******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 Morning Star Satellite Company, L.L.C. Application for Authority to Construct, Launch, and Operate a Ka-Band Satellite System in the Fixed-Satellite Service File Nos. 190 through 193-SAT-P/LA-95 ORDER AND AUTHORIZATION Adopted: May 8, 1997 Released: May 9, 1997 By the Chief, International Bureau: 1. With this Order, we authorize Morning Star Satellite Company, L.L.C., ("Morning Star") 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 Morning Star the opportunity to provide a variety of satellite-based communications services to users in the United States and around the world. Background 2. Morning Star is a limited liability company organized under the laws of Delaware. It filed an application for its system in September 1995. In the application, Morning Star proposes to construct, launch, and operate a system comprised of four GSO international communication satellites. Morning Star requests orbital locations at 148ø W.L.; 69.5ø W.L.; 107.4ø W.L.; and 30ø E.L. 3. Each satellite in the Morning Star system will have two payload subsystems, each with associated uplinks and downlinks. The payload subsystems are the "forward path" and the "return path." The forward path will receive up to ten broadband digital carriers from the backhaul station through a steerable spot-beam antenna and will convey 16 high speed (30 MBit/s) Quadrature Phase-Shift Keyed (QPSK) modulated signals using 24 MHz of bandwidth. Morning Star's proposed satellite return path will relay user requests for service to the control center and can be used to convey bursts of information from user's terminals at 56 or 64 Kbit/s using QPSK modulation. The same steerable antenna on the spacecraft will be used for both reception of distributed Ku-band signals and transmission of information at Ka- band. 4. Morning Star proposes to use Ka-band frequencies and certain Ku-band frequencies. Specifically, it proposes to use the 29.10-29.35 GHz band for forward path uplinks and Ku-band frequencies at 12.20 -12.5 GHz for the forward path downlinks. For the return path, Morning Star proposes to use the 29.00-29.05 GHz for the uplinks and 19.70- 20.20 GHz for its downlinks. Morning Star also proposes to conduct its tracking, telemetry, and command ("TT&C") operations in the Ku- or C- band during transfer orbit maneuvers. 5. Morning Star proposes to offer services such as high speed data, voice, and interactive video communications. These services will be offered to a wide range of commercial and residential customers through the use of small aperture terminals. Morning Star proposes to offer services on a non-common carrier basis. 6. Several other GSO FSS applicants filed petitions to deny and other pleadings in response to Morning Star's application. As further discussed below, the GSO FSS applicants later withdrew their pleadings. Teledesic Corporation, a non-geostationary satellite orbit ("NGSO") FSS licensee, also filed comments on Morning Star's application. Teledesic asserts Morning Star's proposed frequencies overlap frequencies designated for NGSO FSS systems and the Commission should therefore require Morning Star to amend its application. Relevant Domestic Decisions 1. DISCO I 7. 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 separate approval from the Commission for specific service areas. 2. 28 GHz Band Segmentation Decision 8. 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 28 GHz spectrum in both transmission directions was needed to support GSO FSS systems. The 28 GHz band plan designates the following frequencies for U.S. commercial GSO FSS systems. We note any other services that are designated in the band plan to share the band with GSO FSS systems 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 9. 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. In the Assignment Order, we indicated that the assignments were conditioned on the grant of assignments in the orbital arc capable of providing U.S. domestic service. Specifically, the May 1996 Ka-Band Assignment Order assigned locations to Morning Star at 62ø W.L.; 30ø E.L. and 107.5ø E.L. 10. In February 1997, the first-round GSO FSS applicants, due to their continued efforts, reached an agreement regarding conflicts over locations in the orbital arc best suited for providing service to the United States. Specifically the locations between 67ø W.L. to 148ø E.L. This agreement effectively eliminated the major obstacle to quick grant of their applications. 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. By separate Order issued today, we adopt an Assignment Plan implementing this orbital assignment agreement for the remaining satellites. Specifically, this Assignment Plan assigns Morning Star an additional orbital location at 147ø W.L. Discussion A. Qualifications 11. 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 Morning Star's application is not mutually exclusive with any other U.S. commercial satellite applications on file, and can be evaluated under current Part 25 rules, we do not view the rulemaking as a bar to considering Morning Star's license now. Rather, we will condition any grant to Morning Star on it complying with all rules adopted in the 28 GHz Band Satellite Report and Order. Financial Qualifications 12. 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. 13. 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 Morning Star proceeds in a timely manner and does not tie up valuable orbital locations and spectrum to the exclusion of qualified applicants. Technical Qualifications 14. Applicants for space station authorization also must meet certain technical qualification requirements. In its application, Morning Star represents that it intends to operate under the 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 Morning Star's application until these modifications are adopted, we condition Morning Star's authorization on it complying with the forthcoming rules concerning technical qualifications for GSO FSS systems in the 28 GHz band. B. Spectrum Issues 15. In the following text we discuss specific issues related to the frequency bands Morning Star proposes for its Ku-band links, service uplinks, service downlinks, and its TT&C functions during transfer operations. Ku-Band Links 16. At this time we are not in a position to address Morning Star's request to operate Ku-band frequencies as part of its system. Morning Star proposes to operate in the 12.2-12.5 GHz band, which is allocated domestically to the Broadcasting Satellite Service (BSS). Morning Star's intended use of these frequencies appears inconsistent with the BSS allocation. In any event, an international plan for the BSS bands was adopted at past World Administrative Radio Conferences (WARCs). The orbit locations which Morning Star requests for its systems are not designated to the United States under this plan. The U.S. is in the process of submitting information to the International Telecommunication Union regarding a modification to the BSS Plan. Once modifications to the BSS Plan have been approved, we will be in a position to consider Morning Star's proposed Ku-band operations. We will not hold up Morning Star's Ka-band licenses until these issues are resolved however. Service Uplinks 17. As noted, the 28 GHz band plan designates spectrum in 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, Morning Star proposes to use spectrum at 29.1-29.35 GHz for its forward path subsystem and at 29.00-29.05 GHz for its return path system. 18. Morning Star's request for uplink spectrum is inconsistent with the band plan. Nevertheless, we recognize that Morning Star has asked for 300 megahertz of total uplink spectrum, an amount that is consistent with our uplink band plan. We will allow for Morning Star to operate over 300 megahertz in the 28.35-28.6 and/or 29.25-30.0 GHz bands Once Morning Star has determined exactly which 300 MHz it wishes to use, it should file a modification application to operate in these frequencies. Any operations in the shared 29.25- 29.5 GHz bands will be, of course, subject to sharing rules adopted in the 28 GHz Band Report and Order. In the interim, Morning Star is of course free to begin construction in these bands at its own risk. Further, Teledesic's comments regarding the overlap of Morning Star's proposed frequencies with the frequencies it (at the time) proposed for its NGSO FSS system, are resolved by the Commission's final band plan. Service Downlink Bands 19. 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. In its application, Morning Star proposes to use 500 MHz of spectrum at 19.7-20.2 GHz for its return path system. This is consistent with the band plan and we therefore grant Morning Star authority to operate in these bands in the U.S. 20. In addition, Morning Star 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 Telemetry 21. Morning Star proposes to conduct its TT&C operations in either the C- or Ku-band during transfer orbit operations. Morning Star proposes to conduct TT&C operations solely in the Ka-band once on-station. 22. 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. Morning Star proposes to conduct transfer orbit TT&C functions for its 28 GHz system in the C- or Ku-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, Morning Star would make only temporary use of the C- or Ku-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, Morning Star has not provided a technical showing that it can conduct C- or Ku-band TT&C operations on a non-interference basis. Thus, we will not grant Morning Star's request. If Morning Star wishes to pursue C- or Ku-band transfer orbit operations, it must file a modification application in which to do so, accompanied by either (1) an exhibit demonstrating Morning Star'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. C. Regulatory Treatment 23. 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 differently. 24. Morning Star proposes to operate its proposed fixed-satellite services a non- common carrier basis. The Commission traditionally has evaluated requests to operate on a non- common carrier basis using the analysis set forth in National 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. 25. 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 Morning Star to operate as a non-common carrier. D. Milestone Schedules 26. As in all other satellite services, and as discussed in more detail in the forthcoming 28 GHz Band Satellite Report & Order, all licensees will be required to adhere to a strict timetable for system implementation. This ensures that licensees are building their systems in a timely manner and that the orbit-spectrum resource is not being held by licensees unable or unwilling to proceed with their plans. The implementation schedules for 28 GHz systems will generally track the schedules imposed in other satellite services. For GSO satellites, this means that construction must be commenced within one to two years of grant and the satellite must be launched and operational within five years of license grant. Nevertheless, we recognize, that several 28 GHz systems are designed with multiple satellites at each of several orbit locations and that construction of these large numbers of satellites may take additional time. We must balance this, however, against our goal of preventing warehousing. Consequently, we will require each GSO FSS licensee to begin construction of its first satellite within one year of grant, to begin construction of the remainder within two years of grant, to launch at least one satellite into each of its assigned orbit locations within five years of grant, and to launch the remainder of its satellites by the date required by the International Telecommunication Union to assure international recognition and protection of these satellites. The milestones specified in paragraph 31 of this Order and Authorization are consistent with this framework. E. International Coordination 27. In general, we will follow the applicable advance-publication, coordination, and notification procedures as set forth in the ITU Radio Regulations in coordinating Morning Star'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. F. Exclusive Arrangements 28. 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 Band Satellite Report and Order on service rules. 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, Morning Star must comply with any such restrictions adopted. Conclusion 29. Accordingly, upon review of Morning Star Satellite Company, L.L.C.'s application to implement a 28 GHz GSO satellite system to provide FSS, we find that Morning Star Satellite Company, L.L.C. is qualified to be a 28 GHz band 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 Assignment of Orbital Locations to Space Stations in the Ka-Band, we have assigned Morning Star Satellite Company, L.L.C. to the 147ø W.L, 62ø W.L, 30ø E.L., and 107.5ø E.L. orbital locations. Ordering Clauses 30. IT IS ORDERED that Application File Nos. 190 through 193-SAT-P/LA-95, ARE GRANTED in part and DEFERRED in part, and Morning Star Satellite Company, L.L.C. IS AUTHORIZED to launch and operate four GSO FSS satellites to provide fixed-satellite service in the United States in the 19.7-20.2 GHz bands, 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. 31. IT IS FURTHER ORDERED that unless extended by the Commission for good cause shown, this authorization shall become NULL AND VOID in the event each space station is not constructed, launched, and successfully placed into operation in accordance with the technical parameters and terms and conditions of the authorizations by the following dates: Construction Construction Commenced Completed Launch First satellite May 1998 April 2002 May 2002 First satellite at remaining orbit locations May 1999 April 2002 May 2002 32. IT IS FURTHER ORDERED that Morning Star Satellite Company, L.L.C. must comply with all rules to be adopted for GSO FSS systems in the 28 GHz Band Satellite Report and Order and must file a letter with the Commission, within 60 days of the effective date of this Report and Order, representing that it will construct its system in compliance with any rules adopted in this Report and Order. Failure to submit such a letter within this time frame is grounds for rendering this authorization null and void. 33. IT IS FURTHER ORDERED that Morning Star Satellite Company, L.L.C. 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. 34. IT IS FURTHER ORDERED that the license term for each space station is ten years and will begin to run on the date Morning Star Satellite Company, L.L.C. 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. 35. 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. 36. IT IS FURTHER ORDERED that Morning Star Satellite Company, L.L.C. 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). 37. IT IS FURTHER ORDERED that the temporary assignment of any orbital location to Morning Star Satellite Company, L.L.C. 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. 38. IT IS FURTHER ORDERED that Morning Star Satellite Company, L.L.C. 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. 39. 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