00122, IS GRANTED, for a period of 180 days, or until the channels are assigned, whichever is sooner, subject to the conditions outlined below. 12. IT IS FURTHER ORDERED that EchoStar Satellite Corporation’s Application for Renewal of Special Temporary Authority to Operate a Direct Broadcast Satellite Over Channels 23 and 24 at the 61. 5º W. L. orbit location, File No. SAT- STA- 20030617- 00117, IS DENIED. 13. IT IS FURTHER ORDERED that EchoStar Satellite Corporation is required to vacate channels 23 and 24 at the 61. 5° W. L. orbit location by October 8, 2003. 14. IT IS FURTHER ORDERED that Rainbow DBS Company LLC shall cease operations on channels 23 and 24 at the 61. 5° W. L. orbit location immediately upon the sooner of: 1) this special temporary authorization expires; or 2) channels 23 and 24 at the 61.5° W. L. orbit location are assigned. 15. IT IS FURTHER ORDERED that this authorization does not confer any permanent authority or right for Rainbow DBS Company LLC to use channels 23 and 24 at the 61.5º W. L. orbit location. This grant is without prejudice to any action the Commission may take with respect to eligibility for a license to use these channels. 16. IT IS FURTHER ORDERED that Rainbow DBS Company LLC’s use of channels 23 and 24 at the 61.5° W. L. orbital location shall cause no harmful interference to any other lawfully operating radio station and Rainbow DBS Company LLC shall cease operation on those channels immediately upon notification of such interference. 17. IT IS FURTHER ORDERED that Rainbow DBS Company LLC shall not claim protection from interference from any other lawfully operated radio station with respect to its operations on channels 23 and 24 and that Rainbow DBS Company LLC’s operation on channels 23 and 24 is at its own risk. 18. IT IS FURTHER ORDERED that Rainbow DBS Company LLC’s temporary use of channels 23 and 24 at the 61.5º W. L. orbit location is for free- standing separate programming packages that are not required as a condition of purchasing any other programming packages and that are readily capable of being withdrawn on short notice. Consumers should not have any expectation that the packages that they are purchasing include additional programming provided over channels 23 and 24. Any failure to comply with this programming requirement will be subject to enforcement action. 19. IT IS FURTHER ORDERED that Rainbow DBS Company LLC must inform its customers, in writing, that services using the two unassigned channels at the 61.5º W. L. orbit location are being provided pursuant to a grant of temporary authority that will expire upon the sooner of April 5, 2004 or until such time as the channels are assigned. 20. IT IS FURTHER ORDERED that Rainbow DBS Company LLC must provide the following language to its customers in its monthly billing statements: “The [name of module( s)] is only temporarily available. Rainbow DBS’s regulatory authority to provide these channels will expire on April 5, 2004. In addition, the Rainbow DBS Company LLC may be required to cease transmitting programming over these channels earlier than that date. Therefore, [name of module] will cease to be available to you 5 Federal Communications Commission DA 03- 3024 6 on or before April 5, 2004 without prior notice. If you have any questions, please call us toll- free at [insert telephone number].” 21. IT IS FURTHER ORDERED that Rainbow DBS Company LLC must include in all marketing literature notification that service is being provided on a temporary basis and that service may be diminished or discontinued at any time. Any failure to comply with customer notification procedures herein will be subject to enforcement action. 22. Rainbow DBS LLC is afforded thirty days from the date of release of this SPECIAL TEMPORARY AUTHORITY to decline this authorization as conditioned. Failure to respond within that period will constitute formal acceptance of the authorization as conditioned. 23. This action is taken pursuant to Section 309 of the Communications Act, 47 U. S. C. § 309, and Section 0.261 of the Commission’s rules, 47 C. F. R. § 0.261 and is effective upon release. FEDERAL COMMUNICATIONS COMMISSION Donald Abelson Chief International Bureau 6