USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 1 of 98 ORAL ARGUMENT NOT YET SCHEDULED

BRIEF FOR RESPONDENTS

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

NOS. 13-1231 & 13-1232

SPECTRUM FIVE LLC, APPELLANT, V. FEDERAL COMMUNICATIONS COMMISSION, APPELLEE.

SPECTRUM FIVE LLC, PETITIONER, V. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS.

ON APPEAL FROM AND PETITION FOR REVIEW OF AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION

WILLIAM J. BAER JONATHAN B. SALLET ASSISTANT ATTORNEY GENERAL ACTING GENERAL COUNSEL

ROBERT B. NICHOLSON JACOB M. LEWIS ROBERT J. WIGGERS ASSOCIATE GENERAL COUNSEL ATTORNEYS MATTHEW J. DUNNE UNITED STATES COUNSEL DEPARTMENT OF JUSTICE WASHINGTON, D.C. 20530 FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 (202) 418-1740

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 2 of 98

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), Appellee/Respondent the

Federal Communications Commission (“FCC”) and Respondent the United

States certify as follows:

1. Parties. The parties appearing before the FCC were DIRECTV Enterprises,

LLC; EchoStar Satellite Operating Corporation; the Government of Bermuda;

Radiocommunications Agency Netherlands; SES S.A.; and Spectrum Five

LLC.

The parties appearing before this Court are Appellant/Petitioner

Spectrum Five LLC; Appelle/Respondent the FCC; Respondent the United

States in No. 13-1232 only; and Intervenor EchoStar Satellite Operating

Corporation.

2. Ruling under review. The ruling under review is Memorandum Opinion and Order, EchoStar

Satellite Operating Company; Application for Special Temporary Authority

Relating to Moving the EchoStar 6 Satellite from the 77° W.L. Orbital

Location, and to Operate at the 96.2° W.L. Orbital Location, 28 FCC Rcd

10412 (2013) (“Order”).

3. Related cases. The FCC and the United States are not aware of any related cases.

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 3 of 98

TABLE OF CONTENTS

Table of Authorities...... iii

Glossary ...... viii

Jurisdiction ...... 1

Questions Presented ...... 2

Statutes and Regulations ...... 3

Counterstatement ...... 3

A. Regulatory Background ...... 3

B. Spectrum Five ...... 7

C. Proceedings Before The Bureau ...... 9

1. Application and Pleadings ...... 9

2. Bureau Decision ...... 13

D. The Order On Review ...... 15

E. Subsequent Developments ...... 18

Summary of Argument ...... 18

Standard of Review ...... 23

Argument ...... 24

I. Spectrum Five Has Not Demonstrated Standing...... 24

A. Spectrum Five’s Injury Is Conjectural And Uncertain...... 24

B. Redress Is Contingent On Action By The ITU, A Non- Party...... 29

1. Only the ITU can provide relief ...... 29

2. Vacatur may have no effect on the ITU...... 30

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C. The Requested Relief Is Beyond The Court’s Power...... 34

II. The Commission Reasonably Exercised Its Discretion In Finding That An International Coordination Agreement Constituted Extraordinary Circumstances Meriting An STA...... 39

A. Interference protection for present and future DBS service to U.S. customers constituted extraordinary circumstances...... 39

B. Spectrum Five’s attacks on the coordination arrangement are baseless...... 43

III. Spectrum Five Has Waived Its Argument That A Conflict Between An STA And The ITU BSS Plan Is Unlawful; In Any Case, There Is No Conflict...... 47

IV. The Commission Has Not Pre-Judged The Assignment Of DBS Licenses...... 47

V. Spectrum Five Has Waived Its Argument Regarding Echostar 6’s Fuel Life; In Any Case, The Commission Reasonably Accepted Echostar’s Explanation Of The Issue...... 54

Conclusion ...... 57

ii USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 5 of 98

TABLE OF AUTHORITIES

CASES Americans for Safe Access v. DEA, 706 F.3d 438 (D.C. Cir. 2013) ...... 33 ASARCO Inc. v. Kadish, 490 U.S. 605 (1989) ...... 29 Ashbacker Radio Corp. v. FCC, 326 U.S. 327 (1945) ...... 52 * AT&T Corp. v. FCC, 317 F.3d 227 (D.C. Cir. 2003) ...... 48 Bachow Commc’ns, Inc. v. FCC, 237 F.3d 683 (D.C. Cir. 2001) ...... 52 * Bartholdi Cable Co., Inc. v. FCC, 114 F.3d 274 (D.C. Cir. 1997) ...... 55 BDPCS, Inc. v. FCC, 351 F.3d 1177 (D.C. Cir. 2003) ...... 47 Cablevision Sys. Corp. v. FCC, 649 F.3d 695 (D.C. Cir. 2011) ...... 4, 57 City of Arlington, Tex. v. FCC, 133 S. Ct. 1863 (2013) ...... 39 Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013) ...... 24 CNG Transmission Corp. v. FERC, 40 F.3d 1289 (D.C. Cir. 1994) ...... 29 Coal. for Pres. of Hispanic Broad. v. FCC, 893 F.2d 1349 (D.C. Cir. 1990) ...... 27 Consumer Elecs. Ass’n v. FCC, 347 F.3d 291 (D.C. Cir. 2003) ...... 23 Cranston v. Reagan, 611 F. Supp. 247 (D.D.C. 1985) ...... 36 Dist. No. 1, Pac. Coast Dist., Marine Eng’rs Beneficial Ass’n v. Mar. Admin., 215 F.3d 37 (D.C. Cir. 2000) ...... 45 El-Shifa Pharm. Indus. Co. v. U.S., 607 F.3d 836 (D.C. Cir. 2010) ...... 35

iii USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 6 of 98

Environmentel, LLC v. FCC, 661 F.3d 80 (D.C. Cir. 2011) ...... 55 FCC v. WNCN Listeners Guild, 450 U.S. 582 (1981) ...... 43 Haig v. Agee, 453 U.S. 280 (1981) ...... 35 Hwang Geum Joo v. Japan, 413 F.3d 45 (D.C. Cir. 2005) ...... 36 * In re Core Commc’ns, Inc., 455 F.3d 267 (D.C. Cir. 2006) ...... 43, 46, 47 Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221 (1986) ...... 36 Keller Commc’ns, Inc. v. FCC, 130 F.3d 1073 (D.C. Cir. 1997) ...... 42 Kessler v. FCC, 326 F.2d 673 (D.C. Cir. 1963) ...... 52 Klamath Water Users Ass’n v. FERC, 534 F.3d 735 (D.C. Cir. 2008) ...... 29, 31, 33 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...... 33, 34 M2Z Networks, Inc. v. FCC, 558 F.3d 554 (D.C. Cir. 2009) ...... 43 Miami Bldg. & Constr. Trades Council v. Sec’y of Def., 493 F.3d 201 (D.C. Cir. 2007) ...... 29, 34 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ...... 44 Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) ...... 24 NetworkIP, LLC v. FCC, 548 F.3d 116 (D.C. Cir. 2008) ...... 41, 42 * New England Power Generators Ass’n v. FERC, 707 F.3d 364 (D.C. Cir. 2013) ...... 19, 28 New England Pub. Commc’ns Council, Inc. v. FCC, 334 F.3d 69 (D.C. Cir. 2003) ...... 48 New York Reg’l Interconnect, Inc. v. FERC, 634 F.3d 581 (D.C. Cir. 2011) ...... 25

iv USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 7 of 98

Northpoint Technology, Ltd. v. FCC, 412 F.3d 145 (D.C. Cir. 2005) ...... 4, 6, 19, 22, 26 Orange Park Florida T.V., Inc. v. FCC, 811 F.2d 664 (D.C. Cir. 1987) ...... 27 Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin., 489 F.3d 1279 (D.C. Cir. 2007) ...... 25 * Rural Cellular Ass’n v. FCC, 685 F.3d 1083 (D.C. Cir. 2012) ...... 23, 39, 49 Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254 (2011) ...... 23 Teledesic LLC v. FCC, 275 F.3d 75 (D.C. Cir. 2001) ...... 24 Town of Barnstable v. FAA, 659 F.3d 28 (D.C. Cir. 2011) ...... 31, 33 * U.S. Ecology, Inc. v. United States Dep’t of Interior, 231 F.3d 20 (D.C. Cir. 2000) ...... 29, 34 Waterway Commc’ns Sys., Inc. v. FCC, 851 F.2d 401 (D.C. Cir. 1988) ...... 2 Whitmore v. Arkansas, 495 U.S. 149 (1990)...... 25 Zitovski ex rel. Zitovsky v. Clinton, 132 S. Ct. 1421 (2012) ...... 36

STATUTES 28 U.S.C. § 2341(1) ...... 1 47 U.S.C. § 151 ...... 3 47 U.S.C. § 152(a) ...... 3 47 U.S.C. § 303(y)...... 21 47 U.S.C. § 309(e) ...... 52 47 U.S.C. § 309(f) ...... 39 47 U.S.C. § 402(a) ...... 1 47 U.S.C. § 402(b)(6) ...... 1 47 U.S.C. § 405 ...... 43, 47, 54 47 U.S.C. § 405(a) ...... 21, 46

v USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 8 of 98

47 U.S.C. § 721(c) ...... 3

OTHER AUTHORITIES ITU Constitution, Article 44, No. 196 ...... 28 ITU Radio Regs., App. 30, Art. 11.44B (2012) ...... 6, 32 ITU Radio Regs., App. 30, Art. 4.2.19 (2012) ...... 6, 7 ITU Radio Regs., App. 30, Art. 4.2.20 (2012) ...... 7 ITU Radio Regs., App. 30, Art. 4.2.6 (2012) ...... 6 * ITU Radio Regs., App. 30, Art. 4.4 (2012) ...... 14, 49 ITU Radio Regs., App. 30, Art. 9 (2012) ...... 38 ITU Radio Regs., App. 30, Art. 9.4 (2012) ...... 7 ITU Radio Regs., App. 30, Arts. 0.3 (2012) ...... 7 Lawrence D. Roberts, A Lost Connection: Geostationary Satellite Networks and the International Telecommunication Union, 15 BERKELEY TECH. L.J. 1095 (2000) ...... 5 Secretariat, United Nations General Assembly, Physical Nature and Technical Attributes of the Geostationary Orbit (Jan 1988) submitted in Mitigation of Orbital Debris, FCC Int’l Bur. Docket No. 02-54 (Mar. 18, 2002) ...... 10

REGULATIONS 47 C.F.R. § 1.115 ...... 55 47 C.F.R. § 1.65(a) ...... 44 47 C.F.R. § 2.1 ...... 10, 14, 49 47 C.F.R. § 2.1(c) ...... 13 47 C.F.R. § 25.112(a) ...... 54 47 C.F.R. § 25.120(a) ...... 5 47 C.F.R. § 25.120(b)(1) ...... 2, 5, 39 47 C.F.R. § 25.148(f) ...... 21, 47, 48, 51 47 C.F.R. § 25.201 ...... 4, 14, 49

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47 C.F.R. § 25.202(a)(7) ...... 4 47 C.F.R. § 25.280 ...... 10 47 C.F.R. §§ 25.101-25.701 ...... 4

ADMINISTRATIVE DECISIONS NPRM, Amendment of the Commission’s Policies & Rules for Processing Applications in the Direct Broad. Satellite Serv., 21 FCC Rcd 9443 (2006) ...... 5, 6, 26, 49 Public Notice, Amendment of the Commission’s Policies & Rules for Processing Applications in the Direct Broad. Satellite Serv., 22 FCC Rcd 125 (Int’l Bur. 2007) ...... 5 Public Notice, Direct Broadcast Satellite (DBS) Service Auction Nullified, 20 FCC Rcd 20618 (2005) ...... 4, 26 Sirius Satellite Radio, Inc, 16 FCC Rcd 16773 (Int’l Bur. 2001) ...... 41 Spectrum Five LLC, 26 FCC Rcd 10448 (Int’l Bur. 2011) ...... 7 Spectrum Five LLC, 27 FCC Rcd 13129 (Int’l Bur. 2012) ...... 8

* Cases and other authorities principally relied upon are marked with asterisks.

vii USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 10 of 98

GLOSSARY

2006 NPRM Notice of Proposed Rulemaking, Amendment of the Commission’s Policies & Rules for Processing Applications in the Direct Broad. Satellite Serv., 21 FCC Rcd 9443 (2006)

BSS Broadcast-satellite service (referred to as DBS domestically)

Bureau Stay Order Memorandum Opinion and Order, EchoStar Satellite Operating Company; Application for Special Temporary Authority Relating to Moving the EchoStar 6 Satellite from the 77° W.L. Orbital Location, and to Operate at the 96.2° W.L. Orbital Location, 28 FCC Rcd 5475 (Int’l Bur. 2013)

Bureau Order Order and Authorization, EchoStar Satellite Operating Company; Application for Special Temporary Authority Relating to Moving the EchoStar 6 Satellite from the 77° W.L. Orbital Location, and to Operate at the 96.2° W.L. Orbital Location, 28 FCC Rcd 4229 (Int’l Bur. 2013)

DBS Direct Broadcast Service (referred to as BSS internationally)

Freeze Notice Public Notice, Direct Broadcast Satellite (DBS) Service Auction Nullified, 20 FCC Rcd 20618, 20619 (2005)

FSS Fixed-satellite service

ITU International Telecommunication Union

MSS Mobile-satellite service

viii USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 11 of 98

Order Memorandum Opinion and Order, EchoStar Satellite Operating Company; Application for Special Temporary Authority Relating to Moving the EchoStar 6 Satellite from the 77° W.L. Orbital Location, and to Operate at the 96.2° W.L. Orbital Location, 28 FCC Rcd 10412 (2013)

STA Special Temporary Authority

W.L. Western Longitude

ix USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 12 of 98

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

NOS. 13-1231 & 13-1232

SPECTRUM FIVE LLC, APPELLANT, V. FEDERAL COMMUNICATIONS COMMISSION, APPELLEE.

SPECTRUM FIVE LLC, PETITIONER, V. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS.

ON APPEAL FROM AND PETITION FOR REVIEW OF AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION

BRIEF FOR RESPONDENTS

JURISDICTION

Spectrum Five invokes this Court’s jurisdiction under 47 U.S.C.

§ 402(b)(6), or in the alternative under 47 U.S.C. § 402(a) and 28 U.S.C.

§ 2341(1). Br. 1. Because the underlying Order involves the grant of an USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 13 of 98

instrument of authorization, it is most appropriately viewed as “triggering”

§ 402(b). See Waterway Commc’ns Sys., Inc. v. FCC, 851 F.2d 401, 403

(D.C. Cir. 1988). In any case, the issue is not dispositive, because the notice

of appeal and the petition for review were both filed in this Court within 30

days of the Order.

As explained below, however, the FCC argues that this Court lacks

jurisdiction because Spectrum Five lacks standing.

QUESTIONS PRESENTED

1. Whether Spectrum Five has standing, given that (1) before it can

suffer any injury, it must fund, build, and launch a satellite and secure a

license that is not now available, (2) only the ITU, an international

organization and a non-party, can redress any purported injury by

adjudicating the right of the U.K. to claim protection under its

BERMUDASAT-1 filing from interference from Spectrum Five, and (3)

Spectrum Five’s desired remedy would require this Court to order the FCC to

take a position before the ITU contrary to a coordination arrangement reached

on behalf of the U.S. with the U.K.

2. Whether, in granting EchoStar special temporary authority (an

“STA”) to move its satellite under 47 C.F.R. § 25.120(b)(1), the FCC

reasonably exercised its discretion to find that the ability to obtain, through

2 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 14 of 98

international coordination, protection of orbital locations for present and

future service to U.S. consumers constituted extraordinary circumstances, the

delay of which would seriously prejudice the public interest.

3. Whether, if the issue is not waived, the FCC reasonably interpreted

ITU rules to permit the operation of Echostar 6 on a non-interference basis

under ITU Radio Regulation Art. 4.4.

4. Whether the Commission adequately explained its determination that

grant of the STA did not prejudge the outcome of any subsequent FCC

process for awarding DBS licenses.

5. Whether, if the issue is not waived, the Commission reasonably

accepted EchoStar’s explanation for its revised estimate of the remaining

useful life of the EchoStar 6 satellite.

STATUTES AND REGULATIONS

All applicable statutes and regulations are contained in the Brief for

Appellant/Petitioner Spectrum Five, LLC.

COUNTERSTATEMENT

A. Regulatory Background The Federal Communications Commission regulates satellite service

for signals received or transmitted within the United States. See 47 U.S.C. §§

151, 152(a), 721(c). One such type of service is known domestically as direct

broadcast satellite (“DBS”). DBS is “[a] radiocommunication service in

3 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 15 of 98

which signals [are] transmitted or retransmitted by space stations” in the

12.2-12.7 GHz frequency band “intended for direct reception by the general

public.” 47 C.F.R. § 25.201; see also id. § 25.202(a)(7). DBS providers such

as DIRECTV and EchoStar-affiliate DISH Network compete with cable

operators by offering multichannel video programming to consumers “via

direct-to-home satellites.” Cablevision Sys. Corp. v. FCC, 649 F.3d 695, 700

(D.C. Cir. 2011).

The FCC has adopted rules governing the provision of DBS and other

satellite communication services in the United States. See 47 C.F.R. §§

25.101-25.701. After this Court ruled in Northpoint Technology, Ltd. v.

FCC, 412 F.3d 145 (D.C. Cir. 2005), that the FCC was prohibited by statute

from allocating DBS licenses by auction, the agency imposed a freeze on all

new applications to provide DBS in the United States. Public Notice, Direct

Broadcast Satellite (DBS) Service Auction Nullified, 20 FCC Rcd 20618,

20619 (2005) (“Freeze Notice”). Although the Commission issued a notice

of inquiry to explore DBS-licensing mechanisms that would not run afoul of

Northpoint, it has not taken action in that proceeding since January 2007, and

the DBS application freeze remains in effect. See NPRM, Amendment of the

Commission’s Policies & Rules for Processing Applications in the Direct

Broad. Satellite Serv., 21 FCC Rcd 9443, 9444 ¶ 1 (2006) (“2006 NPRM”);

4 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 16 of 98

Public Notice, Amendment of the Commission’s Policies & Rules for

Processing Applications in the Direct Broad. Satellite Serv., 22 FCC Rcd 125

(Int’l Bur. 2007).

Under the FCC’s rules, any provider of satellite communication

services (including DBS) may apply to the Commission for special temporary

authority (“an STA”) “to install and/or operate new or modified equipment.”

47 C.F.R. § 25.120(a). “The Commission may grant a temporary

authorization only upon a finding that there are extraordinary circumstances

requiring temporary operations in the public interest and that delay in the

institution of these temporary operations would seriously prejudice the public

interest.” Id. § 25.120(b)(1).

The use of orbital locations and frequencies for DBS service, known

internationally as “broadcasting-satellite service” or “BSS,” is coordinated

through the International Telecommunication Union (“ITU”), a United

1 Nations specialized agency. “ITU regulations apportion spectrum and orbit

locations” for BSS “in various geographic regions in certain planned

frequency bands on a regional basis among all nations through agreements

1 For a discussion of the ITU’s history and functions, see Lawrence D. Roberts, A Lost Connection: Geostationary Satellite Networks and the International Telecommunication Union, 15 BERKELEY TECH. L.J. 1095, 1105-14 (2000).

5 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 17 of 98

reached at Regional and World Radiocommunication Conferences.” 2006

NPRM, 21 FCC Rcd at 9444-45 ¶ 3. The ITU regulations cover eight orbital

locations assigned to the United States for providing DBS. Id.; see also

Northpoint, 412 F.3d at 147-48.

Under ITU rules, each nation (or, in ITU terminology,

“Administration”) may seek to modify the existing BSS plan by filing a

request with the ITU. Any such filing will lapse unless the frequency

assignments at a given orbital location are “brought into use” within eight

years of the filing. ITU Radio Regs., App. 30, Art. 4.2.6 (2012). To bring

the filing into use, a satellite capable of providing service in the relevant

frequencies must be deployed and maintained at the orbital position for at

least 90 consecutive days. Id., Art. 11.44B.

When the ITU determines that an Administration’s filing has been

brought into use and that certain additional requirements are met, it records

the filing in the its Master International Frequency Register. ITU Radio

Regs., App. 30, Art. 4.2.19. This recording gives operations consistent with

the filing a right to international recognition and interference protection. Id.

Notwithstanding this right, ITU rules require all Administrations—including

those with ITU-recorded filings—to negotiate in good faith in an effort to

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ensure rational, efficient, and economical use of the geostationary orbit and

radio frequencies. Id., Arts. 0.3, 9.4, App. 30, Arts. 4.2.19, 4.2.20.

B. Spectrum Five Spectrum Five LLC is a privately-held company formed in 2004 to

develop and operate satellite systems. Wilson Decl. ¶ 1 (Br. Add. 74).

Spectrum Five does not now operate any satellites or provide service to any

customers. Before the FCC froze DBS applications, the agency granted

Spectrum Five DBS market access to provide service from a satellite at the

114° West Longitude (“W.L.”) orbital location, but in 2011 the Commission

withdrew that grant when Spectrum Five failed to meet construction

milestones on its proposed satellites. See Spectrum Five LLC, 26 FCC Rcd

2 10448 ¶¶ 1, 5 (Int’l Bur. 2011) (“Spectrum Five Milestone Order”).

Spectrum Five now has a new FCC license for a satellite at 95.15°

W.L., but that license only authorizes a satellite to operate in the 17/24 GHz

“Reverse Band”—a different, higher set of frequencies than the 12/17 GHz

used for DBS service. See Spectrum Five LLC, 27 FCC Rcd 13129 ¶ 1 (Int’l

2 “The Commission’s DBS due diligence rules are designed to ensure that valuable spectrum is not held by those unable or unwilling to proceed with their plans, and that service is timely deployed for the benefit of the public.” Spectrum Five Milestone Order ¶ 6.

7 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 19 of 98

3 Bur. 2012). Spectrum Five has stated that it plans to construct and launch a

“dual-band” satellite at 95.15° W.L. that would transmit on both the standard

DBS and Reverse Band frequencies. Wilson Decl. ¶ 14 (Br. Add. 78-79).

Spectrum Five has secured, through a Dutch subsidiary, a filing submitted to

the ITU by the Netherlands for DBS service at that location. Id. at ¶¶ 11-13

(Br. Add. 78). However, because of the FCC freeze on DBS applications for

U.S. service, Spectrum Five has neither applied for nor been granted an FCC

license to provide DBS service to the United States. Id. at ¶ 31 (Br. Add. 85).

Spectrum Five has not yet begun physical construction of its satellite.

Id. at ¶ 30 (Br. Add. 84). It has submitted results of its “Critical Design

Review,” a pre-construction milestone required by the FCC as a condition of

its Reverse Band market access grant. Id. Its fourth milestone—the

beginning of physical construction—has been delayed, though Spectrum Five

still anticipates launching its satellite by its milestone date of August 2016.

Id.

3 Because this service does not use the same set of uplink and downlink frequencies as DBS service, Spectrum Five’s Reverse-Band license did not violate the DBS application freeze.

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C. Proceedings Before The Bureau 1. Application and Pleadings

On February 20, 2013, EchoStar Satellite Operating Corporation

(“EchoStar”) filed an application with the FCC for special temporary

authority to move its EchoStar 6 satellite from the 76.8° W.L. orbital location

to the 96.2° W.L. orbital location. STA Application (JA6-34). EchoStar

made this request “to accommodate the needs of its customer and

development partner, SES Satellites (Bermuda) Ltd.” STA Application 1-2

(JA10-11). Bermuda had authorized SES Bermuda to operate at the 96.2°

W.L. orbital location, a location for which the U.K. has a filing with the ITU,

known as BERMUDASAT-1. Id. That filing was scheduled to expire in

April 2013, see 4/19/13 Letter from Bermuda to FCC (JA131), creating

“urgent timing,” STA Application 1 n.1 (JA10); see also 3/13/13 Letter from

EchoStar to FCC at 2 n.4 (JA74).

EchoStar explained that SES Bermuda planned “to use EchoStar 6 at

96.2° W.L. to evaluate and develop commercial service opportunities” for

providing “video programming and other services, including international

maritime services, to consumers in Bermuda” and other “markets outside of

the United States.” Bureau Order ¶ 2 (JA153). The application did not

contemplate provision of DBS to the general public in the United States.

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Instead, transmissions from the satellite would be reoriented toward areas

south and east of the United States, to make possible service to Bermuda and

the Caribbean. See STA Application at Ex. 2 pp. 2-3 (JA22-23); Bureau

Order ¶ 12 (JA157).

In response to other filings, EchoStar explained that it expected the

satellite to be operational until at least 2019. 3/13/13 Letter from EchoStar to

FCC 1-2 (JA73-74). EchoStar explained that this estimate was longer than

one made two years earlier because the previous estimate failed to “account

for fuel savings resulting from the current mode of inclined operations.” Id.

4 at 4 n.15 (JA76). EchoStar also anticipated further fuel savings that would

help to extend the life of the satellite. See 2/27/13 Letter from EchoStar to

FCC at Annex (JA45).

DIRECTV initially opposed EchoStar’s STA application. DIRECTV

complained that neither Bermuda nor any Bermuda-authorized operator had

coordinated to assess and avoid interference with DIRECTV’s satellite

4 Under “inclined” operations, an operator allows a satellite to drift along the longitudinal (North-South) axis by not correcting for some natural (primarily gravitational) forces that perturb the orbit. This uses less fuel than operation that limits longitudinal drift. See generally 47 C.F.R. §§ 2.1, 25.280; Secretariat, United Nations General Assembly, Physical Nature and Technical Attributes of the Geostationary Orbit (Jan 1988) submitted in Mitigation of Orbital Debris, FCC Int’l Bur. Docket No. 02-54 (Mar. 18, 2002) (FCC Add. 3).

10 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 22 of 98

network operating at 101° W.L. 2/25/13 Letter from DIRECTV to FCC at 3

(JA37). DIRECTV expressed concern that “the proposed relocation and

operation of EchoStar 6 at 96.2° W.L.” would give SES Bermuda “leverage

to demand [interference] protection that would compromise [DIRECTV’s]

U.S. networks,” which provide “service to millions of Americans.” Id. at 5

(JA39).

One month later, DIRECTV and SES Bermuda entered into a

coordination arrangement. SES Bermuda informed the FCC that this

“operator-to-operator coordination arrangement…fully resolves any concern

about the impact of” operations under the BERMUDASAT-1 filing on “U.S.

DBS services at…101° W.L.” 4/29/13 Letter from SES to FCC (JA109).

The arrangement protects both “existing and future” operations by DIRECTV

from interference from operations under the BERMUDASAT-1 filing. Id.;

see also Order ¶ 9 (JA325). Contingent upon U.K. and U.S. acceptance of

this arrangement (which has since occurred), DIRECTV withdrew its

objection to the STA request. 3/27/13 Letter from DIRECTV to FCC (JA96).

Spectrum Five also opposed EchoStar’s STA application. 3/14/13

Letter from Spectrum Five to FCC (JA58). Spectrum Five argued that

EchoStar had not demonstrated the extraordinary circumstances necessary for

an STA, that the STA application differed materially from the

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BERMUDASAT-1 filing, and that operation under the STA would “run[]

afoul” of the freeze on new DBS license applications because EchoStar 6

would be “operat[ing] feeder links” and tracking signals from the United

States. Id. at 2-4 (JA59-61). Spectrum Five argued further that because the

BERMUDASAT-1 filing “substantially overlap[s]” with Spectrum Five’s

ITU filing made by the Netherlands, if “the EchoStar 6 satellite is located at

the 96.2° W.L. orbital slot for at least 90 days, ITU rules would…compel

Spectrum Five to ‘protect’” from interference any services offered under the

BERMUDASAT-1 filing. 3/20/13 Letter from Spectrum Five to FCC 1-2

(JA91-92). The Netherlands also expressed concern about the impact of

Echostar’s STA request on its ITU filing. 3/28/13 Letter from Netherlands

Radiocommunications Agency to FCC (JA103).

In response to Spectrum Five’s objections, EchoStar and SES agreed to

accept interference produced by Spectrum Five’s satellite at 95.15° W.L.

operating its FCC-authorized Reverse Band service. Bureau Order ¶ 13

(JA157). That commitment ensures that SES will not raise any future claims

requiring Spectrum Five to curtail any Reverse Band service it may someday

offer in order to accommodate SES’s operations at 96.2° W.L.

12 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 24 of 98

2. Bureau Decision

On April 1, 2013, the FCC’s International Bureau granted EchoStar’s

application for an STA. Bureau Order ¶ 1 (JA153). The Bureau found that

there were “extraordinary circumstances, within the meaning of [the FCC’s]

rules, for a grant of [EchoStar’s] request.” Id. at ¶ 9. The Bureau explained

that such circumstances were the licensee’s “need…to move a geostationary

satellite…in light of the DIRECTV/SES Bermuda operator-to-operator

arrangement and [EchoStar]/SES Bermuda commitments concerning

Spectrum Five’s U.S. licensed 17/24 BSS satellite.” Id. The Bureau also

noted that EchoStar 6, at the time “used only as a secondary back up

satellite,” would be better deployed where it could “permit[] the public to

receive services that would otherwise not be available.” Id.

Spectrum Five had argued that operation of EchoStar 6 pursuant to the

STA would constitute DBS service, in violation of the DBS application

freeze—even though EchoStar 6 would not provide service within the United

States—because “feeder links” and tracking, telemetry, and control (TT&C)

operations would transmit from fixed stations within the United States up to

5 the satellite. The Bureau disagreed, stating that it did not interpret such “very

5 “Feeder” links transmit information up to satellites for transmission back to earth. See 47 C.F.R. § 2.1(c).

13 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 25 of 98

limited technical operations” to constitute “DBS service,” id. at ¶ 12 (JA157),

and that for purposes of United States licensing, the FCC “viewe[d] the

operations authorized by this STA as fixed and mobile satellite services,” as

6 opposed to BSS services, id. at ¶ 16 (JA158). The Bureau found that its

license of EchoStar 6 was permitted under ITU rules, given that EchoStar 6

would be operating on a non-interference basis, and given that the U.S. would

not be attempting to claim interference protection for the satellite through

modification of the ITU Region 2 BSS Plan. Id. at ¶ 17 & n.36 (JA159)

(citing ITU Radio Regs. Art. 4.4). In response to arguments from the

Netherlands, the Bureau further clarified that it “t[ook] no position regarding

the validity or priority of” the U.K. and Netherland’s filings, and that any

dispute about those matters was to be settled by those countries and the ITU,

if necessary. Id. at ¶ 15 (JA158).

Shortly after the Bureau Order was issued, the United States and the

U.K. accepted the operator-to-operator arrangement between DIRECTV and

SES Bermuda. Order ¶ 9 (JA325); see also 3/29/13 Letter from FCC to U.K.

(JA137); 3/29/13 Letter from U.K. to FCC (JA139); 4/4/13 Letter from FCC

to U.K. (JA161); 4/11/13 Letter from U.K. to FCC (JA259).

6 See 47 C.F.R. §§ 2.1, 25.201 (defining BSS, FSS, and MSS).

14 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 26 of 98

D. The Order On Review On April 5, 2013, Spectrum Five filed an application for administrative

review (JA185) and a request for an administrative stay of the Bureau Order

(JA206). On April 23, 2013, the Bureau denied the request for stay. Bureau

Stay Order (JA291). In its application for review, Spectrum Five argued that

(1) the Bureau had improperly found “extraordinary circumstances”

warranting an STA, App. for Review 7-12 (JA193-198), and (2) the STA

would suppress competition by allowing EchoStar to bring the

BERMUDASAT-1 filing into use, precluding other providers from

competing for the orbital location if the DBS freeze were lifted, id. 14-18

(JA200-204).

On July 9, 2013, the Commission denied Spectrum Five’s application

for review. Order ¶ 1 (JA322). The Commission explained that the

extraordinary circumstances justifying an STA in this case involved the

significant interference protections for DIRECTV’s U.S. DBS operations and

for Spectrum Five’s potential future Reverse-Band operations that would be

secured by approving the STA. Id. at ¶¶ 1, 9 (JA322, 325). The Commission

explained that “the operator-to-operator arrangement between DIRECTV and

SES,” which “[t]he United States and the U.K. have now ratified,” “insures

that DIRECTV’s established U.S. operations at [101° W.L.] will be fully

15 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 27 of 98

protected on an ongoing basis.” Id. at ¶ 9 (JA325). “Similarly,” the

Commission observed, “the United States and the U.K. have also agreed to

protection of Spectrum Five’s U.S.-licensed satellite” at 95.15° W.L., “based

on assurances provided by SES.” Id. The FCC concluded: “Taken together,

these Administration-to-Administration agreements provide the United States

with protections of operations at orbital locations from which the U.S. public

receives service.” Id.

The FCC determined that the grant of the STA would “serve the public

interest” by “providing assurance of U.K.-backed interference protections for

service provided to the United States population by U.S.-licensed satellites

from nearby orbital locations.” Order ¶ 9 (JA326). The Commission noted

that “there are no [other] operator-to-operator or Administration-to-

Administration agreements in place at this time that would comparably

protect” DIRECTV’s and Spectrum Five’s U.S.-licensed operations from

interference. Id. Therefore, it concluded: “Without the grant of the STA, the

benefits accruing from the certainty of interference protection could be lost,

thereby substantially disserving the public interest.” Id. In light of these

considerations, the Commission found that “there were extraordinary

circumstances” justifying an STA, “and that delay would seriously prejudice

the public interest.” Id. at ¶ 13 (JA327).

16 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 28 of 98

The FCC also found “appropriate[]” the Bureau’s statement that the

FCC would take no position regarding the relative priority of the U.K.’s and

the Netherlands’ ITU filings, id. at ¶ 12 (JA326). The Commission did note,

however, that the U.S. had explicitly stated to the U.K. that the U.S. “will not

object to the U.K. Administration notifying the ITU that the

BERMUDASAT-1 network was brought into use.” Id. at ¶ 8 (JA325). The

Commission also “agree[d] with the Bureau’s analysis” that the STA

authorized operations permitted by ITU rules. Id. at ¶ 8 (JA325).

Finally, the Commission concluded that Spectrum Five’s allegations

that the STA could harm both Spectrum Five and competition were

“speculative and based on unsupported assumptions,” and the Commission

adopted the Bureau’s “detail[ed]” analysis on this point, id. at ¶ 17 (JA329),

including “the possibility for future arrangements, the flexibility available in

designing future satellites, and ITU obligations to pursue rational and

efficient use of frequencies and orbital locations,” id. at ¶ 11 (JA326). All of

these factors could serve to mitigate interference concerns anticipated by

Spectrum Five, if Spectrum Five is able to build and launch a satellite and

secure a DBS license. Bureau Stay Order ¶¶ 11-15 (JA295-96).

17 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 29 of 98

E. Subsequent Developments On July 30, 2013, the U.K. informed the ITU that EchoStar 6 had

been deployed at 96.2 W.L. by the deadline date and that the

BERMUDASAT-1 filing had been brought into use, as defined by ITU

regulations. See 10/16/13 Letter from ITU to Ofcom U.K. ¶ 2 (Br. Add. 63).

The ITU then entered the BERMUDASAT-1 filing in its Master International

Frequency Register, id.; see Plan Entry (Br. Add. 38-42). The Netherlands

has since protested before the ITU that the filing was not in fact brought into

use. 9/23/13 letter from Netherlands to ITU (Br. Add. 49). This protest was

chiefly based on technical arguments that the satellite was not kept in the

proper position, see id. at 1-6 (Br. Add. 49-54), but it also included a brief

argument that the satellite did not have valid domestic licensure, see id. at 6-7

(Br. Add. 54-55). The ITU has asked the U.K. for further information about

the position and capability of the satellite, but not about the status of its

domestic license. ITU letter at ¶¶ 4-5 (Br. Add. 63-64). As of the filing of

this brief, to our knowledge the U.K. has not yet responded to the ITU.

SUMMARY OF ARGUMENT

This case lies in the heartland of agency discretion: the Commission’s

judgment involving the technically complex allocation of orbital slots and the

evaluation of the public interest in light of arrangements with foreign nations.

18 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 30 of 98

Spectrum Five questions the agency’s policy judgment, but the Commission

acted reasonably and explained its actions. Nothing more is required.

I. As a threshold matter, Spectrum Five lacks standing to challenge the

Order. First, its purported injury is uncertain and conjectural. Spectrum Five

has yet to fund, build, and launch a satellite, and indeed stalled at this same

stage of development on a previous satellite project. Moreover, DBS licenses

for the service Spectrum Five wishes to offer are not now available because

of the freeze on applications after Northpoint; and when and if such licenses

are offered again, it is uncertain that Spectrum Five would get such a license.

With such an indeterminate chain of events, Spectrum Five cannot show that

the Order has hampered its ability to offer DBS within the United States or

that the STA has had a “concrete effect” on its ability to raise capital. See

New England Power Generators Ass’n v. FERC, 707 F.3d 364, 369 (D.C.

Cir. 2013).

Second, Spectrum Five cannot show that this Court can remedy any

purported injury because redress lies in the hands of the ITU, a non-party

international body. There is no evidence that vacatur of the order would have

any effect on the ITU’s decision regarding the conformance of the

BERMUDASAT-1 filing with ITU regulations. Indeed, below, Spectrum

Five predicted that the “mere location of EchoStar 6” in the new orbital slot

19 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 31 of 98

for 90 days “will enable [SES Bermuda] to cement permanently” its filing in

the ITU register. See Stay Request at 23 (JA230). Spectrum Five offers no

reason now to doubt that prediction.

Third, Spectrum Five effectively recognizes that vacatur alone would

be insufficient by listing four additional steps that this Court “should” order

the FCC to take before the ITU, including protesting the U.K.’s ITU filing.

Br. 35-36. Such a protest, which may well have no effect on the ITU, would

be directly counter to a coordination arrangement reached between the U.S.

and the U.K. Such an order would reach beyond this Court’s Article III

powers and also damage the Commission’s ability to negotiate satellite

coordination arrangements in the future on behalf of the United States.

II. Even if this Court had jurisdiction, Spectrum Five gives no basis to

second-guess the agency’s actions. The FCC found “extraordinary

circumstances” warranting an STA under the Commission’s rules in the U.S.-

U.K. coordination arrangement, which “remove[d] any significant concern

about potential interference to other operational satellites or planned U.S.-

licensed satellites” for service by DIRECTV to U.S. customers. Order ¶ 13

(JA327). Spectrum Five has no ground for disputing this policy judgment.

The Commission fully explained its reasoning and found that, especially

given the “ongoing” protections for future “planned” operations by

20 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 32 of 98

DIRECTV, this arrangement was in the public interest, and a similar deal to

“comparably protect such U.S. operations” might not be available from future

operators. Order ¶¶ 9, 13 (JA325-327). Spectrum Five has waived any

argument that EchoStar’s STA application was incomplete because it did not

contain information regarding the coordination arrangement, and in any case,

it was reasonable for the Commission to take notice of new, relevant

developments during the STA proceeding.

III. Spectrum Five argues for the first time that the FCC was

compelled by specific regulations and laws to deny the STA application

because that application differed from the BERMUDASAT-1 ITU filing. Br.

46 (citing 47 U.S.C. § 303(y) and 47 C.F.R. § 25.148(f)). Because the

argument was not raised before the Commission, it cannot be raised here. 47

U.S.C. § 405(a). In any case, it is without merit. The STA authorized

EchoStar 6 to operate on a non-interference basis, and the U.S. would not

attempt to claim interference protection for those operations under the ITU’s

Region 2 BSS plan. The Commission reasonably concluded that under these

circumstances, operations under the STA were permitted by ITU Radio

Regulation Article 4.4. At a minimum, Spectrum Five fails to show that the

agency’s interpretation of ITU rules is so unreasonable that grant of the STA

was forbidden by 47 U.S.C. § 303(y) and 47 C.F.R. § 25.148(f).

21 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 33 of 98

IV. Spectrum Five also errs in arguing that the Commission “pre-

judged” the results of any DBS application proceeding. The FCC made clear

that it approved the STA without prejudice to future applications by Spectrum

Five (or anyone else) for DBS service, when and if the DBS application

freeze is lifted. Bureau Order ¶ 5 & n.10 (JA154); Bureau Stay Order ¶ 11

& n.37 (JA295); see Order ¶ 17 (JA329) (adopting Bureau’s reasoning).

Because the Commission did not award a DBS license, the authority on

which Spectrum Five relies—all predicated on a competitor’s statutory right

to participate in licensing proceedings—is inapposite.

The agency also reasonably concluded that it was not “effectively” pre-

judging such a proceeding. The Bureau and Commission explained at some

length the variety of factors that could serve to mitigate any potential conflict

between operations under the U.K. and Netherlands ITU filings, including the

“possibility for future arrangements, the flexibility available in designing

future satellites, and ITU obligations to pursue rational and efficient use of

frequencies and orbital locations.” Order ¶ 11 (JA326). In short, if the

Commission should lift the freeze after concluding that it is both technically

feasible to provide DBS service from the orbital location in question and

legally possible given this court’s holding in Northpoint, Spectrum Five

would have the same right to seek a license as it did before the STA.

22 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 34 of 98

V. Finally, Spectrum Five has waived its argument that EchoStar’s

statements regarding its satellite’s remaining fuel life were so “patently

implausible” (Br. 58) that the agency was required to reject the STA

application. In any case, the agency reasonably accepted EchoStar’s

explanation that the new estimate accounted for fuel-saving maneuvers for

which a previous estimate had not accounted.

STANDARD OF REVIEW

The Court’s review under the arbitrary and capricious standard of the

Administrative Procedure Act, 5 U.S.C. § 706(2)(A), is “necessarily

deferential.” Consumer Elecs. Ass’n v. FCC, 347 F.3d 291, 300 (D.C. Cir.

2003). The Court will “presume the validity of the Commission’s action and

will not intervene unless the Commission failed to consider relevant factors

or made a manifest error in judgment.” Id.

In this regard, the Commission’s interpretation of its own regulations

must be accepted “‘unless the interpretation is plainly erroneous or

inconsistent with the regulations or there is any other reason to suspect that

the interpretation does not reflect the agency’s fair and considered judgment

on the matter in question.’” Rural Cellular Ass’n v. FCC, 685 F.3d 1083,

1093 (D.C. Cir. 2012) (quoting Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S.

Ct. 2254, 2261 (2011)).

23 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 35 of 98

Moreover, deference is especially merited where review centers on the

Commission’s “expert policy judgment,” where the “subject matter…is

technical, complex, and dynamic.” Nat’l Cable & Telecomms. Ass’n v.

Brand X Internet Servs., 545 U.S. 967, 1002-03 (2005); cf. Teledesic LLC v.

FCC, 275 F.3d 75, 84 (D.C. Cir. 2001) (Commission’s role in “spectrum

reallocation” is both “prophetic and managerial,” and the agency must strike a

balance that “involve[s] both technology and economics”).

ARGUMENT

I. SPECTRUM FIVE LACKS STANDING.

Spectrum Five has not established that it will suffer a concrete injury as

a result of the FCC’s action. Nor has it shown that the relief it seeks from the

Court will redress the injury it claims. Finally, the Court lacks authority to

order the relief requested by Spectrum Five—undoing a coordination

arrangement between the U.S. and the U.K. Thus, the Court should dismiss

this case for lack of jurisdiction.

A. Spectrum Five’s Alleged Injury Is Conjectural And Uncertain. “[A]llegations of possible future injury are not sufficient” to establish

standing; a “threatened injury” must be “certainly impending.” Clapper v.

Amnesty Int'l USA, 133 S. Ct. 1138, 1147 (2013) (internal quotation marks

omitted). This Court has repeatedly cautioned that an uncertain chain of

24 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 36 of 98

events, which “stacks speculation upon hypothetical upon speculation,…does

not establish an ‘actual or imminent’ injury.” New York Reg’l Interconnect,

Inc. v. FERC, 634 F.3d 581, 587 (D.C. Cir. 2011); see also Pub. Citizen, Inc.

v. Nat'l Highway Traffic Safety Admin., 489 F.3d 1279, 1292 (D.C. Cir. 2007)

(“alleged injury ‘must be concrete in both a qualitative and temporal sense’”)

(quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). Moreover, it is

not sufficient to establish that the action complained of has simply increased

the likelihood of injury—the resulting risk after that increase must itself be

“substantial,” and “the constitutional requirement of imminence…compels a

very strict understanding of what increases in risk and overall risk levels can

count as ‘substantial.’” Pub. Citizen, 489 F.3d at 1296.

Although Spectrum Five alleges two injuries, both are conjectural and

uncertain. First, Spectrum Five is concerned that transmissions from the

EchoStar 6 satellite at 96.2° W.L. will interfere with the provision of DBS

service at 95.15° W.L. by a satellite that Spectrum Five intends to launch. Br.

30-32. But Spectrum Five has not even begun construction on a satellite. See

Wilson Decl. ¶ 30 (Br. Add. 84). Indeed, Spectrum Five has yet to meet its

target of raising 25 percent of the funding needed to build and launch the

satellite. Id. ¶ 28 (Br. Add. 84). The FCC withdrew a previous market access

25 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 37 of 98

grant when Spectrum Five failed to progress beyond the same stage at which

it stands today. See supra at 7.

Even if Spectrum Five does manage to build and launch a satellite, in

order to suffer the interference it anticipates, it must first obtain FCC

approval to provide DBS service in the United States (Wilson Dec. ¶ 31 (Br.

Add. 85)), and that too is uncertain because there is a freeze. See Freeze

Notice, 20 FCC Rcd at 20619. While the FCC has not indicated that the

freeze is permanent, Br. 32, neither has it taken any action on its open

7 rulemaking on the issue for nearly seven years. See supra at 4-5. Moreover,

the statutory bar analyzed in Northpoint is not the only obstacle. The

rulemaking also centers on whether DBS service is technically feasible from

“tweener” orbital locations like the one Spectrum Five wants to use, and what

additional safeguards would be required to prevent interference with existing

operations. See 2006 NPRM, 21 FCC Rcd at 9457-59, ¶¶ 28-31.

The fact that Spectrum Five does not have, and cannot apply for, a

license to provide the service in question distinguishes this matter from cases

7 Contrary to Spectrum Five’s statements (Br. 31), the Commission has not failed to respond to this Court’s remand in Northpoint. This Court did not remand with instruction to take specific actions, other than “consideration consistent with this opinion.” 412 F.3d at 156. The Commission issued an NPRM investigating the feasibility of alternative means. See 2006 NPRM.

26 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 38 of 98

in which courts have found injury to would-be competitors challenging the

grant of a license. See Br. 32 (citing Coal. for Pres. of Hispanic Broad. v.

FCC, 893 F.2d 1349, 1356 (D.C. Cir. 1990); Orange Park Florida T.V., Inc.

v. FCC, 811 F.2d 664, 672 (D.C. Cir. 1987)). As explained more fully infra

at 51-52, the Commission in such cases had actually granted a license for

which petitioners had already “made unsuccessful attempts,” thus making

concrete the “injury to [petitioners’] right to a fair license award process.”

Hispanic Broad., 893 F.2d at 1356; see Orange Park, 811 F.2d at 672 (award

of construction grant to one applicant constituted injury to competing

applicant). Here, by contrast, the FCC has not awarded any DBS licenses—

indeed, the FCC specifically noted that it was not pre-judging that issue.

8 Bureau Order ¶ 5 n.10 (JA154).

Finally, even if Spectrum Five does build a satellite and secure a

license, it is uncertain that the BERMUDASAT-1 filing will pose an

insurmountable obstacle to U.S. DBS service. Under the ITU Constitution,

the U.K. has an obligation to attempt to coordinate with uses that could cause

8 By the same logic, this Court finds redressability where vacatur of a license grant creates a “far from remote” opportunity for a would-be competitor to reapply. Hispanic Broad., 893 F.2d at 1356; see Orange Park, 811 F.2d at 672. Here, by contrast, vacatur would not create any legal right to apply for a DBS license because the freeze remains in place.

27 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 39 of 98

interference with operations under its filing, so that spectrum and orbital slots

can be used “rationally, efficiently and economically.” ITU Constitution,

Article 44, No. 196; see Bureau Stay Order ¶ 14 (JA296); see Order ¶¶ 11,

17 (JA326, 329).

As an alternate ground of injury, Spectrum Five alleges that the STA

has “directly interfered with [its] ability to raise the capital necessary to

construct and launch its dual-band satellite.” Br. 32-33. The specific

problem Spectrum Five describes—the delay of an auction (Wilson Decl.

¶ 30 (Br. Add. 84)—has apparently already occurred and cannot be remedied

by this Court. Moreover, Spectrum Five fails to demonstrate that any market

uncertainty it has encountered is due to the effects of the STA as opposed to

the manifold other obstacles it faces, such as the DBS freeze, an uncertain

track record in satellite development, or the “innovative” technology (id. at

¶ 14 (Br. Add. 78)) required for dual band operation. In any event, as the

cases on which Spectrum Five relies demonstrate, “broad-based market

effects stemming from regulatory uncertainty are quintessentially

conjectural.” See New England Power, 707 F.3d at 369. Spectrum Five’s

allegations fall well short of this Court’s requirement to show a “concrete”

“impact of an agency decision on a company’s ability to raise capital.” Id.;

see also CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir.

28 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 40 of 98

1994) (finding injury where agency rule required company to write off $7.1

million loss, hampering ability to raise capital).

B. Redress Is Contingent On Action By The ITU, A Non- Party. 1. Only the ITU can provide relief

Even if Spectrum Five could establish injury, this Court’s ability to

provide redress is uncertain because it depends on the actions of a non-party

international organization, the ITU. This Court is “loath to find standing

when redress depends largely on policy decisions yet to be made by

government officials.” U.S. Ecology, Inc. v. United States Dep’t of Interior,

231 F.3d 20, 24 (D.C. Cir. 2000). Redress in such cases “depends on the

unfettered choices made by independent actors not before the courts and

whose exercise of broad and legitimate discretion the courts cannot presume

either to control or to predict.” Id. (quoting ASARCO Inc. v. Kadish, 490 U.S.

605, 615 (1989)); see also Klamath Water Users Ass’n v. FERC, 534 F.3d

735, 739 (D.C. Cir. 2008); Miami Bldg. & Constr. Trades Council v. Sec’y of

Def., 493 F.3d 201, 205-06 (D.C. Cir. 2007).

Spectrum Five’s primary claim of injury centers on the U.K.’s

BERMUDASAT-1 filing at the ITU. As Spectrum Five explains, the U.K.

has informed the ITU that the filing has been brought into use, and the ITU

has recorded the filing in its Master International Frequency Register. Br. 30.

29 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 41 of 98

“[A]s long as [the filing] remains recorded…the United Kingdom (and,

therefore, Echostar) will be able to block Spectrum Five…from broadcasting

using DBS spectrum to the United States from 95.15° W.L.” Br. 30-31.

It is thus the ITU alone that has the power to redress any purported

injury stemming from the BERMUDASAT-1 filing. The Netherlands has

protested the filing before the ITU (Br. Add. 49), and the ITU has asked the

U.K. to respond (Br. Add. 63). It is uncertain what influence, if any, a ruling

by this Court would have on the ITU’s resolution of this matter. In response

to the Netherlands’ protest, the ITU has asked the U.K. for detailed

information about the position and capability of EchoStar 6, but asked

nothing about the status of its U.S. licensure. See ITU Letter to U.K. ¶ 5 (Br.

Add. 64).

2. Vacatur may have no effect on the ITU.

Spectrum Five was previously far less confident that this Court could

provide redress. When it applied to the Commission for a stay of the

Bureau’s Order, it stated that the “mere location of EchoStar 6” in the new

orbital slot for 90 days “will enable [EchoStar] to cement permanently” its

filing in the ITU register. See Stay Request at 23 (JA230); see also id.

(describing STA as “the first step in an inevitable chain of events” leading to

EchoStar priority).

30 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 42 of 98

Now, however, Spectrum Five asserts that vacatur, “standing alone,

will ‘significantly increase the chances of favorable action’ by the ITU” (Br.

33 (citing Klamath Water, 534 F.3d at 739-40)). That is far from clear. As a

threshold matter, a mere increase in likelihood is not enough. If the

likelihood of redress increases from “impossible” to “merely unlikely,” for

example, the end result is still short of the “substantially likely” showing this

Court requires. See Town of Barnstable v. FAA, 659 F.3d 28, 31 (D.C. Cir.

2011) (“significant increase in the likelihood” test is simply “substantial

probability” test “[p]ut another way”).

In any case, it is unclear whether vacatur would have any effect at all

on the ITU. To be sure, under ITU rules, the U.K. can claim that the filing

was brought into use by a satellite under the responsibility of the U.S. only if

the U.S. does not object, see Order ¶ 8 & n.25 (JA325) (citing ITU Circular

Letter CR/333 (May 2, 2012)). However, the U.S. and U.K. had reached

such an understanding when the filing was brought into use—indeed the FCC

had specifically stated on behalf of the U.S. that it would not object, id. at ¶8.

Vacatur alone would not change the U.S.’s position before the ITU, and it is

uncertain what, if any, difference it would make were this Court to order the

FCC to object retroactively to the U.K.’s filing before the ITU, putting aside

31 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 43 of 98

that such an action by the FCC would be contrary to the commitment made

by the U.S. to the U.K.

Spectrum Five points to ITU law, but that is inconclusive at best.

Contrary to Spectrum Five’s assertion (Br. 33-34), ITU Regulation 11.44B

requires only that a satellite “with the capability of transmitting or receiving

that frequency assignment has been deployed and maintained at the notified

orbital position for a continuous period of ninety days.” ITU Radio Regs.,

art. 11.44B. The reference to “capability,” which Spectrum Five reads as a

requirement of valid domestic licensure, is more naturally read as a

requirement regarding the ability to transmit or receive using the relevant

frequency assignment. Again, the ITU’s inquiry to the U.K. centered only on

such technical requirements. See ITU Letter to U.K. ¶ 5 (Br. Add. 64).

Moreover, the relevant ITU rule allows an administration to bring a filing into

use with “a space station which is under the responsibility of another

administration.” ITU Circular Letter CR/333 (May 2, 2012) (Br. Add. 4-6).

Spectrum Five cannot reasonably claim that EchoStar 6 was not “under the

responsibility” of the United States at all times relevant to this case. At a

minimum, Spectrum Five fails to show that its reading is so plainly correct

that vacatur of the FCC’s Order will make relief likely, as opposed to merely

speculative.

32 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 44 of 98

The cases cited by Spectrum Five (Br. 34) underscore the inadequacy

of its showing on redressability. In Town of Barnstable, petitioners

challenged an FAA decision that wind turbines would pose no hazard to air

traffic. 659 F.3d at 31-32. Although the Department of the Interior gave

final approval to the project, this Court found standing to challenge the FAA

decision because petitioners demonstrated that “Interior repeatedly assigned

the FAA a significant role in its decision-making process,” id. at 32, making

it “‘likely, as opposed to merely speculative,’” that vacatur of the FAA

decision would lead to redress. Id. at 34 (quoting Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992)). Here, by contrast, Spectrum Five offers

no evidence that domestic law plays a role in the ITU’s decision-making

process.

Likewise, when this Court found standing to challenge the DEA’s

classification of marijuana as a Schedule I controlled substance, the petitioner

had demonstrated that “[t]he only thing stopping” VA doctors from filling out

state medical marijuana forms was a VHA directive, “[t]he only reason” for

which was the DEA’s classification. Americans for Safe Access v. DEA, 706

F.3d 438, 448 (D.C. Cir. 2013); see also Klamath Water, 534 F.3d at 739-40

(petitioners lacked standing because they “offered no reason to believe that a

decision requiring” FERC to take the requested action “would have…an

33 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 45 of 98

effect on the…decisions” of state utility regulators). Again, Spectrum Five

makes no such showing that any action by this Court will “likely” lead to a

favorable result before the ITU.

In sum, the ITU may well find that the U.K.’s filing was properly

brought into use despite any action taken by this Court (and regardless of the

FCC’s position on this matter). The ultimate decision is one “only [the ITU]

can make. What its decision [will] be…is beyond the court’s control or ken.”

Miami Bldg., 493 F.3d at 206. Because Spectrum Five cannot show that the

ITU will treat the U.K.’s filing “in such manner as to…permit redressability,”

Spectrum Five has failed to establish standing. U.S. Ecology, 231 F.3d at 25

(quoting Lujan, 504 U.S. at 562).

C. The Requested Relief Is Beyond The Court’s Power. Spectrum Five previously stated that “[a] decision by this Court

vacating [the Order] as unlawful may not, without more,” provide sufficient

relief. Mot. for Summary Reversal at 19. It no longer states that explicitly,

but still argues that “this Court should direct the FCC to take all actions

necessary to restore matters” to the status quo, including:

(1) notifying the ITU that EchoStar 6 did not have lawful authority to operate at 96.2° W.L., (2) notifying the ITU that, as a result, the United States does not consent to the United Kingdom’s use of EchoStar 6 to bring the BERMUDASAT-1 filing into use, (3) revoking its ratification of the coordination agreement privately negotiated among EchoStar, DIRECTV, and

34 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 46 of 98

SES Bermuda,…and (4) informing the ITU that the BERMUDASAT-1 filing expired because EchoStar 6 [purportedly failed to bring the ITU filing into use].

Br. 35-36.

It is beyond the Article III powers of this Court to grant such relief.

“Disputes involving foreign relations…are quintessential sources of political

questions,” and this Court is “not a forum for reconsidering the wisdom of

discretionary decisions” made by U.S. officials “in the realm of foreign

policy.” El-Shifa Pharm. Indus. Co. v. U.S., 607 F.3d 836, 841-42 (D.C. Cir.

2010) (en banc) (internal quotation marks omitted); see also Haig v. Agee,

453 U.S. 280, 292 (1981) (matters of foreign policy “are rarely proper

subjects for judicial intervention”).

As part of the coordination arrangement between the U.S. and the U.K.

that secured commitments from the U.K. to protect certain U.S. DBS

operations from interference, the FCC (on behalf of the United States) has

committed to the U.K. that it will not “object to the U.K. Administration

notifying the ITU that the BERMUDASAT-1 [filing] was brought into use.”

Order ¶¶ 8-9 (JA325). Spectrum Five seeks an order from this Court

directing the FCC unilaterally to rescind that commitment to the U.K., despite

the Commission’s judgment that the coordination arrangement is in the best

interests of the U.S. “For the [C]ourt to disregard that judgment” on this

35 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 47 of 98

question of foreign policy “would be imprudent to a degree beyond [the

Court’s] power.” Hwang Geum Joo v. Japan, 413 F.3d 45, 53 (D.C. Cir.

2005).

To be sure, simply reviewing the legality of the Commission’s Order is

“a familiar judicial exercise.” Br. 36 (quoting Zitovski ex rel. Zitovsky v.

Clinton, 132 S. Ct. 1421, 1427 (2012)). But Spectrum Five seeks something

different and radical. Rather than asking the Court to decide “a purely legal

question of statutory interpretation” with indirect “political overtones,” see

Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 230 (1986),

Spectrum Five lists four specific steps it feels this Court “should” order the

FCC to take before an international organization. Br. 35. Spectrum Five cites

no precedent for such an extraordinary remedy. To the contrary, where a

proposed remedy would undo the results of complex international

negotiation, prudential considerations have led courts to find cases non-

justiciable. See Cranston v. Reagan, 611 F. Supp. 247, 253 (D.D.C. 1985)

(finding requested remedy implicated political question doctrine and citing

“the need to maintain respect for coordinate branches of government, the

need for adherence to a political decision already made, and the interest in

avoiding the embarrassment of ‘multifarious pronouncements’”).

36 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 48 of 98

Spectrum Five argues that the agency has not actually committed to the

U.K. to not object before the ITU, but this is premised on a misreading of a

letter from the FCC to Ofcom, its U.K. counterpart. Br. 36-37. That letter

sets out that “any FCC authorization for operations of Echostar-6…will

state…that the FCC will not object to the UK administration bringing into use

the BERMUDASAT-1 network.” 3/29/13 Letter from FCC to U.K. 1-2

(JA137-38). Spectrum Five argues that, because the Order, i.e., the

“authorization,” did in fact “state…that the FCC will not object,” the FCC

has already fulfilled its commitment by simply including the relevant

language in the Order, and so is now free to object anyway, despite the

language in the commitment. Br. 37. The reading makes no sense. An

undertaking to the U.K. that the FCC will simply memorialize the terms of a

satellite coordination arrangement without the concomitant commitment to

abide by the negotiated terms would be meaningless. Moreover, the U.K.’s

own understanding of the commitment, embodied in its letter in response, is

plain: “you will not object to use of EchoStar 6 for the due diligence and

bringing into use of the BERMUDASAT-1 satellite network.” 3/29/13 Letter

from U.K. to FCC 2 (JA140). The U.K.’s letter, which is not couched in

terms of an “authorization,” also belies Spectrum Five’s contention that, if the

STA is vacated, the FCC will be absolved of its commitment because there

37 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 49 of 98

will be no “authorization” “into which to insert” a commitment not to object.

Br. 37.

In short, nothing in the exchange of letters or the Order supports

Spectrum Five’s contention that the FCC’s commitment is contingent on the

status of the STA under domestic law. The record plainly shows that the

FCC has made a commitment to its U.K. counterpart, and an order from this

Court directing the FCC to renege on that commitment would force the

United States government to go back on its word. Such an order is not only

beyond this Court’s power, it would also hamper the FCC’s ability to

negotiate similar arrangements in the future. Satellite coordination with other

countries is a requirement for most satellite networks under ITU Radio

Regulations, see generally ITU Radio Regs. Art. 9, and a key tool by which

the federal government advances the national interest in ensuring the efficient

use of satellite spectrum. If the U.S. is seen to go back on its word—

precisely what Spectrum Five seeks here—it will impair the FCC’s ability to

do its job promoting the public interest through these arrangements.

38 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 50 of 98

II. THE COMMISSION REASONABLY EXERCISED ITS DISCRETION IN FINDING THAT AN INTERNATIONAL COORDINATION AGREEMENT CONSTITUTED EXTRAORDINARY CIRCUMSTANCES MERITING AN STA.

Even if this Court had jurisdiction, Spectrum Five’s substantive

arguments are baseless. This case involves a challenge to the FCC’s reading

of its own rule governing the grant of an STA. That reading warrants

deference unless “plainly erroneous or inconsistent” or not the product of

9 “fair and considered judgment.” Rural Cellular, 685 F.3d at 1093. This

decision was well-considered, thoroughly explained, and reasonable.

A. Interference protection for present and future DBS service to U.S. customers constituted extraordinary circumstances. The Commission was well within its discretion in finding that the

recent arrangements between the United States and the U.K., “which remove

any significant concern about potential interference to other operational

satellites or planned U.S.-licensed satellites,” presented “extraordinary

circumstances” warranting an STA. Order ¶ 13 (JA329). “Without the grant

9 Spectrum Five bases its challenge on 47 C.F.R. §25.120(b)(1) (see Br. 1 (issue presented)), rather than 47 U.S.C. § 309(f), which the regulation largely tracks, and which Spectrum Five cites only in passing. See Br. 38. Of course, the Commission is also due deference in interpreting its organic statute. See, e.g., City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1868 (2013).

39 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 51 of 98

of the STA,” the Commission explained, “the benefits accruing from the

certainty of interference protection could be lost, thereby substantially

disserving the public interest.” Id. ¶ 9 (JA326-37).

Those benefits are substantial. SES’s coordination arrangement with

DIRECTV “insures that DIRECTV’s established U.S. operations” at 101°

W.L. “will be fully protected on an ongoing basis.” Id. ¶ 9 (JA325). This

will plainly benefit the millions of Americans who subscribe to DIRECTV’s

service. The “ongoing basis” of the protection is particularly important—the

coordination arrangement covers both “existing and future U.S. DBS services

at the nominal 101° W.L. orbital location.” 3/29/13 Letter from SES to FCC

at 1 (JA109); see also Order ¶ 13 (JA327) (protects “planned U.S.-licenses

satellites”); 3/7/13 Letter from EchoStar to FCC at 1 (JA46) (DIRECTV

concerned about “later-filed” operations). Thus, even DIRECTV operations

still unfiled with the ITU can enjoy protection from interference from

operations under the BERMUDASAT-1 filing. This arrangement offered a

40 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 52 of 98

degree of forward-looking protection that might well be unobtainable from

10 other operators with a potential claim to ITU priority over DIRECTV.

Spectrum Five argues that the Commission failed to explain

specifically why an STA was merited and instead relied on the “totality of the

circumstances.” Br. 39. While the Commission did use the phrase “totality

of circumstances” in a footnote, Order ¶ 13 & n.41 (JA327), the Order makes

clear that key among these “circumstances” was the “larger international

context in which Administration to Administration agreements have been

concluded, which remove any significant concern about potential interference

to other operational satellites or planned U.S.-licensed satellites.” Id.

Spectrum Five’s reliance on this Court’s decision in NetworkIP, LLC v.

FCC, 548 F.3d 116 (D.C. Cir. 2008) is unwarranted. In Network IP, the FCC

waived the filing deadline for a complaint by a payphone service provider

10 Another factor adding “some weight to the case for the STA” was that its grant would allow EchoStar to use its satellite to “develop new markets and provide…services to a diverse array of customers in underserved markets…including Bermuda, the Caribbean, and Latin America, and U.S. and non-U.S. ships and vessels.” Order ¶ 16 (JA329). This is not a mere “marketing consideration,” as Spectrum Five charges. Br. 44-45. See Sirius Satellite Radio, Inc, 16 FCC Rcd 16773, 16776 ¶¶ 8-9 (Int’l Bur. 2001) (limit on “marketing consideration” did not bar STA that would facilitate development of new satellite radio market). Instead, it was a recognition that the STA enabled EchoStar to make productive use of a satellite that would otherwise sit as an idle back-up to develop an under-served market. See Order ¶ 16 (JA329).

41 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 53 of 98

(“PSP”), even though the complaint was the result of counsel’s negligence,

citing the public interest in ensuring fair compensation for PSPs. Id. at 125-

26. In the Court’s judgment, this rationale—which could have supported a

waiver for any late-filed complaint by a PSP—did not place sufficient

“restraint” on the agency’s discretion: “There must also be a sufficiently

unique…situation” to justify a waiver. Id. at 127 (internal quotation marks

omitted).

Here, by contrast, the Commission cited extraordinary circumstances

unique to the particular facts of this case warranting an STA. Unless

EchoStar obtained an STA, the U.S. would lose “the certainty of interference

protection” from its coordination arrangement with the U.K., including the

assurance that “DIRECTV’s established U.S. operations at [101° W.L.] will

be fully protected on an ongoing basis.” Order ¶ 9 (JA325-26). This is

precisely the sort of “special circumstance” that can justify an exception to

the Commission’s standard procedures. See NetworkIP, 548 F.3d at 127

(citing Keller Commc’ns, Inc. v. FCC, 130 F.3d 1073, 1076-77 (D.C. Cir.

1997)).

Finally, unlike the waiver in NetworkIP, which was primarily designed

to relieve a single private party of the consequences of a lawyer’s error, the

FCC here found that the grant of an STA would secure substantial benefits

42 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 54 of 98

for the American public (including millions of DIRECTV subscribers).

“[T]he Commission’s judgments on the public interest are ‘entitled to

substantial judicial deference.’” M2Z Networks, Inc. v. FCC, 558 F.3d 554,

558 (D.C. Cir. 2009) (quoting FCC v. WNCN Listeners Guild, 450 U.S. 582,

596 (1981)).

In sum, the Commission weighed a variety of factors involving the

technical aspects of satellites and interference, the operation of ITU rules, and

vagaries of negotiating coordination arrangements with other countries. It did

so reasonably, and explained its decision. Nothing more is required.

B. Spectrum Five’s attacks on the coordination arrangement are baseless. Spectrum Five argues that because the coordination arrangement did

not exist when EchoStar first submitted its STA application, the Commission

could not rely on it in the Order. Br. 41. Spectrum Five never raised this

issue before the Commission and so cannot raise it here for the first time. See

47 U.S.C. § 405; In re Core Commc’ns, Inc., 455 F.3d 267, 276 (D.C. Cir.

2006). In any case, the argument boils down to an assertion that the

Commission may not consider factual developments that occur after the

initial submission of an application—an absurd result. EchoStar did not

include the information in its application because it did not yet exist, but was

required to update its application with this new relevant development, 47

43 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 55 of 98

C.F.R. § 1.65(a), and it would be unreasonable for the Bureau and the

Commission to ignore facts with direct bearing on matters before them.

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 43 (1983). Spectrum Five’s argument that EchoStar “manufactured”

its own extraordinary circumstances (Br. 41) is equally misplaced.

EchoStar’s application raised interference concerns with DIRECTV, and the

companies and their sponsoring administrations were then able to resolve

those concerns by means of a coordination arrangement. Such

accommodation and coordination is the hallmark of an effective process, not

a deficient one.

Spectrum Five next argues that coordination arrangements are “an

ordinary part of operating DBS satellites,” and so cannot be extraordinary.

Br. 41. But coordination arrangements may be broad or narrow, and may

benefit the U.S. to a greater or lesser extent. In the Commission’s judgment,

this coordination arrangement, which offered protection not just now but for

future developments, constituted extraordinary circumstances within the

meaning of the Rules. Order ¶¶ 9 & 13 (JA325-27). The agency concluded

that the U.S. public was well served by securing this coordination

arrangement, rather than simply hoping the U.S. could secure an equally good

arrangement with the party next in line for ITU priority—a party that might

44 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 56 of 98

face no pressing ITU deadlines and so feel less pressure to agree to equally

favorable terms. See Order ¶ 9 (no agreements in place to “comparably

protect such U.S. operations”). That is a policy judgment that the FCC is

well positioned to make, and Spectrum Five offers no grounds for this Court

to second-guess it. See Dist. No. 1, Pac. Coast Dist., Marine Eng’rs

Beneficial Ass’n v. Mar. Admin., 215 F.3d 37, 42 (D.C. Cir. 2000) (holding in

APA challenge that “questions of foreign policy and national interest” are

“not subjects fit for judicial involvement” and “second guessing”).

Spectrum Five also asserts—with no record support—that the

advantage of the coordination arrangement in protecting DIRECTV’s

customers was illusory because “[t]wo of [DIRECTV’s] satellites operate

pursuant to ITU filings with higher priority than the BERMUDASAT-1

filing,” thus entitling DIRECTV to ITU protection regardless. Br. 42.

Spectrum Five omits the fact that DIRECTV also operates under at least one

ITU filing at this orbital location with lower priority than BERMUDASAT-

11 1. Interference protection for these DIRECTV operations with lower

priority was therefore a concrete benefit provided by the coordination

11 ITU records concerning filings seeking modifications of the Appendix 30/30A BSS Plan can be searched at: http://www.itu.int/net/ITU- R/space/snl/bsearchb/spublication.asp.

45 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 57 of 98

arrangement. And again, much of the benefit of the coordination

arrangement was for the protection of DIRECTV’s operations “on an ongoing

basis,” Order ¶ 9 (JA325)—i.e., both “existing and future U.S. DBS services

at the nominal 101° W.L. orbital location.” 3/29/13 Letter from SES to FCC

(JA109). Indeed DIRECTV, EchoStar’s competitor, would have little reason

to drop its opposition to the STA request if the coordination arrangement did

not provide protection otherwise unavailable. The FCC reasonably identified

the measures necessary to secure the deal as an “extraordinary circumstance”

under its rules.

Finally, Spectrum Five argues that the Commission’s reliance on the

coordination arrangement was invalid because, subsequently, EchoStar

purportedly failed to actually bring the BERMUDASAT-1 filing into use. Br.

43-44. If that assertion is true—a point on which the Commission takes no

stance at this time—it is difficult to see how Spectrum Five can be injured by

the STA at all. Regardless, because the alleged development occurred after

the Order was adopted, Spectrum Five was obligated to raise this point in a

petition for reconsideration to the agency. Its failure to do so bars its claim

here. 47 U.S.C. § 405(a); Core Commc’ns, 455 F.3d at 276. In any event, it

was entirely reasonable for the Commission to attempt to secure the benefits

of international recognition and interference protection for U.S. consumers

46 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 58 of 98

through a coordination arrangement, even if the realization of those benefits

depended on the successful completion of further actions by others.

III. SPECTRUM FIVE HAS WAIVED ITS ARGUMENT THAT A CONFLICT BETWEEN AN STA AND THE ITU BSS PLAN IS UNLAWFUL; IN ANY CASE, THERE IS NO CONFLICT.

Spectrum Five next raises another new argument—that the STA is

unlawful because it is not congruent with the BERMUDASAT-1 filing, and

the Communications Act and FCC regulations purportedly “compel the

agency and licensees to comply with the ITU’s Radio Regulations.” Br. 46

(citing 47 U.S.C. § 303(y); 47 C.F.R. § 25.148(f)).

Spectrum Five did not raise this argument in its application for review

before the Commission. It therefore cannot raise the argument here. Section

405 of the Communications Act prohibits review based on issues on “which

the Commission, or designated authority within the Commission, has been

afforded no opportunity to pass.” 47 U.S.C. § 405. “This circuit has strictly

construed that section, holding that [the Court] ‘generally lack[s] jurisdiction

to review arguments that have not first been presented to the Commission.’”

Core Commc’ns., 455 F.3d at 276 (quoting BDPCS, Inc. v. FCC, 351 F.3d

1177, 1182 (D.C. Cir. 2003)).

In the proceeding below, Spectrum Five failed to even cite the statute

and rule upon which it now relies. While Spectrum Five did point out that

47 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 59 of 98

EchoStar’s STA application covered different area and proposed some

different operational parameters than those in the BERMUDASAT-1 filing,

see Application for Review at 5 (JA191), this statement served only to provide

factual background for Spectrum Five’s contention that grant of the STA

would allow the U.K. to perfect the filing and so have the effect of

suppressing competition, id. at 14-18 (JA200-204). “[M]erely stat[ing the]

fact” of a discrepancy between the STA application and the

BERMUDASAT-1 filing “does not constitute an argument” that the STA is

therefore unlawful under 47 U.S.C. § 303(y) and 47 C.F.R. § 25.148(f), “let

alone an argument made with the requisite clarity.” AT&T Corp. v. FCC, 317

F.3d 227, 235 (D.C. Cir. 2003); see also, e.g., New England Pub. Commc’ns

Council, Inc. v. FCC, 334 F.3d 69, 79 (D.C. Cir. 2003).

In any case, Spectrum Five’s argument is meritless because the STA

did not license operations “[in]consistent with international agreements,” 47

U.S.C § 303(y), nor did it license “DBS operations” not “in accordance with

the sharing criteria and technical characteristics contained in” the ITU’s

Region 2 BSS plan, 47 C.F.R. § 25.148(f). Spectrum Five argues that the

STA was incompatible with ITU rules. Br. 46. However, the Bureau

explained that it viewed the operation of EchoStar 6 as permitted under

Article 4.4 of the ITU Radio Regulations. Bureau Order ¶ 17 (JA159); Order

48 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 60 of 98

¶ 8 & n.28 (adopting analysis). Under this provision, an Administration may

assign a station a frequency “in derogation” of ITU frequency allocations “on

the express condition that such a station, when using such a frequency

assignment, shall not cause harmful interference to, and shall not claim

protection from harmful interference caused by, a station operating in

accordance with the” ITU rules. ITU Radio Regs. Art. 4.4. Because

EchoStar 6 had committed not to interfere with the operation of other

satellites, and because the U.S. would not claim protection for EchoStar 6

with a filing at the ITU, the Bureau found that this Article applied to the

FCC’s grant of the STA, and the STA was therefore consistent with ITU

rules. Bureau Order ¶ 17 (JA159). Put differently, EchoStar 6’s operations

cannot conflict with the ITU Region 2 BSS plan because EchoStar and SES

explicitly committed not to interfere with the operations of any operations

12 under the plan.

12 The Bureau also viewed the operations authorized by the STA as “fixed and mobile satellite services” (FSS and MSS), rather than BSS. Bureau Order ¶ 16 (JA158). Only BSS transmissions are governed by the ITU’s Region 2 BSS plan. See 2006 NPRM, 21 FCC Rcd at 9445 ¶ 3. The FCC’s interpretation of these technical terms is due deference. Rural Cellular, 685 F.3d at 1093. The definition of BSS/DBS overlaps with that of FSS and MSS, see 47 C.F.R. §§ 2.1, 25.201; ITU Radio Regs. Arts. 1.21, 1.25, 1.39. In this case, the U.S. would not be seeking international recognition for EchoStar 6 by making a filing under the ITU Region 2 BSS plan, so the

49 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 61 of 98

Spectrum Five argues that Article 4.4 is inapplicable to BSS, citing a

letter from an ITU official, written in a different context and without

reference to EchoStar 6. Br. 50-51. However, as the Bureau pointed out, the

FCC’s reading of Article 4.4 is consistent with the opinion expressed in the

letter. Bureau Order ¶ 17 (JA159). The letter made clear that “the national

authorization to operate a satellite network under No. 4.4…is the prerogative

of the administration and beyond the scope of responsibility of the Bureau.”

See ITU 11/24/2010 Letter at 1 (JA63). By contrast, the ITU opinion

centered on “process[ing] a request for recording an assignment.” Id. For

those purposes, the official was of the opinion that Article 4.4 was

inapplicable for “recording an assignment” of BSS, that is, registering a BSS

assignment in order to gain international recognition under the ITU BSS plan.

Id. Because the U.S. would not be attempting to record an assignment or

otherwise claim protection for EchoStar 6’s operations, the Bureau found that

its reading of ITU Article 4.4 to permit the STA was consistent with the ITU

Bureau concluded that “the operations authorized by [the] STA” were better viewed as FSS and MSS for purposes of U.S. obligations under ITU rules. Bureau Order ¶ 16 (JA158); cf. id. ¶ at 12 (JA157) (operation of “feeder links and TT&C within the United States” as authorized by STA did not constitute DBS Service to the U.S.). Any issues or potential conflicts related to the BERMUDASAT-1 filing were for the U.K. to resolve with the Netherlands or other parties. Bureau Order ¶ 16 (JA158).

50 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 62 of 98

13 official’s interpretation. Id. At a minimum, Spectrum Five fails to show

that the agency’s interpretation of ITU rules is so unreasonable that grant of

the STA was forbidden by 47 U.S.C. § 303(y) and 47 C.F.R. § 25.148(f).

IV. THE COMMISSION HAS NOT PRE-JUDGED THE ASSIGNMENT OF DBS LICENSES.

The FCC made clear that in granting the STA, it was not granting a

domestic DBS license to EchoStar, or anyone else. Bureau Stay Order ¶ 11

(JA295); see Order ¶ 17 (JA329) (adopting Bureau’s reasoning). The Bureau

further explained that grant of the STA was “without prejudice to any action

with respect to” any “potential future request” by EchoStar or “other

parties…to provide [DBS] service in the U.S. markets.” Bureau Order ¶ 5

n.10 (JA154); see Bureau Stay Order ¶ 11 n.37 (citing Bureau Order)

(JA295); Order ¶ 17 & n.53 (JA329).

Spectrum Five nevertheless argues that in granting the STA, the

Commission “pre-judged the results of its eventual allocation of DBS licenses

for this tweener location.” Br. 52 (section heading). That is not so, and

Spectrum Five’s reliance on Ashbacker Radio Corp. v. FCC, 326 U.S. 327

13 ITU Radio Regulation Article 8.4, cited by Spectrum Five (Br. 51), likewise governs recording an assignment for operations under Article 4.4. Because the FCC did not plan to record assignment of the frequencies used by EchoStar 6, this provision too was inapplicable. See Bureau Order ¶ 16 n.35 (JA159).

51 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 63 of 98

(1945), and its progeny (Br. 34) is unavailing. Those cases centered on a

statutory right to a hearing for a license under 47 U.S.C. § 309(e), “where two

bona fide applications are mutually exclusive,” and the grant of the license to

one party “deprives the loser of the opportunity which Congress chose to give

him.” Id. at 333. That is not the case here. Neither Spectrum Five nor

anyone else has a DBS application pending due to the freeze, and the FCC

has not granted any DBS licenses. Bachow Commc’ns, Inc. v. FCC, 237 F.3d

683, 689 (D.C. Cir. 2001) and Kessler v. FCC, 326 F.2d 673, 684 (D.C. Cir.

1963), cited by Spectrum Five (Br. 53 n.34) are not to the contrary. In those

cases, parties actually did have broadcast applications pending. The Court

held that, where other parties were forbidden by a freeze from submitting

mutually exclusive applications, the Commission could not grant the pending

applications without a comparative hearing. See Bachow, 237 F.3d at 689;

Kessler, 326 F.2d at 688. In both Bachow and Kessler, the FCC was actually

granting licenses that would deprive another party of its statutory right to

compete for the license. No such licenses were granted here. See Bureau

Stay Order ¶ 11 (JA295); Order ¶ 17 (JA329).

The FCC also reasonably concluded that the STA would not indirectly

decide (Br. 55-56) who would be able to offer DBS in the U.S. from the

orbital slot in question. Order ¶ 17 (JA329); see also id. ¶ 11 (JA326). As the

52 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 64 of 98

Bureau pointed out, “The EchoStar 6 satellite represents an interim step in

commercial development, and therefore, there may be flexibility as to

technical parameters of yet- to-be-designed successor satellites.” Bureau Stay

Order ¶ 14 (JA296). Moreover, the ITU Constitution creates an obligation

for Administrations to use spectrum and orbital slots “rationally, efficiently

and economically... so that countries or groups of countries may have

equitable access.” ITU Constitution, Article 44, No. 196. The FCC “[had] no

reason to believe and [would] not assume that the U.K. Administration, or

any other Administration involved, would in any way disregard [that]

obligation.” Bureau Stay Order ¶ 14 (JA296). In short, the ITU process is

designed to “result in agreement” on equitable usage, and there is no basis for

Spectrum Five’s apparent assumption that the ITU process would fail. Id.;

see Order ¶ 11 (JA 326) (citing “the possibility for future arrangements, the

flexibility available in designing future satellites, and ITU obligations to

pursue rational and efficient use of frequencies and orbital locations”).

Finally, there was no reason for the FCC to refrain, at Spectrum Five’s

request, from taking any action on EchoStar 6 that could possibly have an

53 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 65 of 98

effect on future licensing. Such a rule would unreasonably expand the freeze

14 and ossify the agency’s regulatory processes.

V. SPECTRUM FIVE’S ARGUMENT REGARDING ECHOSTAR 6’S FUEL LIFE IS WAIVED, AND IN ANY CASE UNSOUND.

Finally, Spectrum Five argues that EchoStar’s statements about its

satellite’s remaining fuel life were so “patently implausible” that the agency

was required to reject the application as incomplete under 47 C.F.R. §

25.112(a). Br. 57-60. However, Spectrum Five did not raise this issue in its

application for review and so is barred from doing so here under 47 U.S.C. §

405. See supra at 47. While DIRECTV made a similar factual assertion

before the Bureau (without an associated legal argument), see DIRECTV

3/19/13 Letter at 4-5 (JA86-87), “[u]nder the plain language of Section 405,

an issue cannot be preserved for judicial review simply by raising it before a

14 Spectrum Five now also argues that the STA violated the letter of the DBS freeze because “EchoStar’s coverage beam would ‘illuminate[] more than half of the states in the continental United States,’” Br. 54, even though the STA did not contemplate any actual DBS service to the U.S. Spectrum Five did not raise this argument in its application for review—indeed there it described EchoStar’s request as one “to operate wholly outside the U.S.,” Application for Review at 5 (JA191)—and so cannot raise it here. In any case, the agency reasonably interpreted its own rule when it found that operations under the STA “do[] not violate the freeze on DBS applications” because EchoStar 6 “will not provide DBS service in the United States.” Bureau Order ¶ 12 (JA167).

54 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 66 of 98

Bureau of the FCC.” Bartholdi Cable Co., Inc. v. FCC, 114 F.3d 274, 279

(D.C. Cir. 1997). Given the many issues that may be raised before a Bureau,

the agency is entitled to conclude that an issue is abandoned if it is not

pressed before the full Commission. See Environmentel, LLC v. FCC, 661

F.3d 80, 84 (D.C. Cir. 2011) (citing 47 C.F.R. § 1.115, which requires that

applications for review “shall concisely and plainly state the questions

presented for review”).

In any case, the agency acted reasonably. EchoStar explained that its

new estimate of fuel life included “fuel savings resulting from the current

mode of inclined operations” for which previous estimates had not adequately

accounted. 3/13/13 EchoStar Letter to FCC at 5 n.15 (JA77). This was

hardly implausible. Under “inclined” operations, an operator allows its

satellite to drift along the longitudinal (North-South) axis under natural

forces. This uses less fuel than operations that limit the degree of

longitudinal drift to a specific range close to the equatorial plane. See supra at

10 note 4. EchoStar also explained that it expected to further “allow the

satellite’s inclination to increase naturally in the North-South direction

through its end-of-life, and life projections for the satellite have been made

with this assumption in mind.” 2/27/13 Letter from EchoStar to FCC at

Annex (JA45). EchoStar then “reiterate[d] its commitment to operate

55 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 67 of 98

EchoStar consistent with [its] approved [orbital debris migration plan].” Id.

n.15.

Spectrum Five nevertheless insists that the application was “patently

implausible and insufficiently explained” because EchoStar should have

anticipated fuel savings from inclined operations when it made its earlier

estimate in 2011. Br. 58. But in its initial 2011 estimate, EchoStar indicated

it would allow inclination to grow only to a specific range (plus or minus .5

degrees from the equatorial plane) and then use fuel to maintain the satellite

in that range. EchoStar further stated that this plan, which formed the basis

for its estimate, could change:

EchoStar may decide at any point to allow inclination to continue to grow further increasing the spacecraft’s usable life. The expected end-of-life for the EchoStar 6 satellite will be extended to Feb 2013 with an uncertainty at this time of up to 6 months.

Letter from Pantelis Michalopoulos to Marlene H. Dortch, IBFS File No.

SAT-STA-20111004-00194, at 1 (Dec. 2, 2011) (FCC Add. 1) (emphasis

added). EchoStar thus anticipated in its 2011 estimate that it might allow

inclination to increase and thereby increase its fuel savings, but its fuel

estimate was based on more limited inclination. And again, EchoStar’s 2013

STA application contemplated that it might allow inclination to increase

further to gain further savings. See 2/27/13 Letter from EchoStar to FCC at

56 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 68 of 98

Annex (JA45). Evaluating a “technical, complex” scenario such as this lies

in the heart of agency discretion, Cablevision Sys. Corp. v. FCC, 649 F.3d

695, 714 (D.C. Cir. 2011). The agency was under no obligation to reject the

application as facially implausible.

CONCLUSION

The petition for review and the appeal should be dismissed for lack of

standing. In the alternative, the petition should be denied and the Order

should be affirmed.

Respectfully submitted,

WILLIAM J. BAER JONATHAN SALLET ASSISTANT ATTORNEY GENERAL GENERAL COUNSEL

ROBERT B. NICHOLSON JACOB M. LEWIS ROBERT J. WIGGERS ASSOCIATE GENERAL COUNSEL ATTORNEYS /s/ Matthew J. Dunne UNITED STATES DEPARTMENT OF JUSTICE MATTHEW J. DUNNE WASHINGTON, D.C. 20530 COUNSEL

FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 (202) 418-1740 December 23, 2013

57 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 69 of 98

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

SPECTRUM FIVE LLC, APPELLANT,

V.

FEDERAL COMMUNICATIONS COMMISSION APPELLEE.

______Nos. 13-1231 & 13-1232 SPECTRUM FIVE LLC, PETITIONER,

V.

FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS.

CERTIFICATE OF COMPLIANCE

Pursuant to the requirements of Fed. R. App. P. 32(a)(7), I hereby certify that the accompanying Brief for Respondents in the captioned case contains 12,261 words.

/s/ Matthew J. Dunne Matthew J. Dunne Counsel Federal Communications Commission Washington, D.C. 20554 (202) 418-1740 (Telephone) (202) 418-2819 (Fax) USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 70 of 98

ADDENDUM USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 71 of 98

Pantelis Michalopoulos 1330 Connecticut Avenue, NW 202.429.6494 Washington, DC 20036-1795 [email protected] Tel 202.429.3000 Fax 202.429.3902 steptoe.com

December 2, 2011

Marlene H. Dortch Secretary Federal Communications Commission 445 12th Street S.W. Washington, D.C. 20554

Re: EchoStar Satellite Operating Corporation, Notice of the Commencement of Inclined Orbit Operations for EchoStar 6 at 76.95º W.L., File No. SAT-STA-20111004-00194, Call Sign S2232

Dear Ms. Dortch:

Pursuant to Section 25.280 of the Commission’s rules,1 EchoStar Satellite Operating Corporation (“EchoStar”) hereby notifies the Commission that the EchoStar 6 satellite will commence inclined orbit operations at the 76.95º W.L. orbital location on December 12, 2011. Operating EchoStar 6 at an inclined orbit will extend the satellite’s operational life, enabling EchoStar to use the satellite to provide quality local-into-local and Spanish-language programming to U.S. customers for an extended period of time. EchoStar 6 currently operates at 76.95º W.L. under special temporary authority,2 pending EchoStar’s application to transfer the satellite to QuetzSat, S. de R.L. de C.V., which will operate the satellite under Mexican authority.3 The satellite will initially operate at an incline of the licensed +/-0.05°, and will be allowed to grow to +/-0.5° after which point inclination will be maintained at that value. EchoStar may decide at any point to allow inclination to continue to grow further increasing the spacecraft’s usable life. The expected end-of-life for the EchoStar 6 satellite will be extended to Feb 2013 with an uncertainty at this time of up to 6 months. This date takes into account both the

1 47 C.F.R. § 25.280. 2 See Stamp Grant, File No. SAT-STA-20111004-00194 (granted Oct. 13, 2011). 3 See Application for the Transfer of EchoStar 6 to Mexican Authority, File No. SAT-T/C- 20110314-00054 (filed Mar. 14, 2011).

FCC Add. 1 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 72 of 98 Marlene H. Dortch December 2, 2011 Page 2

inclined orbit operations and the Section 25.283 end-of-life disposal maneuvers.4 At the beginning of inclined operations EchoStar will conduct propellant depletion gauging operations monthly to ensure fuel use predictions match actual use. While EchoStar 6 is operating in an inclined orbit, EchoStar will operate the satellite in accordance with the Commission requirements as outlined in Section 25.280(b).5

If you have any questions regarding the above-referenced notice, please contact the undersigned.

Respectfully submitted,

______/s/______Pantelis Michalopoulos Stephanie A. Roy Steptoe & Johnson LLP 1330 Connecticut Avenue, NW Washington, D.C. 20036 (202) 429-3000 Counsel for EchoStar Satellite Operating Corporation

4 47 C.F.R. § 25.283. 5 47 C.F.R. § 25.280(b).

FCC Add. 2 USCAUNITED Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 73 of 98 NATIONS

General Assembly Distr. GENERAL

A/AC.105/404 13 January 1988

ORIGINAL: ENGLISH

COMMITTEE ON THE PEACEFUL USES OF OUTER SPACE RECEIVED

PHYSICAL NATURE AND TECHNIC~ ATTRIBUTES OF THE GEOSTATIONARY ORBIT MAR 18 2002

...... OM''lCJ•• = Study prepared by the Secretariat ...... ,01:

NTENTS

Chapter paragraphs ~

1. BACKGROUND 1 - 3 2

I I. REVIEW OF SCIENTIFIC ASPECTS OF THE GEOSTATIONARY ORBIT ••• 4 - 22 2

A. Definition of the geostationary ortit •••••••••.••••••• 4 - 7 2

B. Perturbations . .. 8 - 15 3

C. Station-keeping .. 16 - 22 4

III. PRESENT OCCUPATION OF THE GEOSTATIONARY ORBIT •••••••..•••• 23 - 36 6

IV. SPACE OBJECTS CROSSING THE GEOSTATIONARY ORBIT •••••••••••• 37 - 49 8

A. Objects in transfer orbits 38 - 45 9

B. Satellites in Molniya-type orbits ...•••••••••••••••••• 46 - 49 10

V. POSITION DETERMINATION FOR OBJECTS IN '!'!IE GEOSTATIONARY ORBIT .. 50 - 58 11

Annexes

1. FIGURES ...... 14

II. TABLES. •...... •..••...... •.••••.••..••..•••..••....••• 17

88-00714 5656e (E) / ...

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I. BACKGROUND

1. In 1977, at the request of the Committee on the Peaceful Uses of Outer Space. a study was prepared on the physical nature and technical attributes of the geostationary orbit (A/AC.IOS/203). Additional and updated information has subsequently been pUblished in a number of addenda to that report, most recently in 1983 (A/AC.lOS/203/Add.1-4).

2. The Committee on the Peaceful Uses of Outer Space. at its thirtieth session. in June 1987. endorsed the request of the Scientific and Technical Sub-Committee that the study continue to be brought up to date as required. The present report has been prepared. in response to the above request, by the Outer Space Affairs Division wiLo the assistance of Mr. L. Perek. Mr. P. Lala and Mr. L. Sehnal of the Astronomical Institute of the Czechoslovak Academy of Sciences.

3. Since the SCientific and Technical Sub-Committee has before it several documents or. the geostationary orbit, 11 the present study has been restrictee to the following topics: (a) a brief review of scientific aspects of the geostationary orbit; (b) a description of the present occupation of the orbit; (c) a discussion of space objects crossing the orbit; and (d) consideration of the accuracy of position determination in the orbit.

II. REVIEW OF SCIENTIFIC ASPECTS OF THE GEOSTATIONARY ORBIT

A. Definition of the geostationary orbit

4. The gravitational attraction of the Earth is the principal force determining the orbits of Earth satellites. This statement applies to all Earth satellites. whether they are in low or high orbits. in circular or eccentric orbits and whatever their period of revolution. What sets a geosynchronous or geostationary satellite apart from all other satellites is that its period of revolution is equal to the period of rotation of the Earth. Thus, internationally recognized definitions, appearing in the Radio Regulations of the International Telecommunication Union (ITO). II state:

Geosynchronous Satellite: An Earth satellite whose period of revqlution is equal to the period of rotation of the Earth about its axis.

Geostationary Satellite: A satellite, the circular orbit of which lies in the plane of the Earth's equator and which turns about the polar axis of the Earth in the same direction and with the same period as those of the Earth's rotation.

Geostationary Orbit: The orbit on which a satellite should be placed to be a geostationary satellite.

I ...

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5. The period of the rotation of the Earth is with respect to an inertial reference system rather than to the Sun. It is the so-called sidereal period of 23 hours 56 minutes and 4 seconds, or, more accurately,

P = 1436.0683 minutes.

6. Let us assume for a moment that the gravitational attraction of the Earth is the only force acting On the satellite and that the Earth is a perfect sphere. In such a case the motion of the satellite is given by a solution of the "two-body problem". The resulting orbit, in our case a circle centered on the centre of the Earth, does not change with time/ the ground track of the satellite is a point on the Earth's equator and the satellite appears in a fixed direction from any point on the surface of the Earth where the satellite is above the horizon.

7. In reality, however, the attraction of the Earth is not the only force acting on the satellite and the Earth is not a perfect sphere. There are few problems in celestial dynamics where minor forces play such an important role as in the case of a satellite in the geostationary orbit.

B. Perturbations

8. "Perturbations" is a commonly used, but not quite accurately descriptive, term of celestial dynamics. It is used to refer to the consequences of the fact that the actual situation differs from the assumed simple conditions of the two-body problem. Let us list some of the most important additional forces which need to be considered in order to arrive at a more accurate description of actual satellite motion.

9. The oblateness of the Earth. The polar radius of the Earth is 21 km shorter than its equatorial radius. If we use the gravitational attraction of the oblate Earth, the laws of celestial mechanics determine the distance of the geostationary orbit from the centre of the earth to be

R = 42,164.697 km.

The equatorial radius of the Earth is 6,378.140 km and consequently the difference of the two values, or the altitude of the geostationary orbit above Lhe equator, is

A = 35,786.557 km.

10. The attraction by the Moon and the Sun, together with the oblateness, exert a force On the satellite which pushes it out of the equatorial plane. This fact has been known to astronomers for a long time and was thoroughly studied in the nineteenth century in connection with the motion of the Moon. At the distance of the geostationary orbit, for small values of the eccentricity and inclination of a satellite orbit, there is one and only one stable solution to the equations of orbital motion 1/. It corresponds to an orbit inclined at 7.3· to the equator with a nodal regression period of about 54 years. The consequences for a satellite in the geostationary orbit are important. If the satellite is placed initially into an ideal equatorial geostationary orbit, its inclination will increase, initially

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by 0.86' per year, later more slowly, up to the value of 14.6' and then decrease back to zero. The cycle lasts one half of the nodal regression period, or about 27 years. Such motion, if unchecked, would carry the satellite out of its parking box, exceeding the variations permitted by the ITU rules.

11. Indeed, ~he inclination of all satellites in the geostationary orbit has been increasing sic.ce their last station-keeping corrections. Figure 1 (see annex I) shows the inclination of ATS-l, as it increased between 1968 and 1986.

12. The ellicticity of the equator. The difference between the largest and the smallest radius of the equator does not exceed 70 m, but it is enough to cause important deviations of a satellite in the geostationary orbit from its nominal position. The differences of the equatorial radii are rather irregular, but can, to a first approximation, be described by an ellipse, hence the term ·ellipticity·. Satellites oscillate in longitude around two stable points generally taken to be located at longitudes 7S'E and 10S'W, although Zhuravlev i/ has proposed a more accurate value of 106.097' for the latter position. The period of oscillatior. is 2.3 years for small amplitudes and is longer for large ones. The resulting drift in longitude of a satellite is up to 0.4' per day. During westward drift the satellite is up to 34 km above the ideal geostationary orbit and the same amount below it during eastward drift, BecaUSe of the irregularities of the shape and mass dist=ibution of the Earth, the oscillations are not quite symmetrical 2/' Examples are =~Own in figure 2 (see annex I) for three satellites in the time spa~ 1973-1976.

13. Solar raclation pressure is the most important non-gravitational force acting • on a satellite in the geostationary orbit, It causes a yearly oscillation of the orbital eccentricity and a rotation of the line of apsides. For a typical satellite the maximum eccentricity dUe to this effect is 0,006 and the maximum daily libration in longitude is 0.6'.

14. There are a number of other perturbations acting on a satellite in the geostationary orbit, but they do not substantially change the general picture presented above.

15. In summary, contrary to the general understanding that comes from a simplified approach to satellite orbits, the geostationary orbit is not a stable orbit. A satellite positioned in the geostationary orbit does not stay within the orbit if left to natural forces. The only truly stationary orbit, with respect to the attraction of the Earth, the Moon and the Sun, is an orbit with an inclination of 7.3'. Out of all longitudinal positions, only two would remain unchanged by forces arising from the ellipticity of the equator, Thus, natural forceS, by themselves, do not allow for a strictly geostationary satellite.

C. Station-keeping

16. It is only thanks to station-keeping impulses that a satellite can be maintained within its ·parking box· permitted by ITU rules. According to the rules in force, ~/ the actual position of a satellite may deviate by no more than 0.1' in

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longitude from its nominal position. In general, there is no regulatory constraint on the movements in the north-south direction, but many satellites are maintained within a tolerance of 0.1' in latitude in order to facilitate communication with ground stations. An exception to this rule is the broadcasting-satellite service for which satellites must be maintained in position with an accuracy better that ~O.l· in both the north-south and the east-west directions. In region 2 (the Americas). the tolerance in the north-south direction is recommended not required.

17. There is no regUlation of movement in the radial direction and none is needed. Radial deviations follow from the laws of celestial mechanics and are, as a rule. smaller than those in the other directions. The parKing box of a space station is illustrated in figure 3 (see annex I).

18. A satellite in the geostationary orbit cannot be thought of as "fixed in space". On the contrary. it is in permanent motion caused by both natural forces and occasional corrective impulses exerted by the satellites propulsion system. The satellite moves like a ball maintained in the air by skillful kicks of a football player's foot. as shown in figure 4 (see annex 1). In the upper part of the figure, the longitudes of the INTELSAT 3 F-3 satellite have been plotted for the second half of 1979. The satellite. launched in 1969. was maintained within the tolerance which was in force at that time, i.e. within ~O,S' around its nominal position at 66.S'E. The arrows indicate that station-keeping impulses had to be applied every 3 months. The lower part of t-~ same figure refers to the INTELSAT 4A F-6. launched in 1978. and maint.:ned within the stricter limits of ~O.l·. The increased accuracy in station-k~ping required corrective impulses every month.

19. East-west station-keeping. speaking frog the point of view of celestial mechanics. can be done by impulses within the orbital plane. North-south station-keeping must be done by changing the orbital plane as shown in figure S (see annex 1) and is much more demanding on fuel consumption, requiring about 10 times more fuel than east-west station-keeping,

20, There is one way to lessen the burden of station-keeping. save fuel and thereby increase the useful lifetime of a satellite. In the stationary circular geosynchronous orbit at inclination 7.3' no north-south station-keeping is necessary. The satellite appears from the g:ound to describe a double loop, or figure eight. between latitudes 7.3' north and south as shown in figure 6 (see annex 1). The satellite moves through the double loop every 23 hours 56 minutes and 4 seconds. Most antennas. however. do not have beamwidths wide enough to accommodate the entire double loop of 14,6'. The need thus would arise for a movable antenna to track the satellite in its daily motion. The advantange of saving costs through a longer lifetime of the satellite would thus be offset by more expensive ground antennas. This is a matter for detailed economic calculations. Such systems have been proposed recently, 21

21. Pushing the idea further. a satellite located at one of the two stable points in longitude. 10S'w or 75'E. and with an inc:ination of 7.3' could dispense with both the north-south and the east-west station-keeping. A disadvantage would arise from crowding of satellites in a relatively snaIl area of space,

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22. Further iMprovements in station-keeping accuracy may be expected in the future. If they are aCcompanied by improvements in tracking accuracy, possibly by means of tracking from a nearby satellite, new avenues would open for the utilization of the geostationary orbit (see A/AC.I05/203/Add. 4. "Alternative orbits") .

III. PRESENT OCCUPATION OF THE GEOSTATIONARY ORBIT

23. Since the first attempts to place a satellite into the geostationary orbit in 1963, the number of launchings into the geostationary orbit has been steadily increasing. Figure 7 (see annex I) shows that the increase waS exponential up to the end of 1985 with 28 objects launched into the geostationary orbit in that year. Only 12 payloads were launched in 1986 and 9 payloads up to the end of October 1987, a consequence of the Challenger accident. Several satellites ar~ waiting for a launching opportunity, and a rapid rise in the curve in figure 7 is to be expected in the future.

24. The following statistics concerning satellites in the geostationary orbit were compiled from the RAE Table of Earth Satellites ~/ and from other sources and refer to 31 October 1987:

Active satellites :79 Inactive satellites 56 Non-functional object 40 Total 275

25. Some satellites listed as "active" may have recently terminated their transmissions. About 10 satellites have been removed from the geostationary orbit. And, last but not least, the amount of debris in the geostationary orbi~ is unknown.

26. A list of space objects which are in the geostationary orbit or which c~e within 150 km of the ideal geostationary orbit appears in table 1 (see annex II).

27. The oldest active satellite is ATS-5, .ith the international designation 1969-069A, and there are a few active satellites among those launched in the mid-1970s. This is excellent performance since the design lifetime was 3 years in the 1960s. 7 years in the 1970s and only recently has been increased by some manufacturers to 10 years. Concerning the functions of satellites in the geostationary orbit, it can be estimated that about 16 per cent are used for research, experiment and meteorology, 16 per cent as national means of verification and early warning, and 68 per cent for communications.·

28. Not all satellites launched into the geostationary orbit are still there. Some have been removed by operators, using the last supply of fuel carried on board for the purpose of station-keeping correctio~s. The first case of removal of a satellite from the geostationary orbit occurred in May 1977 when three INTELSA~ 3 satellites (F-2, F-3 and F-3) were moved to higher disposal orbits at altitudes of 3,580 km, 3.700 km and 400 km respectively above the altitude of the geostatio~ary

.I . ••

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orbit, orbits not used by any active satellites. In subsequent years, several other satellites were moved to disposal orbits, such as ATS 5, Raduga 5, Anik 1, SMS 1 and 2, INTELSAT 4 F-2 and F-4 and possibly others. In January 1984, the European Space Agency (ESA) raised the orbit of GEOS 2 (1978-071A) by 269 km above the geostationary orbit using only about 2 kg of fuel. 9/ The manoeuvre was elaborate, calling for three impulses. The small amount of fuel needed - a fraction of 1 per cent of the original 573 kg of fuel - proved that such manoeuvreS are feasible without markedly reducing useful lifetimes. The removal of satellites into disposal orbits has apparently become a matter of policy with INTELSAT and ESA.

29. A recommendation calling for the systematic removal of satellites into disposal orbits toward the end of their active lifetimes was made as early as 1977. ~/ The matter was studied in some detail in one of the background papers (A/CONF.10l/BP/7) of the Second United Nations Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE 82) and a recommendation to follow this practice was included in the report of that Conference (see A/CONF.10l/10 and Corr.l and 2, para. 283).

30. Inactive satellites and non-functional objects in the table above are not the only undesirable objects affecting the geostationary orbit. There are also rocket stages and apogee motors in eccentric orbits which at times croSS the geostationary orbit and at other times do not come close to it (see sect. IV below).

31. In addition, there is a certain amou~t of debris in the geostationary orbit, including detached shields, caps, bolts or flakes of paint. Their number is unknown, but there are indications that debris in the geostationary orbit cannot be neglected. With present tracking techniques, debris smaller than about 1 m cannot be detected at the altitude of the geostationary orbit.

32. From the point of view of ITU and the International Frequency Registration Board (IFRB) , the present or planned occupation of the geostationary orbit presents a different picture. The following table gives the cumulative totals of communication satellites systems at various stages of ITU co-ordinating process as of the end of the year indicated.

l222. 1983 ~ 1986 Geostationary satellite systems with advance pUblication 30 68 124 185

Systems in process of co-ordination 36 92 126 108

Systems co-ordinated and • notified to the IFRB 82 ..!l 137 164 Total 148 243 387 457

/ ...

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33. The advance pUblication by a country is an announcement of intent to put into operation within five years a satellite communications system in the geostationary orbit. It is pUblished in one of the circulars of IFRB.

34. After advance publication, the co-ordination of the new system with existing and planned systems is initiated with a view to preventing any harmful interference among transmissions. After a satisfactory conclusion of the co-ordinating procedure, relevant parameters of the system are notified to IFRB and entered into its Master Reqister.

35. A comparison of the two tables above shows that total numbers of existing and planned geostationary satellite systems, as indicated by the second table, have been increasing by more than 70 per year, much faster than the numbers of satellites actually launched into the geostationary orbit, which have not yet reached 30 per year, as indicated by the first table. The comparison also shows that the answer to a simple question "How many geostationary satellites are there?" depends on the point of view. The first table yields the correct answer for space objects actually launched into the geostationary orbit. The second table should be consulted for geostationary communication systems registered with IFRB.

36. As has been explained in document A/AC.l05/203/Add.4, the registration of a satellite system in the Master Register of IFRB refers to an agreed orbital position of a communication system transmitting at a specified radio frequency, not to a physical space object itself. Indeed, one communication satellite may serve during its active lifetime at different assigned positions at different times, and different satellites may serve at different times at one assigned position. Whatever the specific arrangement, the operation of a station at an assigned orbital position and radiofrequencies is limited by the period of validity, which is one of the technical parameters of a satellite system appearing in IFRB Master Register. Other restrictions on the use of the orbital position and radiofrequencies may follow from the ITU Radio Regulations in force. 1I

N. SPACE OBJECTS CROSSING THE GEOSTATIONARY ORBIT

37. This and the following section are intended to give additional background information On the danger of collisions involving satellites in the geostationary orbit. The main source of that danger is the inactive objects (see annex II, table 1) which are in or close to the geostationary orbit. They cut through the equatorial plane twice a day with a relative speed depending on the inclination of their orbits. These are, however, not the only objects that pass through the geostationary orbit. There are also discarded rocket stages which, after introducing the payload into the geostationary orbit and separating from it, remain in eccentric transfer orbits. There is also the large category of communication 'and early warning satellites in eccentric l2-hour orbits at high inclination, the so called Molniya-type orbits. Finally, there are scientific and applications satellites in special orbits extending beyond the geostationary orbit.

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A. Objects in transfer orbits

38. Every geostationary satellite has moved from a low Earth orbit into the geostationary orbit On an eccentric transfer orbit with a perigee of about 200 km altitude and an apogee around 36,000 km, slightly above the geostationary orbit. A discarded rocket body and possibly some fragments usually remain in the transfer orbit. The inclination of the transfer orbit depends on the geographical latitude of the launching site and is generally close to it. Thus, for each launching site there is a typical class of transfer orbits.

39. The Ariane rockets of ESA are launched from Kourou, French Guiana, at 5' latitude, into transfer orbits with an inclination of about 7'. The United States launches from Cape Canaveral at 28' latitude result in transfer orbit inclinations between 22' and 27'. Chinese and Japanese launchings use transfer orbits at 30' to 31' inclinations, while the Soviet Proton launcher uses orbits inclined at 47', corresponding to the latitude of the Baikonur space centre.

40. In order for a spacecraft to reach the geostationary orbit, the apogee of the transfer orbit must be located close to the equatorial plane. The orbit, however, does not stay in that orientation for a long time since perturbations, as explained in section II.B above, cause a rotation of the orbit in its plane. The period of this "apsidal rotation" is 1.3 years for an orbital inclination of 7', 1.B years for an inclination of 30' and 3.7 years for that inclination of 47'. As a consequence of the apsidal rotation, an object in a transfer orbit crosses the geostationary orbit less than 5 per cent of the time.

41. The transfer orbit is affected by all perturbations discussed in section II.B and, in addition, by the atmospheric drag acting during its perigee passage. The main effect of the drag is the lowering of the apogee. As soon as the apogee altitude becomes ,less than the altitude of the geostationary orbit, the object stops crossing the geostationary orbit. Table 2 (see annex II), which lists all objects crossing through the geostationary orbit, shows that only a small number of old rockets and fragments still reach the geostationary altitude.

42. The detailed evolution of a transfer orbit is quite complicated. Perturbations due to the Sun and the Moon change its eccentricity, orientation and inclination to the equator. Consequently, the apogee altitude of a transfer orbit does not decrease steadily but varies periodically by about ;t50 km. .The average period of these variations is about nine months. The final effect in any specific case depends On the initial positions of the Moon, the Sun and the object in question. It may happen that the perigee altitude decreases rapidly and the objects decay in the dense layers of the atmosphere. On the other hand, a different combination of initial positions may lead to a lifetime more or less in agreement with the theory of atmospheric perturbations, As an illustration, the following table gives the lifetimes as predicted on the base of normal variations of atmospheric parameters:

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Perigee altitude Lifetime

160 km 4-6 years 180 km 8-13 years 200 km 15-28 years 220 km over 26 years

Accurate predictions of lifetimes can be done only on a case-by-case basis, and quite intricate computations are involved.

43. The objects listed in table 2 with low inclinations cross the geostationary orbit more frequently because of a faster apsidal rotation. Their relative velocity at encounter with satellites in the geostationary orbit is 1.5 km/s for 21' inclination and 2.3 km/s for 47· inclination. These speeds are about 6 to 10 times the speed of a jet plane.

44. Table 2 also includes objects with apogees slightly below the geostationary orbit since perturbations due to the Sun and the Moon may increase their altitudes so that they would pass through the geostationary orbit.

45. Compared to objects which are in or close to the geostationary orbit, objects in transfer orbit do not increase the collision probabilities sUbstantially. However, they do need to be taken into account in studies of close approaches to specific satellites.

B. Satellites in Molniya-type orbits

46. Launches of Molniya communication satellites began in 1965. A total of 31 satellites have been launched with initial inclinations near 65·, perigee altitudes around 500 km and apogees over 39,000 km. They were accompanied by separate rocket stages in close, but slightly different, orbits, because the fine tuning of the orbital elements could be done by the station-keeping propulsion systems of the satellites. In 1973, the inclination was changed to 63· and this value has been retained for all subsequent Molniya and Cosmos satellites in this category.

47. The primary function of satellites in these orbits is to provide' long-distance communications at high geographic latitudes. Thus, the apogee is located over the northern hemisphere and the perigee over the southern hemisphere. The angular distanc~ of the perigee from the northbound equator crossing is 280· for communications and 320' for early warning satellites. These satellites therefore cross the equator plane far below the geostationary orbit. Only a considerable amount of apsidal rotation would bring the apogee of a Molniya satellite into the geostationary orbit.

48. The speed of apsidal rotation depends on inclination. In particular, there is no rotation for the critical inclination of 63.45·, close to the current inclination of Molniya-type orbits. Close to the critical value, the rotation is slow, its period at 63' is 210 years and at 65' is 60 years. These periods are

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long compared to the lifetime of Molniya-type satellites which is less than seven years. lQl Indeed all Molniya satellites launched before 1973 have already decayed. Lifetimes of the more recent Molniyas are 9 to 14 years, in SOme cases over 20 years.

49. As of 30 September 1987, there were 298 objects in stable Molniya-type orbits. All of them reach the distance of the geostationary orbit far from the equator and hence do not cross the geostationary orbit. Therefore they do not appear in table 2.

V. POSITION DETERMINATION FOR OBJECTS IN THE GEOSTATIONARY ORBIT

50. In investigating close approaches of satellites in the geostationary orbit, N. L. Johnson l!1 found that the uncertainty in determining accurate positions in the geostationary orbit was of the order of 10-20 km. This accuracy may still be sufficient for maintaining a satellite within its parking box of ~O.l· which is equivalent to +74 km at the geostationary orbit. With several satellites at th~ same nominal p;sition, a higher accuracy or co-ordinated station-keeping would be necessary to prevent close encounters or collisions among active satellites. An example of a shared longitude 121 is the position at 19'W which has been allotted to about 10 prospective systems. Some authors 131 are of the opinion that the probability of collision among active satelliteS-is in such cases higher than the chance of an inactive satellite hitting an active one.

51. In this context, methods of accurate tracking of satellites in the geostationary orbit become important. Moreover, orbits of satellites with scientific missions, such as the determination of parameters of the Earth's gravity field, require an even higher accuracy of position determination. Thus, instead of the above 10-20 km, an accuracy of 600-800 m, or for scientific missions of 40-80 m, is needed. In angular measure, instead of 50-100 seconds of arc, the requirement is for a precision of 3-4 seconds of arc and in the extreme case, of 0.2-0.4 seconds of arc.

52. High accuracy in position determination can be achieved by several means, of which photography is a method presently and practically available. The main disadvantage of photography from the ground is, of course, the depeAdence on favourable weather conditions, but this does not present serious obstacles for a network of cameras at selected locations. An important advantage of photography is that inactive or non-functional objects are recorded just as well as active satellites.

53. Precise satellite photography has been done using the Baker-Nunn cameras which were operated in the first decade of the space era for tracking satellites in low orbits. Later, Photographic monitoring was abandoned in favour of less cumbersome techniques which gave better results. For the geostationary orbit, however, it seems that photographic techniques will be reintroduced.

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54. To attain the required accuracy, advanced photographic methods must be used, and a focal length about 1 m is required to provide a sufficiently large scale on the photographic plate. The position of the geostationary satellite must be measured with respect to stars whose positions are accurately known. Since the satellites move against the stars, and since a time-exposure is required, the camera has first to photograph the satellite, then the stars, each exposure in a different mode of motion. The motion is effected either by rotating the telescope or by a special movable plate-holder. The entire operation has to be timed to within 1 millisecond, or within 0.1 millisecond for the highest accuracy, and the precise time has to be recorded.

55. After exposure, the photographic plate is developed and measured and the positions of the satellite computed. An important point is the correct identification of individual objects, an easy task with respect to an isolated satellite with good station-keeping, but rather difficult if several satellites appear close together. In the latter case, consecutive photographs, possibly from different locations, may be needed to resolve the problem.

56. Several cameras capable of photographing satellites in the geostationary orbit are in operation. The English Hewitt cameras, situated at the Royal Greenwich Observatory at Herstmonceux Castle in the United Kingdom and at Siding Spring Mountain in Australia, have a focal length of 0.6 m and attain an accuracy of 1-3 seconds of are, which is equivalent to 200-600 m at the geostationary orbit. A similar accuracy is achieved by the Soviet VAU cameras of the same focal length, located at Zvenigorod and Dushanbe Obervatories. The SSG cameras, manufactured in the German Democratic Republic, have a focal length of 0.76 m and achieve an accuracy of 2-3 seconds of arc. The same accuracy is obtained by the Soviet-made AFU-75 cameras with a focal length of 0.75 m. Astronomical astrographs, if equipped with adequate timing devices, are also excellent for this purpose. For example, the Zeiss Jena astrograph of the Kiev observatory in the Union of Soviet Socialist Republics, has a focal length of 2 m and provides measurements with an accuracy of 0.3-0.5 seconds of arC.

57. A new promising technique for determining positions of space objects is being developed using high sensitivity video cameras combined with video recorders to store the pictures. This technique has been used experimentally to monitor over 30 geostationary satellites. 14/

58. The methods for tracking objects in the geostationary orbit are developing rapidly and their accuracy is increasing. It is feasible, in principle, to design and operate tracking systems, either on the ground or in space, to permit safe operation of a cluster of satellites sharing the same nominal position.

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Notes

.!/ "Physical nature and technical attributes of the geostationary orbit" (A/AC.l05/203 and Add.1-4)1 "Efficient use of the geostationary orbit" (A/CONF.lOl/BP/7); "The feasibility of obtaining closer spacing of satellites in the geostationary orbit" (A/AC.l05/340/Rev.l); annual reports of ITU on telecommunication and the peaceful uses of outer space; and annual reports of INTELSAT to the Committee on the Peaceful Uses of Outer Space.

1/ ITU, Radio Regulations (Edition 1982, Revised 1985), regulations RRl-22, RRl-23 and AP30-115.

3/ Y. Kozai, "The Motion of a Close Earth Satellite", Smithsonian Astrophysical Observatory, Special Report 349 (1973).

if P. G. Zhuravlev, Astronomicheskyi Zhurnal, vol. 54, (1977), p. 909.

~/ L. Perek, "Physics, uses and regulation of the GSO" (lAP Congress, Prague 1977), paper IAP-SL-77-44. See also A/AC.I05/203 and Add.1-4. For explanation of the asymmetry of oscillations, see M. Sidlichovsky "Note on the shift of the center of libration of geosnychronous satellites", Bull. Astron. Inst. Czechosl. 30 (1979), p. 41.

~/ Final Acts of the WARC-ORB 85, Appendix 30, para. 3.11.

2/ D. E. Snager, "Longer life for orbiting satellites at hand, easing launching needs", The New York Times, 17 October 1986, p. AI.

1/ Royal Aircraft Establishment, Farnborough, U.K. Issued monthly.

11 P. Beech, M. Soop, J. van der Ha, "The de-orbiting of GEOS 2", EsA Bulletin No. 38 (1985), p. 86.

lQ! D. G. King-Hele, D. M. C. Walker, "The prediction of satellite lifetimes", Technical Report 87030 (Royal Aircraft Establishment, Farnborough, U.K., May 1987).

11/ N. L. Johnson, "The crowded sky", Spaceflight 1982, vol. 24, p. 446.

12/ E. M. Soop, "Orbital control of geostationary spacecraft from dedicated control centres", ESA Bulletin No. 52 (November 1987) p. 42.

13/ G. Fusco, A. Buratti, "Crowding of the geostationary orbit", ESA Contract Report No. 5705/83/NL/PP/Sc (1984).

liI P. D. Maley, "Television ground-tracking applied to aerospace and astronomical events" (lAP Congress, Innsbruck, 1986), paper IAF 86-305.

/ ...

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Annex I

FIGURES

12'

10' ATS -1 1966-110A

8'

2'

Figure 1. The inclination of ATS-l as it increased between 1968 and 1986.

Figure 2. Oscillations in Longitude of gat@llites with no ~tation-keeping.

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East

Figure 3. The t'p.rking box" defines the per.itted deviations of a satellite in the 650 fro. its no.inal position.

Jul Auo SOl> Oct Nov OK Jon Figure 4. East-West station-keeping of two INTEL5AT satellites with respective tolerances of ~ O.So and ~O.10. / ... FCC Add. 17 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 88 of 98

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I Q

Figure S. North-South station-keeping requires a change of the orbital plane by impulses timed around the equator passages.

-6"

"," 250

.1' 200 • "~ 0- ] 150

-1' 100 -.. 50 -6" .. 0 -2- 0" +2'" It! Q...... ltl longitude S!!.. S!! ~ i S!! f;gu,. 6. Sky-t,ack of a Figure 7. The number of payloads satellite in the stationary launched into the GSa between geosynchronous orbit at 1963 and 1986. 7.3 0 inclination.

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Annex II

TABLES

Table 1

LIST OF SPACE OBJECTS IN OR CLOSE TO THE GEOSTATIONARY ORBIT

Table 1 lists space objects, including active and inactive satellites and non-functional objects, in circular or near-circular orbits which cross an orbital band extending 150 km above and below the ideal geostationary orbit.

The first column gives the international designation assigned to space Objects by COSPAR. The second column gives the launching country or agency using the abbreviations used in ITU annual reports to the United Nations Committee on the Peaceful Uses of Outer Space. The third column gives the launching name of a payload or a descriptive term of a non-functional object. Payloads and non-functional objects launched together have the same caSPAR numbers, but are distinguished by a following letter.

The following columns give the orbital inclination in degrees and the orbital position in degrees East (E) or West (W) of the Greenwich meridian on the day shown in column headed "Epoch". The first two digits of the epoch give the month and the last two digits the day of determination of the inclination and orbital position. Inclinations appearing without corresponding orbital positions have been taken from the Satellite Situation Report No. 27 of NASA.

The last column contains the symbol I, "inactive", for non-functional objects and for payloads which have ceased their transmissions according to the RAE Table of Earth Satellites. Most, but not necessarily all, of the remaining payloads were active in October 1987.

Sources: Satellite Situation Report, Vol. 27, Nos. 2 and 3 (Goddard Space Flight Center, NASA, 1987).

"World Data Center A for Rockets and Satellites", spacewarnOBulletin (Goddard Space Flight Center, Greenbelt, Maryland, USA). Issued monthly.

Geosynchronous Satellite Report (Project Operations Branch, Goddard Space Flight Center, NASA) 1 July and 1 October 1987.

RAE Table of Earth Satellites (Royal Aircraft Establishment, Farnborough, U.K.). Issued monthly.

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Tat'-J~ 1 (COt'lt imJE"~l --- COSPAR No. Country Na_e 1 ncl i- Orbital Epoch Remark Agency nation position Degrees Degrees 1963-031A USA SynCoM 2 I 1964-047A USA Syncom 3 I 1965-028A USA Early Bird I 1967-00lA USA IT Intel.at 2 F- 2 I 026A USA IT Intel.at 2 F-3 I 094A USA IT Intelsat 2 F-4 1 l11A USA ATS 3 11.9 105.3W 0928 I 1968-063A USA BMEWS 1- 1 I 08lC USA ERS-21 I 0810 USA LES 6 9.7 I 08lE USA Transtage 9.5 I 1969-013A USA racut 1 I 036A USA BMEWS 2 I 069A USA ATS 5 9.5 lOlA G Skynet lA 1 1970-021A NATO NATO 1 9.6 107.6W 0928 I 032A USA IT Intelsat 3 F-7 I 069A USA BMEWS 4 I 1971-000E ? Frag_ent I 009A NATO NATO 2 8.7 I 039A USA 1 MEWS 2 1 039B USA Transtage I 095A USA OSCS 1 9.5 108.4W 0928 I 095B USA OSCS 2 9.2 I 116A USA IT Intelsat 4 F-3 3.9 I 1972-041A USA IT Intel sat 4 F-5 5.8 1 lOlA USA BMEWS 5 1 1973-013A USA BMEWS 6 1 023A CAN Anik A2 4.6 I 040A USA IMEWS 4 058A USA IT Intelsat 4 F-7 6.0 I 100A USA OSCS 3 7.7 I 100B USA OSCS 4 9.2 81.2E 0729 1 1974-017A URS Co ..os 637 7.2 I 017F URS . Apogee .otor 9.2 1 022A USA Westar 1 039C USA Rocket IATS 61 8.4 1 075A USA Westa r 2 3.9 093A USA IT Intelsat 4 F-8 3.0 094A G Skynet 2B 7.6 30.8E 0729 lOlA F UM Sy.phonie 1 3.6 1975-038A CAN Anik A3 3.2 042A USA IT Intelsat 4 F- 1 3.3 58.7W 1001 OSSA USA BMEIIS I 077A F UM Sy.phoni e 2 7.7 091A USA IT Intelsat 4A F- 1 2.9 097A URS Coo.os 775 9.0 82.3E 0811 1 097F URS Apogee .otor 8.9 1 100A USA GOES 1 7.3 125.411 09,8 1 117A USA RCA Satco. 1 3., lliA USA IMElIS 5 118C USA Tranotage I 1975-118D USA Fr.g.ent I 123A URS Raduga 1 1 1976-004A CAN Anik C2 7.7 I 010A USA IT Intelut 4A F- 2 3.3 OHA USA Mari sat 1 6.3 14.6E 1001 023A USA LES 8 21.8 023B USA LES 9 21.7 023F USA TranstaQe 22.1 1 I ... FCC Add. 20 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 91 of 98

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Table 1 «cont i ",u@d)

COSPAR No. Country NaMe Incli- Orbital Epoch Re ..rk Agency na t ; on position Degrees Deg rees

035A NATO NATO 3A 6.0 29.5W 0925 042A USA Coms ta r 1 3. 1 053A USA Marisat 2 5. 1 72.6E 1001 059A USA I MEWS 6 059C USA Transtage I 066A INS Palapa 1 0.8 I DBA USA Co ..tar 2 3.2 76.9W 1001 092A UR S Raduga 2 I 092f URS Apogee _otor 8.1 I lOlA USA Marhat 3 6.7 176.2E 1001 107A URS Ek ran 1 8.0 I 1977-005A NATO NATO 38 4.7 67.3W 0622 007A USA I MEWS 7 007C USA Transtage I o14A J KHu 2 = ETS 2 6.5 129.9E 0710 018A INS Palapa 2 3.4 0348 USA OSCS 2-8 6.5 0.3W 0925 034C USA Transtage 6.8 I 041A USA IT Intelsat 4A f-4 2.2 21.5W 1001 048A USA GOES 2 5.5 113.4W 0909 065A J Hi.awar; 1 5.8 159.3E 0926 071A URS Raduga 3 7.8 38.7E 0927 I 071F URS Apogee MOtor 7.8 I 080A I 5i ri 0 1 3.8 108A f MET Meteosat 1 6.8 61.6E 0927 1978-002A USA IT Intelsat 4A f-3 1.7 177.1E 1001 016A USA fltsatco. 1 5.8 178.5W 0929 035A USA IT Intelsat 4A f-6 1.5 56.8E 0625 039A J Yur; 1 4.5 044A f OTS OTS 2 3.8 4.7E 0909 058A USA IMEWS- 8 062A USA GOES 3 4.4 129.6W 0911 073A URS Raduga 4 I 106A NATO NATO 3C 2.5 17.1W 0527 113A USA OSCS 11 IType 21 4.4 129.8W 0928 1138 USA OSCS 12 !Type 21 4.2- 61.4E 0920 116A CAN Anik 8-1 0.8 1979-015A URS Ekran 3 6.5 I 035E URS Apogee .otor IRaduga 5/6.5 I 038A USA fltsatco. 2 4.2 053A USA IMEWS 9 053C USA Transhge I 062A URS Gorhont 2 6.2 85.2E 0921 I 072A USA Westar 3 0.0 90.8W 0923 1979-086A USA IMEWS 10 086C USA Transtage I 087A URS Ekran 4 1.0 I 087E URS Apogee .otor I 098A USA" OSCS 13 IType 21 3.9 174.7E 0926 0988 USA OSCS 14 !Type 21 3.9 179.1W 0929 098C USA Transtage 4.8 I 105A URS God zont 3 5.9 39.7E 0927 I 1980-004A USA fltsatco. 3 4.1 22.5W 0925 016A URS Raduga 6 601 62.3E 0908 I 018A J Aya.e 2 0.5 I 049A URS God zont 4 5.6 l'.2W 0930 I 074A USA GOES 4 3.9 43.2W 0923 081A URS Raduga 7 5.4 I 081f UR S Apogee Motor 5.5 I

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Table 1 (continu~d)

CaSPAR No. Country Name Incli- Orbital Epoch Rema rk Agency na t i on position Degrees Degrees 087A USA Fltsatcom 4 3.8 171.6E 0928 091A USA S8S 1 fF-3f 0.4 99.0W 0928 098A USA IT Intelsat 5 F- 2 0.0 1. OW 1001 104A UR S Ekran 6 5.5 55.6E 0927 1 1981-018A USA COJastar 4 1.6 75.9E 1001 025A USA IMEWS 11 027A URS Raduga 8 5.2 1 049A USA GOES 5 0.9 108.2W 0923 050A USA IT lntelsat 5 F-l 0.0 174.1E 1001 057A F MET Meteosat 2 0.9 0.9W 0924 0578 INO I seOM Apple 0.8 I 061A URS statsionar-Ekran 7 5.2 57.1 E 0927 I 069A URS Raduga 9 5.0 103.3E 0907 I 073A USA Fl tsatcom 5 4.4 076A J Hi mawa ri 2 = GMS 2 3.5 119.6E 0924 096A USA SBS 2 1F-1f 0.0 97.1W 0928 102A UR S Raduga 10 4.9 85.6E 0929 I 102F URS Apogee motor 4.7 I 107A USA IMEWS 12 107C USA Transtage I 114A USA RCA Satcom 3R 0.0 131.0W 0917 119A USA IT Intelsat 5 F- 3 0.1 53.0W 1001 122A f MRS fila re cs 1 1.6 177.9E 0927 1982-004A USA RCA Satcom 4 0.1 75.5W 0907 009A URS Statsionar-Ekran 8 4.4 I 009f URS Apogee motor 4.3 I o14A USA Westar 4 0.0 98.9W 0928 017A USA IT lntelsat 5 F-4 0.1 34.3W 1001 O'19A USA IMEWS 13 020A URS Gorizont 5 4.4 96.1 E 0928 031A INO INSAT lA 0.1 I 044A URS Cosmos 1366 4.1 80.4E 1001 1 044F URS Apogee ..otor 3.8 I 058A USA Westar 5 0.0 122.6W 0930 082A CAN Anik 0-1 0.0 104.5W 0921 093A URS Stltsionar-Ekrln 9 1.7 097A USA IT lntelsat 5 F-5 0.0 62.9E 1001 1982-103A URS God zont 6 3.7 139.8E 0930 103E URS Apogee motor 3.3 I 105A USA RCA Sltcdm 5 0.0 142.7W 0923 106A USA OSCS 15 fType 21 2.0 17.2W 0715 106B USA OSCS 16 fType 3f 0.0 134.8W 0929 1060 USA Inertial Uppoer Stage 1.9 I 110B USA SBS 3 1F-21 0.0 95.1W 0928 11 DC CAN Ani.k C3 0.0 117.5W 0921 113A URS Raduga 11 3.1 35.1E 0930 1983-006A J Sikura 2A 0.0 126.6E 0718 026B USA TORS 1 2.0 40.9W 0928 028A URS Rlduga 12 2.8 69.8E 0908 028F URS Apogee motor 2.6 I 030A USA RCA Sitcom 6 f1R1 0.0 138.3W 0925 041A USA GOES 6 0.0 135.3W 0919 047A USA IT Intelsat 5 F-6 0.0 18.5W 1001 058A F fUT ECS 1 = Eutelsat 1 F-l 0.4 13.2E 0927 0598 CAN Anik C2 = Telesat 7 0.0 110.0W 0921 059C INS PallPI Bl 0.0 106.7E 0902 065A USA Galaxy 1 0.0 134.0W 0901

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Table 1 (continuf>1i)

COSPAR No. Country Name I ncl;­ Orbital Epoch Remark Agency nation position Deg rees Degrees 066A UR S Gorizont 7 2.5 11.4W 1001 077A USA Telstar 3A 0.0 96.0W 0918 081A J Sakura 26 0.1 135.7E 0914 088A URS Raduga 13 2.2 65.2E 0930 0896 INO INSAT 16 0.1 09.4A USA RCA Satcom 7 /2R/ 0.1 72.1W 0928 098A USA Galaxy 2 0.0 74.0W 0830 100A URS Stats;onar-Ekran 11 3.3 54.6E 0928 105A ESA IT Intelsat 5 F-7 0.0 66.0E 1001 118A URS Gorizont 8 1.9 118F URS Apogee motor 1.8 1 1984-005A J Yur; 2A = 6S 2A 0.1 109.8E 0924 016A URS Raduga 14 2.1 86.9E 1001 016F URS Apogee motor 1.8 1 022A URS Cosmos 1540 2.8 80.4E 0928 022F URS Apogee motor 2.6 1 023A ESA IT Intelsat 5 F-8 0.1 180.0E 1001 028A URS Statsionar-Ekran 12 4.2 90.3E 0928 031A URS Cosmos 1546 1.7 035A CHN Chi na 15 1.2 125.5E 0902 037A USA IMEWS or OSCS ? 1.3 0376 USA Transtage rocket 1.3 I 041A UR S Gorizont 9 1.8 90.7E 0928 049A USA Spacenet 1 0.0 HO.OW 0928 063A URS Raduga 15 1.8 128.5E 0927 078A URS Gor;zont 10 1.5 80.2E 0930 078F URS Apogee motor 1.2 I 080A J Himawari 3 = G"S 3 0.9 139.9E 0909 081A F EUT ECS 2=Eutelsat 1 F-2 0.1 7.1E 0924 0816 ~ Telecom lA 0.0 8.7W 0929 090A URS Statsionar-Ekran 13 2.1 11936 USA S6S 4 /f-4/ 0.0 91. OW 0928 1984-093C USA Syncom 4-2 = Leasat 2 0.0 176.SW 0831 0930 USA Telstar 3C 0."0 86.0W 0917 lOlA USA Galaxy 3 0.0 93.SW 0901 1136 CAN Anik 02 = Telesat 8 0.0 110.SW 0921 113C USA Syncom 4-1 = Leasat 1 0.0 15.4W 0823 114A USA Spacenet 2 0.0 69.0W 0730 1146 F "RS Marecs 2 2.0 26.0W 0927 115A NATO NA TO 30 3.6 21.7W 0728 129A USA USA 7 3.4 1296 USA Transtage rocket 3.4 1 1985-007A URS Gorizont 11 1.0 53.2E 0928 0106 USA USA 8 OHA USA USA 9 015A ARSAR6 Arabsat lA 0.2 0156 6 6rasi lsat 1 0.0 65.1W 0927 016A URS Cosmos 1629 1. 1 66.5W 0822 016F URS Apogee moto r 0.8 1 024A URS Ek ran 14 1.9 99.8E 1001 025A USA IT Intelsat SA f-l0 0.0 24.5W 1001 0286 CAN Anik Cl = Telesat 9 0.6 107.5W 0921 028C USA Syncom 4-3 = Leasat 3 0.0 104.2W 0828 035A ESA GSTAR 1 0.0 103. OW 0922 0356 F Telecom 18 1.5 8.7E 0527 0486 MEX Morelas 1 0.1 113.5W 0928 048 C AR SAR6 Arabsat 18 0.0 26.4E 0914 0480 USA Telstar 30 0.0 125. OW 0913

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~/~C.I05/404 Enql1.h Page 22

Tabl~ 1 (continu@d)

COSPAR No. Country H••e Incli- Orbi to l EPoch Remark Agency nation position Des rees Oeg rees

055A USA IT Intelsat 5A F-ll 0.0 27.4W 1001 070A URS Rldugl 16 0.7 171. Ow 0929 076B AUS Aussat 1 0.0 160.0E 0907 076C USA ASC 1 0.1 127.4W 0902 0760 USA Syncoll 4-4 = Leasat 4 0.0 179.0W 0417 087A USA IT Intelsat 5A F-12 001 60.0E 1001 092B USA USA 11 092C USA USA 12 092E USA Inertial Upper Section I 102A URS COIIIOI 1700 0.4 55.8E 0921 1020 URS Apogee 1I0tor 0.1 I 107A URS Raduga 17 0.5 34.4E 0929 109B "EX "orelol 2 1.3 116.4W 0927 109C AUS AUSlat 2 0.0 156.0E 0925 1090 USA SatCOII K2 0.1 81.1W 0930 1986-003B USA SatCOII Kl 0.0 85.0W 0929 007A URS Raduga 18 0.3 24.5W 0930 010A CNN China 18 0.1 103.2E 0920 016A J furi 2B - BS 2B 0.1 109.8E 0919 026A USA 6STAR 2 0.0 104.9W 0907 026B B Brllli lsat 2 0.1 76.7W 0929 027A URS COIIIOI 1738 0.5 13.2W 1001 03IA URS Ekran 15 0.9 99.7E 0930 044A URS 60ri zont 12 0.2 14.5W 0930 OUA URS Raduga 19 0.5 46.0E 0929 090A URS 60rizont 13 0.6 90.2E 0930 1986-0900 URS Apogee 1I0tor 0.9 I 096A USA fltsatcoll 7 4.9 1987-022A USA 60ES 7 0.1 74.7W 0928 028A URS Raduga 20 0.9 85.4E 0929 DUD URS Apogee 1I0tor 1.1 I 029A INS Pllapa B-2P 0.0 113.1E 0925 040A URS 60rizont 14 1.2 140.0E 0921 070A J Kiku 5 - ETS 5 0.1 150.3E 0916 073A URS Ekran 16 0.4 99.4E 0930 07IA AUS AUSlat K3 0.1 164.0E 0927 0788 F eUT ecs 4-eutalut 1 F-4 0.2 OUA URS COIIIOS lU8 1.4 0840 URS Fourth Ihge 1.7 I 091A URS COIIIOI 1894 1.4 0910 URS Fourth Ihoe 1.3 I

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Table 2

LIST OF SPACE OBJECTS IN ECCENTRIC ORBITS CROSSING THE DISTANCE OF THE GEOSTATIONARY ORBIT

Table 2 lists space objects whose perigees are below and apogees above the geostationary orbit.

The first two columns have the same arrangement as in table 1. The third column contains names of payloads or descriptive terms of non-functional objects followed by the name of the associated payload.

The following columns give the orbital period of the space object in minutes, the inclination of the orbit in degrees, and the apogee and perigee altitudes.

Sources: RAE Table of Earth Satellites (Royal Aircraft Establishment, Farnborough, U.K.). Issued monthly.

Satellite Situation Report, Vol. 27, Nos. 2 and 3 (Goddard Space Flight Center, NASA, 1987).

·World Data Center A for Rockets and Satellites·, spacewarn Bulletin (Goddard Space Flight Center, Greenbelt, Maryland, USA). Issued monthly.

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Tat'-},. 2 (continuerl)

COSPAR No. Country Name Period lncli- Apogee Perigee Agency Minutes nation km km Degrees 1966-096A USA Intel.at 2 F-1 718.4 16.9 37201 3181 110A USA ATS 1 1434.5 12.0 42271 29236 1967-001X USA Fragment IIntel.at 2 F- 21 656.9 27.8 36653 652 1969-0698 USA Rocket IATS 51 703.3 17. 2 37362 2275 069C USA Fragment IATS 51 682.2 17. 2 36497 2086 1970-093A USA I MEW S 1 1198.1 14.5 36038 25939 0938 USA Transtage 1197.8 14.5 36050 25912 1971-0068 USA Rocket IIntel.at 4 F-2I 653.8 27.3 36579 569 1972-0038 USA Rocket IIntelsat 4 F-41 653.6 28.0 36502 636 0418 USA Rocket IIntelsat 4 F-51 651.8 27.0 36491 555 1973-0588 USA Rocket IIntelsat 4 F-71 653.4 27.4 36631 498 1974-0938 USA Rocket IIntelsat 4 F-81 653.2 25.8 36471 646 1016 USA Rocket ISyllphon;e 11 665.3 12.9 37313 418 1975-0428 USA Rocket IIntelsat 4 F-ll 654.2 26.2 36591 576 077e USA fragment ISYllphon;e 21 654.4 13.8 36765 416 0918 USA Rocket IIntelsat 4A F-ll 654.1 21.5 36716 449 123F URS Fragment IRaduga 11 1339.1 0.3 40108 27625 1976-0108 USA Rocket IIntelsat 4A F-2I 654.4 21.8 36574 608 0428 USA Rocket leo.star 11 648.8 21.5 36261 633 0738 USA Rocket leo.star 21 646.9 21.3 36282 517 1977-029A ESA ESA 6EOS 734.1 26.0 38553 2604 0418 USA Rocket IIntelsat 4A F-41 648.8 21.1 36342 550 1978-0028 USA Rocket IIntelsat 4A F-31 650.6 20.8 36375 612 012A ESA I UE 1436.4 30.6 43294 28290 012e USA Rocket 673.5 29.2 37839 306 0358 USA Rocket IIntelsat 4A F-61 648.5 21.4 36224 656 0688 USA Rocket leo.star 31 649.3 22.1 36292 626 118A URS Gar; zont 1 1436.4 15.0 50810 20773 118e URS Rocket 1417.4 14.9 50181 20657 1979-007A USA Scatha 1415.7 5.2 42511 28261 009A J Aya.e 1 1314.5 0.7 37548 29194 1980-060A URS Ekran 5 1438.4 9.6 69711 1953 1981-0188 ,USA Rocket leomstar 41 650.3 20.2 36340 630 1982-1100 USA Rocket IS8S 31 654.9 23.0 36847 357 110E USA Rocket IAn;k e31 654.3 22.8 36822 354 1983-020A URS Astron 1 5915.8 79.8 178817 25128 059E USA Rocket IPalapa 31 662.1 25.6 37246 324 1984-022E URS Fragment leos.os 15401 635.7 47.4 35994 232 088A USA eeE 939.5 2.9 49730 1063 0888 0 IRM 1 2653.4 27.0 113818 402 088e 6 UKS 2659.6 26.9 113417 1002 088F USA Rocket 925.2 27.2 49421 724 0936 USA Rocket ITelstar 3el 667.1 25.4 37485 338 1130 USA Rocket IAnH 021 635.9 25.7 35863 373 114e ESA Rocket Arhne 3-02 634.3 6.9 35841 310 115e USA Rocket INATO 301 648.1 22.8 36505 355 1985-015e ESA Rocket Arhne 3-03 633.0 7.3 35803 279 048F USA Rocket IMorelos 11 635.3 25.9 35825 337 048H USA Rocket ITelstar 301 661.0 26.1 37139 377 076E USA Rocket IAussat 11 641.8 26.1 36109 429 0766 USA Rocket lASe 11 637.9 26.7 35900 437 109F USA Rocket IMorelos 21 650.4 26.1 36608 370 1985-1096 USA . Rocket IAussat 21 647.4 26.4 36441 379 1986-0820 URS Fragment IRaduga 191 637.1 45.9 36043 252 082E URS Rocket 638.9 46.6 36253 135 1987-028E URS Rocket IRaduga 201 635.6 47.4 35901 318 029C USA Rocket IPalapa 8-2PI 641.5 24.4 36281 238 070e J Rocket lETS 51 649.4 27.8 36693 230 073E URS Rocket I Ek ran 161 627.3 47.3 35530 258 073F URS Frag..ent 628.4 47.3 35522 327 078e ESA Rocket Ariane 3-07 645.6 6.8 36483 250 0780 ESA fraqment 627.0 6.9 35555 21R FCC Add. 26 USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 97 of 98

13-1231 & 13-1232

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Spectrum Five LLC, Appellant, v. Federal Communications Commission Appellee. ______

Spectrum Five LLC, Petitioner, v. Federal Communications Commission And United States of America Respondents.

CERTIFICATE OF SERVICE

I, Matthew J. Dunne, hereby certify that on December 23, 2013, I electronically filed the foregoing Brief for Respondents with the Clerk of the Court for the United States Court of Appeals for the D.C. Circuit by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system.

Scott H. Angstreich David H. Solomon Aaron M. Panner Craig E. Gilmore Kellogg, Huber, Hansen, Todd, Bryan N. Tramont Evans & Figel PLLC Phuong Nguyen Pham 1615 M Street Wilkinson Barker Knauer, LLP Summer Square, Suite 400 2300 N Street, NW Washington, D.C. Suite 700 Counsel for: Spectrum Five LLC Washington, D.C. 20037 Counsel for: Echostar Satellite Operating Corporation

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 98 of 98

Robert J. Wiggers Robert B. Nicholson Appellate Section Antitrust Division U.S. Department of Justice 950 Pennsylvania Ave., N.W. Room 3224 Washington, D.C. 20530 Counsel for: Department of Justice

/s/ Matthew J. Dunne