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 Federal  Communications  Commission  FCC  04-  131 
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 CONSOLIDATED  SEPARATE  STATEMENT  OF  COMMISSIONER  KEVIN  J  .  MARTIN,  CONCURRING  IN  PART 
 Re:  Joint  Application  for  Review  of  Constellation  Communications  Holdings,  Inc.,  Mobile  Communications,  Inc.  and  ICO  Global  Communications  (Holdings)  Limited,  Memorandum 
 Opinion  and  Order,  File  Nos.  SAT-  T/  C-  20020718-  00114  et  al.;  Emergency  Application  for  Stay  of  Globalstar,  L.  P.,  Memorandum  Opinion  and  Order,  File  Nos. 
 SAT-  LOA-  19970926-  00151/  52/  53/  54/  56  et  al.; 
 While  I  do  not  take  issue  with  these  Orders’  interpretation  of  the  “non-  contingent  satellite  manufacturing  contract”  milestone,  I  question  the  usefulness  of  our  approach.  With  respect  to  Globalstar, 
 we  take  away  its  license  because  Globalstar’s  manufacturing  contract  would  not  have  provided  for  completion  of  construction  of  Globalstar’s  originally  proposed  system  within  Globalstar’s  original 
 construction  milestones.  But  Globalstar  sought  modification  of  its  system  and  extension  of  the  construction  milestones.  Globalstar  specifically  sought  an  opportunity  to  cure  its  satellite  manufacturing 
 contract  to  conform  to  the  original  requirements  should  its  modification  and  extension  requests  be  denied.  In  light  of  these  facts,  I  think  Globalstar  could  rather  easily  have  entered  into  the  requisite  contract  in 
 order  to  meet  the  first  milestone  and  preserve  its  license.  Whether  Globalstar  could  have  ultimately  lived  with  such  a  contract  is  a  harder  question,  but  Globalstar  would  have  bought  itself  time  to  try.  It  thus 
 seems  to  me  that  Globalstar  is  here  being  penalized  for  taking  a  more  honest  approach. 
 With  respect  to  Constellation  and  MCHI,  we  take  away  their  licenses  because  we  conclude  that  their  agreements  to  share  satellite  infrastructure  with  ICO  do  not  constitute  satellite  manufacturing 
 contracts.  As  with  Globalstar,  we  rely  in  large  part  on  the  fact  that  these  agreements  do  not  commit  Constellation  and  MCHI  to  implement  the  systems  they  were  originally  licensed  to  operate.  While  it  is 
 unclear  whether  Constellation  and  MCHI  could  have  entered  into  the  kind  of  contracts  we  deem  are  required  in  order  to  preserve  their  licenses,  it  does  seem  clear  that  they  could  have  provided  a  viable 
 service  through  their  sharing  agreements.  I  am  not  sure  that  the  penalty  of  taking  away  their  licenses  is  a  fair  match  to  the  perceived  transgressions. 


 In  the  end,  I  think  the  strict  enforcement  of  the  “non-  contingent  satellite  manufacturing  contract”  milestone  may  be  too  blunt  an  instrument  to  address  these  questions.  Going  forward,  I  would  prefer  a 
 more  nuanced  approach. 
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