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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of EchoStar Satellite Corporation Application for Authority to Construct, Launch, and Operate a Ka-Band Satellite System in the Fixed-Satellite Service File Nos. 167-SAT-P/LA-95 168-SAT-P/LA-95, 54-SAT-AMEND-96 ORDER AND AUTHORIZATION Adopted: May 8, 1997 Released: May 9, 1997 By the Chief, International Bureau: Introduction 1. With this Order, we authorize EchoStar Satellite Corporation ("EchoStar") to launch and operate a satellite system in geostationary-satellite orbit ("GSO") to provide fixed- satellite services ("FSS") in the Ka-band. This will provide EchoStar the opportunity to provide a variety of communication services to consumers. Background 2. EchoStar, a Colorado corporation, is a wholly owned subsidiary of EchoStar Communications Corporation. EchoStar filed its applications for its 28 GHz system with the Commission in September 1995. It proposes to construct, launch, and operate two GSO satellites to be located at 119ø W.L. and 85ø W.L. EchoStar requests use of 500 megahertz of spectrum in the 29.5-30.0 GHz bands for service uplink operations and 500 megahertz of spectrum in the 19.7-20.2 GHz band for its service downlink operations. It also requests authority to operate inter-satellite links in the 60 GHz frequency band. EchoStar proposes to operate its transfer orbit tracking, telemetry, and command ("TT&C") in C-band frequencies. 3. EchoStar proposes to offer services such as video telephony, videoconferencing, voice communications, computer access to on-line information and entertainment services and medical and technical tele-imaging. EchoStar intends to offer some available transponders on both a common and non-common carrier basis. 4. Each EchoStar satellite will carry 48 transponders. The system will have both narrow and wide spot beams, on-board signal processing, on-board switching, cross-link capabilities between satellites, and small ground terminals. Frequency reuse of the spot beams will be performed to enhance the system capacity. EchoStar proposes to use right - and left- hand circular polarization. The maximum EIRP of each satellite is 63.3 dBW. Satellite antenna design includes cross-polarization isolation of 30 dB and co-polarized, co-frequency spatial separation assuring at least 20 dB isolation. 5. Several other GSO FSS applicants filed petitions to deny and other pleadings in response to EchoStar's applications. As further discussed below, GSO FSS applicants later withdrew these pleadings. Motorola Satellite Communications, Inc. also filed a petition to deny all of the GSO FSS Ka-band applications, arguing that grant would conflict with its requested frequencies for feeder links for its "Big LEO" system. These concerns are resolved by the 28 GHz band plan. Relevant Domestic Decisions 1. DISCO I 6. In January 1996, the Commission in the DISCO I Report and Order, abolished all distinctions between U.S. domestic satellites and international separate system satellites. This allows all U.S. - licensed satellites to provide any mix of domestic or international satellite services they choose, subject only to the licensee obtaining all applicable international approvals and authorization by other administrations to provide service to, from, or within their respective territories. Therefore, all FSS licensees in the Ka-band are permitted to provide any combination of domestic and international services without obtaining approval from the Commission for specific service areas. 2. 28 GHz Band Segmentation Decision 7. In July 1996, the Commission adopted a band plan for U.S. commercial operations in the Ka-band. This band plan designates discrete band segments in 17.7-20.2 GHz and 27.5-30.0 GHz frequency bands for the Local Multipoint Distribution Service ("LMDS"), the fixed service, the GSO FSS service, the non-geostationary satellite orbit ("NGSO") FSS service, and feeder links for certain NGSO mobile satellite service ("MSS") systems. Of the total 2.5 GHz of spectrum available in each transmission direction, we concluded, based on the representations of the GSO FSS applicants, that 1 GHz of spectrum in both transmission directions was needed to support GSO FSS systems. The 28 GHz band plan designates the following frequencies for GSO FSS systems. We have also noted any other services that are designated in the band plan to share the band on an equal basis: GSO FSS- Designated Band Segment Other Co-Primary Designations 17.7-18.8 GHz (downlink) Fixed 19.7-20.2 GHz (downlink) 28.35-28.6 GHz (uplink) 29.25-29.5 GHz (uplink) NGSO MSS feeder links 29.5-30.0 GHz (uplink) 3. Orbital Assignments 8. In May 1996, the International Bureau, acting on delegated authority, assigned orbit locations to those 28 GHz GSO FSS applicants in the first processing round that proposed to provide international FSS from their GSO systems. This assignment plan was the result of the GSO FSS applicants' successful efforts to resolve their conflicts over orbit locations for satellites in the 62ø W.L. to 175.25ø E.L. region of the orbital arc. 9. In February 1997, the first-round GSO FSS applicants, due to their continued efforts, reached an agreement regarding conflicts over locations in the remainder of the orbital arc. Specifically this agreement covered locations between 67ø W.L. to 148ø E.L., which are best suited for providing service to the United States. As part of this agreement, the GSO FSS applicants also agreed to withdraw their petitions to deny and other pleadings filed with respect to each others' applications in the current processing round. This agreement effectively eliminated all obstacles to quick grant of their applications. By a separate Order issued today, we adopt an Assignment Plan implementing this orbital assignment agreement. Specifically, this Assignment Plan assigns additional locations to EchoStar at 121ø W.L. and 83ø W.L. Discussion A. Qualifications 10. Before the Commission authorizes any space station applicant, we first need to determine whether an applicant is legally, technically, and financially qualified to hold a Commission license. The rules set forth in Part 25 of the Commission's rules governing the FSS apply, in general, to FSS systems in the Ka-band. We recognize we will need to modify these rules, to some extent, to incorporate operations at 28 GHz. Such modifications are the subject of an ongoing rulemaking. We expect to release a Report and Order in this proceeding shortly. Nevertheless, because EchoStar's application is not mutually exclusive with any other U.S. commercial satellite system on file, and can be evaluated under current Part 25 rules, we do not view the rulemaking as a bar to considering EchoStar's license now. Rather, we will condition any grant to EchoStar on it complying with all rules adopted in the 28 GHz Band Satellite Report and Order. Financial Qualifications 11. Although financial qualification requirements for GSO FSS systems will be discussed in greater detail in the forthcoming 28 GHz Band Satellite Report and Order, the Commission has in the past, based financial requirements for satellite services on the basis of entry opportunities in the particular service being licensed. In cases where we can accommodate all pending applications and where there is sufficient remaining capacity to address additional requests that may arise, we have not looked to current financial ability as a prerequisite to a license grant. This is because the grant of an authorization to one applicant will not prevent another qualified applicant from going forward with a proposal in the same service. We ensure that licensees timely build their systems by requiring them to meet specified implementation milestones. In contrast, where applications for satellites exceed the number of satellites we can accommodate, we have adopted a standard that requires applicants to demonstrate evidence of internal assets or committed financing sufficient to cover construction, launch, and first year operating costs. This is based on our experience that under-financed licensees have significant difficulty in raising the requisite financing. 12. Because all of the first-round 28 GHz GSO applicants agreed to orbit locations, and because other orbit locations remain available for additional GSO FSS satellites, authorization of all proposed systems does not preclude use of this band by other applicants for GSO FSS systems. Consequently, it is not necessary to rule on any of the first-round 28 GHz applicants' financial qualifications. We previously granted a similar waiver to Norris Satellite, Inc., which was awarded a license to provide satellite services in the 28 GHz band in 1992. We intend to rigorously enforce the system milestone schedule to ensure that EchoStar proceeds in a timely manner and does not tie up valuable orbital locations and spectrum to the exclusion of other qualified applicants. Technical Qualifications 13. Applicants for space station authorizations also must meet certain technical qualification requirements. In its application, EchoStar represents that it intends to operate under the Commission's existing technical rules for the FSS in Part 25 of the Commission's rules. As noted, however, we will need to modify these rules somewhat, to incorporate operations in the 28 GHz band. For example, we envision that we will need to modify the definition of full frequency reuse for systems employing circular polarization. Rather than delaying action on EchoStar's application until these modifications are adopted, we condition EchoStar's authorization on it complying with the forthcoming rules concerning technical qualifications for GSO FSS systems in the 28 GHz band. B. Spectrum Issues 14. In the following text we discuss specific issues related to the frequencies EchoStar proposes for its service uplinks, service downlinks, inter-satellite links, and its TT&C functions during transfer orbit. Service Uplinks 15. As noted, the 28 GHz band plan designates the 28.35-28.6 and the 29.25-30.0 GHz band for uplink GSO FSS operations. Two hundred fifty megahertz of this spectrum at 29.25-29.5 GHz is to be shared on a co-primary basis with NGSO MSS feeder links. In its application, EchoStar proposes to use spectrum at 29.5-30.0 GHz for its service uplinks. 16. EchoStar's request is consistent with the band plan and we therefore grant EchoStar authority to operate in those bands in the United States. Service Downlink Bands 17. The 28 GHz band plan designates the 17.7-18.8 GHz and 19.7-20.2 GHz bands for GSO FSS operations, with the entire 17.7-18.8 GHz band to be shared on a co-primary basis with the fixed service. 18. In its application, EchoStar proposes to use 500 MHz of spectrum at 19.7-20.2 GHz for its service downlinks. This is consistent with the band plan and we therefore grant EchoStar authority to operate in these bands in the United States. 19. In addition, EchoStar must coordinate with the U.S. Government systems operating in the 19.7-20.2 GHz bands in accordance with footnote US 334 to the Table of Frequency Allocations. This footnote requires coordination of commercial systems with U.S. Government systems in the 17.8-20.2 GHz band. Transfer Orbit TT&C 20. EchoStar proposes to conduct its TT&C operations during transfer orbit and early operations phase of the satellites in the C-band. Specifically it proposes command operations for EchoStar Ka-1 at 6.424 GHz, and for Ka-2 at 5.926 GHz, and telemetry for Ka-1 at 4.199 and for Ka-2 at 3.701 GHz. 21. Under the U.S. Table of Frequency Allocations, TT&C operations may be provided in frequency bands allocated to the Space Operations Service or within the bands in which the particular satellite system will be providing service. EchoStar proposes to conduct transfer orbit TT&C functions for its 28 GHz system in the C-band, which is neither allocated to the Space Operations Service nor is the system's service band. Consequently, the proposed TT&C operations would constitute a non-conforming use of the Table of Frequency Allocations. The Commission has, however, permitted non-conforming uses in situations where the non- conforming use would not interfere with any conforming service and grant would otherwise serve the public interest. Here, EchoStar would make only temporary use of the C-band, and would do so because there is no Ka-band global network yet in place by which it can monitor a satellite's launch and early operations. Nevertheless, EchoStar has not provided a technical showing that it can conduct C-band TT&C operations on a non-interference basis. Thus, we will not grant EchoStar's request. If EchoStar wishes to pursue C-band transfer orbit operations, it must file a modification application in which to do so, accompanied by either (1) an exhibit demonstrating EchoStar's operations will not interfere with other conforming operations in the band; or (2) a showing that it has successfully coordinated its proposed operations with all affected operators in the band. Inter-Satellite Links 22. EchoStar plans to use inter-satellite links to connect its two satellites. EchoStar proposes the 59 GHz band for these operations. We are not now in a position, however, to assign specific spectrum to EchoStar for inter-satellite link service. The 59-64 GHz band is allocated domestically and internationally on a co-primary basis to the inter-satellite service, the fixed service, the mobile service, and the radiolocation service. These bands are also shared on a co-equal basis with U.S. Government operations. There appear to be significant interference problems associated with commercial GSO and NGSO operations and U.S. Government operations at 59-64 GHz. 23. Another alternative for inter-satellite links is the 54.25-58.2 GHz band, which two other GSO FSS applicants propose to use for inter-satellite operations. Licensing inter- satellite link operations in this band, however, is similarly premature. This band is allocated domestically and internationally on a co-primary basis to the earth-exploration satellite service, fixed, mobile, space research and inter-satellite services. Use of these bands is shared on a co- equal basis between U.S. government operations and commercial operations. GSO FSS operators must meet a power flux density (pfd) limit at an altitude between 0 and 1000 kilometers to protect passive NGSO satellite systems. The appropriate pfd limit has been the subject of study within the ITU Radiocommunication Sector and will be finalized at WRC-97. Any GSO inter-satellite link operation in these bands would be subject to coordination with U.S. Government operations in the band and the appropriate pfd limit. 24. The Commission and the National Telecommunications and Information Administration (NTIA), which has primary jurisdiction over U.S. Government use of spectrum, have had discussions regarding the interference problems that would be associated with commercial GSO FSS inter-satellite link operations at 54.25-58.2 GHz and 59-64 GHz. The 54.25-58.25 GHz band appears more promising for inter-satellite service to support commercial GSO FSS operations. We are also working with NTIA to develop a U.S. proposal for WRC-97 for an allocation in the 65-71 GHz band for inter-satellite service links for NGSO and GSO FSS systems. We are optimistic that we will obtain sufficient spectrum internationally to support the inter-satellite link operations of all licensed 28 GHz band systems. Once suitable spectrum is available, we will allow EchoStar to revise its requested inter-satellite link bands accordingly. 25. Nevertheless, we will not delay EchoStar's license pending the allocation of suitable spectrum for inter-satellite links. We will require EchoStar to apply for operating authority on specific operating frequencies once these frequencies have been identified. Further, because EchoStar will not be able to proceed beyond the initial phases of construction until the inter-satellite link issues are resolved, we will not impose any system implementation milestones until we grant EchoStar authority to launch and operate a GSO FSS system using specific inter- satellite link spectrum. Although we are not imposing specific milestones at this time, we will hold EchoStar to a strict milestone schedule once its inter-satellite link frequencies are authorized. Specific implementation milestones for 28 GHz band satellite systems will be discussed further in the 28 GHz Band Satellite Report and Order. In the interim, EchoStar is, of course, free to begin construction at its own risk. C. Regulatory Treatment 26. In our DISCO I Report and Order, we determined that all fixed-satellite operators in the C-band and Ku-band could elect to operate on a common carrier or non-common carrier basis. As we will discuss in more detail in the 28 GHz Satellite Report and Order, we see no reason to treat Ka-band FSS licensees any differently. 27. EchoStar proposes to operate some of its proposed fixed-satellite services on a common carrier as well as a non-common carrier basis. The Commission traditionally has evaluated requests to operate on a non-common carrier basis using the analysis set forth inNational Association of Regulatory Utility Commissioners v. FCC, (NARUC I). Under NARUC I, we may regulate an entity as a private carrier unless: (1) there is or should be any legal compulsion to serve the public indifferently; or (2) there are reasons implicit in the nature of the service to expect that the entity will in fact hold itself out indifferently to the eligible user public. 28. We have already authorized one 28 GHz FSS operator in the United States. Today we are authorizing thirteen more. Dozens of FSS satellites are now operating in the C-and Ku-band. In addition, the recent World Trade Organization agreement will open the U.S. market to foreign satellites. Thus, with respect to the first prong of NARUC I, sufficient competitive capacity is and will continue to be available to assure the U.S. public access to FSS. With regard to the second prong of NARUC I, we see no reasons why 28 GHz operators will hold themselves out indifferently to the public. We will therefore allow EchoStar to provide whatever mix of common carrier and non-common carrier services it decides. EchoStar will, of course, be required to file for Section 214 authority, as appropriate, for common carrier operations. D. International Coordination 29. In general, we will follow the applicable advance-publication, coordination, and notification procedures as set forth in the ITU Radio Regulations in coordinating AT&T's satellites with other affected administrations. We will discuss in more detail international coordination procedures among U.S.-licensed FSS Ka-band systems, both GSO and NGSO, in the 28 GHz Band Satellite Report and Order. E. Exclusive Arrangements 30. To facilitate global competition, we are planning to adopt limitations on 28 GHz FSS licensees' ability to enter into exclusive arrangements with other countries. These restrictions will be discussed in more detail in the 28 GHz Satellite Report and Order. We intend to construe these arrangements bearing in mind that spectrum coordination and availability in particular countries may limit the ability of 28 GHz licensees to provide service to those countries. Accordingly, EchoStar must comply with any such restrictions adopted. Conclusion 31. Accordingly, upon review of EchoStar Satellite Corporation's application to implement a 28 GHz GSO satellite system in the domestic and international FSS, we find that EchoStar Satellite Corporation is qualified to be a Commission licensee and that, pursuant to Section 309 of the Communications Act of 1934, as amended, 47 U.S.C.  309, grant of this application will serve the public interest, convenience, and necessity. As specified in the Orbital Assignment for Ka-Band Applicants, we have assigned EchoStar Satellite Corporation to the 121ø W.L. and 83ø W.L. orbital locations. Ordering Clauses 32. IT IS ORDERED that Application File Nos. 167/168-SAT-P/LA-95, and 54- SAT-AMEND-96 ARE GRANTED, and EchoStar Satellite Corporation IS AUTHORIZED to launch and operate two GSO FSS satellites, to provide fixed-satellite service in the United States in the frequency bands 19.7-20.2 and 29.5-30.0 GHz band, in accordance with the Assignment of Orbital Locations to Space Stations in the Ka-Band, DA 97-967 (adopted May 8, 1997), consistent with the Commission's Part 25 rules governing satellite operations, unless specifically waived herein, and any modifications to our rules that we adopt for 28 GHz GSO FSS systems in the forthcoming 28 GHz Band Satellite Report and Order. 33. IT IS FURTHER ORDERED that EchoStar Satellite Corporation must comply with all rules to be adopted for GSO FSS systems in the 28 GHz Band Satellite Report and Orderand must file a letter with the Commission, within 60 days of the effective date of that Report and Order, representing that it will construct its system in compliance with any rules adopted in that Report and Order. Failure to submit such a letter within this time frame is grounds for rendering this authorization null and void. 34. IT IS FURTHER ORDERED that EchoStar Satellite Corporation must coordinate all of its Ka-band downlink operations with the U.S. Government systems in accordance with footnote US334 to the Table of Frequency Allocations, 47 C.F.R.  2.106. 35. IT IS FURTHER ORDERED that the license term for each space station is ten years and will begin to run on the date EchoStar Satellite Corporation certifies to the Commission that the satellite has been successfully placed into orbit and the operations fully conform to the terms and conditions of this authorization. 36. IT IS FURTHER ORDERED that this authorization is subject to the completion of consultations under Article XIV of the INTELSAT Agreement. Upon completion of these consultations, and notification by the Department of State that the United States has fulfilled its international obligations with respect to INTELSAT, no further action by this Commission will be required. 37. IT IS FURTHER ORDERED that EchoStar Satellite Corporation will prepare any necessary submissions to the International Telecommunication Union (ITU) and to affected administrations for the completion of the appropriate coordination and notification obligations for these space stations in accordance with the ITU Radio Regulations. We also remind all licensees that no protection from interference caused by radio stations authorized by other Administrations is guaranteed unless coordination procedures are timely completed or, with respect to individual administrations, by successfully completing coordination agreements. Any radio station authorization for which coordination has not been completed may be subject to additional terms and conditions as required to effect coordination of the frequency assignments of other Administrations, 47 C.F.R.  25.111(b). 38. IT IS FURTHER ORDERED that the temporary assignment of any orbital location to EchoStar Satellite Corporation is subject to change by summary order of the Commission on 30 days' notice and does not confer any permanent right to use the orbit and spectrum. Neither this authorization nor any right granted by this authorization, shall be transferred, assigned or disposed of in any manner, voluntarily or involuntarily, or by transfer of control of any corporation holding this authorization, to any person except upon application to the Commission and upon a finding by the Commission that the public interest, convenience and necessity will be served thereby. 39. IT IS FURTHER ORDERED that EchoStar Satellite Corporation is afforded thirty days from the date of the release of this order and authorization to decline this authorization as conditioned. Failure to respond within that period will constitute formal acceptance of the authorization as conditioned. 40. This Order is issued pursuant to Section 0.261 of the Commission's rules on delegations of authority, 47 C.F.R.  0.261, and is effective upon release. Petitions for reconsideration under Section 1.106 or applications for review under Section 1.115 of the Commission's rules, 47 C.F.R.  1.106, 1.115, may be filed within 30 days of the date of public notice of this order (see 47 C.F.R.  1.4(b)(2)). FEDERAL COMMUNICATIONS COMMISSION Peter F. Cowhey Chief, International Bureau