Federal Communications Commission	DA 21-1421


Before the
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554


In the Matter of

Expanding Flexible Use of the 3.7 to 4.2 GHz Band

Phase I Certification of Accelerated Relocation of Embratel TVSAT Telecomunicações S.A. 
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GN Docket No. 18-122; GN Docket No. 21-320


ORDER

Adopted:  November 12, 2021	Released:  November 12, 2021

By the Acting Chief, Wireless Telecommunications Bureau:

1. With this Order, and subject to the conditions described below, the Wireless Telecommunications Bureau (WTB or Bureau) validates the Phase I Certification of Accelerated Relocation (Certification) filed by Embratel TVSAT Telecomunicações S.A. (Embratel) Embratel TVSAT Telecomunicações S.A., Certification of Accelerated Relocation for Phase I (filed Oct. 13, 2021) (Embratel Certification).  In the instant Order, the Bureau is only considering the showing made in, and validating, the Phase I Certification of Accelerated Relocation filed by Embratel.  This is without prejudice to any procedures and processes the Bureau may adopt for Phase II Certifications, or any future showing made by Embratel in conjunction with Phase II of the ongoing transition of the 3.7 GHz band.  Furthermore, this Order is without prejudice to other issues that are or may come before the Commission or that the Commission considers properly before other fora.  Embratel, the successor-in-interest to Claro S.A. and Star One S.A, is the current market authorization holder for the 3.7 GHz authorizations at issue and has affirmed its responsibility for the original accelerated relocation election filed by Claro.  See Letter from Lincoln Oliveira, General Director of Embratel Star One, and Luiz Otavio Vasconcelos Prates, Legal Counsel, Regulatory Affairs, Claro, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 18-122 (filed May 28, 2020); Letter from Lincoln A.A. Oliveira and Luiz Otavio Vasconcelos Prates, Legal Representatives, Embratel TVSAT Telecomunicações S.A., to Marlene H. Dortch, Secretary, FCC, GN Docket No. 18-122 (filed Oct. 7, 2021).  
 relating to the ongoing transition of the 3.7 GHz band. See Expanding Flexible Use of the 3.7 to 4.2 GHz Band, GN Docket No. 18-122, Report and Order and Order of Proposed Modification, 35 FCC Rcd 2343, 2456-57, at paras. 297-300 (2020) (3.7 GHz Report and Order).
  
2. In the 3.7 GHz Report and Order, the Commission adopted rules to make 280 megahertz of mid-band spectrum available for flexible use (plus a 20 megahertz guard band) throughout the contiguous United States by transitioning existing services out of the lower portion of the 3.7-4.2 GHz band (C-band) and into the upper 200 megahertz of the band (i.e., 4.0-4.2 GHz). 3.7 GHz Report and Order, 35 FCC Rcd at 2345, para. 4.
  Specifically, the 3.7 GHz Report and Order established a deadline of December 5, 2025, by which incumbent space station operators were to complete the transition of their operations to the upper 200 megahertz of the band, but it also provided an opportunity for accelerated clearing of the band by allowing eligible space station operators to voluntarily commit to relocate on a two-phased accelerated schedule, with a Phase I deadline of December 5, 2021, and a Phase II deadline of December 5, 2023. 3.7 GHz Report and Order, 35 FCC Rcd at 2408, para. 155; 47 CFR § 27.1412(b)(1)-(2).  By the Phase I deadline of December 5, 2021, eligible space station operators must repack any existing services and relocate associated incumbent earth stations throughout the CONUS into the upper 380 megahertz of the C-band (3820-4200 MHz), and the operators must provide passband filters to block signals from the 3700-3820 MHz band to associated incumbent earth stations in 46 of the top 50 Partial Economic Areas (PEAs).  3.7 GHz Report and Order, 35 FCC Rcd at 2414, para. 171; 47 CFR § 27.1412(b)(1)-(2).  By the Phase II deadline of December 5, 2023, eligible space station operators must repack any existing service and relocate associated incumbent earth stations throughout the CONUS into the upper 200 megahertz of the C-band (4000-4200 MHz), and the operators must provide passband filters to block signals from the 3700-4000 MHz band to all associated incumbent earth stations in the CONUS.  Id. 
  All five eligible space station operators elected accelerated relocation. Wireless Telecommunications Bureau Announces Accelerated Clearing in the 3.7-4.2 GHz Band, GN Docket No. 18-122, Public Notice, 35 FCC Rcd 5517 (WTB 2020).
    
3. By electing accelerated relocation, the eligible space station operators, among other things, voluntarily committed to perform all the tasks necessary to enable any incumbent earth station Incumbent earth stations are defined as those Fixed Satellite Service earth stations that “(1) were operational as of April 19, 2018; (2) are licensed or registered (or had a pending application for license or registration) in the IBFS database as of November 7, 2018; and (3) have timely certified, to the extent required by the Order adopted in FCC 18-91 (as we clarify . . . to include certain renewal applications and license and registration applications filed through November 7, 2018), the accuracy of information on file with the Commission.”  3.7 GHz Report and Order, 35 FCC Rcd at 2392, para. 116; 47 CFR §§ 25.138(c), 27.1411(b)(3). 
 that receives or sends C-band signals from or to a space station owned by that operator to maintain that functionality in the upper 200 megahertz of the band. 3.7 GHz Report and Order, 35 FCC Rcd at 2455, para. 292.
  The 3.7 GHz Report and Order stated that “[t]o the extent eligible space station operators can meet the Phase I and Phase II Accelerated Relocation Deadlines, they will be eligible to receive the accelerated relocation payments associated with those deadlines." 3.7 GHz Report and Order, 35 FCC Rcd at 2456, paras. 232, 297; 47 CFR § 27.1412(b).
  Once the Bureau validates an eligible space station operator’s Certification, the relevant Accelerated Relocation Payment (ARP) is to be disbursed by the Relocation Payment Clearinghouse (Clearinghouse). 3.7 GHz Report and Order, 35 FCC Rcd at 2457, para. 300. Following validation, the Clearinghouse shall promptly notify the 3.7 GHz Service Licensees, who must pay the ARP to the Clearinghouse within 60 days of the notice. 3.7 GHz Report and Order, 35 FCC Rcd at 2457, para. 300; 47 CFR § 27.1422(c). The Clearinghouse must disburse the ARP to the eligible space station operator within seven (7) days of receipt. Id.

4. The 3.7 GHz Report and Order specified that an “eligible space station operator’s satisfaction of the Accelerated Relocation Deadlines will be determined by the timely filing of a Certification of Accelerated Relocation demonstrating, in good faith, that it has completed the necessary clearing actions to satisfy each deadline” and directed WTB to prescribe the form of such Certifications and any challenges by relevant stakeholders. 3.7 GHz Report and Order, 35 FCC Rcd at 2457, para. 298; 47 CFR § 27.1412(g). 
  WTB was also directed to establish the process for how any challenges may impact incremental decreases in the ARP. 3.7 GHz Report and Order, 35 FCC Rcd at 2457, paras. 298-99. Should an eligible space station operator miss the Phase I or Phase II deadline, it may still receive a reduced, but non-zero, ARP if it otherwise meets the Certification requirements within six months after the relevant Accelerated Relocation Deadline.  Id. at 2456, para. 297; 47 CFR § 27.1422(d).  
  Further, “the Bureau, Clearinghouse, and relevant stakeholders will have the opportunity to review the Certification of Accelerated Relocation and identify potential deficiencies,” and if “credible challenges as to the space station operator’s satisfaction of the relevant deadline are made, the Bureau will issue a public notice identifying such challenges.” 3.7 GHz Report and Order, 35 FCC Rcd at 2457, para. 299; 47 CFR §§ 27.1412(g)(1)-(2). 
  Absent notice from WTB of deficiencies in the Certification within 30 days of its filing, the Certification will be deemed validated. 3.7 GHz Report and Order, 35 FCC Rcd at 2457, para. 299; 47 CFR § 27.1412(g)(2). 
  Where challenges or deficiencies are found, the Bureau will render a final decision as to the validity of the Certification no later than 60 days from its filing. 3.7 GHz Report and Order, 35 FCC Rcd at 2457, paras. 298-99.

5. As directed, on August 4, 2021, the Bureau issued a Public Notice implementing filing procedures for Phase I Certifications and related challenges. See Wireless Telecommunications Bureau Opens a New Docket and Establishes the Process for C-Band Space Station Operator Phase I Certification of Accelerated Relocation, Public Notice, GN Docket Nos. 18-122 and 21-320, DA 21-957 (WTB Aug. 4, 2021) (Phase I ARP Certification Procedures PN).  The Phase I ARP Certification Procedures PN stated that Challenges to a Certification must be filed in GN Docket No. 21-320 within ten (10) days after the Certification is published in ECFS and the eligible space station operators’ replies must be filed in that docket within five (5) days. Id. at 5.  In the Phase I Incremental Reduction Comment PN, also released on August 4, 2021, the  Bureau sought comment on how different Phase I Certification scenarios would affect both the challenge process and incremental decreases in the ARP.  Wireless Telecommunications Bureau Seeks Comment on Implementation of the Commission’s Incremental Reduction Plan for Phase I Accelerated Relocation Payments, Public Notice, GN Docket Nos. 18-122 and 21-320, DA 21-958 (WTB Aug. 4, 2021) (Phase I Incremental Reduction Comment PN).  The Bureau announced its implementation of the final incremental reduction process on September 29, 2021.  Wireless Telecommunications Bureau Announces Implementation of the Commission’s Incremental Reduction Plan for Phase I Accelerated Relocation Payments, Public Notice, GN Docket Nos. 18-122 and 21-320, DA 21-1223 (WTB Sept. 29, 2021) (Phase I Incremental Reduction Plan PN).
  The Phase I ARP Certification Procedures PN stated that to satisfy the Phase I deadline, the Certification must describe in detail each action that was taken by the eligible space station operator, including the date of completion, in a similar format and content to that operator’s Transition Plan. Phase I ARP Certification Procedures PN at 3.
  This description should include (but is not limited to):
· The operations that were repacked to satisfy the Phase I deadline; 
· The number of new satellites, if any, that the eligible space station operator launched, including the dates of launch, reaching final orbit, and start of operations; 
· A description of how services were migrated to the upper portion of the band, including the pre- and post-transition frequencies that each customer occupied and now occupies; 
· Any necessary technology upgrades or other solutions, such as video compression or modulation, that the eligible space station operator implemented, described on a per antenna and/or feed basis, as appropriate; 
· The number and location of antennas and feeds that were transitioned to satisfy the Phase I deadline, including the actions taken (e.g., retuning and repointing) for each;
· The date of completion of the above items;
· A description of the steps that the eligible space station operator has taken to identify all associated earth stations, antennas, and feeds, and to ensure that they are all are transitioned as of the date of Certification;
· Details relating to any variances from the eligible space station operator’s Transition Plan, such as antennas and feeds involving circumstances beyond the control of the eligible space station operator and therefore subject to a transition delay notice, 3.7 GHz Report and Order, 35 FCC Rcd at 2455, para. 294; 47 CFR 27.1412(b)(3)(i).   
 and antennas and feeds that are otherwise pending removal from the most recent Incumbent Earth Station list See International Bureau Release Updated List of Incumbent Earth Stations in the 3.7-4.2 GHz Band in the Contiguous United States, IB Docket No. 20-205, GN Docket No. 20-305, Public Notice, DA 21-731 (IB June 22, 2021).
 or subject to an agreement regarding the transition between the eligible space station operator and the earth station operator. Such agreements may, for example, reflect that the earth station operator, whose station is associated with the eligible space station operator and included on its Transition Plan, has relieved said eligible space station operator of any obligation to effectuate the transition (in whole or in part, as per the agreement) of the subject earth station. Phase I ARP Certification Procedures PN at 3-4.
 
6. Each eligible space station operator was required to certify that it attests to the truthfulness of the above information included in its Certification and is making the Certification in good faith. 3.7 GHz Report and Order, 35 FCC Rcd at 2457, para. 298; Phase I ARP Certification Procedures PN at 4. The Bureau will determine that a Certification has been made in bad faith if, for example, the certifying party makes a statement that is false and if it finds the party did not use due diligence in providing information that is correct and not misleading to the Commission, including taking appropriate affirmative steps to determine the truthfulness of what is being submitted. In Re Amend. of Section 1.17 of Commission's Rules Concerning Truthful Statements to Comm'n, 18 FCC Rcd 4016, 4021 at para. 12 (2003).  In cases where it is found that the ARP was disbursed based on a Certification that the eligible space station operator had filed in bad faith, the operator may be subject to the additional consequence of having to return some or all of the ARP, depending on the circumstances. See 47 CFR § 27.1412(a).  Certifications are subject to section 1.17 of the Commission’s rules.  47 CFR § 1.17.
   
7. Embratel submitted its Phase I Certification of Accelerated Relocation on October 13, 2021.  The Bureau received no challenges.  
8. Embratel asserts that it has met all the elements required in the Phase I ARP Certification Procedures PN. Phase I ARP Certification Procedures PN at 3-4. 
  Specifically, Embratel details that it is exiting the C-band market in the United States, is no longer contractually required to provide C-band services in the United States, and has ceased all operations from Star One C1 satellite, which will be deorbited. Embratel Certification at 2.

9. In its Certification, Embratel addresses each of the eight criteria set forth in the Phase I ARP Certification Procedures PN.  As a result of its discontinuation of C-band services, Embratel states that none of its satellite operations required repacking to satisfy the Phase I deadline and that any services it was contractually obligated to provide are supported through an arrangement with SES to provide sufficient capacity on the SES-4 satellite. Embratel Certification at 5. Embratel indicates it has agreed with SES to provide C-band downlink transmissions using available capacity on its SES-4 satellite.  Embratel Certification at 3, 5.
  Embratel indicates that its sole C-band satellite serving the United States has ceased operations and will be deorbited, and as such it did not need to launch any new satellites to meet its Phase I obligations. Embratel Certification at 2, 6.  
  In a similar vein, Embratel contends that none of its services required migration to the upper portion of the C-band. Embratel Certification at 6.
  Embratel further indicates that it did not need to implement any technology upgrades, video compression, or modulation to complete its Phase I transition. Embratel Certification at 6.

10. While Embratel asserts that no earth station antennas or feeds required transitioning to satisfy the Phase I deadline, it acknowledges that it had included on its Transition Plan one associated customer whose earth station license is expired and was reportedly unresponsive to Embratel’s outreach efforts. Embratel Certification at 2-3, 7-9.
  Embratel characterizes these outreach attempts as repeated and exhaustive, and specifies their completion in September 2021. Embratel Certification at 7.  
  Embratel also describes more general outreach efforts to its customers, earth station operators, other satellite operators, and the Relocation Coordinator to identify any associated earth stations it has served. Embratel Certification at 7-8.  Embratel says it determined through this process that its C-band services were limited to Florida, and identified a single antenna on an associated earth station in Miami, which is owned by the non-responsive earth station operator in question.  Id. 
  Apart from the one earth station operator Embratel says was unresponsive, it identifies no other variances from its Transition Plan in its Certification.  Embratel Certification at 8-9.  As noted below, if after the disbursement of the ARP, the Bureau subsequently finds that Embratel should have transitioned this earth station, Embratel will be required to complete all Phase I transition work relating to this earth station.

11. Based on the record presented, the Phase I Certification of Accelerated Relocation filed by Embratel on October 13, 2021 is hereby validated. While the Bureau validates Embratel’s Certification in the absence of Challenges or other contrary evidence, we make no specific findings as to its Phase I transition performance.  See, e.g., infra para. 15.  We reiterate that validation of this Phase I Certification is without prejudice to any procedures and processes the Bureau may adopt for Phase II Certifications, or any future showing made by Embratel in conjunction with Phase II of the ongoing transition of the 3.7 GHz band.
 As required in the Phase I ARP Certification Procedures PN, if after the disbursement of the ARP, the Bureau subsequently finds that Embratel should have transitioned additional earth stations, antennas, or feeds regardless of whether or not they were accounted for in its Transition Plan and Certification, Embratel will be required to complete all Phase I transition work relating to such earth stations, antennas, or feeds in a prompt and effective manner to ensure that the earth stations, antennas or feeds continue to receive substantially the same service that they were able to receive before the transition. Phase I ARP Certification Procedures PN at 4; see 47 CFR § 27.1412(a). ("Eligible space station operators are responsible for all necessary actions...to migrate the existing services of incumbent earth stations in CONUS to the 4000-4200 MHz band (unless the incumbent earth station opts out of the formal relocation process, per paragraph (e) of this section), as of December 5, 2025.  Eligible space station operators that fail to do so will be in violation of the conditions of their license authorization and potentially subject to forfeitures and other sanctions").  The obligation to remediate is independent from, and without prejudice to, any determination that the Certification (or any subsequent remediation effort) was made in bad faith. Phase I ARP Certification Procedures PN at 4. 

12. ACCORDINGLY, IT IS ORDERED, that, pursuant to sections 1, 4(i), 4(j), 5, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i), 154(j), 155, 303(r), and the authority delegated pursuant to sections 0.131 and 0.331 of the Commission’s rules, 47 CFR §§ 0.131, 0.331, this Order IS HEREBY ADOPTED, and the above-captioned Phase I Certification of Accelerated Relocation is HEREBY VALIDATED. 
13. IT IS FURTHER ORDERED that the Relocation Payment Clearinghouse shall promptly notify the 3.7 GHz Service Licensees that the Bureau has validated the above-captioned Phase I Certification of Accelerated Relocation.    
14. IT IS FURTHER ORDERED that the 3.7 GHz Service Licensees shall pay their portion of the relevant Phase I Accelerated Relocation Payment to the Clearinghouse within sixty days of receiving notice from the Clearinghouse, and the Clearinghouse shall disburse the relevant Phase I Accelerated Relocation Payment as set forth in the 3.7 GHz Report and Order within seven days of receiving the payment from the 3.7 GHz Service Licensees.  
15. IT IS FURTHER ORDERED that Embratel must complete all Phase I transition work for any earth stations, antennas, or feeds later determined to be associated with Embratel, regardless of whether they were accounted for in its Transition Plan and Certification, in a prompt and effective manner. 
16. This action is taken under delegated authority pursuant to Sections 0.131 and 0.331 of the Commission’s Rules, 47 CFR §§ 0.131, 0.331, and the 3.7 GHz Report and Order, and is effective on release.

FEDERAL COMMUNICATIONS COMMISSION

	

					Joel Taubenblatt
Acting Chief, Wireless Telecommunications Bureau

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