*Pages 1--12 from Microsoft Word - 43236.doc* Federal Communications Commission DA 04- 3164 3 to a previously licensed satellite. Pursuant to Section 25.156( a), the Commission will grant GSO- like applications if the Commission finds that the applicant is legally, technically and otherwise qualified, that the proposed facilities and operations comply with all applicable rules, regulations, and policies, and that grant of the application will serve the public interest, convenience and necessity.” 13 Accordingly we review EchoStar’s application to determine whether EchoStar is legally and technically qualified to hold a satellite license. For reasons discussed below, we find that EchoStar is legally qualified. We also find that EchoStar is technically qualified, in part because it has provided adequate justification for waivers of several technical requirements. a. INTERNATIONAL COORDINATION 6. In the First Space Station Reform Report and Order, the Commission explained that U. S. licenses assigned to a particular orbit location in a first- come, first- served approach take their licenses subject to the outcome of the international coordination process and that the Commission does not guarantee the success of this coordination. 14 The Commission specifically noted that “this may mean that the U. S.- licensee may not be able to operate its system if the coordination cannot be appropriately completed. Indeed, with the first- come, first- served approach, we assign applicants to the orbit location that is requested. Consequently, the applicant assumed the coordination risk when choosing the particular orbit location at the time it submitted its application.” 15 As a general practice, U. S. licenses, including the Echostar’s authorization here, are conditioned to reflect this Commission policy. 16 Therefore, we find that the conditions proposed by New Skies are partially redundant with our standard condition and otherwise unnecessary in this instance. 17 B. Legal Qualifications 7. EchoStar states that it holds numerous Commission satellite licenses, and that its legal qualifications are a matter of record before the Commission. 18 We agree with EchoStar on this issue. Moreover, no one has questioned EchoStar’s legal qualifications to acquire a new satellite license. Accordingly, we find that EchoStar is legally qualified to hold a satellite license. 13 47 C. F. R. § 25. 156( a). 14 See First Space Station Reform Order, 18 FCC Rcd at 10797 (para. 96). See also Pegasus Development Corporation, Application for Authority to Construct, Launch, and Operate a Ka- Band Satellite System in the Fixed-Satellite Service, Order and Authorization, 16 FCC Rcd 14378, 14386 (para. 24) (Int’l Bur., 2001). 15 Id. 16 See para. 37, infra. 17 New Skies requests us to add conditions similar to the ones it requested, and which we imposed upon Papua New Guinea’s Telstar 13, when we added that satellite to the Permitted Space Station List. See Loral SpaceCom Corp., Petition for Declaratory Ruling to Add Telstar 13 to the Permitted Space Station List, Order, 18 FCC Rcd 16374, 16380- 81 (para. 17) (Satellite Div., 2003). (Telstar 13 Order) As a preliminary matter, we note that the Telstar 13 conditions are similar to the conditions generally imposed on U. S. licensees. However, because Telestar 13’s authorization was issued by Papua New Guinea, we added certain additional conditions to ensure that transmissions to or from earth stations in the United States did not cause harmful interference to a satellite with higher ITU priority or otherwise conflict with coordination agreements between Papua New Guinea and the Netherlands. Because under normal circumstances, the United States does not have access to coordination agreements where the United States is not a party to the agreement, and because the United States does not have jurisdiction to terminate operations over foreign satellites, such as Telstar 13, it was necessary to specify the conditions of Telstar 13’s access to the U. S. market. That is not the case here. 18 121W Application at p. 6. 3 Federal Communications Commission DA 04- 3164 5 and footnote 2 of Section 25.202( a)( 1) 26 of the Commission’s rules limit FSS operations in these bands to international service only. 27 The Commission found that restricting FSS use of these bands to international systems would limit the number of FSS earth stations with which the co- primary terrestrial wireless fixed- service (FS) would need to coordinate. 28 The Commission subsequently declined to amend Footnote NG104 to exempt NGSO FSS user terminals because that would permit a “ubiquitous deployment” of earth stations that would hamper development of terrestrial services. 29 Accordingly, a satellite may provide downlink service into the United States and its Possessions (US& P) in the 10.95- 11.2 GHz and 11.45- 11.7 GHz only if the uplink originates outside the US& P. 11. EchoStar requests waivers of footnote NG104 of the U. S. Table of Allocations and footnote 2 of Section 25.202( a)( 1) to “the extent necessary,” to provide both domestic and international service from the proposed satellite. 30 EchoStar claims that operation of consumer receive- only antennas on an uncoordinated basis will not inhibit or otherwise negatively impact the operations of authorized FS stations in the band. 31 Specifically, EchoStar contends that FS operations will be protected from interference because the satellite downlink will comply with the power flux density limits set out in the Commission’s rules. 32 With respect to potential interference from FS transmissions, EchoStar expects that its receive- only earth stations can co- exist with FS stations in most geographic areas of the United States “while maintaining an acceptable quality of service.” 33 EchoStar contends that certain mitigating factors, such as buildings, foliage and terrain will naturally block FS signals. 34 EchoStar also proposes to employ interference mitigation techniques, including careful placement of the receiver and/ or additional shielding of the receive- only earth stations, in areas where interference from FS transmitting stations is high. 35 Finally, EchoStar states its willingness to accept “any level of interference from FS stations into its earth stations in the extended Ku- band.” 36 Thus, according to EchoStar, this would not undermine the underlying policy of footnote NG104, because FS operations will not be negatively impacted by EchoStar’s operations. 12. EchoStar expresses its willingness to comply with footnote NG104 and footnote 2 of Section 25.202( a)( 1) in the event that the Commission does not grant the requisite waiver requests. 37 In this event, EchoStar states it is prepared to conduct uplink transmissions exclusively from other countries, 26 47 C. F. R. §25.202( a)( 1) footnote 2 states “[ u] se of this by geostationary satellite orbit satellite systems in the fixed- satellite service is limited to international systems; i. e., other than domestic systems.” 27 See Satellite Services, 26 RR 2d 1257, 1263- 65 (1973), and GWARC Inquiry, 70 FCC 2d 1193, 1252 (1978). See also Assignment of Orbital Locations to Space Stations in the Domestic Fixed Satellite Service and the Applications of GE American Communications, Inc., Order and Authorization, 15 FCC Rcd 3385 (Sat. & Radiocomm. Div. 1999). 28 Id. 29 Amendments of Parts 2 and 25 of the Commission’s Rules to Permit Operation of NGSO FSS Systems Co-Frequency with GSO and Terrestrial Systems in the Ku- Band Frequency Range (First Report and Order and Further NPRM), FCC 00- 418, 16 FCC Rcd 4096, 4111- 12 (paras. 29 and 31) (2000) (Ku- band NGSO FSS Order). 30 121W Application at p. 8. 31 121W Application at p. 9. 32 Id. 33 Id. 34 Id. 35 Id. 36 Id. 37 121W Application at p. 10. 5 Federal Communications Commission DA 04- 3164 6 thereby operating the system in a manner that would qualify as international service. 38 13. Section 1.3 of the Commission’s rules authorizes the Commission to waive its rules for “good cause shown.” 39 Waiver is appropriate only if special circumstances warrant a deviation from the general rule, and such deviation would better serve the public interest than would strict adherence to the general rule. 40 Generally, the Commission may grant a waiver of its rules in a particular case only if the relief requested would not undermine the policy objective of the rule in question and would otherwise serve the public interest. 41 In considering requests for non- conforming spectrum uses, the Commission has indicated that it would generally grant such waivers “when there is little potential for interference into any service authorized under the Table of Frequency Allocations and when the non- conforming operator accepts any interference from authorized services.” 42 14. In this instance, a waiver of footnote NG 104 would not undermine the rule’s purpose because it involves only passive receive- only earth stations that are not capable of causing interference into FS stations operating in this band. Further, because, EchoStar has agreed to accept any level of interference from FS stations into its receive- only earth stations’ operations in the extended Ku- bands, FS operators will not be required to coordinate their station operations with the EchoStar receive- only earth stations’ operations. Under these circumstances, we determine that additional coordination burden would not be placed upon FS operators and that their ability to expand service in the future would not in any manner be restricted. However, we remind EchoStar that it is agreeing to operate its receive antennas in the downlink extended Ku- bands on a non- interference basis relative to FS earth stations. Accordingly, EchoStar shall not claim protection from harmful interference from authorized FS stations to which frequencies are either already assigned, or may be assigned in the future. In addition, we require EchoStar to inform its customers in writing, including any customers receiving end- use service from resellers accessing capacity on EchoStar- 121W, of the potential for interference from FS operations in the 11.45- 11.7 GHz frequency band. b. Tracking, Telemetry & Control Operations 15. In addition to the waiver of footnote NG104 for its receive- only earth stations discussed above, EchoStar seeks a waiver of footnote NG104 and footnote 2 of Section 25.202( a)( 1) for its Tracking, Telemetry, and Control (TT& C) operations. EchoStar plans to locate its TT& C earth stations in the United States, and to operate its TT& C links at the edges of the extended Ku- bands. 43 Because a single earth station within the United States would both transmit uplink and receive downlink TT& C transmissions in extended Ku- bands, EchoStar’s proposed TT& C operations do not comply with footnote NG104. Therefore, EchoStar requests waivers of footnote NG104 and footnote 2 of Section 25. 202( a)( 1) of the Commission’s rules. 38 121W Application at p. 10. 39 See Section 1. 3 of the Commission’s rules, 47 C. F. R. §1. 3. See also WAIT Radio v. FCC, 418 F. 2d 1153 (D. C. Cir. 1969) (WAIT Radio); Northeast Cellular Tel. Co. v. FCC, 897 F. 2d 1166 (D. C. Cir. 1990) (Northeast Cellular). 40 See Northeast Cellular, 897 F. 2d at 1166. 41 See WAIT Radio, 418 F. 2d at 1157. 42 See Fugro- Chance, Inc., Order and Authorization, 10 FCC Rcd 2860 (para. 2) (Int’l Bur., 1995) (authorizing non- conforming MSS in the C- band); See also Motorola Satellite Communications, Inc., Application for Modification of License, Order and Authorization, 11FCC Rcd 13952, 13956 (para. 11) (Int’l Bur. 1996) (authorizing service to fixed terminals in bands allocated to the mobile- satellite service). 43 121W Application at Attachment A, p. 17. 6 Federal Communications Commission DA 04- 3164 7 16. EchoStar argues that the nature of TT& C operations is such that TT& C transmissions must inevitably uplink and downlink from the same earth station. Additionally EchoStar contends that for reliability and cost reasons, the earth station should be located in the United States. EchoStar, further argues that the underlying policy for the rules will not be undermined by granting this request, because the TT& C operations will be primarily be conducted from one (or perhaps a small number of) earth station( s). 44 17. As noted above, the Commission adopted the footnote NG104 restriction in order to limit the number of earth stations with which the FS applicants would have to coordinate. The Commission has waived this requirement where the number of potential earth stations in a particular service is inherently small. For example, the Commission allowed NGSO FSS gateway stations to provide domestic service in the extended Ku- band because the total number of gateway stations would be relatively small. 45 Additionally, the Commission waived footnote NG104 in order to allow a GSO Mobile Satellite Service (MSS) licensee to use segments of the band for domestic feeder- link transmissions, having concluded that the waiver would not undermine the purpose of the restriction because it merely applied to feeder links for one satellite. 46 The International Bureau also recently granted a waiver of NG104 to an applicant seeking to operate feeder- links for a single satellite with no more than two feeder- link earth stations. 47 The Bureau found that the incremental impact of the licensee’s proposed use of the extended Ku- band for feeder- links would not increase the frequency coordination burden on terrestrial wireless services significantly more than the existing permitted use of those bands by an international system. 48 18. For similar reasons, we grant EchoStar’s request for waiver of Footnote NG104 and footnote 2 of Section 25.202( a)( 1) for its TT& C operations. We are authorizing EchoStar to operate at most, only one TT& C earth station. 49 This should not significantly increase the coordination burden on FS applicants. Further, TT& C operations will be conducted only at the edges of the service bands. 50 Moreover, we agree with EchoStar that TT& C signals must be transmitted from and received at the same earth station 51 and forcing EchoStar to locate its TT& C earth station outside of the United States would 44 121W Application at p. 11. 45 Specifically, the Commission noted that most of the parties applying for NGSO FSS authorization in the extended Ku- band were proposing to deploy fewer than five such gateway stations in the United States. See Ku-band NGSO FSS Order, 16 FCC Rcd at 4112 (para. 31 and n. 65). 46 See Amendment of Parts 2, 22, and 25 of the Commission’s Rules to Allocate Spectrum for and to Establish Other Rules and Policies Pertaining to the Use of Radio Frequencies in a Land Mobile Satellite Service for the Provision of Various Common Carrier Services, Memorandum Opinion, Order, and Authorization, 4 FCC Rcd 6041, 6081 (para. 70) (1989). 47 See Boeing Company, Applications For Modification of Authority For Use of the 1990- 2025/ 2165- 2200 MHz and Associated Frequency Bands for a Mobile- Satellite System and Applications For Authority to Launch and Operate a Non- Geosynchronous Medium Earth Orbit Satellite System in the 2 GHz Band Mobile- Satellite Service and in the Aeronautical Radionavigation- Satellite Service, Order and Authorization, 18 FCC Rcd 12317, 12322- 24 (paras. 14- 18) (Int’l Bur. and OET 2003) (Boeing Order). 48 See Boeing Order, 18 FCC Rcd at 12323 (para. 15). 49 In the Application, EchoStar is not specific regarding the precise number of TT& C earth stations it might require, beyond the one. Accordingly, because EchoStar has not indicated a definite need for more than one TT& C earth station to be located within the United States, this waiver pertains only to a single TT& C earth station. See 121W Application at Section VIIB, p. 11. EchoStar will be required to coordinate its proposed TT& C earth station with terrestrial stations pursuant to Section 25. 203 of the Commission’s rules. See also 47 C. F. R. Section §25. 203 50 121W Application at Attachment A, p. 14. See 47 C. F. R. §25.202( g) 51 121W Application at p. 4. 7 Federal Communications Commission DA 04- 3164 8 adversely affect EchoStar’s ability to maintain control of the spacecraft. Thus, we grant EchoStar a waiver of NG104 to allow it to provide TT& C to EchoStar- 121W from one earth station located in the United States. 19. Additionally, based on our review of the technical information EchoStar’s submitted, we conclude that EchoStar complies with Section 25.202( g) of the Commission’s rules which requires the frequencies selected for TT& C functions to be at either or both edges of the allocated bands. 4. Coordination with NTIA 20. The 13.75- 14. 0 GHz band has been allocated domestically and internationally to the fixed- satellite service, subject to restrictions embodied in footnotes to the domestic and international tables of allocations. The 13.75- 14.0 GHz band is shared on a primary basis with the Government radiolocation service and with the forward space- to- space and space- to- Earth links of the NASA Tracking and Data Relay Satellite (TDRS) System in the space research service. Consequently, earth stations in the US& P operating with EchoStar- 121W will require coordination through the National Telecommunications and Information Administration (NTIA) Interdepartment Radio Advisory Committee’s (IRAC) Frequency Assignment Subcommittee (FAS). 52 We have received a letter from the NTIA requesting that we identify this requirement in any grant of authority to operate a satellite in the 13.75- 14.0 GHz band. 53 21. Domestically, footnotes US337, US356, and US357 are applicable. 54 These footnotes place certain restrictions on FSS operations in order to protect government operations in the band, including manned space flight. 55 Internationally, footnotes 5. 502 and 5.503 to the International Telecommunication Union (ITU) Radio Regulations place certain similar restrictions on FSS operations. 56 The fundamental difference between the domestic and international footnotes is that the international footnotes permit operation of antennas with diameters as small as 1.2 meters for earth stations of a geostationary FSS network, whereas, the U. S. footnotes require a minimum earth station diameter of 4.5 meters. We require that earth stations in the US& P operate in accordance with the U. S. footnotes US356 and US357. For non- US& P earth stations accessing the EchoStar- 121W satellite, we require operation to 52 See Amendment of Parts 2, 25, and 90 of the Commission's Rules to Allocate the 13. 75- 14. 0 GHz Band to the Fixed- Satellite Service, Report and Order, ET Docket No. 96- 20, 11 FCC Rcd 11951, 11960- 61 (para. 20) (1996). 53 See Letter from William Hatch, Acting Associate Administrator, Office of Spectrum Management, NTIA, to Roderick Porter, Acting Chief, International Bureau, FCC (dated May 11, 1999). 54 Footnote US337 requires that earth stations operating in the 13. 75- 13. 8 GHz band be coordinated through the National Telecommunications and Information Administration (NTIA) Interdepartment Radio Advisory Committee’s Frequency Assignment Subcommittee to minimize interference to the forward space- to- space link of the National Aeronautics and Space Administration Tracking and Data Relay Satellite System. 47 C. F. R. § 2.106 US337. 55 Footnote US356 places a restriction on minimum antenna size of 4.5 meters for earth stations operating in the 13. 75- 14. 0 GHz band and indicates a minimum equivalent isotropically radiated power (e. i. r. p.) that should be used. Footnote US357 limits FSS earth station e. i. r. p. spectral density in the 13.77- 13.78 GHz band until those geostationary space stations in the space research service for which advance publication information was received by the ITU prior to 31 January 1992 cease to operate in this band. 56 Footnote 5.502 to the ITU Radio Regulations establishes minimum antenna diameters for earth stations of geostationary and non- geostationary satellite networks, and places certain restrictions on either the minimum equivalent isotropically radiated power (e. i. r. p.) or the power flux density (p. f. d.) levels produced by earth stations operating in the 13.75- 14.0 GHz band. Footnote 5.503 limits FSS earth station e. i. r. p. spectral density in the 13.770- 13. 780 GHz band for earth stations in the FSS operating with geostationary- orbit space stations, until those geostationary space stations in the space research service for which advance publication information was received by the ITU prior to 31 January 1992 cease to operate in this band. 8 Federal Communications Commission DA 04- 3164 11 NG104 of the U. S. Table of Allocations and footnote 2 of Section 25.202( a)( 1), in order to permit TT& C from the US& P in the 11.45- 11.7 GHz frequency bands ARE GRANTED. 32. IT IS FURTHER ORDERED that the waiver to permit TT& C operations in the 11.45- 11.7 GHz frequency bands conditionally granted herein, pertains only to TT& C transmissions between a single GSO satellite at 121° W. L. and a maximum of one fixed earth station within the continental US& P. 33. IT IS FURTHER ORDERED that EchoStar KuX Corporation shall coordinate its potential TT& C earth station operations with terrestrial FS stations in accordance with Section 25.203 of the Commission’s rules. 34. IT IS FURTHER ORDERED that in the 13.75- 14. 0 GHz band, all earth stations in the US& P are required to coordinate through NTIA’s Interdepartment Radio Advisory Committee’s Frequency Assignment Subcommittee. 35. IT IS FURTHER ORDERED that the operation of the EchoStar- 121W satellite network in the 13.75- 14.0 GHz band shall be in accordance with footnotes US356 and US357 to 47 C. F. R. § 2.106 in the US& P, and with footnotes 5.502 and 5.503 to the ITU Radio Regulations outside of the US& P. 36. IT IS FURTHER ORDERED that EchoStar- 121W must be constructed, launched, and placed into operation in accordance with the technical parameters and terms and conditions of this authorization by these specified time periods following the date of authorization: a. Execute a binding contract for construction by 9/ 30/ 2005; b. Complete the Critical Design Review by 9/ 30/ 2006; c. Commence construction by 9/ 30/ 2007; d. Launch and begin operations by 9/ 30/ 2009; e. EchoStar KuX Corporation must post a $3 million bond with the Commission, pursuant to the procedures set forth in Public Notice, DA 03- 2603, 18 FCC Rcd 16283 (2003), by 10/ 30/ 04. Failure to meet any of these dates shall render this authorization null and void. See 47 C. F. R. §§ 25.161 and 25. 164. 37. IT IS FURTHER ORDERED that EchoStar KuX Corporation shall prepare the necessary information, as may be required, for submission to the ITU to initiate and complete the advance publication, international coordination, due diligence, and notification process of this space station, in accordance with the ITU Radio Regulations. EchoStar KuX Corporation shall be held responsible for all cost recovery fees associated with these ITU filings. We also note that no protection from interference caused by radio stations authorized by other administrations is guaranteed unless coordination and notification procedures are timely completed or, with respect to individual administrations, by successfully completing coordination agreements. Any radio station authorization for which coordination has not been completed may be subject to additional terms and conditions as required to effect coordination of the frequency assignments of other administrations. See 47 C. F. R. § 25. 111( b). 38. IT IS FURTHER ORDERED that the license term for the EchoStar- 121W, Call Sign S2609, is fifteen years and will begin to run on the date that EchoStar KuX Corporation certifies to the Commission that the satellite has been successfully placed into orbit and its operation fully conforms to the terms and conditions of this authorization. 39. IT IS FURTHER ORDERED that EchoStar KuX Corporation shall provide a written statement to the Commission within 60 days of the date of this grant that identifies any known satellites located at, or planned to be located at, EchoStar KuX Corporation’s assigned orbital location, or assigned 11 Federal Communications Commission DA 04- 3164 12 in the vicinity of that location such that the station- keeping volume of the respective satellites might overlap, and that states the measures that will be taken to prevent in- orbit collisions with such satellites. This statement should address any licensed FCC systems, or any systems applied for and under consideration by the FCC. The statement need not address every filing with the ITU that meets these criteria, but should assess and address any systems reflected in ITU filings that are in operation or that EchoStar KuX Corporation believes may be progressing toward launch, e. g., by the appearance of the system on a launch vehicle manifest. If EchoStar KuX Corporation elects to rely on coordination with other operators to prevent in- orbit collisions, it shall provide a statement as to the manner in which such coordination will be effected. 40. This grant does not in any way constitute an approval of EchoStar KuX Corporation's post- mission disposal plan for EchoStar- 121W. 41. EchoStar KuX Corporation is afforded thirty days from the date of adoption of this grant and authorization to decline this authorization as conditioned. Failure to respond within this period will constitute formal acceptance of the authorization as conditioned. 42. This grant is issued pursuant to Section 0.261 of the Commission's rules on delegated authority, 47 C. F. R. § 0.261, and is effective upon adoption. Petitions for reconsideration under Section 1.106 or applications for review under Section 1.115 of the Commission's rules, 47 C. F. R. §§ 1.106, 1.115, may be filed within 30 days of the date of the public notice indicating that this action was taken. FEDERAL COMMUNICATIONS COMMISSION Thomas S. Tycz Chief, Satellite Division International Bureau 12