Before the Federal Communications Commission Washington, D.C. 20554
In the Matter of ) ) Spectrum Five LLC ) IB Docket No. 20-399 ) Petition for Enforcement of Operational ) Limits and for Expedited Proceedings ) To Revoke Satellite Licenses )
REPLY IN SUPPORT OF PETITION OF SPECTRUM FIVE LLC
Francisco R. Montero Fletcher Heald & Hildreth, PLC 1300 North 17th St. 11th Fl. Arlington, VA 22209 (703) 812-0400 [email protected]
December 18, 2020
TABLE OF CONTENTS
INTRODUCTION AND SUMMARY ...... 1
ARGUMENT ...... 4
I. Intelsat’s Willful Violations of the Intelsat 30 and 31 Licenses and Commission Regulations Warrant License Revocation ...... 4
A. The Commission and ITU Licensing Regimes Are Not “Independent” Silos; Commission Regulations and Practices Enforce and Effectuate ITU Rules ...... 5
B. Intelsat Never Properly Secured ITU Rights Reflecting Intelsat 30 and 31’s Operations on Ku-Extended Band ...... 7
C. Intelsat Never Properly Secured ITU Rights Reflecting Intelsat 30 and 31’s Satellite Uplink Antenna Gain and Power Levels ...... 17
II. Intelsat’s Repeated Misrepresentations to the Commission and Other Regulators Warrant Revoking Its Licenses ...... 20
A. False Certifications in Intelsat 30 and 31 Licensing Process ...... 20
B. Intelsat’s False and Malicious Allegations of C-Band Interference ...... 21
C. Intelsat’s Misrepresentations to Other Regulators ...... 22
III. Spectrum Five’s Petition Is Procedurally Proper ...... 23
A. The Petition Is Not a Petition for Reconsideration or Application for Review and Thus Is Not Subject to the Requirements of Sections 1.115 and 1.106 ...... 24
B. Intelsat’s Section 1.41 Arguments Are Misplaced ...... 24
C. The Petition Is Not a “Compound Pleading” ...... 27
IV. Intelsat’s Ad Hominem Attacks on Spectrum Five Are Baseless...... 29
CONCLUSION ...... 31
Before the Federal Communications Commission Washington, D.C. 20554
In the Matter of ) ) Spectrum Five LLC ) IB Docket No. 20-399 ) Petition for Enforcement of Operational ) Limits and for Expedited Proceedings ) To Revoke Satellite Licenses )
Introduction and Summary
For years, Intelsat has told different regulators different stories about the legal authority for the Intelsat 30 and 31 satellites. Before the Commission, Intelsat filed applications seeking to operate a new satellite network at 95 W on the Ku- and Ku-Extended Bands, under a new ITU filing, USASAT-60U. Those applications disavowed reliance on any foreign ITU filing. Intelsat told the same story to Argentina. To take advantage of a favorable reciprocity agreement, it told that country’s regulator that Intelsat 30 and 31 were using solely U.S. ITU filings.
But USASAT-60U lacked senior priority on Ku-Extended Band at 95 W. Thus, unbeknownst to the Commission or the Argentinean regulator, Intelsat entered into an undisclosed agreement with Papua New Guinea with respect to a different ITU filing, BLUE1.
When the Netherlands administration asserted that its BSSNET4-95W ITU filing had senior priority at 95 W, Intelsat switched to claiming that it was actually operating under BLUE1.
Spectrum Five’s petition establishes how Intelsat violated ITU rules, Commission regulations, and the terms of its licenses in its operation of Intelsat 30 and 31. And it details the misrepresentations Intelsat made to maintain its contradictory legal positions.
Intelsat’s response is to assert its prerogatives as the industry behemoth, unaccountable to the ITU or the Commission. It waves aside the words of the regulations, and does not even deign
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to address the precedent discussed by the petition which establishes that Commission approval is required for U.S. satellites to rely on foreign ITU filings. Instead, it invokes a self-serving declaration from its Vice President of Spectrum Policy, Hazem Moakkit, which claims that private operators have unfettered discretion to mix-and-match ITU filings, including those from different countries, without authorization from or even notice to the Commission. Intelsat’s declaration, bereft of citations to legal authority, describes not the law but instead the informal custom and post-hoc “acquiescence” that has apparently prevailed in Intelsat’s prior dealings with the Satellite Division.
Intelsat’s conduct cannot be left unaddressed. Under ITU treaties ratified by the Senate, the U.S. has obligations to the ITU and other administrations. Congress has charged the
Commission with carrying out those obligations, and with ensuring that private operators like
Intelsat follow the letter and spirit of the law. Intelsat cannot overcome rules and precedent— which specify the requirements for satellites to rely on foreign ITU filings, and require actual rather than “good enough” compliance with notified characteristics—by arguing that the Satellite
Division has allowed Intelsat to get away with breaking the rules on other occasions.
Applying the actual law, it is clear that Spectrum Five’s petition should be granted.
Indeed, Intelsat concedes the essential facts. Intelsat acknowledges that its licenses required it to secure ITU rights reflecting Intelsat 30 and 31’s operations, and that willful failure to do so would justify revocation. Intelsat, moreover, admits that it never obtained Commission authorization to use the Papua New Guinea BLUE1 filing on which it relies for Ku-Extended
Band operations. Intelsat also admits that it never obtained market access to use a foreign ITU filing, BLUE1, in connection with broadcasts into the U.S. even though the regulations and
Commission precedent clearly require such market access.
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Intelsat also admits there are “discrepancies” between the actual operational characteristics of Intelsat 30 and 31—in particular the uplink satellite antenna gain—and the notified characteristics in the ITU filings on which Intelsat 30 and 31 rely. Intelsat offers only flimsy denials of the petition’s allegations that Intelsat 30 and 31 are operating in excess of ITU power limits. That is a stark contrast to the engineering report provided in Spectrum Five’s petition, which documents a year-long campaign to measure Intelsat 30 and 31’s power levels using state-of-the-art equipment and shows Intelsat’s blatant violation of the power limits.
Intelsat’s failures to adhere to license conditions, and its operational non-compliance, both require revocation.
License revocation is independently supported by Intelsat’s misrepresentations to the
Commission and other regulators. Intelsat intended from the outset to rely on a Papua New
Guinea-licensed space station in connection with broadcasts to the U.S. But it represented the opposite in its license applications. And Commission regulations and precedent clearly foreclose
Intelsat’s unilateral, unauthorized, post-hoc attempt to justify those misrepresentations now.
Intelsat also caused the Satellite Division to file a false and incomplete claim of C-Band interference by Spectrum Five. Intelsat gives a perfunctory denial, but still offers no evidence to justify its C-Band interference allegations. Finally, Intelsat does not deny that it made statements to Argentinean regulators that contradict its current story of the ITU filings on which Intelsat 30 and 31 rely. That investigation nonetheless proceeds apace, but Intelsat simply ignores it.
Intelsat attempts to distract from the petition’s allegations by painting Spectrum Five as a troublesome litigant. But it identifies no instance where the Commission found Spectrum Five to be vexatious. That would be odd in any event—in the proceedings Intelsat cites, Spectrum Five was represented by the very same law firm, and several of the same lawyers, that represent
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Intelsat in this proceeding. Now those lawyers inexplicably condemn their own past work representing Spectrum Five. Moreover, the issues Intelsat highlights—such as difficulty procuring satellites—are ones faced by many upstart companies seeking to break into a capital- intensive industry dominated by behemoths like Intelsat. Intelsat’s attempt to make this case about business success is also odd coming from a company that squandered its immensely powerful market position and is currently in bankruptcy; a company that was on track to allow numerous C-Band satellites to exceed their service lives without planned replacements, until the happy accident of the C-Band relocation dedicated billions of dollars in public funds to replacing those satellites.
Far from justifying dismissal, Intelsat’s response only reinforces why Spectrum Five’s petition should be granted.
Argument
I. Intelsat’s Willful Violations of the Intelsat 30 and 31 Licenses and Commission Regulations Warrant License Revocation
1. Under § 312 of the Communications Act, the Commission “may revoke any station license” for “willful or repeated failure to operate substantially as set forth in the license” or “willful or repeated failure to observe ... any rule or regulation of the Commission authorized by [the Act] or by a treaty ratified by the United States.”1
2. The Intelsat 30 and 31 licenses were granted subject to conditions requiring
Intelsat to follow certain procedures to obtain ITU rights reflecting those satellites’ operations.2
Those procedures required Intelsat to secure, through the Commission, ITU rights reflecting the particular frequencies, antenna gains, and power levels used by Intelsat 30 and 31.
1 47 U.S.C. § 312(a)(3)-(4). 2 Pet. ¶¶21, 33.
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3. Intelsat does not deny that its licenses imposed an obligation to follow ITU rules to secure necessary ITU rights for Intelsat 30 and 31, or that failure to follow those requirements would render those licenses subject to revocation.3 Intelsat instead asserts that it followed the applicable rules. That purported compliance rests on a fictional regulatory framework that exists only in Intelsat’s own pleading and feeble denials of facts regarding Intelsat 30 and 31’s operations that are amply established by Spectrum Five’s evidence.
A. The Commission and ITU Licensing Regimes Are Not “Independent” Silos; Commission Regulations and Practices Enforce and Effectuate ITU Rules
4. Intelsat spends nine pages lecturing on supposed “basic principles” regarding “the relationship between” the Commission’s and ITU’s satellite-licensing regimes.4 Intelsat’s central premise is that the “ITU satellite network filing and FCC space station licensing processes” are “independent”5 of each other—so much so that a private operator does not even need to tell the Commission what ITU filings it intends to rely upon.6 According to Intelsat, there is zero connection between an application to the Commission for a license to operate a new satellite and the ITU filings necessary to secure international priority rights for that satellite.7
Without any authorization from the Commission, operators may combine technical parameters from different ITU filings to support a claim of ITU priority; combine filings from different countries to support a claim of ITU priority; and rely on the same ITU filing for “[c]onsecutive” satellites, even if a later satellite has “different performance characteristics” than an earlier one.8
3 Opp. 20-24. 4 Id. at 3-11. 5 Id. at 3. 6 Id. at 8-10. 7 Id. at 4-5. 8 Id. at 4-7.
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5. Intelsat’s theory is calculated to maximize operator latitude to take drastically different positions before the Commission and the ITU. Intelsat has to propound unfettered and unaccountable private-operator discretion because of its egregious conduct here: Intelsat purports to derive senior priority from older ITU filings even though it filed a new ITU filing through the Commission. It purports to rely on a Papua New Guinea ITU filing that the
Commission never authorized it to use, and which by all accounts, the Commission (much less other industry participants, like Spectrum Five) were unaware of until many years after the
Intelsat 30 and 31 licenses were granted.
6. As explained below, Intelsat’s theory is foreclosed by specific regulatory provisions and precedent.9 But most important, Intelsat’s theory is based on a faulty premise.
The Commission and ITU regulatory regimes are not divorced from each other but are in fact closely connected. By ratifying the ITU Constitution and Convention and the Radio
Regulations, the U.S. undertook binding treaty obligations. Those obligations include ensuring that satellite operators comply with the terms of ITU rights.10 And the U.S. promised to “take the necessary steps to impose the observance of” treaty provisions.11
7. Congress entrusted the Commission with carrying out U.S. obligations under the
ITU treaties, and directed it to “[m]ake such rules and regulations ... as may be necessary to carry out” the ITU treaties and Radio Regulations.12 The Commission has therefore promulgated rules and regulations to ensure compliance with ITU procedures. For example, the Commission
9 See ¶¶15-19, infra. 10 See Radio Regulation 3.14. 11 ITU Constitution, Art. 6, ¶38, Dec. 22, 1992, T.I.A.S. No. 97-1026. 12 47 U.S.C. §303(r).
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“require[s] licensees to comply with any applicable ITU technical requirements.”13 Moreover, satellite licensees “must provide the Commission with the information required for [ITU]
Advance Publication, Coordination, and Notification” so the Commission can execute and ensure compliance with those procedures.14 The Commission’s satellite-licensing framework is self-evidently intertwined with the ITU’s framework. Commission regulations and procedures effectuate the Commission’s overriding mandate to carry out U.S. obligations under the ITU treaties, which have the force of federal law.
8. Intelsat’s sweeping theory cannot be sustained in view of the Commission’s role under treaties and federal law of ensuring compliance with the ITU rules. For example, it would eviscerate the Commission’s supervisory authority if operators could make deals with foreign countries for use of ITU filings in connection with U.S. satellites without authorization from the
Commission. Private operators would effectively be delegated authority to use ITU filings— which are public rights of each nation—as the operators see fit. The Commission would not even know what foreign ITU filings U.S.-licensed satellites were using (or what U.S. ITU filings foreign-licensed satellites purported to use) until a dispute arose. Nor would it have information needed to curb abuses of the ITU system, such as “paper filings” that are not connected to an actual planned satellite system.
9. Unsurprisingly, Commission precedent rejects Intelsat’s approach.15 In case after case, the Commission has required operators to file a request for authorization, and has conducted notice-and-comment proceedings, before it sanctions use of foreign filings by a U.S.
13 In re Amendment of the Commission’s Space Station Licensing Rules & Policies, 18 FCC Rcd. 10760, 10784 (2003). 14 47 C.F.R. §25.111(b) (emphasis added). 15 Pet. ¶¶69-70 & n.68.
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satellite.16 Intelsat’s theory of satellite operator discretion is simply incompatible with the
Commission’s responsibilities under international and federal law.
B. Intelsat Never Properly Secured ITU Rights Reflecting Intelsat 30 and 31’s Operations on Ku-Extended Band
10. Intelsat was required to secure, through the Commission and in accordance with
ITU procedures, international rights reflecting Intelsat 30 and 31’s operations on Ku-Extended
Band frequencies (10.95-11.2 GHz).17 Intelsat failed, however, to follow the required procedures and never caused the Commission to obtain necessary international rights, thereby violating its licenses.
11. The key facts establishing those violations are largely undisputed. Intelsat previously operated satellites at 95 W, including Galaxy 3C. However, those satellites did not support Ku-Extended Band frequencies required by Intelsat 30 and 31. The Commission never obtained ITU rights at 95 W covering that frequency band (until it filed for USASAT-60U in
2014, six months after the Netherlands administration filed BSSNET4-95W).18 Those satellites also did not use, and earlier ITU rights at 95 W assigned to the U.S. did not encompass, certain
C-Band frequencies used by Intelsat 30 and 31.19 Intelsat 30 and 31 therefore required additional
ITU rights to operate on Ku-Extended Band and additional portions of the C-Band.
12. Intelsat therefore submitted to the Commission an application for a new ITU satellite network, USASAT-60U, covering the frequencies used by Intelsat 30 and 31.20 That satellite network, however, has junior priority (priority date January 8, 2014) compared to
16 Id. 17 Pet. ¶¶20-33. 18 Opp. 11-12; see Pet. ¶24. 19 Pet. ¶24. 20 Id. ¶¶24, 26.
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Spectrum Five’s BSSNET4-95W satellite network (priority date July 9, 2013).21 And while
Intelsat’s licenses were expressly conditioned on Intelsat completing required coordination with senior-priority ITU satellite networks, Intelsat never sought to coordinate USASAT-60U with
Spectrum Five’s senior BSSNET4-95W satellite network.22
13. Seeking to overcome USASAT-60U’s junior priority, Intelsat claims to have entered into an unspecified arrangement with Papua New Guinea to use that country’s BLUE1 satellite network (priority date June 16, 2011).23 During licensing of Intelsat 30 and 31, Intelsat never sought authorization to rely on BLUE1 in connection with Intelsat 30 and 31. To the contrary, it affirmatively answered “no” to the question on the license application asking whether
Intelsat intended to use a “foreign-licensed space station[]” (here, BLUE1) in connection with its broadcasts into the United States.24 The Commission, of course, never authorized reliance on
BLUE1. Nor did it ever grant market entry for BLUE1 or add that Papua New Guinea satellite network to the Approved Space Station list.25 It does not appear that Intelsat even informed the
Commission about BLUE1 until the present dispute arose.26 Instead, Intelsat asserts that, in the midst of a coordination dispute with the Netherlands administration—years after the Intelsat 30 and 31 licenses were issued—the Satellite Division gave its post-hoc “acquiescence” to Intelsat’s reliance on BLUE1.27
14. Those largely undisputed facts establish three different license violations.
21 Id. ¶27. 22 Id. ¶¶64-66. 23 Opp. 14. 24 Id. at 11. 25 Pet. ¶¶49-55. 26 Opp. 24-25. 27 Id.
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15. Intelsat Could Not Rely on BLUE1 Absent Commission Authorization. As the petition explains, Intelsat’s theory that Intelsat 30 and 31 are operating under USASAT-60F, a
U.S. ITU filing, and BLUE1, a Papua New Guinea ITU filing, describes a joint-licensing scenario for which formal Commission authorization was required.28 As Spectrum Five observed, In re PanAmSat Licensee Corp., 18 FCC Rcd. 19680 (2003), is directly on point. In that case, PanAmSat required a joint license for the same reason Intelsat needs one here: It had a pre-existing satellite using C-Band frequencies and sought to launch a new satellite using both C-
Band and Ku-Band.29 However, an ITU filing issued to a different national administration,
Japan, had senior priority on the Ku-Band frequencies PanAmSat required.30 PanAmSat sought authorization for that arrangement, which the Commission granted, but only after conducting notice-and-comment procedures and reaching a “mutual understanding” with the Japanese administration regarding division of responsibilities.31 The Commission made clear that those
“understandings” with the Japanese administration, “and the factual background for those understandings,” were “material considerations for the authorization contained in this order.”32
The Commission has addressed similar cases repeatedly.33 Never has the Commission suggested that a satellite operator need not seek Commission approval for such an arrangement.
28 See Pet. ¶¶67-75. 29 18 FCC Rcd. at 19862 (emphasis added). 30 Id. 31 Id. 32 Id. 33 Id. ¶69 n.68; see In re Application of AMSC Subsidiary Corp., 13 FCC Rcd. 12316, 12320 (1998) (joint license with Canada); In re PanAmSat Licensee Corp., 18 FCC Rcd. 19680 (2003) (joint license with Japan); In re EchoStar Satellite Corp., 18 FCC Rcd. 15862 (2003) (joint license with Papua New Guinea); In re Lockheed Martin Corp., 20 FCC Rcd. 14558 (2005) (joint licensing with Canada); In re SES Americom, Inc., 29 FCC Rcd. 3678 (2014) (joint licensing with Canada); In re PanAmSat Licensee Corp., 19 FCC Rcd. 16642 (2004) (joint 10
16. This case involves near-identical facts. Intelsat had a Ku-Band satellite at 95 W,
Galaxy 3C, but sought to launch satellites, Intelsat 30 and 31, that additionally use Ku-Extended
Band frequencies. Because the Netherlands administration’s BSSNET4-95W had senior priority on Ku-Extended Band at 95 W, Intelsat allegedly entered into an arrangement to use a Papua
New Guinea ITU filing, BLUE1. But Intelsat never sought Commission authorization. Nor did it ever provide the Commission with proof that an agreement with Papua New Guinea exists, much less the details of that arrangement. Those failures are particularly remarkable because this is not Intelsat’s first rodeo. Susan Crandall, Intelsat’s Associate General Counsel, who filed the Intelsat 30 and 31 applications and signed Intelsat’s response brief, has participated in these joint-licensing proceedings, and is fully aware that such arrangements must be approved by the
Commission after full disclosure of all relevant agreements. For example, in 2005, the
Commission sent her a letter in connection with a joint-licensing arrangement with Indonesia with respect to Intelsat 602, wherein the Commission reminded Intelsat to “submit a copy of any written authorizations or concessions issued to Indosat [the Indonesia operator] concerning operations of the Intelsat 602 satellite.”34 It is inexplicable that Intelsat thought that it could get away without similar authorization and disclosure here.
17. Remarkably, Intelsat does not address PanAmSat, much less distinguish it. Nor does it address any of the half a dozen cases cited by the petition involving Commission review and approval of a proposed joint-licensing arrangement with a foreign administration.
licensing with Saudi Arabia); In re Intelsat N. Am. LLC, 20 FCC Rcd. 11833 (2005) (joint licensing with Indonesia). 34 See Letter from Thomas S. Tycz to Susan H. Crandall, 20 FCC Rcd. 8127, 8130 (2005).
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18. Intelsat’s silence speaks volumes. It is clear that Commission precedent requires express authorization for a U.S. satellite network to rely on foreign ITU filings. Intelsat concedes no such authorization was granted here. Intelsat is using BLUE1 unlawfully.
19. Intelsat invokes the Satellite Division’s supposed “acquiescence” to use of
BLUE1.35 Intelsat provides no details regarding that ostensible acquiescence. Indeed, it appears from Intelsat’s response that the Satellite Division was not even informed about BLUE1 until the
Netherlands administration reached out regarding priority at 95 W.36 That suggests that, faced with a potential priority dispute with a foreign administration, the Satellite Division disregarded established Commission practice to favor the interests of its “client” Intelsat.37 Intelsat asserts, without citation, that the Satellite Division’s “acquiescence” was “perfectly consistent with FCC rules and the IB’s authority,”38 but nowhere explains how. Regardless, the Commission could not retroactively cure the defect in Intelsat’s licenses. For one thing, the International Bureau may only act pursuant to its delegated authority, and only has delegated authority to grant licenses within the context of a proceeding on a licensing application.39 For another, retroactive
“acquiescence” does not satisfy Commission rules or APA requirements.40 Under Commission regulations, “no modification of a radio station ... which affects the parameters or terms and conditions of a station authorization shall be made except upon application to and grant of such application by the Commission.”41 A joint-licensing arrangement and associated understandings
35 Opp. 24-25. 36 Id. 37 Pet. ¶55. 38 Opp. 24. 39 Pet. ¶67. 40 Id. ¶¶74-75. 41 47 C.F.R. §25.117(a).
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with the foreign administration are “material considerations” underlying a U.S. license.42 Where a Commission licenses a satellite jointly with another administration, the “authorization is conditioned upon ... [the] agreement between” the two national administrations.43 Those are plainly “terms and conditions of a station authorization” that may only be altered upon an application to the Commission and approval after notice-and-comment procedures. Intelsat offers no explanation of how mere “acquiescence” can suffice to replace those procedures.
20. BLUE1 Lacks U.S. Market Access. Under 47 C.F.R. § 25.137, “non-U.S.-licensed space stations” require “market access” from the Commission if they broadcast into the U.S.44
Commission regulations define “space stations” by reference to the ITU Radio Regulations, which define the term as “one or more transmitters and receivers” on a satellite.45 Under that definition, a single satellite can have multiple “space stations” reflecting multiple payloads directed to different frequency bands (e.g., Ku-Band and Ku-Extended Band). Commission precedent is clear that, where ITU filings from different nations are used for different payloads operating on different bands, each payload has a different “licensing administration.” In
PanAmSat, for example, the Commission stated that “the [Japanese] MPHPT is the licensing
Administration for the Ku-band payload aboard the satellite ... and the FCC is the licensing
Administration for the C-Band payload aboard the satellite.”46 Consistent with that, PanAmSat sought, and was granted, U.S. market access for the Japanese-licensed Ku-Band payload.
42 Id. 43 In Re Application of Amsc Subsidiary Corp., 13 F.C.C. Rcd. at 12320. 44 See Pet. ¶79. 45 See Radio Regulations 1.64 (defining “space station”), 1.61 (defining “station”). 46 See In re PanAmSat Licensee Corp., 18 FCC Rcd. at 19687.
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21. Under applicable precedent, Intelsat 30 and 31’s Ku-Extended Band payload is a
Papua New Guinea-licensed “space station” for purposes of § 25.137. And because, as Intelsat does not dispute, Intelsat 30 and 31 broadcast into the U.S. on Ku-Extended Band, market access under §25.137 was required for Intelsat 30 and 31 to use BLUE1. Because no such market access was ever obtained, BLUE1 is being used unlawfully. Intelsat denies that market access was required.47 According to Intelsat, “reliance on an ITU filing submitted by a foreign administration does not render a satellite ‘foreign-licensed.’”48 Intelsat overlooks that the regulations refer not to the whole “satellite” but a “space station” on the satellite, which includes individual “transmitters and receivers” and thus can refer to the Ku-Extended Band payload standing alone. Intelsat also fails to address PanAmSat, which makes clear that use of a foreign
ITU filing with respect to a distinct payload on the satellite (there, Ku-Band, here Ku-Extended
Band) renders that payload a foreign-licensed “space station” that requires market access under
§ 25.137.
22. Intelsat Obtained Authorization Only To Use USASAT-60U. Consistent with its
Intelsat 30 and 31 license applications, which sought authorization for a new satellite network,
Intelsat submitted to the Commission an application for a new ITU filing, USASAT-60U. As the petition explains, USASAT-60U is the ITU filing under which Intelsat 30 and 31 are operating.49
23. Intelsat denies that Intelsat 30 and 31 are tied to USASAT-60U.50 Invoking the supposed “independen[ce]” of the Commission’s and ITU’s respective regulatory frameworks,
Intelsat argues that there is no connection between specific satellites licensed by the
47 Opp. 24-25. 48 Id. at 24. 49 See Pet. ¶¶77-78. 50 Opp. 27-28.
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Commission and ITU satellite networks.51 Intelsat thus argues that a satellite operator can rely on a combination of pre-existing ITU satellite networks to support operation of a new
Commission-licensed satellite network.52 Critically, Intelsat urges that a private satellite operator need not even identify to the Commission (or a national administration) the particular
ITU satellite networks it relies upon to support operating a new satellite network.53
24. The ITU’s rules, however, clearly connect an ITU satellite network to a specific satellite network licensed by a national administration. They describe the Master Register as
“record[ing]” “assignments” of frequencies to “stations.”54 They define an “[a]ssignment” as an
“authorization given by an administration for a radio station to use a radio frequency or radio frequency channel under specified conditions.”55 A “station” is defined as actual satellite hardware—“[o]ne or more transmitters or receivers ... at one location”; a “space station” is defined as a “station”—i.e., one or more transmitters and receivers—“located on an object which is beyond ... the major portion of the Earth’s atmosphere.”56 Entry of a satellite network such as USASAT-60U in the Master Register is therefore linked to a particular national administration
“authorization” (such as a Commission license) for use of particular frequencies by a particular
“space station” (specific transmitters on a satellite).
25. The ITU’s Resolution 4 confirms that reading. That provision, adopted at the
World Radio Congress in 2003, makes clear that an ITU filing is associated with a particular
51 Id. at 4-10. 52 Id.; see id. at 27-28. 53 Id. at 8-10. 54 Radio Regulation 4.3. 55 Radio Regulation 1.18 (emphasis added). 56 Radio Regulations 1.61 & 1.64.
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“space station.”57 It directly contradicts Intelsat’s assertion that a single ITU filing can be used by “consecutive satellites” even where the “follow-on satellite has different performance characteristics than those included in the technical envelope of the” original filing.58
Resolution 4 states that the “space station” associated with an ITU filing “may apply to more than one satellite provided that only one satellite is in operation at any particular moment and that the stations installed on board successive satellites have identical basic characteristics.”59
26. These authorities foreclose Intelsat’s argument that Intelsat 30 and 31 can rely on
ITU satellite networks other than USASAT-60U, such as USASAT-60F—at least without
Commission authorization. Opp. 23. Intelsat 30 and 31 do not have “identical basic characteristics” to Galaxy 3C, the satellite originally associated with USASAT-60F, and cannot be substituted for that earlier satellite under the same ITU filing.
27. Contrary to Intelsat’s suggestion (at 5-6), Spectrum Five does not argue that the
Commission can never authorize reliance on a pre-existing ITU filing to support the operation of a new Commission-licensed satellite. For example, Resolution 4 enables a national administration to seek modification of an ITU satellite network to swap in “a new space station using the same assigned frequency and the same orbital position but with different technical characteristics.”60 The rules similarly permit filing a “notice of a change in the characteristics of an assignment already recorded.”61 Intelsat, however, never sought to have the Commission undertake such measures to modify the pre-existing ITU satellite networks (such as USASAT-
57 International Telecommunication Union, Final Acts of the World RadioCommunication Conference (WRC-03), (Geneva, 2003), Resolution 4, 1.1. 58 Opp. 6-7 (emphasis added). 59 WRC-03, supra, Resolution 4, 1.2 n.2 (emphasis added). 60 WRC-03, supra, Resolution 4, 1.3. 61 Radio Regulation 11.43A.
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60F) to refer to Intelsat 30 and 31. And Intelsat’s citations to examples where satellite operators sought the Commission’s permission to rely on pre-existing ITU satellite networks prove exactly the opposite of Intelsat’s point.62 If Intelsat were correct that satellite operators need not provide notice to the Commission, much less seek authorization, to rely on pre-existing ITU satellite networks for new satellites, then the operators in Intelsat’s citations would not have done exactly that. For example, Intelsat cites (at 7 n.10) SES’s application for “modification of the license for AMC-2” to move the satellite and “operate pursuant to Luxembourg ITU filings.”63
Intelsat nowhere explains how applications from other operators asking the Commission to approve reliance on foreign ITU filings support its argument that no authorization is required.64
C. Intelsat Never Properly Secured ITU Rights Reflecting Intelsat 30 and 31’s Satellite Uplink Antenna Gain and Power Levels
28. Intelsat concedes there are “discrepancies” between the operational characteristics of Intelsat 30 and 31 and the assignments on which Intelsat now relies.65 In particular, Intelsat admits that Intelsat 30 and 31 use a 5,000% higher uplink antenna gain parameter than specified in any of USASAT-60F, USASAT-60U, or BLUE1.66 As explained in the attached declaration of Thomas E. Sharon, Spectrum Five’s Chief Operating Officer, the gain of the satellite’s onboard uplink antenna is a fundamental and fixed design characteristic of Intelsat 30 and 31 that
62 Opp. 6-7 nn. 9, 10. 63 See Application of SES Americom Inc., IBFS File No. SAT-MOD-20120524-00087, at 14 (filed May 24, 2012). 64 AMC-2 also appears to be engaged in warehousing of ITU filings—it has moved seven times between 2005 and 2016: May 27, 2005, 105 WL to -85 W; May 19, 2008, 85 W to -100.95 W; June 21, 2010, 101 W to -78.95W; February 24, 2012, 78.95 W to - 4.98 E; July 25, 2012, 4.98 E to - 19 E; May 9, 2013, 19 E to -86.85 W; June 23, 2016, 86.85 W to - 84.85 W. Such conduct only underscores why the Commission must have knowledge of the ITU filings satellites within its jurisdiction are purporting to rely upon. 65 Opp. 22. 66 Id.
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cannot be modified on the fly. Indeed, use of a 44 dB gain is essential to Intelsat’s use of five uplink beams from uplink sites in Latin America and Los Angeles. “With lower satellite uplink antenna gain levels, Intelsat 30 and 31 would not be able to distinguish five beams from closely- spaced uplink centers.”67 Compliance with the specified parameters is in fact impossible without redesigning the satellites and replacing the satellite’s onboard uplink antenna.
29. Intelsat’s response, however, is to hand-wave away those defects.68 According to
Intelsat, the ITU rules permit “differences” in the performance of a deployed satellite compared to what is set forth in ITU filings.69 ITU rules, however, require “use in accordance with the notified characteristics” of a filing—and Intelsat does not deny those characteristics include the satellite uplink antenna gain.70 Moreover, for an operator to replace one satellite with another under the same ITU filing, the satellites must have “identical basic characteristics.”71 Intelsat cites nothing to support its contrary view that “inconsistency” is permissible so long as an operator “only claim[s] protection to the extent of the parameters contained in its filings.”72
Moreover, it is impossible for the antenna to operate at a lower gain and thus Intelsat cannot claim protection at a lower level. Intelsat’s conceded non-compliance requires revocation.
30. Intelsat offers the flimsiest of responses to Spectrum Five’s measurements.73 The petition is accompanied by an engineering report showing that Spectrum Five measured power-
67 Sharon Decl. ¶18. 68 Op. 21-22. 69 Id. at 22. 70 Radio Regulation 13.6. 71 WRC-03, supra, Resolution 4, 1.2 n.2. 72 Opp. 22. 73 Pet. ¶¶19, 39-42.
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flux densities double the -140.0 dB (W/m2) ITU limit in the relevant bands.74 The measurements were of the satellites’ actual power levels on the ground under clear-sky conditions, and were taken over a year-long period by an expert team using state-of-the-art equipment.75 In fact,
Spectrum Five used the same equipment that Intelsat uses for its own measurements. Spectrum
Five attaches herein a supplemental engineering report with further details:76
Transponder INTELSAT-30-R1L-71K (center frequency: 11.010 GHz) showed a power flux-density of -137.0 dB (W/m2) Transponder INTELSAT-30-R1L-72K (center frequency: 11.050 GHz) showed a power flux-density of -136.7 dB (W/m2) 31. Intelsat dismisses Spectrum Five’s allegations as “conclusory.”77 But
“conclusory” better describes Intelsat’s denial. Intelsat asserts that “under their carrier load configurations, Intelsat 30 and 31 are technically incapable of operating at the PFD level
Spectrum Five identifies.”78 But it neglects to address the fact that Intelsat 30 and 31 support a
“high-power mode” wherein the outputs of two Travelling Wave Tube Amplifiers (“TWTAs”) are combined to increase broadcast power.79 Additionally, as explained by Dr. Sharon, Intelsat does not appear to account for the roll-off factor of the waveform that must be considered when converting from an EIRP value to power-flux density for the particular transponders in question.80 Intelsat also invokes, but does not specify, supposed “manufacturer test data”
74 Pet., Engineering Report of T. Sharon. 75Pet. ¶¶39-42. 76 See Sharon Decl., Exhibit B, ¶¶19-25. 77 Opp. 22. 78 Id. at 22-23. 79 Sharon Decl. ¶¶19, 24; see also See Application of Intelsat License LLC to Launch and Operate Intelsat 30 Satellite at 95.1 W.L., IBFS File No. SAT-LOA-20201025-00187, Engineering Report 10 (filed Oct. 25, 2012) (describing high-power mode). 80 Id. ¶24.
19
consistent with the levels in Intelsat’s technical filings.81 Intelsat’s responses are so vague as to
be impossible to address absent further discovery.
32. Intelsat does not even address the substance of Spectrum Five’s measurements or
explain why Spectrum Five’s allegations—supported by data—must be dismissed while
Intelsat’s denials—unsupported by any data—must be taken on faith. At the very least, a factual
dispute exists that precludes dismissal.
II. Intelsat’s Repeated Misrepresentations to the Commission and Other Regulators Warrant Revoking Its Licenses
33. Under § 312 of the Communications Act, the Commission “may revoke any
station license” if the licensee “knowingly” made “false statements” “either in the application or
in any statement of fact” required to secure its license.82 Intelsat has made misrepresentations to
the Commission and other regulators that justify license revocation.83
A. False Certifications in Intelsat 30 and 31 Licensing Process
34. Pursuant to Commission regulations, the Intelsat 30 and 31 license applications
asked whether Intelsat intended to use a “non-U.S.-licensed space station” in connection with
broadcasts to the U.S. Intelsat answered “no” to that question, even though Intelsat intended
from the outset to rely on BLUE1 and broadcast on Ku-Extended Band frequencies into the
U.S.84 As explained above, Intelsat was required to answer that question “yes,” and Intelsat’s
argument to the contrary defies Commission precedent.85 Intelsat’s misrepresentation, moreover,
81Opp. at 23. 82 47 U.S.C. §312(a)(1). 83 See Pet. ¶¶82-88. 84 See Pet. ¶84. 85 See ¶¶20-27, supra.
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was willful. Intelsat is a sophisticated industry actor and should have known the circumstances under which § 25.137 certifications are required.
35. For similar reasons, Intelsat’s December 11, 2014 and July 26, 2016 certifications that the satellites had “become fully operational ... in accordance with the terms of its FCC authorization” were false.86 As explained above, Intelsat’s FCC authorization did not contemplate reliance on a Papua New Guinea ITU filing.87 Insofar as Intelsat was in fact relying on that foreign ITU filing contrary to the application, Intelsat’s certifications regarding operation
“in accordance” with the license were false.
B. Intelsat’s False and Malicious Allegations of C-Band Interference
36. In an attempt to disrupt Spectrum Five’s bring-into-use of BSSNET4-95W with the HS-2 satellite, Intelsat caused the Satellite Division to file a false and incomplete ITU interference report alleging that Intelsat’s Galaxy 3C satellite was suffering interference on C-
Band.88 Spectrum Five responded with measurements and analysis showing that HS-2 could not be the cause of the alleged C-Band interference.89 Despite repeated requests, Intelsat never responded with its own measurements.
37. While Intelsat denies it caused the Satellite Division to file a false interference report, and even asserts that it still suffers from such interference today,90 Intelsat has still provided no measurements showing such interference. Intelsat dismisses that failure as being “of
86 See Pet. ¶32. 87 See pp. ¶¶15-19, supra. 88 Pet. ¶¶85-86. 89 Id. 90 Opp. 29-30.
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no moment.”91 Intelsat apparently believes that it should not have to justify itself to the likes of a small company like Spectrum Five.92 But Intelsat was the one that claimed interference. It has the duty to justify its allegations with evidence such interference exists. Intelsat, however, offers no evidence whatsoever of harmful interference and does not even respond to Spectrum Five’s explanation that HS-2 is not capable of producing a radio waveform matching Intelsat’s descriptions of the alleged interfering signal.93 Spectrum Five is not required to disprove unsubstantiated allegations of interference that its satellite is incapable of causing in any event.
38. Intelsat’s claims of interference, moreover, are impossible to credit. Intelsat claims it has been suffering “harmful interference to Intelsat’s operations” for almost two years.94 Intelsat told the Netherlands administration that the interference was “severe.”95 Yet when asked to provide data documenting such interference—and after receiving detailed data from Spectrum Five supporting its position that HS-2 was not the cause—Intelsat went silent.
Intelsat has not sought to address the issue for months. That is not the behavior of a company whose satellite is suffering “severe” interference.
C. Intelsat’s Misrepresentations to Other Regulators
39. Intelsat insists that it is entitled to take inconsistent positions before the
Commission and the ITU.96 Those inconsistent positions, however, have triggered an investigation by the Argentina administration. Intelsat originally told Argentina that it was
91 Id. 92 Id. 93 Pet. ¶36. 94 Moakkit Decl. ¶15. 95 Pet. ¶36. 96 See ¶¶4-5, supra.
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operating under only U.S. ITU filings.97 Had Intelsat invoked Papua New Guinea authority, a
reciprocity treaty between Argentina and Papua New Guinea, and authorization under that treaty,
would have been required. Intelsat’s new, conflicting story that it is operating under BLUE1 has
triggered an investigation by the Argentinean regulator, which is ongoing.98 This is part of a
pattern: In 2017, the Argentinean regulator fined Intelsat’s subsidiary Southern Satellite Corp.
after finding that Intelsat 34 and 29e were broadcasting illegally.99 Southern had argued that it
was excused from compliance with a regulation because the regulator had not raised the issue of
Intelsat’s non-compliance. The regulator found that “the alleged failure to respond by the
competent authority does not entitle the company to have the authorization granted, especially
when it is the result of a regulated procedure that implies the control and supervision of the
spectrum and orbital resources.”100 Intelsat evidently does not believe it is obligated to request
and receive formal regulatory authorizations for its operations, either in the U.S. or abroad.
40. Intelsat does not address the Argentina investigation at all, and nowhere denies
that it failed to disclose to the Argentina administration that its Ku-Extended Band operations
were pursuant to a Papua New Guinea ITU filing rather than a U.S. ITU filing.
III. Spectrum Five’s Petition Is Procedurally Proper
41. Perhaps recognizing the weakness of its substantive positions, Section VI of
Intelsat’s Opposition attempts to conjure up a variety of procedural obstacles. Those arguments
are meritless too.
97 See Exhibit C (chart of satellites authorized to broadcast into Argentina, showing Intelsat 30 and 31 being listed as exclusively U.S. licensed satellites). 98 Id. ¶56. 99 Ministerio de Comunicaciones [Ministry of Communications], 13/7/2017, Resolución 1641- E/2017 (2017) (Arg.), https://www.boletinoficial.gob.ar/detalleAviso/primera/166581/20170717 (last visited December 17, 2020). 100 Id. (translated).
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A. The petition Is Not a Petition for Reconsideration or Application for Review and Thus Is Not Subject to the Requirements of Sections 1.115 and 1.106
42. Intelsat argues that, to “the extent Spectrum Five intends this Petition to be a Part
25 request for reconsideration or review of the IB’s decision to grant the Intelsat 30 and 31 authorizations, it is procedurally defective.”101 But the premise of this argument is invalid: The petition is not a petition for reconsideration or application for review of the initial grant of the
Intelsat 30 and 31 FCC authorizations. The petition is not styled as, nor does it request, reconsideration or review of the initial grant of the Intelsat 30 and 31 FCC authorizations (or any other Commission Order). Rather, it requests revocation of these authorizations for
Intelsat’s subsequent failure to comply with the requirements of the authorizations, and with the rules and Commission and ITU policies. Thus, Intelsat’s arguments regarding the petition’s alleged failure to comply with the requirements of Sections 1.115 and 1.106 of the Commission’s rules are inapplicable in this proceeding: The petition need not comply with the procedural requirements of Section 1.115 or 1.106 because it does not seek a remedy under those provisions.
Compliance with the requirements of Section 1.115 or 1.106 is no more than an irrelevant “straw man” for Intelsat to knock down towards its goal of distracting the Commission from the facts of
Intelsat’s non-compliance with substantive licensing and operational requirements.102
B. Intelsat’s Section 1.41 Arguments Are Misplaced
43. Intelsat asserts that the petition should not “be eligible for consideration under
Section 1.41 of the Commission’s rules.”103 Intelsat’s arguments, however, are inapplicable or unpersuasive.
101 Opp. 30-31. 102 Because the Petition is not a Petition for Reconsideration under 47 C.F.R. § 1.106, it did not need to adhere to the page-limit in that provision. See 47 C.F.R. § 1.49 (no page limit). 103 Opp. 32. 24
44. First, Intelsat’s arguments are inapplicable since the Remedies section on page 38 of the petition explicitly seeks a revocation of the Intelsat 30 and 31 FCC licenses under Section
25.160 of the Commission’s rules, pursuant to procedures appropriate for Section 25.160 proceedings. The petition also asked that, as an interim remedy, an Order be issued requiring
Intelsat to cease its unauthorized operations. Neither of these remedies requires considering the petition under Section 1.41 of the Commission’s rules.104 Pursuant to adjudicatory and regulatory precedent,105 the following can and should occur: (1) an order should be issued requiring Intelsat to immediately terminate unauthorized operations on Intelsat 30 and 31 and to bring Intelsat 30 and 31 into full compliance with its FCC authorizations, as well as with the
FCC’s rules, orders, and policies, and with the properly associated ITU satellite filings and regulations; and (2) a show cause order should be issued and a Section 25.160 proceeding or hearing commenced to revoke the Intelsat 30 and 31 licenses (Stations S2887 and S2924).
45. While the petition requests a remedy pursuant to Section 25.160 of the
Commission’s rules, the Commission clearly may treat the petition as a request under Section
104 In light of the Commission’s closing of the its hand-filing window and its encouragement of electronic filing instead (See, Public Notice, DA 20-304, released March 19, 2020) (“Public Notice”) the petition was filed in ECFS. Because there is no specific filing category in ECFS for 25.160 petitions, per instructions from Commission staff the Petition was filed in ECFS under INBOX-1.41 (denoted as “MISCELLANEOUS”). That does not necessarily mean that the petition arises under § 1.41. See, Public Notice at footnote 1 (“INBOX-1.41 is available for miscellaneous filings that do not fit one of the other listed categories.”). 105 See, e.g., In the Matter of Columbia Commc’ns Corp., 15 FCC Rcd. 15566 (Int. Bur. 2000) (International Bureau addresses a petition to revoke a satellite license, though denies the petition on a substantive basis, due to a finding of lack of violation of Commission rules or the authorization), recon., 16 FCC Rcd. 10867 (2001), recon. den’d, 18 FCC Rcd 9448 (Int. Bur., 2003); In the Matter of Amendment of the Commission’s Regulatory Policies to Allow Non-U.S. Licensed Space Stations to Provide Domestic and International Satellite Service in the United States, 12 FCC Rcd. 24094, 24183 (1997) (“We will continue our efforts to ensure compliance by all providers, whether U.S. or foreign, and to impose sanctions when appropriate. As always, we will fully explore any allegations of rule or license violations that are brought to our attention.”).
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1.41 if it finds that Section 25.160 cannot be implemented in this case, or if it finds that
Spectrum Five lacks the standing to request a revocation of the Intelsat licenses.106 Intelsat’s
Opposition (at page 33) concedes as much. Moreover, the very case Intelsat cites in arguing that the Commission should not accept Spectrum Five’s petition pursuant to Section 1.41 explicitly notes that Section 1.41 is designed to “ensure[ ] that seeking Commission action does not become an exercise in code pleading.”107 Yet Intelsat does precisely that—proposing that the
Commission endorse code pleading to dismiss Spectrum Five’s petition. Furthermore, contrary to Intelsat’s arguments on pages 32 and 33 of the Opposition, consideration of the petition under
Section 1.41 would not reward “ ‘gamesmanship’ ” or a “‘dilator[y]’” attempt to evade the timing and procedural requirements of petitions for reconsideration or applications for review, since, as noted above, the petition does not request reconsideration or review of the initial grant of the Intelsat 30 and 31 FCC authorizations. It requests adherence to the original grants.
46. Section 25.160 does not formalistically bind the Commission to dismiss the
Spectrum Five petition for procedural reasons, thereby rewarding Intelsat’s continuing violations
106 See In re Trans Video Commc’ns, Inc., Memorandum Opinion and Order, 22 FCC Rcd. 855, 859 (2007). 107 Opp. 32 (citing In the Matter of Warren C. Havens, Memorandum Opinion and Order, 28 FCC Rcd. 16261, 16267 (2013)). The Havens case is inapplicable here: In that case, the Commission had previously “sanctioned Warren C. Havens for having abused the Commission’s processes by filing frivolous and repetitive pleadings.” Id. at 16261. When Havens untimely filed for reconsideration of the sanctions order, he claimed authority to file under Section 1.41. In contrast, Spectrum Five’s petition is not a petition for reconsideration, is not untimely filed, nor is it the latest of scores of repetitive filings, as was the case in Havens. The other cases cited by Intelsat regarding Section 1.41 are equally inapplicable: In re DWHNY(AM), McComb, Mississippi CWH Broadcasting, Inc., 27 FCC Rcd. 2920, 2921 (2012), involved a failure to timely file a petition for reconsideration, but as shown above, the Spectrum Five Petition does not seek reconsideration or review of the initial grant of the Intelsat 30/31 authorizations or of any other Commission Order. Similarly, In re Telcordia Technologies, Inc., 31 FCC Rcd. 8444, 8447 (2016), involved the dismissal of an application for review where the applicant had failed to raise the substantive arguments of the application at the Bureau level below. The present matter does not involve an application for review.
26
of FCC and ITU rules and policies. Rather, Section 1.41 provides the authority and the discretion to address complaints if no other procedural avenue exists to address them. That is, the relief sought in the petition is specified in Section 25.160, but encompassed by Section 1.41 if necessary. Thus, if the Commission concludes that Spectrum Five cannot bring its petition under Section 25.160, it should accept the petition as a Section 1.41 complaint and address the critical issues and rules violations raised by the petition.
C. The petition Is Not a “Compound Pleading”
47. Intelsat’s argument (Opp. 34) that the petition is a “compound pleading” because it allegedly seeks relief from both the Commission and a Bureau borders on the trivial by relying entirely on the presence of the words “the FCC” and “Enforcement Bureau” in the same pleading. The petition requested relief under Section 25.160, but neither Commission precedent nor its rules speak definitively to whether the Section 25.160 process is performed by the
Commission itself or by a Bureau. So, Spectrum Five added “Attention: Enforcement Bureau” to the header of its cover letter to ensure that the petition was timely received and reviewed by specific people, not to demand that action be taken by both a Bureau and the Commission.108
48. The petition never explicitly or implicitly sought action by both the Commission and delegated authority. There is some evidence, however, that remedying a violation of a Part
25 rule is a matter that is initially considered by the Commission and then referred by the
Commission to the Enforcement Bureau.109 In any case, the first Order in this proceeding was
108 In light of Intelsat’s Section 1.44 argument based on the use of the words “FCC” and “Enforcement Bureau” in the same pleading, Spectrum Five hereby notes that in this reply, as well as in the petition, unless otherwise stated or otherwise obvious, it uses the words “the Commission” in their commonly used generic sense, to refer to either the five Commissioners or one or more of the Bureaus, whichever is applicable. 109 Cf. In the Matter of Comprehensive Review of Licensing and Operating Rules for Satellite Services, Report and Order, 28 FCC Rcd. 12403, 12426 (2013), stating that in connection with 27
issued by the International Bureau “in consultation with the Commission’s Enforcement
Bureau,” and thus it appears that action in this proceeding will be under delegated authority, at least initially.110 That approach is consistent with the petition.
49. If necessary, however, the Commission has exercised its authority to waive its rules for good cause even when it has found that a pleading did not fully comply with Section
1.44. If the Commission determines that Spectrum Five’s petition was in fact a compound pleading, then under Section 1.3 of the Commission’s rules, good cause exists for the
Commission to waive Section 1.44 and hear the critical and urgent issues raised by the petition.
For example, the Commission’s Consumer and Governmental Affairs Bureau found “good cause to waive the separate filing requirement of section 1.44(e)” when a party filed a single pleading seeking both reconsideration of a declaratory ruling and a stay of that ruling because of the
“unusually complex legal and factual issues ... and the importance of this issue.”111 Spectrum
Five’s petition contains similarly complex factual and legal issues, including the legal issue of which entity in the Commission initiates a Section 25.160 proceeding. In addition, the issues raised in the petition impact the satellite industry as a whole, and further delay in resolution of these issues threatens the viability of Spectrum Five’s satellite operations. The public interest would not be served by dismissal of Spectrum Five’s pleading on purely procedural grounds, only for a substantially similar petition to be refiled shortly thereafter, requiring repetitive work
an applicant or licensee’s failure to pay required fees under Section 25.111(d), “we will dismiss any application associated with the satellite system in question and may refer a violation of Section 25.111(d) to the Enforcement Bureau for investigation and potential issuance of a notice of apparent liability.” 110 In the Matter of Spectrum Five LLC, Order, DA 20-1428, ¶4 (Dec. 1, 2020). 111 See, e.g., Public Notice, Consumer and Governmental Affairs Bureau Seeks Comment on National Consumer Law Center Request for Stay of the FCC’s Broadnet Declaratory Ruling Pending Reconsideration, 31 FCC Rcd. 8728, 8728 n.3 (CGAB 2016).
28
by both the parties and Commission staff. Both Spectrum Five and Intelsat have had an
opportunity to fully address the substantive issues raised by the petition, and further delay of
consideration of those submissions on procedural grounds is unwarranted. Instead, the
Commission or the Bureaus should exercise their discretion and address the substance of the
petition now.
50. In sum, the petition is not procedurally deficient. It is not a petition for
reconsideration or application for review of the initial grant of the Intelsat 30/31 authorizations,
and thus, it need not comply with the requirements of Sections 1.106 and 1.115. Intelsat’s
Section 1.41 arguments are inapplicable or unpersuasive, and the petition is not a defective
“compound pleading.” The substance of the pleadings in this proceeding are ripe for
consideration and action.
IV. Intelsat’s Ad Hominem Attacks on Spectrum Five Are Baseless
51. Intelsat resorts to ad hominem attacks, painting Spectrum Five as a vexatious
operator seeking to “greenmail” other operators.112 That attempted mudslinging is wholly
unjustified. Spectrum Five is a small operator seeking to enter the industry. It has applied for
market access several times, but has faced challenges raising necessary capital to execute on its
plans—common for a small company trying to enter a capital-intensive industry dominated by
giants like Intelsat. Intelsat’s abusive and anti-competitive conduct has, as intended,
compounded Spectrum Five’s problems. Indeed, this very case evidences that. Spectrum Five
has an ITU filing, BSSNET4-95W, it seeks to commercialize. Intelsat’s misrepresentations have
stymied Spectrum Five’s efforts. Intelsat has convinced potential customers like AT&T to pay
Intelsat for rights to use an orbital slot where Spectrum Five has senior priority. And Intelsat’s
112 Opp. 35-39.
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abusive efforts to shut-down Spectrum Five’s testing have hampered plans to move forward with prospective customers, such as Gogo, who have expressed interest in leasing HS-2’s capacity.
52. Intelsat’s characterization of Spectrum Five as a “disingenuous[ ]” participant that
“abuses the Commission’s regulatory processes,”113 also misses the mark. Nowhere did the
Commission ever characterize Intelsat’s arguments as “disingenuous[ ]” or conclude that
Spectrum Five was filing vexatious challenges. The most troubling thing about Intelsat’s attacks, though, is the counsel making them. Intelsat’s law firm Wiley Rein (including Jennifer
Hindin, who signed Intelsat’s opposition here) represented Spectrum Five in the very proceedings where they now portray Spectrum Five’s participation as being in bad faith.
Spectrum Five does not seek to disqualify Intelsat’s counsel on conflicts grounds based on Wiley
Rein’s prior representation of Spectrum Five. Nonetheless, it strains basic credibility for experienced regulatory counsel to now portray as “disingenuous[ ]” and “unscrupulous[]” arguments they previously developed and advanced on Spectrum Five’s behalf.114
53. Intelsat’s assertion that Spectrum Five is not a “serious operator,”115 is more than a bit hypocritical. Intelsat, unlike Spectrum Five, has been investigated and fined by the
Commission in the past for misconduct related to licenses, such as queue jumping. Despite all that, Intelsat will be the beneficiary of billions of dollars in public funds as a result of the
Commission’s C-Band Order, which will pay to replace all of Intelsat’s C-Band satellites, including Galaxy 3C. That will be a windfall for Intelsat—many of those C-Band satellites are past their useful life. Galaxy 3C, for example, is 18 years old—older than Spectrum Five’s HS-
2. By Intelsat’s own reckoning, those satellites should have been replaced years ago—and
113 Id. at 35, 37. 114 See id. at 37. 115 Id. at 36.
30
Intelsat should have started plans to replace the satellites years before that—in the ordinary course of business.116 The chart below shows six Intelsat C-Band satellites that are approaching or have exceeded typical service lives (15 years). Given typical lead times of approximately three years, a responsible satellite operator would have entered into contracts to replace each of those satellites prior to issuance of the Commission’s C-Band order in March 2020.
Satellite Launch Date End of Service Life Galaxy 28 June 2005 June 2020 Galaxy 17 May 2007 May 2022 Galaxy 3C June 2002 June 2017 Galaxy 13 October 2003 October 2018 Galaxy 12 April 2003 April 2018 Galaxy 15 October 2005 October 2020
54. Instead, Intelsat waited until its fleet was obsolete in hopes of having the
Commission replace the fleet at public expense. In the process, Intelsat risked adverse consequences for its customers and the public from a decrepit satellite fleet in the event the FCC did not act in its favor. To be sure, the Commission’s C-Band Order ultimately concluded that replacement of Intelsat’s satellites was in the public interest. But Intelsat’s failure to maintain its own fleet makes clear that the Commission should not accord weight or credibility to Intelsat’s status as a “serious operator” in assessing its arguments here.
Conclusion
55. The petition should be granted, and the Commission should (1) order Intelsat to come into compliance with its ITU filings, and (2) issue a show-cause order and initiate a
§ 25.160 proceeding and hearing to revoke the Intelsat 30 and 31 licenses (stations S2887 and
S2924). Additionally, if the Commission authorizes a hearing, it should grant limited discovery for purposes of resolving any disputed factual issues.
116 See id. at 6.
31
Respectfully Submitted,
/s/ Francisco R. Montero Francisco R. Montero Fletcher Heald & Hildreth, PLC 1300 North 17th St. 11th Fl. Arlington, VA 22209 (703) 812-0400 [email protected]
December 18, 2020
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Exhibit A Before the Federal Communications Commission Washington, D.C., 20554
In the Matter of ) ) Spectrum Five LLC ) IB Docket No. 20-399 ) Petition for Enforcement of Operational ) Limits and for Expedited Proceedings ) To Revoke Satellite Licenses )
DECLARATION OF DAVID A. WILSON
I, R. David Wilson, declare, pursuant to 28 U.S.C. §1746:
1. I am the founder, Chairman and CEO of Spectrum Five. Prior to Spectrum Five, I founded New Frontiers Communications Consulting, a Washington, D.C.-based telecommunications and technology consulting practice that served a broad range of clients.
New Frontiers provided services to many of the world’s largest communications companies, including AT&T’s predecessor SBC.
2. I previously served as telecommunications advisor to the U.S. Senate Majority
Leader, Bob Dole, where we spearheaded the passage of the Telecommunications Act of 1996, the first major rewrite of U.S. communications laws in sixty years. I, Senator Dole, Senator
McCain, Representative Barney Frank, and former Commission Chairman Reed Hundt were instrumental in preventing the television broadcasting industry from retaining both the analog and digital TV channel spectrum. Saving this spectrum led to the 700 MHz auction.
3. I worked with Clay Whitehead on the original design of Spectrum Five’s business plan. Dr. Whitehead was a seminal figure in the satellite industry, and was the first director of the U.S. Office of Telecommunications Policy where he led the way for the commercialization of space, formed the Space Shuttle program, and was the founder of the first private satellite DBS capacity provider in Europe, now known as SES. Dr. Whitehead and I were able to secure compensation for the nationalization of his company.
4. I have a long history in spectrum reform and helped craft the legislative transition from lotteries to spectrum auctions. Spectrum Five was originally created when I, through the support of the Senate and House Chairman with Commission oversight, sought to create greater spectral efficiency and split the distance between DBS orbital slots from nine degrees of separation to 4.5 degrees of separation. Doing so would increase the number of DBS orbital positions from three directly over the U.S. to five orbital positions. The original premise was that the U.S. would claim these new positions and auction them off for the benefit of U.S. taxpayers.
While I was serving under Senator Dole, Congress authorized the sale of DBS orbital position which sold for $682 million and short-spacing DBS slots sought to repeat that success. When the
International Bureau declined to pursue this effort, as it stated it was distracted by other matters at the time, I formed Spectrum Five and struck an agreement with the Netherlands. Spectrum
Five was then granted the first “tweener” DBS authorization to serve the U.S. market.
5. I led the effort to block Israel from nationalizing its Cable TV industry, largely created and owned by U.S. entrepreneurs and former U.S. Cable TV Pioneers.
6. I previously served as a member of the U.S. Department of State’s Advisory
Committee on International Communications and Information Policy.
7. I have personal knowledge of the facts set forth herein based on my direct involvement in this matter and upon my review of documents discussed herein. If called upon, I would testify as follows.
2 Intelsat 30 and 31 Were Designed To Exceed Operating Limits
8. In 2002, Intelsat launched its Galaxy 3C satellite to broadcast DirecTV service into South and Central America, and Puerto Rico. Galaxy 3C provided service using only the
Ku-Band. The ITU satellite network associated with Galaxy 3C is USASAT-60F.
9. Galaxy 3C was originally designed for standard-definition video and was launched on June 15, 2002. By 2011, DirecTV wanted to upgrade its service in Latin America to offer more television channels, high-definition video, and a wider variety of regional programming.
10. Intelsat could not meet DirecTV’s business requirements within the operational envelope of Galaxy 3C, or the ITU satellite network associated with Galaxy 3C, USASAT-60F.
Intelsat needed to use additional frequencies—the Ku-Extended Band—which had not been used by Galaxy 3C and were not covered by USASAT-60F.
11. DirecTV decided to fund construction and launch of two satellites, Intelsat 30 and
31, to replace Galaxy 3C at 95 W. Although DirecTV would fund the satellites, Intelsat would operate them.
12. Transitioning to high-definition video normally would have required DirecTV to invest in upgrades to customer equipment. High-definition requires far more bandwidth than standard definition. Advanced compression technologies, such as H.264 and HEVC, can be used to reduce the bandwidth required by high-definition video. But DirecTV’s existing set-top boxes only supported decades-old, therefore far less efficient compression technology. In Latin
America, DirecTV did not invest in replacing millions of customer set-top boxes when Intelsat
30 and 31 were launched.
13. Additionally, Intelsat had limited options for increasing system capacity using additional frequency bands. In the U.S. and Europe, DirecTV had increased capacity to support
3 high-definition video by using Ka-Band in addition to Ku-Band. In Latin America, DirecTV chose not to use Ka Band.
14. Instead of relying on more advanced compression, or Ka-Band frequencies,
Intelsat 30 and 31 were designed to operate in excess of maximum ITU power levels and has a high-power mode that Intelsat failed disclose in its reply brief. Intelsat 30 and 31 operate at double the maximum power flux-density specified in applicable ITU regulations.
15. To deliver additional regional channels, Intelsat 30 and 31 operated with five uplink beams, compared to just one for Galaxy 3C. One main beam carries pan-regional content, while each of the four regional beams carries localized content. To separate signals from the five uplink beams, Intelsat 30 and 31 use an onboard receive antenna with a dramatically higher antenna gains than Galaxy 3C. The Intelsat 30 and 31 Engineering Statements specify a gain of
44 dBi at the satellite antenna, 5,000% over the 27 dBi authorized for Galaxy 3C.
16. Intelsat has received $70 million each year from DirecTV for use of Intelsat 30 and 31. DirecTV (part of AT&T since 2015) has received billions of dollars in revenue from operations at 95 W. This figure was confirmed in the fall of 2019 by VRIO (Michael Hartman).
Commission’s Licensing of Intelsat 30 and 31
17. On October 25, 2012, Intelsat filed an application with the Commission for a license to operate a “new” satellite network (Intelsat 30) at 95 W. Intelsat amended the application on December 21, 2012—to move the satellite slightly in the orbital position—and supplemented it on July 28, 2014. The application sought to use the Ku-Band frequencies used by Galaxy 3C, and a previously unused frequency band, the Ku-Extended Band frequencies.
Intelsat did not invoke the Commission’s procedures for modifying an existing license under 47
C.F.R. §25.117. The Commission granted the Intelsat 30 license on August 14, 2014, and amended the license on October 30, 2014.
4 18. On January 8, 2014, in connection with its consideration of the Intelsat 30 license application, the Satellite Division filed an assignment with the ITU for a new satellite network,
USASAT-60U. USASAT-60U covered the Ku-Band frequencies Intelsat 30 used. It also covered
Ku-Extended Band frequencies, which were not covered by USASAT-60F, and C-Band frequencies that were not used by Galaxy 3C and not covered by USASAT-60.
19. USASAT-60U differed significantly from the operation of Intelsat 30 (and 31).
Intelsat 30 and 31 use a satellite uplink antenna gain of 44 dBi, while USASAT-60U specifies a gain of 27 dBi. The U.S. has no ITU filing at the nominal 95 WL location with a 44 dBI gain.
The only filing at this location with a 44 dBi gain is BSSNET4-95W.
20. Intelsat prepared an application for the USASAT-60U satellite network for the
Satellite Division to file with the ITU. Intelsat’s 47 C.F.R. §25.111(d) declaration submitted in connection with USASAT-60U lists S2887 as the call sign and Intelsat 30 as the satellite network associated with USASAT-60U.
21. Based on their respective priority dates, Spectrum Five’s BSSNET4-95W
(priority date July 9, 2013) has senior priority rights over USASAT-60U (priority date January 8,
2014) at 95W.
22. On April 10, 2014, Intelsat filed an application for Intelsat 31, which was to be co-located with Intelsat 30 at 95 W. Intelsat 31 is Intelsat 30’s “twin” and Intelsat represented that it would operate in conjunction with Intelsat 30. The Intelsat 31 application, like the Intelsat
30 application, was for a new satellite network, not a modification to an existing license. And, again, Intelsat certified that it would not use foreign licenses to broadcast into the United States.
The Commission granted that license on November 6, 2014.
5 23. During the 2014-2016 timeframe, when the Commission was reviewing and approving the licenses for Intelsat 30 and 31, the Division Chief of the International Bureau’s
Satellite Division was Jose Albuquerque, who had previously been a long-time employee of
Intelsat. To Spectrum Five’s knowledge, Mr. Albuquerque did not recuse himself from matters relating to the Intelsat 30 and 31 licenses.
24. On July 22, 2014, notice of USASAT-60U was published in BR-IFIC 2774, the
ITU’s notice register. The Netherlands administration responded on October 28, 2014 by sending a letter to the FCC Satellite Division warning that operations under USASAT-60U proposed creating “unacceptable interference” to BSSNET4-95W, and explaining that USASAT-60U must be coordinated with BSSNET4-95W. Neither the FCC, nor Intelsat, responded to that letter.
25. In December 2014, Spectrum Five contacted AT&T—which was in the process of acquiring DirecTV. As CEO of Spectrum Five, I raised the conflict between BSSNET4-95W and
USASAT-60U to AT&T’s John Stankey—now CEO of AT&T. Randall Stephenson, then
Chairman and CEO of AT&T had asked Mr. Stankey to meet with me. In an initial phone call,
Mr. Stankey stated that AT&T had unearthed a “dog patch of rights problems” in connection with DirecTV. In January 2015, Spectrum Five met with Stankey and his team and made a formal presentation. All of those warnings, however, amounted to nothing, as AT&T refused to resolve the situation. Nothing has changed since.
26. Intelsat 30 was launched on October 16, 2014. On December 11, 2014, Intelsat filed a Notice of Operation with the Commission. The notice certified that Intelsat 30 had
“become fully operational ... in accordance with the terms of its FCC authorization.” Intelsat 31 was launched on June 9, 2016, and Intelsat filed a similar certification on July 26, 2016.
6 27. Intelsat’s certifications of compliance were false when made. Intelsat’s licenses were premised on the express “condition” that Intelsat would secure ITU rights reflecting Intelsat
30 and 31’s actual operation. Intelsat never obtained those rights.
Intelsat Abused Its Licenses To Exclude Competition
28. Spectrum Five had been clear with AT&T of its intent to commercialize its rights at 95 W, and remained undeterred in pursuing that goal. After years of effort to secure financing under the cloud created by Intelsat’s unauthorized operations at 95 W, Spectrum Five moved a satellite, HS-2, to 95 W.
29. During Spectrum Five’s initial maneuvers to position HS-2 at 95 W, Intelsat’s network operations center (“NOC”) had been in touch with Spectrum Five’s satellite operator, and had reported no problems. Later, after HS-2 was on station at 95 W for a month, Intelsat’s
NOC contacted Spectrum Five’s satellite operator claiming that Galaxy 3C was seeing a small amount of interference on the C-Band. No further issues were raised by Intelsat’s NOC after discussing matter with the satellite operator.
30. A month later, Intelsat’s spectrum policy division—not the NOC that Spectrum
Five previously communicated with—claimed to Spectrum Five’s satellite operator that HS-2 was causing “severe interference” to Galaxy 3C’s C-Band transmissions. Spectrum Five’s operator responded that it was impossible for the alleged interference to be coming from HS-2, because the waveform of the interfering signal alleged by spectrum policy division was not even supported by HS-2. Moreover, the only C-Band transmissions from HS-2 were for the satellite’s telemetry signal, a low-power, narrowband signal that could not even cause the purportedly severe interference that Intelsat claimed to be receiving. Spectrum Five’s satellite operator nonetheless offered to help, and asked Intelsat to provide measurements showing the alleged severe interference. The requested measurements never came.
7 31. Intelsat’s campaign continued through the Satellite Division. On May 3, 2019, the
FCC Satellite Division sent a communication to the Netherlands administration complaining about C-Band interference to Galaxy 3C from HS-2. The Netherlands administration responded with measurements collected by Spectrum Five proving that HS-2 could not be the source of the alleged interference. In particular, the HS-2 telemetry signal was of such low power that it could not be interfering with Galaxy 3C’s powerful, wideband signals and most certainly was not breaking the Galaxy 3C’s video link as we were aware of which TV channels resided on the transponder in question and those channels were not affected. The HS-2 telemetry signal was also far narrower (1-2 KHz versus 200 KHz) than the allegedly interfering C-Band signal.
Finally, the polarizations of the alleged interfering signal and HS-2’s telemetry signal did not match. The Netherlands administration requested further information—in particular, plots showing the alleged interference. Neither Intelsat nor the Satellite Division responded, much less provided the requested measurements.
32. On May 7, 2019, the Satellite Division filed an interference report with the ITU claiming that HS-2 was causing C-Band interference to Galaxy 3C. The report—which was filed at Intelsat’s behest—was fatally deficient. Key fields in the ITU’s form report were omitted. In particular, the fields describing the nature and magnitude of the alleged interfering signal where left blank. Spectrum Five attempted to resolve the issue with Intelsat directly, again requesting measurements, but Intelsat never responded, and effectively abandoned the ITU interference complaint.
Spectrum Five’s Analysis of Intelsat 30 and 31’s Illegal Operations
33. Alarmed by Intelsat’s unfounded allegations of C-Band interference, Spectrum
Five sought to collect additional information about Intelsat’s operations. It analyzed Intelsat’s channel lineup and engineering statements. Spectrum Five discovered that it was impossible for
8 Intelsat to be operating using the channel bandwidths specified in its engineering statements, using the disclosed radio-signal waveforms, within ITU power limits.
34. Specifically, Spectrum Five initiated a comprehensive program to take measurements of Intelsat’s power levels across Latin America. Spectrum Five deployed a team with state-of-the-art equipment to Latin America. That equipment is the same equipment that
Intelsat, as well as other major satellite operators, use to perform their own spectrum measurements. Spectrum Five’s measurements showed that Intelsat 30 and 31 were operating in excess of ITU limits. They operated at power-flux densities as high as -136.7 dbW/m2/4 KHz,
100% over the maximum ITU limit of -140 dbW/m2/4 KHz in the relevant frequency bands.
35. Spectrum Five’s measurements also observed which transponders were operating in the satellites’ high-power mode and those transponders operating in normal mode.
36. Spectrum Five discovered similar operation in excess of power limits for a separate Intelsat satellite providing DIRECTV service in Brazil.
37. Spectrum Five also measured power levels for Intelsat satellites providing service into the United States to use as a baseline. In clear contrast to the measurements at 95 W, those measurements showed operations within power limits. As a result, the Commission could not easily detect Intelsat’s unauthorized operations in South America.
Intelsat’s Post Hoc Theory of Undocumented “Authorization”
38. In November-December 2019, Spectrum Five engaged in operator-to-operator discussions with AT&T and Intelsat for the third time. Spectrum Five explained that it had senior rights at 95 W, because BSSNET4-95W had an earlier priority date than USASAT-60U.
39. AT&T and Intelsat offered the new theory that Intelsat 30 and 31’s operations were based on an undocumented “authorization” that rendered USASAT-60U nugatory.
9 40. According to AT&T and Intelsat, even though Intelsat had filed applications for new satellite networks, Intelsat 30 and 31’s Ku-Band operations were (and had always been) under Galaxy 3C’s satellite network, USASAT-60F. And even though Intelsat’s license applications expressly stated that it was not using a foreign-licensed space station, AT&T and
Intelsat further claimed that Intelsat 30 and 31’s Ku-Extended Band operations were under a
Papua New Guinea ITU satellite network, BLUE1.
41. Spectrum Five asked Intelsat for documentation from the Commission authorizing operations under USASAT-60F and BLUE1. Intelsat admitted that no “formal” authorization was ever issued, but stated that the Commission informally provides such authorizations.
Spectrum Five is not aware of any FCC rule that provides for informal authorizations. No documentation or confirmation of such a “wink wink” process was provided, much less the regulatory or legal basis for it. Spectrum Five has been unable to obtain such documentation from the Commission.
42. Spectrum Five also observed that Intelsat 30 and 31 cannot be authorized to operate under USASAT-60F and BLUE1 because they are not designed or constructed to comply with the operational requirements of those satellite networks. Intelsat 30 and 31 used a 44 dBi gain for the satellites’ onboard uplink antenna. USASAT-60F specified a 27 dBi gain, and
BLUE1 provided for no uplinks at all. Moreover, all were subject to the same limits on downlink power flux-density. Spectrum Five provided Intelsat and AT&T with measurements showing that
Intelsat was operating at power levels 100% over those limits. Intelsat denied such operation, but refused to provide any measurements or explanation of its methodology.
43. Operator-to-operator discussions having reached a dead end, Spectrum Five asked the Netherlands administration to help. In January 2020, the Netherlands administration sent a
10 letter to the Satellite Division seeking clarification of its position. In March 2020, the
Netherlands administration sent a follow-up letter noting that Intelsat 30 and 31’s operations were causing “harmful interference” to Spectrum Five’s HS-2. The letter also explained that
Intelsat 30 and 31 were operating in excess of ITU maximum power levels.
44. In March 2020, Mr. Albuquerque, from the Satellite Division—previously a long-time employee of Intelsat—sent a response. He merely restated Intelsat’s position that
Intelsat 30 was operating under USASAT-60F and BLUE1, but identified no Commission order permitting operation under those satellite networks. He also offered that Intelsat “relied on a non-
US satellite network”—namely, “the BLUE1 satellite network filed ... with the ITU by the
[Papua New Guinea] administration.” But he did not state that Intelsat had ever sought, or been granted, market access under 47 C.F.R. §25.137 for a concededly “non-US satellite network” to broadcast into the United States (to Puerto Rico). Nor did his letter address Intelsat’s representation in its license application that a foreign-licensed satellite network would not be used to transmit into the United States.
45. In April 2020, the Netherlands administration responded to the Satellite
Division’s March letter. The Netherlands administration said that it could find no record of
Intelsat 30 and 31 ever being authorized to use BLUE1, and sought an explanation from the FCC of the legal basis for the purported authorization. It also observed that, under ITU regulations, a satellite is entitled to protection from interference under an ITU satellite network only if the satellite is in compliance with the operational parameters set forth in that satellite network. It also explained that it had evidence that Intelsat 30 and 31 did not comply with the operational parameters in USASAT-60F and BLUE1. As stated above, Intelsat 30 and 31 were using a
11 satellite receiver antenna gain 5,000% higher than that specified in USASAT-60F or BLUE1, and were broadcasting at double the maximum ITU PFD levels.
46. In a letter faxed on June 9 (but dated May 18), the Satellite Division responded.
The Satellite Division continued to dodge Intelsat’s lack of authorization to rely on the Papua
New Guinea BLUE satellite network. This time, it insisted that “matters related to the ITU coordination of the 10.95-11.2 GHz band should be addressed with the PNG administration.” Id.
The letter also did not respond to Intelsat’s lack of compliance with the satellite’s uplink antenna gain specification, instead addressing the unrelated issue of the ground stations’ antenna gains which are more than 22,000 miles away from the satellite antenna in question. As to Intelsat’s compliance with downlink power limits, the Commission’s letter stated that an “analysis using the operational parameters of Intelsat 30 and 31” showed that those satellites were “within the allowed levels.” The Commission did not provide any measurements to support that conclusion or to contradict the measurements relied on by the Netherlands administration.
47. In May 2020, the Satellite Division filed a bring-into-use notification for
USASAT-60U. The notification stated that Intelsat 31—but not its twin Intelsat 30—and Galaxy
3C had been used to bring USASAT-60U into use. The notification acknowledged that coordination with BSSNET4-95W was required, but claimed coordination was “in progress.” To the contrary, the opposite is true. No such coordination was ever initiated the U.S. or Intelsat.
Instead, Intelsat has been operated unilaterally and exclusively at 95 W.
48. Following the Netherlands administration’s October 2014 letter regarding coordination, the Satellite Division now claims that no coordination was required because
Intelsat was relying on USASAT-60F and BLUE1 rather than USASAT-60U. While Intelsat 30
12 and 31’s license both required Intelsat to “complete ... international coordination,” Intelsat has not initiated, much less completed, the coordination that it concedes is required.
49. On August 24, 2020, Jose Albuquerque abruptly resigned.
50. On September 23, 2020, counsel for Spectrum Five had a conference call with the chief of the International Bureau, Thomas Sullivan. Sullivan was asked about discussions between the Bureau’s Satellite Division and the Netherlands administration regarding Intelsat 30 and 31. Counsel for Spectrum Five raised Intelsat 30 and 31’s non-compliant operations, and the
Bureau’s position to the Netherlands administration Intelsat 30 and 31 were operating pursuant to USASAT-60F and BLUE1. Counsel for Spectrum Five observed that there was no record of such joint licensing with Papua New Guinea, and that the Commission’s Space Station List specifies only the U.S. as the licensing administration for Intelsat 30, even though entries for other joint-licensed satellites—such as SES-11 at 104.95 and Telstar 19V at 63W—list both the
U.S. and the other administrations and their respective ITU frequency assignments . Sullivan responded that formal Commission authorization for Intelsat’s use at 95W of ITU satellite networks other than USASAT-60U was not required, but acknowledged that the basis for this had not been furnished to Spectrum five. He further stated that he should not discuss the matter with Spectrum without Intelsat present because Intelsat was “the FCC’s client.” He did acknowledge that the matter of Intelsat 30 and 31’s operational non-compliance did fall within the Commission’s authority. As of the filing of this Complaint the Bureau still has provided no response. More than 10 months have now passed since the Netherlands administration notified the Commission of Intelsat’s operational non-compliance.
51. The Satellite Division falsely represented to the ITU that “progress” had been made in coordinating USASAT-60U with BSSNET4-95W. In fact, no such progress has been
13 made because the Bureau and Intelsat deny that Intelsat 30 and 31 are even associated with
USASAT-60U.
Intelsat’s Pattern of Misrepresentations to Regulators
52. Intelsat’s shell game regarding ITU authorizations has not been limited to the
United States. In Argentina, Intelsat secured expedited market access for Intelsat 30 and 31, invoking its U.S. authorization, U.S. ITU satellite network, and a reciprocity agreement between
Argentina and the U.S. Contrary to its claims now, Intelsat never disclosed to Argentina that its
Ku-Extended Band operations were under BLUE1—a satellite network from Papua New Guinea, a country with no reciprocity agreement with Argentina. Instead, its application proceeded as if
Intelsat 30 and 31 were solely licensed by the U.S. and operating under a U.S. ITU satellite network. The Argentina Secretariat of Technology and Telecommunications is investigating the legitimacy of, and whether to cancel and terminate Intelsat’s authority to operate Intelsat 30
AND 31 in Argentina (“Landing Rights”).
53. In discussions with Argentinean officials, I learned that Intelsat’s subsidiary
Southern Satellite Corp. was fined in 2017 for illegally broadcasting into Argentina from Intelsat
31 and 29e.
Intelsat’s Anticompetetive Conduct Has Caused Irreparable Harm to Spectrum Five
54. Due to Intelsat’s conduct, Spectrum Five was delayed in its efforts to secure a satellite and bring it on-station to 95 W. These delays are causing irreparable harm because they have foreclosed Spectrum Five’s operations as a new entrant in the satellite communications industry and deprived it of important business opportunities.
55. Intelsat’s misrepresentations and abuses of its licenses have prevented Spectrum
Five from conducting testing in pursuit of business opportunities, including, but not limited to, one operator which desired to take the satellite’s entire capacity. In particular, Intelsat’s causing
14 the Bureau to file a false C-Band interference report delayed Spectrum Five’s commercialization efforts, as did Intelsat’s intervention in halting Spectrum Five’s testing in Mexico
56. Intelsat’s counsel, Wiley Rein, in the absence of facts and law, has attacked
Spectrum Five’s character and stated that the company is “notorious” and has a history of
“greenmail.” Those characterizations are false. Wiley Rein knows this to be true as the vast majority of examples it provided in its reply brief, Wiley Rein, through the good work of its founder Richard Wiley, represented Spectrum Five.
57. Absent immediate action by the Commission, Spectrum Five will suffer continued opportunity costs from delay, and worse, irreparable harm from lost business opportunities. In fact, due to the delay and rapidly changing market conditions, Spectrum Five lost an opportunity with a major provider of satellite internet service for airlines.
I declare under penalty of perjury that the foregoing is true and correct.
Executed: December 17, 2020 Washington, D.C.
David A. Wilson
15 Exhibit B
Exhibit C
SATÉLITES AUTORIZADOS EN ÓRBITA GEOESTACIONARIA - VIGENTES A 17-AGO-2020
POSICIÓN BANDAS DE ÍNDICE EMPRESA DENOMINACIÓN COMERCIAL SITIO WEB O/E PAÍS NOTIFICANTE INFORMACIÓN COMPLEMENTARIA ORBITAL (°) FRECUENCIAS 1 EMPRESA ARGENTINA DE SOLUCIONES SATELITALES S.A. AR-SAT ARSAT-1 www.arsat.com.ar 72 O Ku Argentina Resolución SC Nº 78/2014 - 26/11/14 2 EMPRESA ARGENTINA DE SOLUCIONES SATELITALES S.A. AR-SAT ARSAT-2 www.arsat.com.ar 81 O C y Ku Argentina Resolución SC Nº 22/2015 - 08/06/15 3 EMPRESA ARGENTINA DE SOLUCIONES SATELITALES S.A. AR-SAT TELSTAR 19V www.arsat.com.ar 63 O Ka Brasil Resolución SGM Nº 1103/2019 - 19/06/19 4 HISPAMAR SATELITES S.A. AMAZONAS 3 www.hispamar.com.br 61 O C, Ku y Ka Brasil Resolución MINCOM N° 1409/2017 del 19/06/17 5 HISPAMAR SATELITES S.A. AMAZONAS 2 www.hispamar.com.br 61 O C y Ku Brasil Resolución MINCOM N° 1643/2017 del 13/07/17 6 HISPAMAR SATELITES S.A. AMAZONAS 5 www.hispamar.com.br 61 O Ku y Ka Brasil Resolución MMOD N° 582E/2018 del 05/09/18 y 7 HISPAMAR SATELITES S.A. HISPASAT 74w-1 www.hispamar.com.br 74 O Ku planificada Brasil Resolución SGM N° 1854/2019 del 15/11/2019 8 HISPASAT S.A. HISPASAT 1D www.hispasat.com 30 O Ku España Resolución MINCOM N° 183 E/2017 del 31/01/17 9 HISPASAT S.A. HISPASAT 1E www.hispasat.com 30 O Ku España Resolución MINCOM N° 623 E/2017 del 29/03/17 10 HISPASAT S.A. HISPASAT 30W-6 www.hispasat.com 30 O Ku España Resolución MMOD N° 734 E/2017 del 29/12/17 11 INTELSAT LLC IS 1002 www.intelsat.com 1 O C y Ku EEUU Resolución SC Nº 333/2005 12 INTELSAT LLC IS 905 www.intelsat.com 24,5 O C y Ku EEUU Resolución SC Nº 331/2005 13 INTELSAT LLC IS 907 www.intelsat.com 27,5 O C y Ku EEUU Resolución SC Nº 332/2005 14 INTELSAT LLC IA - 8 (G-28) www.intelsat.com 89 O C y Ku EEUU Resolución SC Nº 38/2007 15 NEW SKIES SATELLITES ARGENTINA B.V. NSS 7 www.ses.com 20 O C y Ku Paises Bajos Resolución MMOD Nº 32E/2018 del 18/01/18 16 NEW SKIES SATELLITES ARGENTINA B.V. NSS 14 (SES 4) www.ses.com 22 O C y Ku Paises Bajos Resolución SC Nº 130/2011 del 11/11/11 17 NEW SKIES SATELLITES ARGENTINA B.V. NSS 10 (AMC12) www.ses.com 37,5 O C EEUU Resolución MMOD Nº 31E/2018 del 18/01/18 18 NEW SKIES SATELLITES ARGENTINA B.V. SES 6 www.ses.com 40,5 O C y Ku Paises Bajos Resolución SC Nº 130/2011 del 11/11/11 19 NEW SKIES SATELLITES ARGENTINA B.V. SES 14 www.ses.com 47,5 O C y Ku Brasil Resolución MMOD N° 68E/2018 del 01/02/18 20 NEW SKIES SATELLITES ARGENTINA B.V. Simon Bolivar-2 (SES 10) www.ses.com 67 O Ku Com. Andina (Col.) Resolución SGM N° 1581/2019 del 24/09/19 21 SATELITES MEXICANOS S.A. DE C.V. EUTELSAT 113 West A (SATMEX 6) www.eutelsatamericas.com 113 O C y Ku Mexico Resolución MINCOM Nº 320 E/2016 del 16/08/16 22 SATELITES MEXICANOS S.A. DE C.V. EUTELSAT 115WB (SATMEX 5) www.eutelsatamericas.com 114,9 O C y Ku Mexico Resolución MINCOM Nº 851 E/2016 del 03/10/16 23 SATELITES MEXICANOS S.A. DE C.V. EUTELSAT 117WA (SATMEX 8) www.eutelsatamericas.com 116,8 O C y Ku Mexico Resolución MINCOM Nº 850 E/2016 del 03/10/16 24 SATELITES MEXICANOS S.A. DE C.V. EUTELSAT 117WB www.eutelsatamericas.com 117 O Ku Mexico Resolución MM OD N° 69E/2018 del 01/02/18 25 SATELITES MEXICANOS S.A. DE C.V. EUTELSAT 65 WA www.eutelsatamericas.com 118 O C y Ku planificadas Brasil Resolución SGM N° 1580/2019 del 24/09/19 26 SOUTHERN SATELLITE CORPORATION IS 37e www.intelsat.com 18 O C y Ku EEUU Resolución MMOD N° 52E/2018 del 29/01/18 27 SOUTHERN SATELLITE CORPORATION IS 35e www.intelsat.com 34,5 O C EEUU Resolución MINCOM Nº 860E/2017 21/04/17 28 SOUTHERN SATELLITE CORPORATION IS 11 www.intelsat.com 43 O C y KU EEUU Resolución SC Nº 184/2009 del 23/10/2009 29 SOUTHERN SATELLITE CORPORATION IS-14 www.intelsat.com 45 O C y Ku EEUU Resolución SC Nº 51/2010 del 11/05/2010 30 SOUTHERN SATELLITE CORPORATION PAS-1R (antes PAS-1) www.intelsat.com 50 O C y Ku EEUU Res SC Nº 103/2010 del 31/08/10 31 SOUTHERN SATELLITE CORPORATION IS-23 www.intelsat.com 53 O C y Ku EEUU Resolución SC Nº 14/2013 del 05/02/2013 32 SOUTHERN SATELLITE CORPORATION IS-34 www.intelsat.com 55,5 O C y Ku EEUU Resolución MINCOM N° 1648E/2017 del 13/07/17 33 SOUTHERN SATELLITE CORPORATION IS-21 www.intelsat.com 58 O C y Ku EEUU Resolución SC Nº 10/2013 del 04/02/2013 34 SOUTHERN SATELLITE CORPORATION GALAXY III-C (antes GALAXY III-R) www.intelsat.com 95 O Ku EEUU Res SC Nº 1361/98 - Res SC Nº 314/2001 - Res SC Nº 218/2002 35 SOUTHERN SATELLITE CORPORATION IS 30 www.intelsat.com 95,05 O C y Ku EEUU Resolución MINCOM Nº 901E/2016 05/10/16 36 SOUTHERN SATELLITE CORPORATION IS 31 www.intelsat.com 95,05 O C y Ku EEUU Resolución MINCOM Nº 979E/2016 13/10/16 37 TELESAT CANADA TELSTAR 12V www.telesat.com 15 O Ku EEUU Resolución MMOD Nº 33E/2018 del 18/01/18 38 TELESAT CANADA TELSTAR 14R www.telesat.com 63 O Ku Brasil Resolución MMOD Nº 36E/2018 del 22/01/18 39 TELESAT CANADA ANIK F1 www.telesat.com 107,3 O C y Ku Canadá Resolución SC Nº 75/2001 del 19/02/01 40 TELESAT CANADA ANIK G1 www.telesat.com 107,3 O C y Ku Canadá Resolución MMOD Nº 34E/2018 del 18/01/18
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CERTIFICATE OF SERVICE
I, Seth L. Williams, do hereby certify that I have, this 18th day of December, 2020, caused a copy of the foregoing “Reply in Support of Petition of Spectrum Five LLC” to be sent via electronic mail to:
Michelle Bryan, Esq. William Davenport, Esq. General Counsel FCC Intelsat Office of Commissioner Starks [email protected] [email protected]
Chairman Ajit Pai Thomas Sullivan, Esq. FCC FCC [email protected] Chief, International Bureau [email protected] Commissioner Michael O’Rielly FCC Karl Kensinger, Esq. [email protected] FCC Acting Division Chief, Satellite Division Commissioner Brendan Carr [email protected] FCC [email protected] Rosemary C. Harold FCC Commissioner Jessica Rosenworcel Chief, Enforcement Bureau FCC [email protected] [email protected] Jennifer D. Hindin Commissioner Geoffrey Starks Henry Gola FCC Sara M. Baxenberg [email protected] Garriott Boyd Wiley Rein LLP Sean Spivey, Esq. [email protected] Office of Chairman Ajit Pai [email protected] FCC [email protected] [email protected] [email protected] Counsel to Intelsat Erin McGrath, Esq. Office of Commissioner Michael O’Rielly Michael P. Goggin FCC Assistant VP and Senior Legal Counsel [email protected] AT&T Services, Inc. [email protected] Umair Javed, Esq. Commissioner Jessica Rosenworcel FCC [email protected] /s/ Seth L. Williams Seth L. Williams