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 1 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. 2 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 3 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