Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

Brief for Respt's - Spectrum Five LLC v. FCC & USA (D.C. Cir.)

Download Options

Released: December 24, 2013

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 1 of 98
ORAL ARGUMENT NOT YET SCHEDULED
BRIEF FOR RESPONDENTS
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

NOS. 13-1231 & 13-1232

SPECTRUM FIVE LLC,
APPELLANT,
V.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE.

SPECTRUM FIVE LLC,
PETITIONER,
V.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
RESPONDENTS.

ON APPEAL FROM AND PETITION FOR REVIEW OF
AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION

WILLIAM J. BAER
JONATHAN B. SALLET
ASSISTANT ATTORNEY GENERAL
ACTING GENERAL COUNSEL


ROBERT B. NICHOLSON
JACOB M. LEWIS
ROBERT J. WIGGERS
ASSOCIATE GENERAL COUNSEL
ATTORNEYS


MATTHEW J. DUNNE
UNITED STATES
COUNSEL
DEPARTMENT OF JUSTICE

WASHINGTON, D.C. 20530
FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D.C. 20554
(202) 418-1740


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 2 of 98

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES


Pursuant to D.C. Circuit Rule 28(a)(1), Appellee/Respondent the
Federal Communications Commission (“FCC”) and Respondent the United
States certify as follows:
1. Parties.
The parties appearing before the FCC were DIRECTV Enterprises,
LLC; EchoStar Satellite Operating Corporation; the Government of Bermuda;
Radiocommunications Agency Netherlands; SES S.A.; and Spectrum Five
LLC.
The parties appearing before this Court are Appellant/Petitioner
Spectrum Five LLC; Appelle/Respondent the FCC; Respondent the United
States in No. 13-1232 only; and Intervenor EchoStar Satellite Operating
Corporation.
2. Ruling under review.
The ruling under review is Memorandum Opinion and Order, EchoStar
Satellite Operating Company; Application for Special Temporary Authority
Relating to Moving the EchoStar 6 Satellite from the 77° W.L. Orbital
Location, and to Operate at the 96.2° W.L. Orbital Location, 28 FCC Rcd
10412 (2013) (“Order”).
3. Related cases.
The FCC and the United States are not aware of any related cases.


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 3 of 98

TABLE OF CONTENTS


Table of Authorities......................................................................................... iii 
Glossary ......................................................................................................... viii 
Jurisdiction ........................................................................................................ 1 
Questions Presented .......................................................................................... 2 
Statutes and Regulations ................................................................................... 3 
Counterstatement ............................................................................................... 3 
A.  Regulatory Background ......................................................................... 3 
B.  Spectrum Five ........................................................................................ 7 
C.  Proceedings Before The Bureau ............................................................ 9 
1. 
Application and Pleadings ................................................................. 9 
2. 
Bureau Decision .............................................................................. 13 
D.  The Order On Review ......................................................................... 15 
E. 
Subsequent Developments .................................................................. 18 
Summary of Argument .................................................................................... 18 
Standard of Review ......................................................................................... 23 
Argument ......................................................................................................... 24 
I. 
Spectrum Five Has Not Demonstrated Standing. .................................... 24 
A.  Spectrum Five’s Injury Is Conjectural And Uncertain. ...................... 24 
B.  Redress Is Contingent On Action By The ITU, A Non-
Party. .................................................................................................... 29 
1. 
Only the ITU can provide relief ...................................................... 29 
2. 
Vacatur may have no effect on the ITU. ......................................... 30 
i

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 4 of 98

C.  The Requested Relief Is Beyond The Court’s Power. ........................ 34 
II.  The Commission Reasonably Exercised Its Discretion In
Finding That An International Coordination Agreement
Constituted Extraordinary Circumstances Meriting An STA. ................. 39 
A.  Interference protection for present and future DBS
service to U.S. customers constituted extraordinary
circumstances. ..................................................................................... 39 
B.  Spectrum Five’s attacks on the coordination arrangement
are baseless. ......................................................................................... 43 
III.  Spectrum Five Has Waived Its Argument That A Conflict
Between An STA And The ITU BSS Plan Is Unlawful; In
Any Case, There Is No Conflict. .............................................................. 47 
IV.  The Commission Has Not Pre-Judged The Assignment Of
DBS Licenses. .......................................................................................... 47 
V.  Spectrum Five Has Waived Its Argument Regarding
Echostar 6’s Fuel Life; In Any Case, The Commission
Reasonably Accepted Echostar’s Explanation Of The Issue. .................. 54 
Conclusion ....................................................................................................... 57 
ii

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 5 of 98

TABLE OF AUTHORITIES

CASES

 
Americans for Safe Access v. DEA, 706 F.3d 438
(D.C. Cir. 2013) ........................................................................................... 33
ASARCO Inc. v. Kadish, 490 U.S. 605 (1989) ................................................ 29
Ashbacker Radio Corp. v. FCC, 326 U.S. 327
(1945) .......................................................................................................... 52
*
AT&T Corp. v. FCC, 317 F.3d 227 (D.C. Cir. 2003) ..................................... 48
Bachow Commc’ns, Inc. v. FCC, 237 F.3d 683
(D.C. Cir. 2001) ........................................................................................... 52
*
Bartholdi Cable Co., Inc. v. FCC, 114 F.3d 274
(D.C. Cir. 1997) ........................................................................................... 55
BDPCS, Inc. v. FCC, 351 F.3d 1177 (D.C. Cir.
2003) ............................................................................................................ 47
Cablevision Sys. Corp. v. FCC, 649 F.3d 695 (D.C.
Cir. 2011) ................................................................................................ 4, 57
City of Arlington, Tex. v. FCC, 133 S. Ct. 1863
(2013) .......................................................................................................... 39
Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138
(2013) .......................................................................................................... 24
CNG Transmission Corp. v. FERC, 40 F.3d 1289
(D.C. Cir. 1994) ........................................................................................... 29
Coal. for Pres. of Hispanic Broad. v. FCC, 893
F.2d 1349 (D.C. Cir. 1990) ......................................................................... 27
Consumer Elecs. Ass’n v. FCC, 347 F.3d 291 (D.C.
Cir. 2003) ..................................................................................................... 23
Cranston v. Reagan, 611 F. Supp. 247 (D.D.C.
1985) ............................................................................................................ 36
Dist. No. 1, Pac. Coast Dist., Marine Eng’rs
Beneficial Ass’n v. Mar. Admin., 215 F.3d 37
(D.C. Cir. 2000) ........................................................................................... 45
El-Shifa Pharm. Indus. Co. v. U.S., 607 F.3d 836
(D.C. Cir. 2010) ........................................................................................... 35
iii

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 6 of 98

Environmentel, LLC v. FCC, 661 F.3d 80 (D.C. Cir.
2011) ............................................................................................................ 55
FCC v. WNCN Listeners Guild, 450 U.S. 582
(1981) .......................................................................................................... 43
Haig v. Agee, 453 U.S. 280 (1981) ................................................................. 35
Hwang Geum Joo v. Japan, 413 F.3d 45 (D.C. Cir.
2005) ............................................................................................................ 36
*
In re Core Commc’ns, Inc., 455 F.3d 267 (D.C. Cir.
2006) ............................................................................................... 43, 46, 47
Japan Whaling Ass’n v. Am. Cetacean Soc., 478
U.S. 221 (1986) ........................................................................................... 36
Keller Commc’ns, Inc. v. FCC, 130 F.3d 1073 (D.C.
Cir. 1997) ..................................................................................................... 42
Kessler v. FCC, 326 F.2d 673 (D.C. Cir. 1963) .............................................. 52
Klamath Water Users Ass’n v. FERC, 534 F.3d 735
(D.C. Cir. 2008) .............................................................................. 29, 31, 33
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................... 33, 34
M2Z Networks, Inc. v. FCC, 558 F.3d 554 (D.C.
Cir. 2009) ..................................................................................................... 43
Miami Bldg. & Constr. Trades Council v. Sec’y of
Def., 493 F.3d 201 (D.C. Cir. 2007) ..................................................... 29, 34
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ............................................ 44
Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967 (2005) ........................................................... 24
NetworkIP, LLC v. FCC, 548 F.3d 116 (D.C. Cir.
2008) ..................................................................................................... 41, 42
*
New England Power Generators Ass’n v. FERC,
707 F.3d 364 (D.C. Cir. 2013) ............................................................. 19, 28
New England Pub. Commc’ns Council, Inc. v. FCC,
334 F.3d 69 (D.C. Cir. 2003) ...................................................................... 48
New York Reg’l Interconnect, Inc. v. FERC, 634
F.3d 581 (D.C. Cir. 2011) ........................................................................... 25
iv

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 7 of 98

Northpoint Technology, Ltd. v. FCC, 412 F.3d 145
(D.C. Cir. 2005) ...................................................................... 4, 6, 19, 22, 26
Orange Park Florida T.V., Inc. v. FCC, 811 F.2d
664 (D.C. Cir. 1987) .................................................................................... 27
Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety
Admin., 489 F.3d 1279 (D.C. Cir. 2007) ..................................................... 25
*
Rural Cellular Ass’n v. FCC, 685 F.3d 1083 (D.C.
Cir. 2012) ........................................................................................ 23, 39, 49
Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct.
2254 (2011) ................................................................................................. 23
Teledesic LLC v. FCC, 275 F.3d 75 (D.C. Cir.
2001) ............................................................................................................ 24
Town of Barnstable v. FAA, 659 F.3d 28 (D.C. Cir.
2011) ..................................................................................................... 31, 33
*
U.S. Ecology, Inc. v. United States Dep’t of
Interior, 231 F.3d 20 (D.C. Cir. 2000) ................................................. 29, 34
Waterway Commc’ns Sys., Inc. v. FCC, 851 F.2d
401 (D.C. Cir. 1988) ...................................................................................... 2
Whitmore v. Arkansas, 495 U.S. 149 (1990)................................................... 25
Zitovski ex rel. Zitovsky v. Clinton, 132 S. Ct. 1421
(2012) .......................................................................................................... 36

STATUTES

 
28 U.S.C. § 2341(1) .......................................................................................... 1
47 U.S.C. § 151 ................................................................................................. 3
47 U.S.C. § 152(a) ............................................................................................. 3
47 U.S.C. § 303(y)........................................................................................... 21
47 U.S.C. § 309(e) ........................................................................................... 52
47 U.S.C. § 309(f) ........................................................................................... 39
47 U.S.C. § 402(a) ............................................................................................. 1
47 U.S.C. § 402(b)(6) ........................................................................................ 1
47 U.S.C. § 405 .................................................................................. 43, 47, 54
47 U.S.C. § 405(a) .................................................................................... 21, 46
v

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 8 of 98

47 U.S.C. § 721(c) ............................................................................................. 3

OTHER AUTHORITIES

 
ITU Constitution, Article 44, No. 196 ............................................................ 28
ITU Radio Regs., App. 30, Art. 11.44B (2012) ......................................... 6, 32
ITU Radio Regs., App. 30, Art. 4.2.19 (2012) ..............................................6, 7
ITU Radio Regs., App. 30, Art. 4.2.20 (2012) .................................................. 7
ITU Radio Regs., App. 30, Art. 4.2.6 (2012) .................................................... 6
*
ITU Radio Regs., App. 30, Art. 4.4 (2012) .............................................. 14, 49
ITU Radio Regs., App. 30, Art. 9 (2012) ........................................................ 38
ITU Radio Regs., App. 30, Art. 9.4 (2012) ....................................................... 7
ITU Radio Regs., App. 30, Arts. 0.3 (2012) ..................................................... 7
Lawrence D. Roberts, A Lost Connection:
Geostationary Satellite Networks and the
International Telecommunication Union
, 15
BERKELEY TECH. L.J. 1095 (2000) ............................................................... 5
Secretariat, United Nations General Assembly,
Physical Nature and Technical Attributes of the
Geostationary Orbit
(Jan 1988) submitted in
Mitigation of Orbital Debris
, FCC Int’l Bur.
Docket No. 02-54 (Mar. 18, 2002) .............................................................. 10

REGULATIONS

 
47 C.F.R. § 1.115 ............................................................................................ 55
47 C.F.R. § 1.65(a) .......................................................................................... 44
47 C.F.R. § 2.1 ................................................................................... 10, 14, 49
47 C.F.R. § 2.1(c) ............................................................................................ 13
47 C.F.R. § 25.112(a) ...................................................................................... 54
47 C.F.R. § 25.120(a) ........................................................................................ 5
47 C.F.R. § 25.120(b)(1) ........................................................................ 2, 5, 39
47 C.F.R. § 25.148(f) ................................................................... 21, 47, 48, 51
47 C.F.R. § 25.201 ............................................................................... 4, 14, 49
vi

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 9 of 98

47 C.F.R. § 25.202(a)(7) ................................................................................... 4
47 C.F.R. § 25.280 .......................................................................................... 10
47 C.F.R. §§ 25.101-25.701 .............................................................................. 4

ADMINISTRATIVE DECISIONS

 
NPRM, Amendment of the Commission’s Policies &
Rules for Processing Applications in the Direct
Broad. Satellite Serv.
, 21 FCC Rcd 9443 (2006) ......................... 5, 6, 26, 49
Public Notice, Amendment of the Commission’s
Policies & Rules for Processing Applications in
the Direct Broad. Satellite Serv
., 22 FCC Rcd
125 (Int’l Bur. 2007) ..................................................................................... 5
Public Notice, Direct Broadcast Satellite (DBS)
Service Auction Nullified, 20 FCC Rcd 20618
(2005) ..................................................................................................... 4, 26
Sirius Satellite Radio, Inc, 16 FCC Rcd 16773 (Int’l
Bur. 2001) .................................................................................................... 41
Spectrum Five LLC, 26 FCC Rcd 10448 (Int’l Bur.
2011) .............................................................................................................. 7
Spectrum Five LLC, 27 FCC Rcd 13129 (Int’l Bur.
2012) .............................................................................................................. 8


* Cases and other authorities principally relied upon are marked with
asterisks.

vii

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 10 of 98

GLOSSARY

2006 NPRM
Notice of Proposed Rulemaking, Amendment of the
Commission’s Policies & Rules for Processing
Applications in the Direct Broad. Satellite Serv.
, 21
FCC Rcd 9443 (2006)
BSS
Broadcast-satellite service (referred to as DBS
domestically)
Bureau Stay Order
Memorandum Opinion and Order, EchoStar
Satellite Operating Company; Application for
Special Temporary Authority Relating to Moving
the EchoStar 6 Satellite from the 77° W.L. Orbital
Location, and to Operate at the 96.2° W.L. Orbital
Location
, 28 FCC Rcd 5475 (Int’l Bur. 2013)
Bureau Order Order
and
Authorization,
EchoStar Satellite
Operating Company; Application for Special
Temporary Authority Relating to Moving the
EchoStar 6 Satellite from the 77° W.L. Orbital
Location, and to Operate at the 96.2° W.L. Orbital
Location
, 28 FCC Rcd 4229 (Int’l Bur. 2013)
DBS Direct
Broadcast
Service (referred to as BSS
internationally)
Freeze Notice Public
Notice,
Direct Broadcast Satellite (DBS)
Service Auction Nullified, 20 FCC Rcd 20618,
20619 (2005)
FSS Fixed-satellite
service
ITU
International Telecommunication Union
MSS Mobile-satellite
service
viii

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 11 of 98

Order
Memorandum Opinion and Order, EchoStar
Satellite Operating Company; Application for
Special Temporary Authority Relating to Moving
the EchoStar 6 Satellite from the 77° W.L. Orbital
Location, and to Operate at the 96.2° W.L. Orbital
Location
, 28 FCC Rcd 10412 (2013)
STA Special
Temporary
Authority
W.L. Western
Longitude



ix

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 12 of 98
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

NOS. 13-1231 & 13-1232

SPECTRUM FIVE LLC,
APPELLANT,
V.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE.

SPECTRUM FIVE LLC,
PETITIONER,
V.
FEDERAL COMMUNICATIONS
COMMISSION
AND UNITED STATES OF AMERICA,
RESPONDENTS.

ON APPEAL FROM AND PETITION FOR REVIEW
OF
AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION

BRIEF FOR RESPONDENTS

JURISDICTION

Spectrum Five invokes this Court’s jurisdiction under 47 U.S.C.
§ 402(b)(6), or in the alternative under 47 U.S.C. § 402(a) and 28 U.S.C.
§ 2341(1). Br. 1. Because the underlying Order involves the grant of an

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 13 of 98

instrument of authorization, it is most appropriately viewed as “triggering”
§ 402(b). See Waterway Commc’ns Sys., Inc. v. FCC, 851 F.2d 401, 403
(D.C. Cir. 1988). In any case, the issue is not dispositive, because the notice
of appeal and the petition for review were both filed in this Court within 30
days of the Order.
As explained below, however, the FCC argues that this Court lacks
jurisdiction because Spectrum Five lacks standing.

QUESTIONS PRESENTED

1. Whether Spectrum Five has standing, given that (1) before it can
suffer any injury, it must fund, build, and launch a satellite and secure a
license that is not now available, (2) only the ITU, an international
organization and a non-party, can redress any purported injury by
adjudicating the right of the U.K. to claim protection under its
BERMUDASAT-1 filing from interference from Spectrum Five, and (3)
Spectrum Five’s desired remedy would require this Court to order the FCC to
take a position before the ITU contrary to a coordination arrangement reached
on behalf of the U.S. with the U.K.
2. Whether, in granting EchoStar special temporary authority (an
“STA”) to move its satellite under 47 C.F.R. § 25.120(b)(1), the FCC
reasonably exercised its discretion to find that the ability to obtain, through
2

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 14 of 98

international coordination, protection of orbital locations for present and
future service to U.S. consumers constituted extraordinary circumstances, the
delay of which would seriously prejudice the public interest.
3. Whether, if the issue is not waived, the FCC reasonably interpreted
ITU rules to permit the operation of Echostar 6 on a non-interference basis
under ITU Radio Regulation Art. 4.4.
4. Whether the Commission adequately explained its determination that
grant of the STA did not prejudge the outcome of any subsequent FCC
process for awarding DBS licenses.
5. Whether, if the issue is not waived, the Commission reasonably
accepted EchoStar’s explanation for its revised estimate of the remaining
useful life of the EchoStar 6 satellite.

STATUTES AND REGULATIONS

All applicable statutes and regulations are contained in the Brief for
Appellant/Petitioner Spectrum Five, LLC.

COUNTERSTATEMENT

A.

Regulatory Background

The Federal Communications Commission regulates satellite service
for signals received or transmitted within the United States. See 47 U.S.C. §§
151, 152(a), 721(c). One such type of service is known domestically as direct
broadcast satellite (“DBS”). DBS is “[a] radiocommunication service in
3

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 15 of 98

which signals [are] transmitted or retransmitted by space stations” in the
12.2-12.7 GHz frequency band “intended for direct reception by the general
public.” 47 C.F.R. § 25.201; see also id. § 25.202(a)(7). DBS providers such
as DIRECTV and EchoStar-affiliate DISH Network compete with cable
operators by offering multichannel video programming to consumers “via
direct-to-home satellites.” Cablevision Sys. Corp. v. FCC, 649 F.3d 695, 700
(D.C. Cir. 2011).
The FCC has adopted rules governing the provision of DBS and other
satellite communication services in the United States. See 47 C.F.R. §§
25.101-25.701. After this Court ruled in Northpoint Technology, Ltd. v.
FCC, 412 F.3d 145 (D.C. Cir. 2005), that the FCC was prohibited by statute
from allocating DBS licenses by auction, the agency imposed a freeze on all
new applications to provide DBS in the United States. Public Notice, Direct
Broadcast Satellite (DBS) Service Auction Nullified, 20 FCC Rcd 20618,
20619 (2005) (“Freeze Notice”). Although the Commission issued a notice
of inquiry to explore DBS-licensing mechanisms that would not run afoul of
Northpoint, it has not taken action in that proceeding since January 2007, and
the DBS application freeze remains in effect. See NPRM, Amendment of the
Commission’s Policies & Rules for Processing Applications in the Direct
Broad. Satellite Serv., 21 FCC Rcd 9443, 9444 ¶ 1 (2006) (“2006 NPRM”);
4

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 16 of 98

Public Notice, Amendment of the Commission’s Policies & Rules for
Processing Applications in the Direct Broad. Satellite Serv., 22 FCC Rcd 125
(Int’l Bur. 2007).
Under the FCC’s rules, any provider of satellite communication
services (including DBS) may apply to the Commission for special temporary
authority (“an STA”) “to install and/or operate new or modified equipment.”
47 C.F.R. § 25.120(a). “The Commission may grant a temporary
authorization only upon a finding that there are extraordinary circumstances
requiring temporary operations in the public interest and that delay in the
institution of these temporary operations would seriously prejudice the public
interest.” Id. § 25.120(b)(1).
The use of orbital locations and frequencies for DBS service, known
internationally as “broadcasting-satellite service” or “BSS,” is coordinated
through the International Telecommunication Union (“ITU”), a United
1
Nations specialized agency. “ITU regulations apportion spectrum and orbit
locations” for BSS “in various geographic regions in certain planned
frequency bands on a regional basis among all nations through agreements

1 For a discussion of the ITU’s history and functions, see Lawrence D.
Roberts, A Lost Connection: Geostationary Satellite Networks and the
International Telecommunication Union
, 15 BERKELEY TECH. L.J. 1095,
1105-14 (2000).
5

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 17 of 98

reached at Regional and World Radiocommunication Conferences.” 2006
NPRM, 21 FCC Rcd at 9444-45 ¶ 3. The ITU regulations cover eight orbital
locations assigned to the United States for providing DBS. Id.; see also
Northpoint, 412 F.3d at 147-48.
Under ITU rules, each nation (or, in ITU terminology,
“Administration”) may seek to modify the existing BSS plan by filing a
request with the ITU. Any such filing will lapse unless the frequency
assignments at a given orbital location are “brought into use” within eight
years of the filing. ITU Radio Regs., App. 30, Art. 4.2.6 (2012). To bring
the filing into use, a satellite capable of providing service in the relevant
frequencies must be deployed and maintained at the orbital position for at
least 90 consecutive days. Id., Art. 11.44B.
When the ITU determines that an Administration’s filing has been
brought into use and that certain additional requirements are met, it records
the filing in the its Master International Frequency Register. ITU Radio
Regs., App. 30, Art. 4.2.19. This recording gives operations consistent with
the filing a right to international recognition and interference protection. Id.
Notwithstanding this right, ITU rules require all Administrations—including
those with ITU-recorded filings—to negotiate in good faith in an effort to
6

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 18 of 98

ensure rational, efficient, and economical use of the geostationary orbit and
radio frequencies. Id., Arts. 0.3, 9.4, App. 30, Arts. 4.2.19, 4.2.20.

B.

Spectrum Five

Spectrum Five LLC is a privately-held company formed in 2004 to
develop and operate satellite systems. Wilson Decl. ¶ 1 (Br. Add. 74).
Spectrum Five does not now operate any satellites or provide service to any
customers. Before the FCC froze DBS applications, the agency granted
Spectrum Five DBS market access to provide service from a satellite at the
114° West Longitude (“W.L.”) orbital location, but in 2011 the Commission
withdrew that grant when Spectrum Five failed to meet construction
milestones on its proposed satellites. See Spectrum Five LLC, 26 FCC Rcd
2
10448 ¶¶ 1, 5 (Int’l Bur. 2011) (“Spectrum Five Milestone Order”).
Spectrum Five now has a new FCC license for a satellite at 95.15°
W.L., but that license only authorizes a satellite to operate in the 17/24 GHz
“Reverse Band”—a different, higher set of frequencies than the 12/17 GHz
used for DBS service. See Spectrum Five LLC, 27 FCC Rcd 13129 ¶ 1 (Int’l

2 “The Commission’s DBS due diligence rules are designed to ensure that
valuable spectrum is not held by those unable or unwilling to proceed with
their plans, and that service is timely deployed for the benefit of the public.”
Spectrum Five Milestone Order ¶ 6.
7

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 19 of 98

3
Bur. 2012). Spectrum Five has stated that it plans to construct and launch a
“dual-band” satellite at 95.15° W.L. that would transmit on both the standard
DBS and Reverse Band frequencies. Wilson Decl. ¶ 14 (Br. Add. 78-79).
Spectrum Five has secured, through a Dutch subsidiary, a filing submitted to
the ITU by the Netherlands for DBS service at that location. Id. at ¶¶ 11-13
(Br. Add. 78). However, because of the FCC freeze on DBS applications for
U.S. service, Spectrum Five has neither applied for nor been granted an FCC
license to provide DBS service to the United States. Id. at ¶ 31 (Br. Add. 85).
Spectrum Five has not yet begun physical construction of its satellite.
Id. at ¶ 30 (Br. Add. 84). It has submitted results of its “Critical Design
Review,” a pre-construction milestone required by the FCC as a condition of
its Reverse Band market access grant. Id. Its fourth milestone—the
beginning of physical construction—has been delayed, though Spectrum Five
still anticipates launching its satellite by its milestone date of August 2016.
Id.

3 Because this service does not use the same set of uplink and downlink
frequencies as DBS service, Spectrum Five’s Reverse-Band license did not
violate the DBS application freeze.
8

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 20 of 98

C.

Proceedings Before The Bureau
1. Application and Pleadings
On February 20, 2013, EchoStar Satellite Operating Corporation
(“EchoStar”) filed an application with the FCC for special temporary
authority to move its EchoStar 6 satellite from the 76.8° W.L. orbital location
to the 96.2° W.L. orbital location. STA Application (JA6-34). EchoStar
made this request “to accommodate the needs of its customer and
development partner, SES Satellites (Bermuda) Ltd.” STA Application 1-2
(JA10-11). Bermuda had authorized SES Bermuda to operate at the 96.2°
W.L. orbital location, a location for which the U.K. has a filing with the ITU,
known as BERMUDASAT-1. Id. That filing was scheduled to expire in
April 2013, see 4/19/13 Letter from Bermuda to FCC (JA131), creating
“urgent timing,” STA Application 1 n.1 (JA10); see also 3/13/13 Letter from
EchoStar to FCC at 2 n.4 (JA74).
EchoStar explained that SES Bermuda planned “to use EchoStar 6 at
96.2° W.L. to evaluate and develop commercial service opportunities” for
providing “video programming and other services, including international
maritime services, to consumers in Bermuda” and other “markets outside of
the United States.” Bureau Order ¶ 2 (JA153). The application did not
contemplate provision of DBS to the general public in the United States.
9

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 21 of 98

Instead, transmissions from the satellite would be reoriented toward areas
south and east of the United States, to make possible service to Bermuda and
the Caribbean. See STA Application at Ex. 2 pp. 2-3 (JA22-23); Bureau
Order ¶ 12 (JA157).
In response to other filings, EchoStar explained that it expected the
satellite to be operational until at least 2019. 3/13/13 Letter from EchoStar to
FCC 1-2 (JA73-74). EchoStar explained that this estimate was longer than
one made two years earlier because the previous estimate failed to “account
for fuel savings resulting from the current mode of inclined operations.” Id.
4
at 4 n.15 (JA76). EchoStar also anticipated further fuel savings that would
help to extend the life of the satellite. See 2/27/13 Letter from EchoStar to
FCC at Annex (JA45).
DIRECTV initially opposed EchoStar’s STA application. DIRECTV
complained that neither Bermuda nor any Bermuda-authorized operator had
coordinated to assess and avoid interference with DIRECTV’s satellite

4 Under “inclined” operations, an operator allows a satellite to drift along
the longitudinal (North-South) axis by not correcting for some natural
(primarily gravitational) forces that perturb the orbit. This uses less fuel than
operation that limits longitudinal drift. See generally 47 C.F.R. §§ 2.1,
25.280; Secretariat, United Nations General Assembly, Physical Nature and
Technical Attributes of the Geostationary Orbit
(Jan 1988) submitted in
Mitigation of Orbital Debris
, FCC Int’l Bur. Docket No. 02-54 (Mar. 18,
2002) (FCC Add. 3).
10

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 22 of 98

network operating at 101° W.L. 2/25/13 Letter from DIRECTV to FCC at 3
(JA37). DIRECTV expressed concern that “the proposed relocation and
operation of EchoStar 6 at 96.2° W.L.” would give SES Bermuda “leverage
to demand [interference] protection that would compromise [DIRECTV’s]
U.S. networks,” which provide “service to millions of Americans.” Id. at 5
(JA39).
One month later, DIRECTV and SES Bermuda entered into a
coordination arrangement. SES Bermuda informed the FCC that this
“operator-to-operator coordination arrangement…fully resolves any concern
about the impact of” operations under the BERMUDASAT-1 filing on “U.S.
DBS services at…101° W.L.” 4/29/13 Letter from SES to FCC (JA109).
The arrangement protects both “existing and future” operations by DIRECTV
from interference from operations under the BERMUDASAT-1 filing. Id.;
see also Order ¶ 9 (JA325). Contingent upon U.K. and U.S. acceptance of
this arrangement (which has since occurred), DIRECTV withdrew its
objection to the STA request. 3/27/13 Letter from DIRECTV to FCC (JA96).
Spectrum Five also opposed EchoStar’s STA application. 3/14/13
Letter from Spectrum Five to FCC (JA58). Spectrum Five argued that
EchoStar had not demonstrated the extraordinary circumstances necessary for
an STA, that the STA application differed materially from the
11

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 23 of 98

BERMUDASAT-1 filing, and that operation under the STA would “run[]
afoul” of the freeze on new DBS license applications because EchoStar 6
would be “operat[ing] feeder links” and tracking signals from the United
States. Id. at 2-4 (JA59-61). Spectrum Five argued further that because the
BERMUDASAT-1 filing “substantially overlap[s]” with Spectrum Five’s
ITU filing made by the Netherlands, if “the EchoStar 6 satellite is located at
the 96.2° W.L. orbital slot for at least 90 days, ITU rules would…compel
Spectrum Five to ‘protect’” from interference any services offered under the
BERMUDASAT-1 filing. 3/20/13 Letter from Spectrum Five to FCC 1-2
(JA91-92). The Netherlands also expressed concern about the impact of
Echostar’s STA request on its ITU filing. 3/28/13 Letter from Netherlands
Radiocommunications Agency to FCC (JA103).
In response to Spectrum Five’s objections, EchoStar and SES agreed to
accept interference produced by Spectrum Five’s satellite at 95.15° W.L.
operating its FCC-authorized Reverse Band service. Bureau Order ¶ 13
(JA157). That commitment ensures that SES will not raise any future claims
requiring Spectrum Five to curtail any Reverse Band service it may someday
offer in order to accommodate SES’s operations at 96.2° W.L.
12

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 24 of 98

2. Bureau Decision
On April 1, 2013, the FCC’s International Bureau granted EchoStar’s
application for an STA. Bureau Order ¶ 1 (JA153). The Bureau found that
there were “extraordinary circumstances, within the meaning of [the FCC’s]
rules, for a grant of [EchoStar’s] request.” Id. at ¶ 9. The Bureau explained
that such circumstances were the licensee’s “need…to move a geostationary
satellite…in light of the DIRECTV/SES Bermuda operator-to-operator
arrangement and [EchoStar]/SES Bermuda commitments concerning
Spectrum Five’s U.S. licensed 17/24 BSS satellite.” Id. The Bureau also
noted that EchoStar 6, at the time “used only as a secondary back up
satellite,” would be better deployed where it could “permit[] the public to
receive services that would otherwise not be available.” Id.
Spectrum Five had argued that operation of EchoStar 6 pursuant to the
STA would constitute DBS service, in violation of the DBS application
freeze—even though EchoStar 6 would not provide service within the United
States—because “feeder links” and tracking, telemetry, and control (TT&C)
operations would transmit from fixed stations within the United States up to
5
the satellite. The Bureau disagreed, stating that it did not interpret such “very

5 “Feeder” links transmit information up to satellites for transmission back
to earth. See 47 C.F.R. § 2.1(c).
13

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 25 of 98

limited technical operations” to constitute “DBS service,” id. at ¶ 12 (JA157),
and that for purposes of United States licensing, the FCC “viewe[d] the
operations authorized by this STA as fixed and mobile satellite services,” as
6
opposed to BSS services, id. at ¶ 16 (JA158). The Bureau found that its
license of EchoStar 6 was permitted under ITU rules, given that EchoStar 6
would be operating on a non-interference basis, and given that the U.S. would
not be attempting to claim interference protection for the satellite through
modification of the ITU Region 2 BSS Plan. Id. at ¶ 17 & n.36 (JA159)
(citing ITU Radio Regs. Art. 4.4). In response to arguments from the
Netherlands, the Bureau further clarified that it “t[ook] no position regarding
the validity or priority of” the U.K. and Netherland’s filings, and that any
dispute about those matters was to be settled by those countries and the ITU,
if necessary. Id. at ¶ 15 (JA158).
Shortly after the Bureau Order was issued, the United States and the
U.K. accepted the operator-to-operator arrangement between DIRECTV and
SES Bermuda. Order ¶ 9 (JA325); see also 3/29/13 Letter from FCC to U.K.
(JA137); 3/29/13 Letter from U.K. to FCC (JA139); 4/4/13 Letter from FCC
to U.K. (JA161); 4/11/13 Letter from U.K. to FCC (JA259).

6 See 47 C.F.R. §§ 2.1, 25.201 (defining BSS, FSS, and MSS).

14

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 26 of 98

D.

The Order On Review
On April 5, 2013, Spectrum Five filed an application for administrative
review (JA185) and a request for an administrative stay of the Bureau Order
(JA206). On April 23, 2013, the Bureau denied the request for stay. Bureau
Stay Order (JA291). In its application for review, Spectrum Five argued that
(1) the Bureau had improperly found “extraordinary circumstances”
warranting an STA, App. for Review 7-12 (JA193-198), and (2) the STA
would suppress competition by allowing EchoStar to bring the
BERMUDASAT-1 filing into use, precluding other providers from
competing for the orbital location if the DBS freeze were lifted, id. 14-18
(JA200-204).
On July 9, 2013, the Commission denied Spectrum Five’s application
for review. Order ¶ 1 (JA322). The Commission explained that the
extraordinary circumstances justifying an STA in this case involved the
significant interference protections for DIRECTV’s U.S. DBS operations and
for Spectrum Five’s potential future Reverse-Band operations that would be
secured by approving the STA. Id. at ¶¶ 1, 9 (JA322, 325). The Commission
explained that “the operator-to-operator arrangement between DIRECTV and
SES,” which “[t]he United States and the U.K. have now ratified,” “insures
that DIRECTV’s established U.S. operations at [101° W.L.] will be fully
15

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 27 of 98

protected on an ongoing basis.” Id. at ¶ 9 (JA325). “Similarly,” the
Commission observed, “the United States and the U.K. have also agreed to
protection of Spectrum Five’s U.S.-licensed satellite” at 95.15° W.L., “based
on assurances provided by SES.” Id. The FCC concluded: “Taken together,
these Administration-to-Administration agreements provide the United States
with protections of operations at orbital locations from which the U.S. public
receives service.” Id.
The FCC determined that the grant of the STA would “serve the public
interest” by “providing assurance of U.K.-backed interference protections for
service provided to the United States population by U.S.-licensed satellites
from nearby orbital locations.” Order ¶ 9 (JA326). The Commission noted
that “there are no [other] operator-to-operator or Administration-to-
Administration agreements in place at this time that would comparably
protect” DIRECTV’s and Spectrum Five’s U.S.-licensed operations from
interference. Id. Therefore, it concluded: “Without the grant of the STA, the
benefits accruing from the certainty of interference protection could be lost,
thereby substantially disserving the public interest.” Id. In light of these
considerations, the Commission found that “there were extraordinary
circumstances” justifying an STA, “and that delay would seriously prejudice
the public interest.” Id. at ¶ 13 (JA327).
16

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 28 of 98

The FCC also found “appropriate[]” the Bureau’s statement that the
FCC would take no position regarding the relative priority of the U.K.’s and
the Netherlands’ ITU filings, id. at ¶ 12 (JA326). The Commission did note,
however, that the U.S. had explicitly stated to the U.K. that the U.S. “will not
object to the U.K. Administration notifying the ITU that the
BERMUDASAT-1 network was brought into use.” Id. at ¶ 8 (JA325). The
Commission also “agree[d] with the Bureau’s analysis” that the STA
authorized operations permitted by ITU rules. Id. at ¶ 8 (JA325).
Finally, the Commission concluded that Spectrum Five’s allegations
that the STA could harm both Spectrum Five and competition were
“speculative and based on unsupported assumptions,” and the Commission
adopted the Bureau’s “detail[ed]” analysis on this point, id. at ¶ 17 (JA329),
including “the possibility for future arrangements, the flexibility available in
designing future satellites, and ITU obligations to pursue rational and
efficient use of frequencies and orbital locations,” id. at ¶ 11 (JA326). All of
these factors could serve to mitigate interference concerns anticipated by
Spectrum Five, if Spectrum Five is able to build and launch a satellite and
secure a DBS license. Bureau Stay Order ¶¶ 11-15 (JA295-96).
17

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 29 of 98

E.

Subsequent Developments

On July 30, 2013, the U.K. informed the ITU that EchoStar 6 had
been deployed at 96.2 W.L. by the deadline date and that the
BERMUDASAT-1 filing had been brought into use, as defined by ITU
regulations. See 10/16/13 Letter from ITU to Ofcom U.K. ¶ 2 (Br. Add. 63).
The ITU then entered the BERMUDASAT-1 filing in its Master International
Frequency Register, id.; see Plan Entry (Br. Add. 38-42). The Netherlands
has since protested before the ITU that the filing was not in fact brought into
use. 9/23/13 letter from Netherlands to ITU (Br. Add. 49). This protest was
chiefly based on technical arguments that the satellite was not kept in the
proper position, see id. at 1-6 (Br. Add. 49-54), but it also included a brief
argument that the satellite did not have valid domestic licensure, see id. at 6-7
(Br. Add. 54-55). The ITU has asked the U.K. for further information about
the position and capability of the satellite, but not about the status of its
domestic license. ITU letter at ¶¶ 4-5 (Br. Add. 63-64). As of the filing of
this brief, to our knowledge the U.K. has not yet responded to the ITU.

SUMMARY OF ARGUMENT

This case lies in the heartland of agency discretion: the Commission’s
judgment involving the technically complex allocation of orbital slots and the
evaluation of the public interest in light of arrangements with foreign nations.
18

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 30 of 98

Spectrum Five questions the agency’s policy judgment, but the Commission
acted reasonably and explained its actions. Nothing more is required.

I.

As a threshold matter, Spectrum Five lacks standing to challenge the
Order. First, its purported injury is uncertain and conjectural. Spectrum Five
has yet to fund, build, and launch a satellite, and indeed stalled at this same
stage of development on a previous satellite project. Moreover, DBS licenses
for the service Spectrum Five wishes to offer are not now available because
of the freeze on applications after Northpoint; and when and if such licenses
are offered again, it is uncertain that Spectrum Five would get such a license.
With such an indeterminate chain of events, Spectrum Five cannot show that
the Order has hampered its ability to offer DBS within the United States or
that the STA has had a “concrete effect” on its ability to raise capital. See
New England Power Generators Ass’n v. FERC, 707 F.3d 364, 369 (D.C.
Cir. 2013).
Second, Spectrum Five cannot show that this Court can remedy any
purported injury because redress lies in the hands of the ITU, a non-party
international body. There is no evidence that vacatur of the order would have
any effect on the ITU’s decision regarding the conformance of the
BERMUDASAT-1 filing with ITU regulations. Indeed, below, Spectrum
Five predicted that the “mere location of EchoStar 6” in the new orbital slot
19

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 31 of 98

for 90 days “will enable [SES Bermuda] to cement permanently” its filing in
the ITU register. See Stay Request at 23 (JA230). Spectrum Five offers no
reason now to doubt that prediction.
Third, Spectrum Five effectively recognizes that vacatur alone would
be insufficient by listing four additional steps that this Court “should” order
the FCC to take before the ITU, including protesting the U.K.’s ITU filing.
Br. 35-36. Such a protest, which may well have no effect on the ITU, would
be directly counter to a coordination arrangement reached between the U.S.
and the U.K. Such an order would reach beyond this Court’s Article III
powers and also damage the Commission’s ability to negotiate satellite
coordination arrangements in the future on behalf of the United States.

II.

Even if this Court had jurisdiction, Spectrum Five gives no basis to
second-guess the agency’s actions. The FCC found “extraordinary
circumstances” warranting an STA under the Commission’s rules in the U.S.-
U.K. coordination arrangement, which “remove[d] any significant concern
about potential interference to other operational satellites or planned U.S.-
licensed satellites” for service by DIRECTV to U.S. customers. Order ¶ 13
(JA327). Spectrum Five has no ground for disputing this policy judgment.
The Commission fully explained its reasoning and found that, especially
given the “ongoing” protections for future “planned” operations by
20

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 32 of 98

DIRECTV, this arrangement was in the public interest, and a similar deal to
“comparably protect such U.S. operations” might not be available from future
operators. Order ¶¶ 9, 13 (JA325-327). Spectrum Five has waived any
argument that EchoStar’s STA application was incomplete because it did not
contain information regarding the coordination arrangement, and in any case,
it was reasonable for the Commission to take notice of new, relevant
developments during the STA proceeding.

III.

Spectrum Five argues for the first time that the FCC was
compelled by specific regulations and laws to deny the STA application
because that application differed from the BERMUDASAT-1 ITU filing. Br.
46 (citing 47 U.S.C. § 303(y) and 47 C.F.R. § 25.148(f)). Because the
argument was not raised before the Commission, it cannot be raised here. 47
U.S.C. § 405(a). In any case, it is without merit. The STA authorized
EchoStar 6 to operate on a non-interference basis, and the U.S. would not
attempt to claim interference protection for those operations under the ITU’s
Region 2 BSS plan. The Commission reasonably concluded that under these
circumstances, operations under the STA were permitted by ITU Radio
Regulation Article 4.4. At a minimum, Spectrum Five fails to show that the
agency’s interpretation of ITU rules is so unreasonable that grant of the STA
was forbidden by 47 U.S.C. § 303(y) and 47 C.F.R. § 25.148(f).
21

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 33 of 98

IV.

Spectrum Five also errs in arguing that the Commission “pre-
judged” the results of any DBS application proceeding. The FCC made clear
that it approved the STA without prejudice to future applications by Spectrum
Five (or anyone else) for DBS service, when and if the DBS application
freeze is lifted. Bureau Order ¶ 5 & n.10 (JA154); Bureau Stay Order ¶ 11
& n.37 (JA295); see Order ¶ 17 (JA329) (adopting Bureau’s reasoning).
Because the Commission did not award a DBS license, the authority on
which Spectrum Five relies—all predicated on a competitor’s statutory right
to participate in licensing proceedings—is inapposite.
The agency also reasonably concluded that it was not “effectively” pre-
judging such a proceeding. The Bureau and Commission explained at some
length the variety of factors that could serve to mitigate any potential conflict
between operations under the U.K. and Netherlands ITU filings, including the
“possibility for future arrangements, the flexibility available in designing
future satellites, and ITU obligations to pursue rational and efficient use of
frequencies and orbital locations.” Order ¶ 11 (JA326). In short, if the
Commission should lift the freeze after concluding that it is both technically
feasible to provide DBS service from the orbital location in question and
legally possible given this court’s holding in Northpoint, Spectrum Five
would have the same right to seek a license as it did before the STA.
22

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 34 of 98

V.

Finally, Spectrum Five has waived its argument that EchoStar’s
statements regarding its satellite’s remaining fuel life were so “patently
implausible” (Br. 58) that the agency was required to reject the STA
application. In any case, the agency reasonably accepted EchoStar’s
explanation that the new estimate accounted for fuel-saving maneuvers for
which a previous estimate had not accounted.

STANDARD OF REVIEW

The Court’s review under the arbitrary and capricious standard of the
Administrative Procedure Act, 5 U.S.C. § 706(2)(A), is “necessarily
deferential.” Consumer Elecs. Ass’n v. FCC, 347 F.3d 291, 300 (D.C. Cir.
2003). The Court will “presume the validity of the Commission’s action and
will not intervene unless the Commission failed to consider relevant factors
or made a manifest error in judgment.” Id.
In this regard, the Commission’s interpretation of its own regulations
must be accepted “‘unless the interpretation is plainly erroneous or
inconsistent with the regulations or there is any other reason to suspect that
the interpretation does not reflect the agency’s fair and considered judgment
on the matter in question.’” Rural Cellular Ass’n v. FCC, 685 F.3d 1083,
1093 (D.C. Cir. 2012) (quoting Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S.
Ct. 2254, 2261 (2011)).
23

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 35 of 98

Moreover, deference is especially merited where review centers on the
Commission’s “expert policy judgment,” where the “subject matter…is
technical, complex, and dynamic.” Nat’l Cable & Telecomms. Ass’n v.
Brand X Internet Servs., 545 U.S. 967, 1002-03 (2005); cf. Teledesic LLC v.
FCC, 275 F.3d 75, 84 (D.C. Cir. 2001) (Commission’s role in “spectrum
reallocation” is both “prophetic and managerial,” and the agency must strike a
balance that “involve[s] both technology and economics”).

ARGUMENT

I. SPECTRUM FIVE LACKS STANDING.

Spectrum Five has not established that it will suffer a concrete injury as
a result of the FCC’s action. Nor has it shown that the relief it seeks from the
Court will redress the injury it claims. Finally, the Court lacks authority to
order the relief requested by Spectrum Five—undoing a coordination
arrangement between the U.S. and the U.K. Thus, the Court should dismiss
this case for lack of jurisdiction.

A.

Spectrum Five’s Alleged Injury Is Conjectural And
Uncertain.

“[A]llegations of possible future injury are not sufficient” to establish
standing; a “threatened injury” must be “certainly impending.” Clapper v.
Amnesty Int'l USA, 133 S. Ct. 1138, 1147 (2013) (internal quotation marks
omitted). This Court has repeatedly cautioned that an uncertain chain of
24

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 36 of 98

events, which “stacks speculation upon hypothetical upon speculation,…does
not establish an ‘actual or imminent’ injury.” New York Reg’l Interconnect,
Inc. v. FERC, 634 F.3d 581, 587 (D.C. Cir. 2011); see also Pub. Citizen, Inc.
v. Nat'l Highway Traffic Safety Admin., 489 F.3d 1279, 1292 (D.C. Cir. 2007)
(“alleged injury ‘must be concrete in both a qualitative and temporal sense’”)
(quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). Moreover, it is
not sufficient to establish that the action complained of has simply increased
the likelihood of injury—the resulting risk after that increase must itself be
“substantial,” and “the constitutional requirement of imminence…compels a
very strict understanding of what increases in risk and overall risk levels can
count as ‘substantial.’” Pub. Citizen, 489 F.3d at 1296.
Although Spectrum Five alleges two injuries, both are conjectural and
uncertain. First, Spectrum Five is concerned that transmissions from the
EchoStar 6 satellite at 96.2° W.L. will interfere with the provision of DBS
service at 95.15° W.L. by a satellite that Spectrum Five intends to launch. Br.
30-32. But Spectrum Five has not even begun construction on a satellite. See
Wilson Decl. ¶ 30 (Br. Add. 84). Indeed, Spectrum Five has yet to meet its
target of raising 25 percent of the funding needed to build and launch the
satellite. Id. ¶ 28 (Br. Add. 84). The FCC withdrew a previous market access
25

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 37 of 98

grant when Spectrum Five failed to progress beyond the same stage at which
it stands today. See supra at 7.
Even if Spectrum Five does manage to build and launch a satellite, in
order to suffer the interference it anticipates, it must first obtain FCC
approval to provide DBS service in the United States (Wilson Dec. ¶ 31 (Br.
Add. 85)), and that too is uncertain because there is a freeze. See Freeze
Notice, 20 FCC Rcd at 20619. While the FCC has not indicated that the
freeze is permanent, Br. 32, neither has it taken any action on its open
7
rulemaking on the issue for nearly seven years. See supra at 4-5. Moreover,
the statutory bar analyzed in Northpoint is not the only obstacle. The
rulemaking also centers on whether DBS service is technically feasible from
“tweener” orbital locations like the one Spectrum Five wants to use, and what
additional safeguards would be required to prevent interference with existing
operations. See 2006 NPRM, 21 FCC Rcd at 9457-59, ¶¶ 28-31.
The fact that Spectrum Five does not have, and cannot apply for, a
license to provide the service in question distinguishes this matter from cases

7 Contrary to Spectrum Five’s statements (Br. 31), the Commission has not
failed to respond to this Court’s remand in Northpoint. This Court did not
remand with instruction to take specific actions, other than “consideration
consistent with this opinion.” 412 F.3d at 156. The Commission issued an
NPRM investigating the feasibility of alternative means. See 2006 NPRM.

26

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 38 of 98

in which courts have found injury to would-be competitors challenging the
grant of a license. See Br. 32 (citing Coal. for Pres. of Hispanic Broad. v.
FCC, 893 F.2d 1349, 1356 (D.C. Cir. 1990); Orange Park Florida T.V., Inc.
v. FCC, 811 F.2d 664, 672 (D.C. Cir. 1987)). As explained more fully infra
at 51-52, the Commission in such cases had actually granted a license for
which petitioners had already “made unsuccessful attempts,” thus making
concrete the “injury to [petitioners’] right to a fair license award process.”
Hispanic Broad., 893 F.2d at 1356; see Orange Park, 811 F.2d at 672 (award
of construction grant to one applicant constituted injury to competing
applicant). Here, by contrast, the FCC has not awarded any DBS licenses—
indeed, the FCC specifically noted that it was not pre-judging that issue.
8
Bureau Order ¶ 5 n.10 (JA154).
Finally, even if Spectrum Five does build a satellite and secure a
license, it is uncertain that the BERMUDASAT-1 filing will pose an
insurmountable obstacle to U.S. DBS service. Under the ITU Constitution,
the U.K. has an obligation to attempt to coordinate with uses that could cause

8 By the same logic, this Court finds redressability where vacatur of a
license grant creates a “far from remote” opportunity for a would-be
competitor to reapply. Hispanic Broad., 893 F.2d at 1356; see Orange Park,
811 F.2d at 672. Here, by contrast, vacatur would not create any legal right
to apply for a DBS license because the freeze remains in place.
27

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 39 of 98

interference with operations under its filing, so that spectrum and orbital slots
can be used “rationally, efficiently and economically.” ITU Constitution,
Article 44, No. 196; see Bureau Stay Order ¶ 14 (JA296); see Order ¶¶ 11,
17 (JA326, 329).
As an alternate ground of injury, Spectrum Five alleges that the STA
has “directly interfered with [its] ability to raise the capital necessary to
construct and launch its dual-band satellite.” Br. 32-33. The specific
problem Spectrum Five describes—the delay of an auction (Wilson Decl.
¶ 30 (Br. Add. 84)—has apparently already occurred and cannot be remedied
by this Court. Moreover, Spectrum Five fails to demonstrate that any market
uncertainty it has encountered is due to the effects of the STA as opposed to
the manifold other obstacles it faces, such as the DBS freeze, an uncertain
track record in satellite development, or the “innovative” technology (id. at
¶ 14 (Br. Add. 78)) required for dual band operation. In any event, as the
cases on which Spectrum Five relies demonstrate, “broad-based market
effects stemming from regulatory uncertainty are quintessentially
conjectural.” See New England Power, 707 F.3d at 369. Spectrum Five’s
allegations fall well short of this Court’s requirement to show a “concrete”
“impact of an agency decision on a company’s ability to raise capital.” Id.;
see also CNG Transmission Corp. v. FERC, 40 F.3d 1289, 1293 (D.C. Cir.
28

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 40 of 98

1994) (finding injury where agency rule required company to write off $7.1
million loss, hampering ability to raise capital).

B.

Redress Is Contingent On Action By The ITU, A Non-
Party.

1. Only the ITU can provide relief
Even if Spectrum Five could establish injury, this Court’s ability to
provide redress is uncertain because it depends on the actions of a non-party
international organization, the ITU. This Court is “loath to find standing
when redress depends largely on policy decisions yet to be made by
government officials.” U.S. Ecology, Inc. v. United States Dep’t of Interior,
231 F.3d 20, 24 (D.C. Cir. 2000). Redress in such cases “depends on the
unfettered choices made by independent actors not before the courts and
whose exercise of broad and legitimate discretion the courts cannot presume
either to control or to predict.” Id. (quoting ASARCO Inc. v. Kadish, 490 U.S.
605, 615 (1989)); see also Klamath Water Users Ass’n v. FERC, 534 F.3d
735, 739 (D.C. Cir. 2008); Miami Bldg. & Constr. Trades Council v. Sec’y of
Def., 493 F.3d 201, 205-06 (D.C. Cir. 2007).
Spectrum Five’s primary claim of injury centers on the U.K.’s
BERMUDASAT-1 filing at the ITU. As Spectrum Five explains, the U.K.
has informed the ITU that the filing has been brought into use, and the ITU
has recorded the filing in its Master International Frequency Register. Br. 30.
29

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 41 of 98

“[A]s long as [the filing] remains recorded…the United Kingdom (and,
therefore, Echostar) will be able to block Spectrum Five…from broadcasting
using DBS spectrum to the United States from 95.15° W.L.” Br. 30-31.
It is thus the ITU alone that has the power to redress any purported
injury stemming from the BERMUDASAT-1 filing. The Netherlands has
protested the filing before the ITU (Br. Add. 49), and the ITU has asked the
U.K. to respond (Br. Add. 63). It is uncertain what influence, if any, a ruling
by this Court would have on the ITU’s resolution of this matter. In response
to the Netherlands’ protest, the ITU has asked the U.K. for detailed
information about the position and capability of EchoStar 6, but asked
nothing about the status of its U.S. licensure. See ITU Letter to U.K. ¶ 5 (Br.
Add. 64).
2. Vacatur may have no effect on the ITU.
Spectrum Five was previously far less confident that this Court could
provide redress. When it applied to the Commission for a stay of the
Bureau’s Order, it stated that the “mere location of EchoStar 6” in the new
orbital slot for 90 days “will enable [EchoStar] to cement permanently” its
filing in the ITU register. See Stay Request at 23 (JA230); see also id.
(describing STA as “the first step in an inevitable chain of events” leading to
EchoStar priority).
30

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 42 of 98

Now, however, Spectrum Five asserts that vacatur, “standing alone,
will ‘significantly increase the chances of favorable action’ by the ITU” (Br.
33 (citing Klamath Water, 534 F.3d at 739-40)). That is far from clear. As a
threshold matter, a mere increase in likelihood is not enough. If the
likelihood of redress increases from “impossible” to “merely unlikely,” for
example, the end result is still short of the “substantially likely” showing this
Court requires. See Town of Barnstable v. FAA, 659 F.3d 28, 31 (D.C. Cir.
2011) (“significant increase in the likelihood” test is simply “substantial
probability” test “[p]ut another way”).
In any case, it is unclear whether vacatur would have any effect at all
on the ITU. To be sure, under ITU rules, the U.K. can claim that the filing
was brought into use by a satellite under the responsibility of the U.S. only if
the U.S. does not object, see Order ¶ 8 & n.25 (JA325) (citing ITU Circular
Letter CR/333 (May 2, 2012)). However, the U.S. and U.K. had reached
such an understanding when the filing was brought into use—indeed the FCC
had specifically stated on behalf of the U.S. that it would not object, id. at ¶8.
Vacatur alone would not change the U.S.’s position before the ITU, and it is
uncertain what, if any, difference it would make were this Court to order the
FCC to object retroactively to the U.K.’s filing before the ITU, putting aside
31

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 43 of 98

that such an action by the FCC would be contrary to the commitment made
by the U.S. to the U.K.
Spectrum Five points to ITU law, but that is inconclusive at best.
Contrary to Spectrum Five’s assertion (Br. 33-34), ITU Regulation 11.44B
requires only that a satellite “with the capability of transmitting or receiving
that frequency assignment has been deployed and maintained at the notified
orbital position for a continuous period of ninety days.” ITU Radio Regs.,
art. 11.44B. The reference to “capability,” which Spectrum Five reads as a
requirement of valid domestic licensure, is more naturally read as a
requirement regarding the ability to transmit or receive using the relevant
frequency assignment. Again, the ITU’s inquiry to the U.K. centered only on
such technical requirements. See ITU Letter to U.K. ¶ 5 (Br. Add. 64).
Moreover, the relevant ITU rule allows an administration to bring a filing into
use with “a space station which is under the responsibility of another
administration.” ITU Circular Letter CR/333 (May 2, 2012) (Br. Add. 4-6).
Spectrum Five cannot reasonably claim that EchoStar 6 was not “under the
responsibility” of the United States at all times relevant to this case. At a
minimum, Spectrum Five fails to show that its reading is so plainly correct
that vacatur of the FCC’s Order will make relief likely, as opposed to merely
speculative.
32

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 44 of 98

The cases cited by Spectrum Five (Br. 34) underscore the inadequacy
of its showing on redressability. In Town of Barnstable, petitioners
challenged an FAA decision that wind turbines would pose no hazard to air
traffic. 659 F.3d at 31-32. Although the Department of the Interior gave
final approval to the project, this Court found standing to challenge the FAA
decision because petitioners demonstrated that “Interior repeatedly assigned
the FAA a significant role in its decision-making process,” id. at 32, making
it “‘likely, as opposed to merely speculative,’” that vacatur of the FAA
decision would lead to redress. Id. at 34 (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992)). Here, by contrast, Spectrum Five offers
no evidence that domestic law plays a role in the ITU’s decision-making
process.
Likewise, when this Court found standing to challenge the DEA’s
classification of marijuana as a Schedule I controlled substance, the petitioner
had demonstrated that “[t]he only thing stopping” VA doctors from filling out
state medical marijuana forms was a VHA directive, “[t]he only reason” for
which was the DEA’s classification. Americans for Safe Access v. DEA, 706
F.3d 438, 448 (D.C. Cir. 2013); see also Klamath Water, 534 F.3d at 739-40
(petitioners lacked standing because they “offered no reason to believe that a
decision requiring” FERC to take the requested action “would have…an
33

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 45 of 98

effect on the…decisions” of state utility regulators). Again, Spectrum Five
makes no such showing that any action by this Court will “likely” lead to a
favorable result before the ITU.
In sum, the ITU may well find that the U.K.’s filing was properly
brought into use despite any action taken by this Court (and regardless of the
FCC’s position on this matter). The ultimate decision is one “only [the ITU]
can make. What its decision [will] be…is beyond the court’s control or ken.”
Miami Bldg., 493 F.3d at 206. Because Spectrum Five cannot show that the
ITU will treat the U.K.’s filing “in such manner as to…permit redressability,”
Spectrum Five has failed to establish standing. U.S. Ecology, 231 F.3d at 25
(quoting Lujan, 504 U.S. at 562).

C.

The Requested Relief Is Beyond The Court’s Power.

Spectrum Five previously stated that “[a] decision by this Court
vacating [the Order] as unlawful may not, without more,” provide sufficient
relief. Mot. for Summary Reversal at 19. It no longer states that explicitly,
but still argues that “this Court should direct the FCC to take all actions
necessary to restore matters” to the status quo, including:
(1) notifying the ITU that EchoStar 6 did not have lawful
authority to operate at 96.2° W.L., (2) notifying the ITU that, as
a result, the United States does not consent to the United
Kingdom’s use of EchoStar 6 to bring the BERMUDASAT-1
filing into use, (3) revoking its ratification of the coordination
agreement privately negotiated among EchoStar, DIRECTV, and
34

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 46 of 98

SES Bermuda,…and (4) informing the ITU that the
BERMUDASAT-1 filing expired because EchoStar 6
[purportedly failed to bring the ITU filing into use].
Br. 35-36.
It is beyond the Article III powers of this Court to grant such relief.
“Disputes involving foreign relations…are quintessential sources of political
questions,” and this Court is “not a forum for reconsidering the wisdom of
discretionary decisions” made by U.S. officials “in the realm of foreign
policy.” El-Shifa Pharm. Indus. Co. v. U.S., 607 F.3d 836, 841-42 (D.C. Cir.
2010) (en banc) (internal quotation marks omitted); see also Haig v. Agee,
453 U.S. 280, 292 (1981) (matters of foreign policy “are rarely proper
subjects for judicial intervention”).
As part of the coordination arrangement between the U.S. and the U.K.
that secured commitments from the U.K. to protect certain U.S. DBS
operations from interference, the FCC (on behalf of the United States) has
committed to the U.K. that it will not “object to the U.K. Administration
notifying the ITU that the BERMUDASAT-1 [filing] was brought into use.”
Order ¶¶ 8-9 (JA325). Spectrum Five seeks an order from this Court
directing the FCC unilaterally to rescind that commitment to the U.K., despite
the Commission’s judgment that the coordination arrangement is in the best
interests of the U.S. “For the [C]ourt to disregard that judgment” on this
35

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 47 of 98

question of foreign policy “would be imprudent to a degree beyond [the
Court’s] power.” Hwang Geum Joo v. Japan, 413 F.3d 45, 53 (D.C. Cir.
2005).
To be sure, simply reviewing the legality of the Commission’s Order is
“a familiar judicial exercise.” Br. 36 (quoting Zitovski ex rel. Zitovsky v.
Clinton, 132 S. Ct. 1421, 1427 (2012)). But Spectrum Five seeks something
different and radical. Rather than asking the Court to decide “a purely legal
question of statutory interpretation” with indirect “political overtones,” see
Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 230 (1986),
Spectrum Five lists four specific steps it feels this Court “should” order the
FCC to take before an international organization. Br. 35. Spectrum Five cites
no precedent for such an extraordinary remedy. To the contrary, where a
proposed remedy would undo the results of complex international
negotiation, prudential considerations have led courts to find cases non-
justiciable. See Cranston v. Reagan, 611 F. Supp. 247, 253 (D.D.C. 1985)
(finding requested remedy implicated political question doctrine and citing
“the need to maintain respect for coordinate branches of government, the
need for adherence to a political decision already made, and the interest in
avoiding the embarrassment of ‘multifarious pronouncements’”).
36

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 48 of 98

Spectrum Five argues that the agency has not actually committed to the
U.K. to not object before the ITU, but this is premised on a misreading of a
letter from the FCC to Ofcom, its U.K. counterpart. Br. 36-37. That letter
sets out that “any FCC authorization for operations of Echostar-6…will
state…that the FCC will not object to the UK administration bringing into use
the BERMUDASAT-1 network.” 3/29/13 Letter from FCC to U.K. 1-2
(JA137-38). Spectrum Five argues that, because the Order, i.e., the
“authorization,” did in fact “state…that the FCC will not object,” the FCC
has already fulfilled its commitment by simply including the relevant
language in the Order, and so is now free to object anyway, despite the
language in the commitment. Br. 37. The reading makes no sense. An
undertaking to the U.K. that the FCC will simply memorialize the terms of a
satellite coordination arrangement without the concomitant commitment to
abide by the negotiated terms would be meaningless. Moreover, the U.K.’s
own understanding of the commitment, embodied in its letter in response, is
plain: “you will not object to use of EchoStar 6 for the due diligence and
bringing into use of the BERMUDASAT-1 satellite network.” 3/29/13 Letter
from U.K. to FCC 2 (JA140). The U.K.’s letter, which is not couched in
terms of an “authorization,” also belies Spectrum Five’s contention that, if the
STA is vacated, the FCC will be absolved of its commitment because there
37

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 49 of 98

will be no “authorization” “into which to insert” a commitment not to object.
Br. 37.
In short, nothing in the exchange of letters or the Order supports
Spectrum Five’s contention that the FCC’s commitment is contingent on the
status of the STA under domestic law. The record plainly shows that the
FCC has made a commitment to its U.K. counterpart, and an order from this
Court directing the FCC to renege on that commitment would force the
United States government to go back on its word. Such an order is not only
beyond this Court’s power, it would also hamper the FCC’s ability to
negotiate similar arrangements in the future. Satellite coordination with other
countries is a requirement for most satellite networks under ITU Radio
Regulations, see generally ITU Radio Regs. Art. 9, and a key tool by which
the federal government advances the national interest in ensuring the efficient
use of satellite spectrum. If the U.S. is seen to go back on its word—
precisely what Spectrum Five seeks here—it will impair the FCC’s ability to
do its job promoting the public interest through these arrangements.
38

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 50 of 98

II.

THE COMMISSION REASONABLY EXERCISED ITS
DISCRETION IN FINDING THAT AN INTERNATIONAL
COORDINATION AGREEMENT CONSTITUTED
EXTRAORDINARY CIRCUMSTANCES MERITING AN
STA.

Even if this Court had jurisdiction, Spectrum Five’s substantive
arguments are baseless. This case involves a challenge to the FCC’s reading
of its own rule governing the grant of an STA. That reading warrants
deference unless “plainly erroneous or inconsistent” or not the product of
9
“fair and considered judgment.” Rural Cellular, 685 F.3d at 1093. This
decision was well-considered, thoroughly explained, and reasonable.

A.

Interference protection for present and future DBS
service to U.S. customers constituted extraordinary
circumstances.

The Commission was well within its discretion in finding that the
recent arrangements between the United States and the U.K., “which remove
any significant concern about potential interference to other operational
satellites or planned U.S.-licensed satellites,” presented “extraordinary
circumstances” warranting an STA. Order ¶ 13 (JA329). “Without the grant

9 Spectrum Five bases its challenge on 47 C.F.R. §25.120(b)(1) (see Br. 1
(issue presented)), rather than 47 U.S.C. § 309(f), which the regulation
largely tracks, and which Spectrum Five cites only in passing. See Br. 38. Of
course, the Commission is also due deference in interpreting its organic
statute. See, e.g., City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1868
(2013).
39

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 51 of 98

of the STA,” the Commission explained, “the benefits accruing from the
certainty of interference protection could be lost, thereby substantially
disserving the public interest.” Id. ¶ 9 (JA326-37).
Those benefits are substantial. SES’s coordination arrangement with
DIRECTV “insures that DIRECTV’s established U.S. operations” at 101°
W.L. “will be fully protected on an ongoing basis.” Id. ¶ 9 (JA325). This
will plainly benefit the millions of Americans who subscribe to DIRECTV’s
service. The “ongoing basis” of the protection is particularly important—the
coordination arrangement covers both “existing and future U.S. DBS services
at the nominal 101° W.L. orbital location.” 3/29/13 Letter from SES to FCC
at 1 (JA109); see also Order ¶ 13 (JA327) (protects “planned U.S.-licenses
satellites”); 3/7/13 Letter from EchoStar to FCC at 1 (JA46) (DIRECTV
concerned about “later-filed” operations). Thus, even DIRECTV operations
still unfiled with the ITU can enjoy protection from interference from
operations under the BERMUDASAT-1 filing. This arrangement offered a
40

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 52 of 98

degree of forward-looking protection that might well be unobtainable from
10
other operators with a potential claim to ITU priority over DIRECTV.
Spectrum Five argues that the Commission failed to explain
specifically why an STA was merited and instead relied on the “totality of the
circumstances.” Br. 39. While the Commission did use the phrase “totality
of circumstances” in a footnote, Order ¶ 13 & n.41 (JA327), the Order makes
clear that key among these “circumstances” was the “larger international
context in which Administration to Administration agreements have been
concluded, which remove any significant concern about potential interference
to other operational satellites or planned U.S.-licensed satellites.” Id.
Spectrum Five’s reliance on this Court’s decision in NetworkIP, LLC v.
FCC, 548 F.3d 116 (D.C. Cir. 2008) is unwarranted. In Network IP, the FCC
waived the filing deadline for a complaint by a payphone service provider

10 Another factor adding “some weight to the case for the STA” was that its
grant would allow EchoStar to use its satellite to “develop new markets and
provide…services to a diverse array of customers in underserved
markets…including Bermuda, the Caribbean, and Latin America, and U.S.
and non-U.S. ships and vessels.” Order ¶ 16 (JA329). This is not a mere
“marketing consideration,” as Spectrum Five charges. Br. 44-45. See Sirius
Satellite Radio, Inc
, 16 FCC Rcd 16773, 16776 ¶¶ 8-9 (Int’l Bur. 2001) (limit
on “marketing consideration” did not bar STA that would facilitate
development of new satellite radio market). Instead, it was a recognition that
the STA enabled EchoStar to make productive use of a satellite that would
otherwise sit as an idle back-up to develop an under-served market. See
Order
¶ 16 (JA329).
41

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 53 of 98

(“PSP”), even though the complaint was the result of counsel’s negligence,
citing the public interest in ensuring fair compensation for PSPs. Id. at 125-
26. In the Court’s judgment, this rationale—which could have supported a
waiver for any late-filed complaint by a PSP—did not place sufficient
“restraint” on the agency’s discretion: “There must also be a sufficiently
unique…situation” to justify a waiver. Id. at 127 (internal quotation marks
omitted).
Here, by contrast, the Commission cited extraordinary circumstances
unique to the particular facts of this case warranting an STA. Unless
EchoStar obtained an STA, the U.S. would lose “the certainty of interference
protection” from its coordination arrangement with the U.K., including the
assurance that “DIRECTV’s established U.S. operations at [101° W.L.] will
be fully protected on an ongoing basis.” Order ¶ 9 (JA325-26). This is
precisely the sort of “special circumstance” that can justify an exception to
the Commission’s standard procedures. See NetworkIP, 548 F.3d at 127
(citing Keller Commc’ns, Inc. v. FCC, 130 F.3d 1073, 1076-77 (D.C. Cir.
1997)).
Finally, unlike the waiver in NetworkIP, which was primarily designed
to relieve a single private party of the consequences of a lawyer’s error, the
FCC here found that the grant of an STA would secure substantial benefits
42

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 54 of 98

for the American public (including millions of DIRECTV subscribers).
“[T]he Commission’s judgments on the public interest are ‘entitled to
substantial judicial deference.’” M2Z Networks, Inc. v. FCC, 558 F.3d 554,
558 (D.C. Cir. 2009) (quoting FCC v. WNCN Listeners Guild, 450 U.S. 582,
596 (1981)).
In sum, the Commission weighed a variety of factors involving the
technical aspects of satellites and interference, the operation of ITU rules, and
vagaries of negotiating coordination arrangements with other countries. It did
so reasonably, and explained its decision. Nothing more is required.

B.

Spectrum Five’s attacks on the coordination
arrangement are baseless.

Spectrum Five argues that because the coordination arrangement did
not exist when EchoStar first submitted its STA application, the Commission
could not rely on it in the Order. Br. 41. Spectrum Five never raised this
issue before the Commission and so cannot raise it here for the first time. See
47 U.S.C. § 405; In re Core Commc’ns, Inc., 455 F.3d 267, 276 (D.C. Cir.
2006). In any case, the argument boils down to an assertion that the
Commission may not consider factual developments that occur after the
initial submission of an application—an absurd result. EchoStar did not
include the information in its application because it did not yet exist, but was
required to update its application with this new relevant development, 47
43

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 55 of 98

C.F.R. § 1.65(a), and it would be unreasonable for the Bureau and the
Commission to ignore facts with direct bearing on matters before them.
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983). Spectrum Five’s argument that EchoStar “manufactured”
its own extraordinary circumstances (Br. 41) is equally misplaced.
EchoStar’s application raised interference concerns with DIRECTV, and the
companies and their sponsoring administrations were then able to resolve
those concerns by means of a coordination arrangement. Such
accommodation and coordination is the hallmark of an effective process, not
a deficient one.
Spectrum Five next argues that coordination arrangements are “an
ordinary part of operating DBS satellites,” and so cannot be extraordinary.
Br. 41. But coordination arrangements may be broad or narrow, and may
benefit the U.S. to a greater or lesser extent. In the Commission’s judgment,
this coordination arrangement, which offered protection not just now but for
future developments, constituted extraordinary circumstances within the
meaning of the Rules. Order ¶¶ 9 & 13 (JA325-27). The agency concluded
that the U.S. public was well served by securing this coordination
arrangement, rather than simply hoping the U.S. could secure an equally good
arrangement with the party next in line for ITU priority—a party that might
44

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 56 of 98

face no pressing ITU deadlines and so feel less pressure to agree to equally
favorable terms. See Order ¶ 9 (no agreements in place to “comparably
protect such U.S. operations”). That is a policy judgment that the FCC is
well positioned to make, and Spectrum Five offers no grounds for this Court
to second-guess it. See Dist. No. 1, Pac. Coast Dist., Marine Eng’rs
Beneficial Ass’n v. Mar. Admin., 215 F.3d 37, 42 (D.C. Cir. 2000) (holding in
APA challenge that “questions of foreign policy and national interest” are
“not subjects fit for judicial involvement” and “second guessing”).
Spectrum Five also asserts—with no record support—that the
advantage of the coordination arrangement in protecting DIRECTV’s
customers was illusory because “[t]wo of [DIRECTV’s] satellites operate
pursuant to ITU filings with higher priority than the BERMUDASAT-1
filing,” thus entitling DIRECTV to ITU protection regardless. Br. 42.
Spectrum Five omits the fact that DIRECTV also operates under at least one
ITU filing at this orbital location with lower priority than BERMUDASAT-
11
1. Interference protection for these DIRECTV operations with lower
priority was therefore a concrete benefit provided by the coordination

11 ITU records concerning filings seeking modifications of the Appendix
30/30A BSS Plan can be searched at: http://www.itu.int/net/ITU-
R/space/snl/bsearchb/spublication.asp.
45

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 57 of 98

arrangement. And again, much of the benefit of the coordination
arrangement was for the protection of DIRECTV’s operations “on an ongoing
basis,” Order ¶ 9 (JA325)—i.e., both “existing and future U.S. DBS services
at the nominal 101° W.L. orbital location.” 3/29/13 Letter from SES to FCC
(JA109). Indeed DIRECTV, EchoStar’s competitor, would have little reason
to drop its opposition to the STA request if the coordination arrangement did
not provide protection otherwise unavailable. The FCC reasonably identified
the measures necessary to secure the deal as an “extraordinary circumstance”
under its rules.
Finally, Spectrum Five argues that the Commission’s reliance on the
coordination arrangement was invalid because, subsequently, EchoStar
purportedly failed to actually bring the BERMUDASAT-1 filing into use. Br.
43-44. If that assertion is true—a point on which the Commission takes no
stance at this time—it is difficult to see how Spectrum Five can be injured by
the STA at all. Regardless, because the alleged development occurred after
the Order was adopted, Spectrum Five was obligated to raise this point in a
petition for reconsideration to the agency. Its failure to do so bars its claim
here. 47 U.S.C. § 405(a); Core Commc’ns, 455 F.3d at 276. In any event, it
was entirely reasonable for the Commission to attempt to secure the benefits
of international recognition and interference protection for U.S. consumers
46

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 58 of 98

through a coordination arrangement, even if the realization of those benefits
depended on the successful completion of further actions by others.

III. SPECTRUM FIVE HAS WAIVED ITS ARGUMENT THAT

A CONFLICT BETWEEN AN STA AND THE ITU BSS
PLAN IS UNLAWFUL; IN ANY CASE, THERE IS NO
CONFLICT.

Spectrum Five next raises another new argument—that the STA is
unlawful because it is not congruent with the BERMUDASAT-1 filing, and
the Communications Act and FCC regulations purportedly “compel the
agency and licensees to comply with the ITU’s Radio Regulations.” Br. 46
(citing 47 U.S.C. § 303(y); 47 C.F.R. § 25.148(f)).
Spectrum Five did not raise this argument in its application for review
before the Commission. It therefore cannot raise the argument here. Section
405 of the Communications Act prohibits review based on issues on “which
the Commission, or designated authority within the Commission, has been
afforded no opportunity to pass.” 47 U.S.C. § 405. “This circuit has strictly
construed that section, holding that [the Court] ‘generally lack[s] jurisdiction
to review arguments that have not first been presented to the Commission.’”
Core Commc’ns., 455 F.3d at 276 (quoting BDPCS, Inc. v. FCC, 351 F.3d
1177, 1182 (D.C. Cir. 2003)).
In the proceeding below, Spectrum Five failed to even cite the statute
and rule upon which it now relies. While Spectrum Five did point out that
47

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 59 of 98

EchoStar’s STA application covered different area and proposed some
different operational parameters than those in the BERMUDASAT-1 filing,
see Application for Review at 5 (JA191), this statement served only to provide
factual background for Spectrum Five’s contention that grant of the STA
would allow the U.K. to perfect the filing and so have the effect of
suppressing competition, id. at 14-18 (JA200-204). “[M]erely stat[ing the]
fact” of a discrepancy between the STA application and the
BERMUDASAT-1 filing “does not constitute an argument” that the STA is
therefore unlawful under 47 U.S.C. § 303(y) and 47 C.F.R. § 25.148(f), “let
alone an argument made with the requisite clarity.” AT&T Corp. v. FCC, 317
F.3d 227, 235 (D.C. Cir. 2003); see also, e.g., New England Pub. Commc’ns
Council, Inc. v. FCC, 334 F.3d 69, 79 (D.C. Cir. 2003).
In any case, Spectrum Five’s argument is meritless because the STA
did not license operations “[in]consistent with international agreements,” 47
U.S.C § 303(y), nor did it license “DBS operations” not “in accordance with
the sharing criteria and technical characteristics contained in” the ITU’s
Region 2 BSS plan, 47 C.F.R. § 25.148(f). Spectrum Five argues that the
STA was incompatible with ITU rules. Br. 46. However, the Bureau
explained that it viewed the operation of EchoStar 6 as permitted under
Article 4.4 of the ITU Radio Regulations. Bureau Order ¶ 17 (JA159); Order
48

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 60 of 98

¶ 8 & n.28 (adopting analysis). Under this provision, an Administration may
assign a station a frequency “in derogation” of ITU frequency allocations “on
the express condition that such a station, when using such a frequency
assignment, shall not cause harmful interference to, and shall not claim
protection from harmful interference caused by, a station operating in
accordance with the” ITU rules. ITU Radio Regs. Art. 4.4. Because
EchoStar 6 had committed not to interfere with the operation of other
satellites, and because the U.S. would not claim protection for EchoStar 6
with a filing at the ITU, the Bureau found that this Article applied to the
FCC’s grant of the STA, and the STA was therefore consistent with ITU
rules. Bureau Order ¶ 17 (JA159). Put differently, EchoStar 6’s operations
cannot conflict with the ITU Region 2 BSS plan because EchoStar and SES
explicitly committed not to interfere with the operations of any operations
12
under the plan.

12The Bureau also viewed the operations authorized by the STA as “fixed
and mobile satellite services” (FSS and MSS), rather than BSS. Bureau
Order
¶ 16 (JA158). Only BSS transmissions are governed by the ITU’s
Region 2 BSS plan. See 2006 NPRM, 21 FCC Rcd at 9445 ¶ 3. The FCC’s
interpretation of these technical terms is due deference. Rural Cellular, 685
F.3d at 1093. The definition of BSS/DBS overlaps with that of FSS and
MSS, see 47 C.F.R. §§ 2.1, 25.201; ITU Radio Regs. Arts. 1.21, 1.25, 1.39.
In this case, the U.S. would not be seeking international recognition for
EchoStar 6 by making a filing under the ITU Region 2 BSS plan, so the

49

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 61 of 98

Spectrum Five argues that Article 4.4 is inapplicable to BSS, citing a
letter from an ITU official, written in a different context and without
reference to EchoStar 6. Br. 50-51. However, as the Bureau pointed out, the
FCC’s reading of Article 4.4 is consistent with the opinion expressed in the
letter. Bureau Order ¶ 17 (JA159). The letter made clear that “the national
authorization to operate a satellite network under No. 4.4…is the prerogative
of the administration and beyond the scope of responsibility of the Bureau.”
See ITU 11/24/2010 Letter at 1 (JA63). By contrast, the ITU opinion
centered on “process[ing] a request for recording an assignment.” Id. For
those purposes, the official was of the opinion that Article 4.4 was
inapplicable for “recording an assignment” of BSS, that is, registering a BSS
assignment in order to gain international recognition under the ITU BSS plan.
Id. Because the U.S. would not be attempting to record an assignment or
otherwise claim protection for EchoStar 6’s operations, the Bureau found that
its reading of ITU Article 4.4 to permit the STA was consistent with the ITU

Bureau concluded that “the operations authorized by [the] STA” were better
viewed as FSS and MSS for purposes of U.S. obligations under ITU rules.
Bureau Order ¶ 16 (JA158); cf. id. ¶ at 12 (JA157) (operation of “feeder links
and TT&C within the United States” as authorized by STA did not constitute
DBS Service to the U.S.). Any issues or potential conflicts related to the
BERMUDASAT-1 filing were for the U.K. to resolve with the Netherlands or
other parties. Bureau Order ¶ 16 (JA158).
50

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 62 of 98

13
official’s interpretation. Id. At a minimum, Spectrum Five fails to show
that the agency’s interpretation of ITU rules is so unreasonable that grant of
the STA was forbidden by 47 U.S.C. § 303(y) and 47 C.F.R. § 25.148(f).

IV.

THE COMMISSION HAS NOT PRE-JUDGED THE
ASSIGNMENT OF DBS LICENSES.

The FCC made clear that in granting the STA, it was not granting a
domestic DBS license to EchoStar, or anyone else. Bureau Stay Order ¶ 11
(JA295); see Order ¶ 17 (JA329) (adopting Bureau’s reasoning). The Bureau
further explained that grant of the STA was “without prejudice to any action
with respect to” any “potential future request” by EchoStar or “other
parties…to provide [DBS] service in the U.S. markets.” Bureau Order ¶ 5
n.10 (JA154); see Bureau Stay Order ¶ 11 n.37 (citing Bureau Order)
(JA295); Order ¶ 17 & n.53 (JA329).
Spectrum Five nevertheless argues that in granting the STA, the
Commission “pre-judged the results of its eventual allocation of DBS licenses
for this tweener location.” Br. 52 (section heading). That is not so, and
Spectrum Five’s reliance on Ashbacker Radio Corp. v. FCC, 326 U.S. 327

13 ITU Radio Regulation Article 8.4, cited by Spectrum Five (Br. 51),
likewise governs recording an assignment for operations under Article 4.4.
Because the FCC did not plan to record assignment of the frequencies used
by EchoStar 6, this provision too was inapplicable. See Bureau Order ¶ 16
n.35 (JA159).
51

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 63 of 98

(1945), and its progeny (Br. 34) is unavailing. Those cases centered on a
statutory right to a hearing for a license under 47 U.S.C. § 309(e), “where two
bona fide applications are mutually exclusive,” and the grant of the license to
one party “deprives the loser of the opportunity which Congress chose to give
him.” Id. at 333. That is not the case here. Neither Spectrum Five nor
anyone else has a DBS application pending due to the freeze, and the FCC
has not granted any DBS licenses. Bachow Commc’ns, Inc. v. FCC, 237 F.3d
683, 689 (D.C. Cir. 2001) and Kessler v. FCC, 326 F.2d 673, 684 (D.C. Cir.
1963), cited by Spectrum Five (Br. 53 n.34) are not to the contrary. In those
cases, parties actually did have broadcast applications pending. The Court
held that, where other parties were forbidden by a freeze from submitting
mutually exclusive applications, the Commission could not grant the pending
applications without a comparative hearing. See Bachow, 237 F.3d at 689;
Kessler, 326 F.2d at 688. In both Bachow and Kessler, the FCC was actually
granting licenses that would deprive another party of its statutory right to
compete for the license. No such licenses were granted here. See Bureau
Stay Order ¶ 11 (JA295); Order ¶ 17 (JA329).
The FCC also reasonably concluded that the STA would not indirectly
decide (Br. 55-56) who would be able to offer DBS in the U.S. from the
orbital slot in question. Order ¶ 17 (JA329); see also id. ¶ 11 (JA326). As the
52

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 64 of 98

Bureau pointed out, “The EchoStar 6 satellite represents an interim step in
commercial development, and therefore, there may be flexibility as to
technical parameters of yet- to-be-designed successor satellites.” Bureau Stay
Order ¶ 14 (JA296). Moreover, the ITU Constitution creates an obligation
for Administrations to use spectrum and orbital slots “rationally, efficiently
and economically... so that countries or groups of countries may have
equitable access.” ITU Constitution, Article 44, No. 196. The FCC “[had] no
reason to believe and [would] not assume that the U.K. Administration, or
any other Administration involved, would in any way disregard [that]
obligation.” Bureau Stay Order ¶ 14 (JA296). In short, the ITU process is
designed to “result in agreement” on equitable usage, and there is no basis for
Spectrum Five’s apparent assumption that the ITU process would fail. Id.;
see Order ¶ 11 (JA 326) (citing “the possibility for future arrangements, the
flexibility available in designing future satellites, and ITU obligations to
pursue rational and efficient use of frequencies and orbital locations”).
Finally, there was no reason for the FCC to refrain, at Spectrum Five’s
request, from taking any action on EchoStar 6 that could possibly have an
53

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 65 of 98

effect on future licensing. Such a rule would unreasonably expand the freeze
14
and ossify the agency’s regulatory processes.

V.

SPECTRUM FIVE’S ARGUMENT REGARDING
ECHOSTAR 6’S FUEL LIFE IS WAIVED, AND IN ANY
CASE UNSOUND.

Finally, Spectrum Five argues that EchoStar’s statements about its
satellite’s remaining fuel life were so “patently implausible” that the agency
was required to reject the application as incomplete under 47 C.F.R. §
25.112(a). Br. 57-60. However, Spectrum Five did not raise this issue in its
application for review and so is barred from doing so here under 47 U.S.C. §
405. See supra at 47. While DIRECTV made a similar factual assertion
before the Bureau (without an associated legal argument), see DIRECTV
3/19/13 Letter at 4-5 (JA86-87), “[u]nder the plain language of Section 405,
an issue cannot be preserved for judicial review simply by raising it before a

14 Spectrum Five now also argues that the STA violated the letter of the
DBS freeze because “EchoStar’s coverage beam would ‘illuminate[] more
than half of the states in the continental United States,’” Br. 54, even though
the STA did not contemplate any actual DBS service to the U.S. Spectrum
Five did not raise this argument in its application for review—indeed there it
described EchoStar’s request as one “to operate wholly outside the U.S.,”
Application for Review at 5 (JA191)—and so cannot raise it here. In any
case, the agency reasonably interpreted its own rule when it found that
operations under the STA “do[] not violate the freeze on DBS applications”
because EchoStar 6 “will not provide DBS service in the United States.”
Bureau Order ¶ 12 (JA167).
54

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 66 of 98

Bureau of the FCC.” Bartholdi Cable Co., Inc. v. FCC, 114 F.3d 274, 279
(D.C. Cir. 1997). Given the many issues that may be raised before a Bureau,
the agency is entitled to conclude that an issue is abandoned if it is not
pressed before the full Commission. See Environmentel, LLC v. FCC, 661
F.3d 80, 84 (D.C. Cir. 2011) (citing 47 C.F.R. § 1.115, which requires that
applications for review “shall concisely and plainly state the questions
presented for review”).
In any case, the agency acted reasonably. EchoStar explained that its
new estimate of fuel life included “fuel savings resulting from the current
mode of inclined operations” for which previous estimates had not adequately
accounted. 3/13/13 EchoStar Letter to FCC at 5 n.15 (JA77). This was
hardly implausible. Under “inclined” operations, an operator allows its
satellite to drift along the longitudinal (North-South) axis under natural
forces. This uses less fuel than operations that limit the degree of
longitudinal drift to a specific range close to the equatorial plane. See supra at
10 note 4. EchoStar also explained that it expected to further “allow the
satellite’s inclination to increase naturally in the North-South direction
through its end-of-life, and life projections for the satellite have been made
with this assumption in mind.” 2/27/13 Letter from EchoStar to FCC at
Annex (JA45). EchoStar then “reiterate[d] its commitment to operate
55

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 67 of 98

EchoStar consistent with [its] approved [orbital debris migration plan].” Id.
n.15.
Spectrum Five nevertheless insists that the application was “patently
implausible and insufficiently explained” because EchoStar should have
anticipated fuel savings from inclined operations when it made its earlier
estimate in 2011. Br. 58. But in its initial 2011 estimate, EchoStar indicated
it would allow inclination to grow only to a specific range (plus or minus .5
degrees from the equatorial plane) and then use fuel to maintain the satellite
in that range. EchoStar further stated that this plan, which formed the basis
for its estimate, could change:
EchoStar may decide at any point to allow inclination to
continue to grow further increasing the spacecraft’s usable life.
The expected end-of-life for the EchoStar 6 satellite will be
extended to Feb 2013 with an uncertainty at this time of up to 6
months.
Letter from Pantelis Michalopoulos to Marlene H. Dortch, IBFS File No.
SAT-STA-20111004-00194, at 1 (Dec. 2, 2011) (FCC Add. 1) (emphasis
added). EchoStar thus anticipated in its 2011 estimate that it might allow
inclination to increase and thereby increase its fuel savings, but its fuel
estimate was based on more limited inclination. And again, EchoStar’s 2013
STA application contemplated that it might allow inclination to increase
further to gain further savings. See 2/27/13 Letter from EchoStar to FCC at
56

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 68 of 98

Annex (JA45). Evaluating a “technical, complex” scenario such as this lies
in the heart of agency discretion, Cablevision Sys. Corp. v. FCC, 649 F.3d
695, 714 (D.C. Cir. 2011). The agency was under no obligation to reject the
application as facially implausible.

CONCLUSION

The petition for review and the appeal should be dismissed for lack of
standing. In the alternative, the petition should be denied and the Order
should be affirmed.
Respectfully
submitted,
WILLIAM J. BAER
JONATHAN SALLET
ASSISTANT ATTORNEY GENERAL
GENERAL COUNSEL


ROBERT B. NICHOLSON
JACOB M. LEWIS
ROBERT J. WIGGERS
ASSOCIATE GENERAL COUNSEL
ATTORNEYS


/s/ Matthew J. Dunne
UNITED STATES

DEPARTMENT OF JUSTICE
MATTHEW J. DUNNE
WASHINGTON, D.C. 20530
COUNSEL


FEDERAL COMMUNICATIONS
COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740
December 23, 2013
57

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 69 of 98
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT



SPECTRUM FIVE LLC,
APPELLANT,
V.
FEDERAL COMMUNICATIONS COMMISSION
APPELLEE.
____________
Nos. 13-1231 &
13-1232
SPECTRUM FIVE LLC,
PETITIONER,
V.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
RESPONDENTS.



CERTIFICATE OF COMPLIANCE

Pursuant to the requirements of Fed. R. App. P. 32(a)(7), I hereby certify
that the accompanying Brief for Respondents in the captioned case contains 12,261
words.

/s/ Matthew J. Dunne
Matthew J. Dunne

Counsel
Federal Communications Commission
Washington, D.C. 20554
(202) 418-1740 (Telephone)
(202) 418-2819 (Fax)

USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 70 of 98





ADDENDUM


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 71 of 98
















Pantelis Michalopoulos
1330 Connecticut Avenue, NW

202.429.6494
Washington, DC 20036-1795

pmichalo@steptoe.com
Tel 202.429.3000


Fax 202.429.3902


steptoe.com














December 2, 2011


Marlene H. Dortch
Secretary
Federal Communications Commission
445 12th Street S.W.
Washington, D.C. 20554

Re:

EchoStar Satellite Operating Corporation, Notice of the Commencement of Inclined
Orbit Operations for EchoStar 6 at 76.95º W.L., File No. SAT-STA-20111004-00194,
Call Sign S2232

Dear Ms. Dortch:

Pursuant to Section 25.280 of the Commission’s rules,1 EchoStar Satellite Operating
Corporation (“EchoStar”) hereby notifies the Commission that the EchoStar 6 satellite will
commence inclined orbit operations at the 76.95º W.L. orbital location on December 12, 2011.
Operating EchoStar 6 at an inclined orbit will extend the satellite’s operational life, enabling
EchoStar to use the satellite to provide quality local-into-local and Spanish-language
programming to U.S. customers for an extended period of time. EchoStar 6 currently operates at
76.95º W.L. under special temporary authority,2 pending EchoStar’s application to transfer the
satellite to QuetzSat, S. de R.L. de C.V., which will operate the satellite under Mexican
authority.3 The satellite will initially operate at an incline of the licensed +/-0.05°, and will be
allowed to grow to +/-0.5° after which point inclination will be maintained at that value.
EchoStar may decide at any point to allow inclination to continue to grow further increasing the
spacecraft’s usable life. The expected end-of-life for the EchoStar 6 satellite will be extended to
Feb 2013 with an uncertainty at this time of up to 6 months. This date takes into account both the

1 47 C.F.R. § 25.280.
2 See Stamp Grant, File No. SAT-STA-20111004-00194 (granted Oct. 13, 2011).
3 See Application for the Transfer of EchoStar 6 to Mexican Authority, File No. SAT-T/C-
20110314-00054 (filed Mar. 14, 2011).

FCC Add. 1


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 72 of 98
Marlene H. Dortch
December 2, 2011
Page 2


inclined orbit operations and the Section 25.283 end-of-life disposal maneuvers.4 At the
beginning of inclined operations EchoStar will conduct propellant depletion gauging operations
monthly to ensure fuel use predictions match actual use. While EchoStar 6 is operating in an
inclined orbit, EchoStar will operate the satellite in accordance with the Commission
requirements as outlined in Section 25.280(b).5

If you have any questions regarding the above-referenced notice, please contact the
undersigned.


Respectfully submitted,





_______/s/_____________________

Pantelis Michalopoulos

Stephanie A. Roy
Steptoe & Johnson LLP
1330 Connecticut Avenue, NW
Washington, D.C. 20036
(202) 429-3000
Counsel for EchoStar Satellite Operating
Corporation













4 47 C.F.R. § 25.283.
5 47 C.F.R. § 25.280(b).

FCC Add. 2


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 73 of 98

FCC Add. 3


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 74 of 98

FCC Add. 4


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 75 of 98

FCC Add. 5


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 76 of 98

FCC Add. 6


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 77 of 98

FCC Add. 7


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 78 of 98

FCC Add. 8


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 79 of 98

FCC Add. 9


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 80 of 98

FCC Add. 10


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 81 of 98

FCC Add. 11


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 82 of 98

FCC Add. 12


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 83 of 98

FCC Add. 13


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 84 of 98

FCC Add. 14


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 85 of 98

FCC Add. 15


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 86 of 98

FCC Add. 16


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 87 of 98

FCC Add. 17


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 88 of 98

FCC Add. 18


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 89 of 98

FCC Add. 19


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 90 of 98

FCC Add. 20


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 91 of 98

FCC Add. 21


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 92 of 98

FCC Add. 22


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 93 of 98

FCC Add. 23


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 94 of 98

FCC Add. 24


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 95 of 98

FCC Add. 25


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 96 of 98

FCC Add. 26


USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 97 of 98
13-1231 & 13-1232

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT


Spectrum Five LLC,

Appellant,

v.

Federal Communications Commission

Appellee.

____________

Spectrum Five LLC,
Petitioner,
v.
Federal Communications Commission
And United States of America
Respondents.



CERTIFICATE OF SERVICE


I, Matthew J. Dunne, hereby certify that on December 23, 2013, I
electronically filed the foregoing Brief for Respondents with the Clerk of the
Court for the United States Court of Appeals for the D.C. Circuit by using
the CM/ECF system. Participants in the case who are registered CM/ECF
users will be served by the CM/ECF system.

Scott H. Angstreich
David H. Solomon
Aaron M. Panner
Craig E. Gilmore
Kellogg, Huber, Hansen, Todd,
Bryan N. Tramont
Evans & Figel PLLC
Phuong Nguyen Pham
1615 M Street
Wilkinson Barker Knauer, LLP
Summer Square, Suite 400
2300 N Street, NW
Washington, D.C.
Suite 700
Counsel for: Spectrum Five LLC
Washington, D.C. 20037

Counsel for: Echostar Satellite
Operating Corporation





USCA Case #13-1231 Document #1472126 Filed: 12/23/2013 Page 98 of 98
Robert J. Wiggers

Robert B. Nicholson
Appellate Section
Antitrust Division
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Room 3224
Washington, D.C. 20530
Counsel for: Department of Justice







/s/ Matthew J. Dunne

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.