******************************************************** 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 PanAmSat Licensee Corp. Application for Authority to Construct, Launch, and Operate a Ka-Band Satellite System in the Fixed-Satellite Service File Nos. 198/199-SAT-P/LA-95 202-SAT-AMEND-95 ORDER AND AUTHORIZATION Adopted: May 8, 1997 Released: May 9, 1997 By the Chief, International Bureau: Introduction 1. With this Order, we authorize PanAmSat Licensee Corp. ("PanAmSat") to launch and operate a satellite system in geostationary-satellite orbit ("GSO") to provide fixed-satellite services ("FSS") in the Ka-band. This provides PanAmSat the opportunity to provide a variety of communication services to consumers and businesses in the United States and throughout the world. Background 2. PanAmSat, a Delaware corporation, filed an application for its system in September 1995. In the application, PanAmSat proposes to construct, launch, and operate a two-satellite GSO FSS international communications satellite system. It requests authority to locate its PAS-11 satellite at 79ø W.L. and its other satellite, PAS 10, at 58ø W.L. PanAmSat requests use of spectrum in the 28.35- 28.6 and 29.5-30.0 GHz for service uplink operations and the 18.55-18.8 GHz and 19.7-20.2 GHz bands for service downlink operations. PanAmSat proposes to offer a broad range of video programming as well as a range of data and voice services. PanAmSat proposes to offer services on a non-common carrier basis. 3. Each PanAmSat satellite will have 24 transponders, each with a bandwidth of 60 MHz center-to-center with 54 MHz usable bandwidth. Each transponder will be a traveling wave tube amplifier rated at between 40 and 60 watts depending on the beam served. The 24 operating transponders will provide full frequency reuse and all transponders are linearly cross-polarized. PanAmSat proposes that each transponder will be capable of being connected to any of the satellites moveable spot beams and proposes switching capability that will allow cross strapping between at least half of the transponders allowing all forms of interconnection to take place. 4. Several other GSO FSS applicants filed petitions to deny and other pleadings in response to PanAmSat'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 5. 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 authorizations 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 6. 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 the 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 also 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 Segments 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 7. 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 one location to PanAmSat at 58ø W. L. 8. In February 1997, the first-round GSO 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 applicants also agreed to withdraw their petitions to deny and other pleadings filed with respect to each others' 28 GHz band applications. This agreement effectively eliminated all obstacles to quick grant of the GSO FSS applications. By a separate Order issued today, we adopt an Assignment Plan implementing the orbital assignment agreement. The Assignment Plan assigns one additional location to PanAmSat at 125ø W.L. Discussion A. Qualifications 9. 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 PanAmSat's system 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 PanAmSat's license now. Rather, we will condition any grant to PanAmSat on it complying with all rules adopted in the 28 GHz Band Satellite Report and Order. Financial Qualifications 10. 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. 11. 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, indicated herein, to ensure that PanAmSat proceeds in a timely manner and does not tie up valuable orbital locations and spectrum to the exclusion of other qualified applicants. Technical Qualifications 12. Applicants for space station authorization also must meet certain technical qualification requirements. In its application, PanAmSat represents that it intends to operate under the existing technical rules for the FSS in Part 25 of the Commission's rules. After examining its application, it appears PanAmSat can do so. 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. Nothing in PanAmSat's application suggests its system will not be able to operate within modified Part 25 technical parameters. Rather than delaying action on PanAmSat's application until these modifications are adopted, we condition PanAmSat's authorization on it complying with the forthcoming rules concerning technical qualifications for the FSS in the 28 GHz band. B. Spectrum Issues 13. In the following text we discuss specific issues related to the frequencies PanAmSat proposes for its service uplinks and its service downlinks. Service Uplinks 14. As noted, the 28 GHz band plan designates 1000 MHz of 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, PanAmSat proposes to use spectrum at 28.35-28.6 and 29.5-30.0 GHz for its service uplinks. 15. PanAmSat's request is consistent with the band plan and we therefore grant PanAmSat authority to operate in those bands in the United States. Operations in the shared 250 megahertz are, of course, subject to the sharing rules adopted in the 28 GHz Band First Report and Order. Service Downlink Bands 16. 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 adopting the band plan, we noted that GSO FSS operations in the 17.7- 18.8 GHz band will be restricted by: the need to protect the broadcast satellite service in the 17.7-17.8 GHz band segment (after April 2007), power flux density limits to protect the earth exploration-satellite service in the 18.6-18.8 GHz band, and the need to coordinate with fixed services throughout the band. We concluded that the GSO FSS systems should be able to coordinate sufficient spectrum with other users within this 1.1 GHz band, to give them, together with the 500 MHz designated at 19.7-20.2 GHz, access to sufficient downlink spectrum to correspond with the 1000 MHz of uplink spectrum designated for GSO FSS in the 27.5-30.0 GHz range. 17. In its application, which it filed before the final band plan was adopted, PanAmSat proposes to use 750 MHz of spectrum at 18.55-18.8 and 19.7-20.2 GHz for its service downlinks. 18. In the interest of expediting the licensing process, we grant here that portion of PanAmSat's downlink request that is consistent with the 28 GHz Band Plan and where there are no other primary commercial operations. Specifically, we authorize PanAmSat to operate a system with service downlinks in the 19.7-20.2 GHz band. We will not give PanAmSat operating authority in its other requested downlink band at this time. Although its request to use the 18.55-18.8 GHz band is compatible with the band plan, it is premature to grant operating authority in any portion of the GSO FSS-designated 17.7-18.8 GHz band. As noted, this 1.1 GHz of spectrum is to be shared on a co-primary basis with other services, constraining GSO FSS operations in this band and requiring coordination with other users. Nevertheless, we anticipate that GSO FSS licensees will be able to identify and coordinate 500 MHz in this band to give these systems a total of up to 1000 MHz in each transmission direction. PanAmSat has asked for 750 MHz of downlink spectrum. We have already authorized it operating authority for 500 MHz at 19.7-20.2. Once PanAmSat has determined exactly which 250 MHz it wishes to use in the 17.7-18.8 GHz band, it should file a modification application to operate in these frequencies. In the interim, PanAmSat is of course free to begin construction in these bands at its own risk. 19. In addition, PanAmSat must coordinate with the U.S. Government systems operating in the 17.7-18.8 and 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. C. Regulatory Treatment 20. In our DISCO I Report and Order, we determined that all FSS 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 Band Satellite Report and Order, we see no reason to treat Ka-band FSS licensees differently. 21. PanAmSat proposes to operate all of its proposed fixed-satellite services as a non- common carrier. 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. 22. 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 licensed 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 PanAmSat to operate as a non-common carrier. D. Milestone Schedules 23. As in all other satellite services, and as discussed in more detail in the forthcoming 28 GHz Band Satellite Report and 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 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 28 of this Order and Authorization are consistent with this framework. E. International Coordination 24. In general, we will follow the applicable advance-publication, coordination, and notification procedures as set forth in the ITU Radio Regulations in coordinating PanAmSat'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 25. 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. 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, PanAmSat must comply with any such restrictions adopted. Conclusion 26. Accordingly, upon review of PanAmSat Licensee Corp.'s application to implement a 28 GHz GSO satellite system to provide FSS, we find that PanAmSat Licensee Corp. 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, that 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 PanAmSat Licensee Corp. to the 58ø E.L and 125ø W.L. orbital locations. Ordering Clauses 27. IT IS ORDERED that Application File Nos. 198/199-SAT-P/LA-95 and 202- SAT-AMEND-95 ARE GRANTED, and PanAmSat Licensee Corp. 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, 28.35-28.6 and 29.5-30.0 GHz 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. 28. IT IS FURTHER ORDERED that unless extended by the Commission for good cause shown, this authorization shall become NULL AND VOID in the event the 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 PAS 10 May 1998 April 2002 May 2002 PAS 11 May 1999 April 2002 May 2002 29. IT IS FURTHER ORDERED that PanAmSat Licensee Corp. 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. 30. IT IS FURTHER ORDERED that PanAmSat Licensee Corp. 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. 31. IT IS FURTHER ORDERED that the license term for each space station is ten years and will begin to run on the date PanAmSat Licensee Corp. 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. 32. 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. 33. IT IS FURTHER ORDERED that PanAmSat Licensee Corp. 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). 34. IT IS FURTHER ORDERED that the temporary assignment of any orbital location to PanAmSat Licensee Corp. 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. 35. IT IS FURTHER ORDERED that PanAmSat Licensee Corp. 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. 36. 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