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 Federal  Communications  Commission  FCC  04-  131 
 DISSENTING  STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS 


 Re:  Joint  Application  for  Review  of  Constellation  Communications  Holdings,  Inc.,  Mobile  Communications,  Inc.  and  ICO  Global  Communications  (Holdings)  Limited,  Memorandum 
 Opinion  and  Order. 
 Today’s  decision  was  an  exceptionally  difficult  one.  It  was  difficult  because  it  pitted  two  important  Commission  responsibilities  against  one  another.  On  one  hand  the  Commission  has  a 
 statutory  responsibility  to  protect  the  people’s  spectrum.  That  means  protecting  against  the  warehousing  of  spectrum  and  working  to  maximize  output  for  each  band.  Because  the 
 Commission  does  not  auction  satellite  spectrum,  it  devised  a  series  of  milestones  that  allow  it  to  measure  commitment  to  achieve  a  fully  operational  satellite  system  according  to  a  specified 
 schedule.  Each  milestone  provides  a  way  to  assess  whether  a  licensee  is  on  the  path  to  delivering  service  to  consumers  or  is  underutilizing  the  spectrum  resource  that  has  been  entrusted  to  it. 


 On  the  other  hand  the  Commission  has  an  ongoing  responsibility  to  be  clear  about  licensees’  responsibilities  and  to  give  adequate  notice  of  its  policies.  Regulatory  transparency 
 and  predictability  are  critical.  They  encourage  more  investment  because  companies  making  large  investments  can  do  so  with  the  knowledge  that  they  understand  the  rules  of  the  game  and 
 that  those  rules  will  not  be  changed  without  adequate  notice.  Transparency  and  predictability  are  also  core  legal  requirements  for  regulatory  agencies  under  the  Administrative  Procedures  Act. 


 In  a  perfect  world  we  would  be  able  to  meet  both  of  these  responsibilities  to  everyone’s  satisfaction.  But  in  this  case  I  fear  that  we  cannot.  In  the  relatively  new  world  of  satellite 
 milestones,  and  in  the  very  new  world  of  “strict  enforcement”  of  those  milestones,  our  licensees’  precise  responsibilities  are  not  adequately  clear  in  all  circumstances.  In  this  case  a  milestone 
 designed  to  further  our  goal  of  fighting  warehousing  and  maximizing  output  was  not  clear  enough.  Despite  that  lack  of  clarity,  today  the  Commission  rescinds  authorizations  held  by 
 Constellation  and  MCHI  –  the  equivalent  of  the  death  penalty  for  a  satellite  company. 
 I  am  not  comfortable  with  this  extreme  remedy,  given  the  confusion  over  the  exact  requirements  of  our  milestone.  In  the  related  Globalstar  milestone  order  the  company’s  non-contingent 
 contract  would  not  have  allowed  it  to  launch  a  satellite  system  that  met  its  deadlines.  For  this  reason  the  Commission  correctly  found  that  the  company  did  not  demonstrate  a 
 commitment  to  complete  the  construction  of  the  system  within  the  time  frame  specified  in  the  license. 


 Here,  by  contrast,  Constellation  and  MCHI’s  contract  did  provide  evidence  of  a  commitment  to  complete  their  satellite  system.  The  wrinkle  was  that  the  companies  intended  to 
 do  so  using  ICO  satellites.  While  I  would  prefer  licensees  to  build  their  own  systems  so  that  more  satellite  infrastructure  becomes  available,  I  am  not  convinced  that  our  rules  clearly 
 prohibited  this  arrangement.  For  this  reason,  I  am  pleased  that  the  Commission  is  using  this  opportunity  to  explain  our  standard  more  clearly  so  that  licensees  have  better  notice  of  what 
 types  of  non-  traditional  contractual  arrangements  satisfy  the  milestone,  but  I  believe  that  given  the  circumstances  of  this  case,  granting  a  waiver  as  we  did  in  the  related  TMI  case,  would  have 
 been  more  appropriate  than  the  extreme  act  of  rescinding  authorizations. 
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