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 Federal  Communications  Commission  FCC  04-  144 
 DISSENTING  STATEMENT  OF  COMMISSIONER  KATHLEEN  Q.  ABERNATHY 


 Re:  TMI  Communications  Company,  Limited  Partnership  and  TerreStar  Networks,  Inc.  Application  for  Review  and  Request  for  Stay. 
 One  of  my  core  principles,  and  one  that  I  believe  is  essential  in  order  for  effective  regulation,  is  that  the  FCC  aggressively  enforce  its  rules.  Failure  to  enforce  rules  sends  the  inappropriate  signal 
 that  licensees  may  engage  in  unlawful  conduct  with  impunity.  And,  in  the  case  of  satellite  milestones,  failure  to  enforce  our  requirements  results  in  spectrum  laying  fallow  and  inefficient 
 utilization  of  the  orbital  resource. 
 In  the  current  case,  the  majority  finds  that  TMI  Communications  Company  (TMI)  should  be  granted  a  waiver  of  the  first  milestone  requirement  of  its  license.  Under  this  milestone,  TMI  was 
 required  to  execute  within  one  year  a  non-  contingent  satellite  manufacturing  contract.  While  the  majority  concedes  that  TMI  did  not  meet  this  milestone,  it  nonetheless  grants  a  retroactive  waiver 
 of  the  requirement  and  concludes  that  the  underlying  purposes  of  the  milestone  will  not  be  disserved  by  providing  such  relief. 


 This  is  simply  not  true.  While  I  have  sympathy  for  TMI  in  this  proceeding,  I  think  it  is  mistaken  to  undermine  the  Commission’s  policy  of  strict  milestone  enforcement  by  granting  a  waiver.  To 
 turn  compliance  into  a  subjective  evaluation  undermines  the  very  basis  of  this  policy  and,  as  such,  does  not  meet  the  requirements  of  our  waiver  standard.  If  the  Commission  wishes  to  abandon  its 
 milestone  policy  it  must  do  so  via  a  rulemaking  proceeding  and  not  through  inconsistent  ad  hoc  waivers.  1 


 In  the  long  term,  I  believe  that  the  public  interest  is  best  served  by  requiring  strict  compliance  with  our  milestone  policy.  Any  approach  that  relies  on  something  less  substantially  weakens  our 
 milestone  enforcement  policy  and  enables  licensees  to  warehouse  spectrum.  It  is  for  these  reasons  that  I  dissent  from  this  order. 


 1  For  example,  in  Joint  Application  for  Review  of  Constellation  Communications 
 Holdings,  Inc.,  Mobile  Communications,  Inc.  and  ICO  Global  Communications  (Holdings)  Limited,  Memorandum  Opinion  and  Order,  FCC  No.  04-  131  (released  June  24,  2004)  (ICO 


 Decision),  the  Commission  determined  that  it  should  not  grant  a  waiver  of  its  milestone  requirement.  By  denying  a  waiver  in  the  ICO  Decision,  but  granting  one  here,  we  have  created 
 an  inconsistency  in  our  milestone  enforcement,  hence  creating  greater  ambiguity  for  licensees. 
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