*Pages 1--8 from Microsoft Word - 54163.doc* Federal Communications Commission DA 06- 6 2 its original application, but incorporated into the satellite as- built. 4 Specifically, in its amendment PanAmSat requests authority to: (1) operate in the 12.25- 12.7 GHz frequency band (“ space- to- Earth”) rather than the 11.45- 11. 7 GHz frequency band for which PanAmSat was initially authorized; 5 and (2) reconfigure the 12.25- 12. 7 GHz frequency downlink beams to include coverage, at very low equivalent isotropically radiated power (“ e. i. r. p.”) levels, of Hawaii and the west coast of the United States. 3. In its amendment, PanAmSat indicated it made the change to the 12.25- 12.7 GHz frequency band to avoid terrestrial interference to PanAmSat’s earth stations due to the widespread use of the 11.45- 11. 7 GHz frequency band for terrestrial distribution in many Pacific Rim countries. 6 PanAmSat states that the design change will ensure that its Napa Valley, California Teleport will be capable of monitoring the Ku- band downlink signals in the PAS- 5 satellite’s three Asian beams. As a result, PanAmSat states it will be better able to assess degradation due to transmission, meteorological occurrences, or other unplanned events. 7 Further, as originally planned, the satellite was intended to have three beams that would provide coverage of the United States and its Possessions (“ US& P”). Due to a discrepancy in the construction of the satellite, however, two of the beams (“ Southeast Asia Beam and the Northeast Asia Beam”) were no longer capable of providing downlink coverage over US& P. 8 Consequently, only the Australia Beam covers the US& P under its temporary authorization grant. 4. On December 14, 1998, we granted PanAmSat temporary authority to operate the “Australia Beam” on its PAS- 5 satellite in the 12.25- 12.7 GHz frequency band at the 166° E. L. orbital location on a non- harmful interference basis. 9 On March 23, 2000, PanAmSat filed to renew its temporary authorization and requested a waiver of the Table of Allocations to use the 12.7- 12.75 GHz frequency band to transmit in the space- to- Earth direction. The 12.7- 12.75 GHz frequency band is allocated in ITU Region 2 to the FSS in the Earth- to- space direction. 10 We renewed PanAmSat’s temporary authorization with the additional 12.7- 12.75 GHz frequency band and conditioned it on PAS- 5 not causing harmful interference to authorized users operating in accordance with the Table of Allocations, 11 and on PanAmSat accepting interference from these authorized users. 12 4 PanAmSat Licensee Corp., IBFS File No. SAT- MOD- 19980928- 00078. The application was placed on public notice on November 16, 1998 (Report No. SAT- 0003). Although styled as an amendment because launch and operation authority was granted in August 1998, we treat the November 16, 1998 filing as a request for modification of PanAmSat’s authorization. 5 Although initially authorized in the STA to operate in the 12. 25- 12. 5 GHz frequency band, we later clarified that PanAmSat’s authorization for PAS- 5 included the 12. 25- 12. 7 GHz frequency band. See Letter from Joseph A. Godles, Attorney for PanAmSat Licensee Corp. to FCC (IBFS File No. SAT- STA- 19990928- 00079) (March 23, 2000). See also Letter from Thomas S. Tycz, Chief, Satellite and Radiocommunication Division to Joseph A. Godles, Attorney for PanAmSat Licensee Corp. (September 6, 2000). 6 Modification Application at 1. 7 Modification Application at 2. 8 Amendment to Modification Application at 2. 9 Letter from Thomas S. Tycz, Chief, Satellite and Radiocommunication Division to Joseph A. Godles, Attorney for PanAmSat Corp. (December 14, 1998)( granting IBFS File No. SAT- STA- 19980928- 00079). 10 Letter from Joseph A. Godles, Attorney for PanAmSat Licensee Corp. to FCC (File No. SAT- STA- 19990928-00079) (March 23, 2000). 11 47 C. F. R. § 2.106. 12 Letter from Tom Tycz, Chief, Satellite and Radiocommunication Division to Joseph A. Godles, Attorney for PanAmSat Licensee Corp. (September 6, 2000)( granting temporary authority in IBFS File No. SAT- STA-19990928- 00079). 2 Federal Communications Commission DA 06- 6 3 5. On March 26, 2002, PanAmSat filed an amendment to its PAS- 5 modification application, requesting authority to downlink the Australia Beam at its Napa Valley earth station for commercial purposes in addition to monitoring the satellite. 13 On April 4, 2002, PanAmSat filed a request for special temporary authority to modify its existing temporary authorization to downlink the Australia beam at its Napa Valley earth station for commercial purposes. 14 We granted PanAmSat the request for temporary authority on May 31, 2002. 15 PanAmSat continues operating PAS- 5 pursuant to its original authorization, as modified by the temporary authority granted. 16 III. DISCUSSION 6. In this Order, we conclude that, subject to the conditions set forth herein, grant of the license modification, as amended, and waiver request sought by PanAmSat will serve the public interest. The authority sought by PanAmSat here will conform its license to the as- built technical parameters of the satellite. Further, PanAmSat has been operating its satellite consistent with these parameters pursuant to the temporary authorization granted and no interference has been reported. 17 7. Operations in the 12.25- 12.7 GHz Frequency Band in ITU Region 3. PanAmSat requests that its license be modified to permit it to operate in the 12. 25- 12. 7 GHz downlink band instead of the 11. 45- 11.7 GHz frequency band for which it was originally authorized. 18 The PAS- 5 satellite operates in the 12.25- 12. 7 GHz frequency band primarily in ITU Region 3, 19 which includes Australia, pursuant to temporary authority. The downlink portion of the Australia beam, however, is capable of being received at very low e. i. r. p. on the West Coast of the United States and in Hawaii. According to PanAmSat, operating in the 12.25- 12.7 GHz frequency band will allow it to avoid the 11.45- 11.7 GHz frequency band which is widely used for terrestrial distribution in many Pacific Rim countries. 20 8. The Australia beam operates in the 12.25- 12.75 GHz frequency band. In ITU Region 3, the 12.25- 12.5 GHz portion of this band is allocated on a primary basis to FSS, Fixed Service (“ FS”), Mobile Service (except aeronautical mobile) (“ MS”), and Broadcasting Service (“ BS”). 21 In addition, the 12.5- 12.7 GHz portion of this band is allocated on a primary basis to FS, FSS, MS, and Broadcast-Satellite Service (“ BSS”) in ITU Region 3. We modify the PAS- 5 license to permit it to downlink in the 12.25- 12.7 GHz frequency band in Region 3. We expect PanAmSat to continue to coordinate its operations in ITU Region 3 with these co- primary services and to obtain all necessary authorizations from each country which it seeks to serve before beginning service to that country. 13 See PanAmSat Licensee Corp., IBFS File No. SAT- AMD- 20020326- 00055. The application was placed on public notice on April 23, 2002. (Report No. SAT- 00108). 14 See Letter from Joseph A. Godles, Attorney for PanAmSat Licensee Corp. to Marlene H. Dortch, Secretary, FCC (April 4, 2002). 15 Letter from Fern J. Jarmulnek, Deputy Chief, Satellite Division to Joseph A. Godles, Attorney for PanAmSat Corp. (May 31, 2002) (IBFS File No. SAT- STA- 20020404- 00046). 16 PanAmSat timely filed for a renewal of its STA in July 2002 (IBFS File No. SAT- STA- 0705- 00097). See 47 C. F. R. § 1. 62; In re Kay, 17 FCC Rcd 5951 (2002). 17 ITU Region 2 includes North, Central and South America. See 47 C. F. R. § 2.104 (b)( 3) for a detailed description of ITU Region 2. 18 See footnote 4, supra. 19 ITU Region 3 includes Southern Asia, Australia, New Zealand, and some Pacific Islands. See 47 C. F. R. § 2.104 (b)( 3) for a detailed description of ITU Region 3. 20 Modification Application at 1. 21 47 C. F. R. § 2.106. 3 Federal Communications Commission DA 06- 6 4 9. Operations in the 12.25- 12.7 GHz Frequency Band in ITU Region 2. In ITU Region 2, which includes the United States, the 12.25- 12.7 GHz frequency band is allocated on a primary basis to BSS and FS. There is no allocation for FSS in this band in ITU Region 2. Therefore, PanAmSat’s use of this band in ITU Region 2 for FSS requires a waiver of the Table of Allocations. Section 1.3 of the Commission’s rules authorizes the Commission to waive its rules for “good cause shown.” 22 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. 23 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. 24 In considering a request 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 Allocations and when the non- conforming operator accepts any interference from authorized services.” 25 10. In granting PanAmSat temporary authority to operate its PAS- 5 satellite in the 12.25- 12.7 GHz frequency band in ITU Region 2, we found little potential for interference to services authorized under the Table of Allocations and conditioned the temporary authorization on PanAmSat not causing any harmful interference to authorized users operating in accordance with the Table of Allocations and accepting any interference from authorized users. 26 With respect to primary FS operations, we relied on the power flux- density (“ pfd”) limits for space stations transmitting in the 12.25- 12.7 GHz frequency band, which are codified in Section 25.208( b) of the Commission’s rules, to provide the basis for operating on a non- harmful interference basis with respect to primary FS operations. Nothing in this Order changes this, and thus licensees of fixed stations operating in the 12.25- 12.7 GHz frequency bands will continue to be protected to the same level as they currently enjoy. 11. With respect to BSS operations, the ITU Region 2 BSS Plan, set forth in Appendix 30 of the ITU’s Radio Regulations, is fashioned so that satellites using the same bands with the same coverage area should be separated by at least nine degrees in orbit, if using the same e. i. r. p., to avoid interference. In authorizing PanAmSat temporary authorization to operate, we noted that the BSS Plan prohibits any BSS satellite in ITU Region 2 from occupying an orbital position further west than 175.2° W. L. 27 Since PAS- 5 is separated from the nearest BSS assignment in the ITU Region 2 BSS Plan by 18.8 degrees, 28 more than twice this minimum separation, 29 we found little likelihood that PAS- 5 would interfere with any current or future BSS user. Further, there have been no reported cases of interference to either FS or 22 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). 23 See Northeast Cellular, 897 F. 2d at 1166. 24 See WAIT Radio, 418 F. 2d at 1157. 25 Fugro- Chance, Inc., Application for Blanket Authority to Construct and Operate a Private Network of Receive-Only Mobile Earth Stations, Order and Authorization, 10 FCC Rcd 2860 (para. 2) (1995) (authorizing non-conforming mobile- satellite service in the C- band). See also Motorola Satellite Communications, Inc., Application for Modification of License, Order and Authorization, 11 FCC Rcd 13952, 13956 (para. 11) (1996) (authorizing service to fixed terminals in bands allocated to the mobile- satellite service). 26 Letter from Thomas S. Tycz, Chief, Satellite and Radiocommunication Division to Joseph A. Godles, Attorney for PanAmSat Licensee Corp. (September 6, 2000). 27 See Annex 7 to ITU Appendix 30, Section A (2). 28 See PAS- 5 STA at 2- 3. The nearest Region 2 BSS satellite assignment to PAS- 5’s 166° E. L. orbital location is at 184.8° E. L. (175. 2° W. L.). 29 See PAS- 5 STA at 3. 4 Federal Communications Commission DA 06- 6 5 BSS operations from PAS- 5’s operations. Accordingly, we will authorize PAS- 5 to continue to operate in the 12.25- 12.7 GHz frequency band in ITU Region 2 on a non- harmful interference basis. We expect PanAmSat to continue to coordinate its operations in ITU Region 2 with these co- primary services and to obtain all necessary authorizations from each country which it seeks to serve before beginning service to that country. Consequently, we condition this grant on PAS- 5 not causing any harmful interference to authorized users who are operating in accordance with the Table of Allocations in ITU Region 2. PanAmSat must also accept interference from such authorized users. 12. PanAmSat’s Use of the 12. 7- 12. 75 GHz Frequency Band in ITU Region 2. The 12.7- 12.75 GHz frequency band is allocated in ITU Region 2, which includes the United States, in the Earth-to- space direction in the Table of Allocations. 30 PanAmSat requests a waiver of the Table of Allocations to permit it to use the 12.7- 12.75 GHz frequency band in the space- to- Earth direction instead of the Earth-to- space direction. As previously stated, the Commission may grant a waiver for good cause shown if the relief requested would not undermine the policy objective of the rule in question and would otherwise serve the public interest. 31 Grant of PanAmSat’s request would not undermine the policy objective of the rule because the Commission has granted similar requests where it found no risk of harmful interference and that the public interest would be served. 32 In granting PanAmSat temporary authority to operate using this frequency band in the space- to- Earth direction, we found that PanAmSat’s use of the 12.7- 12.75 GHz frequency band in the space- to- Earth direction presented no risk of harmful interference to terrestrial services because of the large satellite antenna isolation and the orbital spacing between PAS- 5 and other satellites. 33 Nevertheless, we conditioned PanAmSat’s use of this frequency band on it not causing harmful interference nor claiming protection from television pickup stations and Cable Television Relay Stations (“ CARS”) or any other users in the band operating in accordance with the Table of Allocations. 34 In light of PanAmSat’s operations of its PAS- 5 satellite without any record of interference to authorized users, in the context of its modification request, we grant PanAmSat a waiver of the Table of Allocations to permit it to use the 12.7- 12.75 GHz frequency band in the space- to- Earth direction in ITU Region 2. Similarly, we condition this grant on PAS- 5 not causing harmful interference nor claiming protection from television pickup stations, CARS or any other users in the band operating in accordance with the Table of Allocations. 13. Commercial Use of the Australia Beam in the United States. PanAmSat also requests that it be granted permanent authority to use the downlinked Australia beam at Napa Valley Teleport for commercial purposes in addition to monitoring. PanAmSat states that commercial use will not affect the technical characteristics of the Australia beam or its impact on BSS or terrestrial users in the limited portions of the United States included within the beam. 35 PanAmSat asserts that granting it commercial authority will improve service to the public by establishing connectivity between Australia and the Napa Valley earth station and make more efficient use of the spectrum. 36 30 47 C. F. R. § 2.106. 31 See footnotes 22 and 24 supra. 32 See Intelsat LLC, Order and Authorization, 19 FCC Rcd 2775 (2004)( authorizing use of the 12. 7- 12. 75 GHz frequency band in the space- to- Earth direction to provide service to Central and South America). See also Loral Orion Services, Order and Authorization, 14 FCC Rcd 4636 (1999)( authorizing use of the 12.7- 12. 75 GHz frequency band for FSS downlink at Kapolei, Hawaii earth station). 33 See footnote 12 supra. 34 See 47 C. F. R. § 74. 602( d). See also Footnotes NG53 and NG118 to the U. S. Table of Frequency Allocations, 47 C. F. R. § 2. 106. 35 PanAmSat Licensee Corp., IBFS File No. SAT- AMD- 20020326- 00055, p. 1 of Narrative. 36 See Modification Application at 1. 5 Federal Communications Commission DA 06- 6 8 25. IT IS FURTHER ORDERED that all other terms and conditions contained in PanAmSat’s initial authorization, PanAmSat Licensee Corp., 14 FCC Rcd 2719 (1998), remain the same. PanAmSat’s STA to operate the satellite consistent with the technical parameters set forth in the Modification application as amended, IBFS File No. SAT- STA- 20020705- 00097, IS GRANTED to the extent provided herein and otherwise DISMISSED AS MOOT. 26. 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 upon adoption. FEDERAL COMMUNICATIONS COMMISSION Fern J. Jarmulnek Deputy Chief Satellite Division 8