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Reply in Support of Motion, Spectrum Five LLC v. FCC (D.C. Cir.)

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Released: September 26, 2013

USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 1 of 53

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.

REPLY IN SUPPORT OF MOTION TO DISMISS



SEAN A. LEV

GENERAL COUNSEL
JACOB M. LEWIS
ASSOCIATE GENERAL COUNSEL
JAMES M. CARR
MATTHEW J. DUNNE
COUNSEL

FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D.C. 20554

(202) 418-1740
SEPTEMBER 23, 2013


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 2 of 53

CONTENTS

INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 2
I.
DISMISSAL IS WARRANTED. .................................................................... 2
A.
Spectrum Five Has Not Shown An Imminent Injury. ........................... 2
B.
Any Purported Injury Is Not Redressable By This Court. .................... 4
C.
The Requested Relief Would Embroil This Court In Foreign
Relations. ............................................................................................... 7
II.
EXPEDITION IS NOT WARRANTED. ...................................................... 10


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 3 of 53

INTRODUCTION

Spectrum Five has not carried its burden to demonstrate standing for three
reasons. First, Spectrum Five still has not shown that the injury it asserts is
substantially likely to occur. It must fund, build, and launch a satellite, and secure
a Ku-DBS license, which is not now available, before it could suffer from the
satellite interference it anticipates. As discussed below, it must also (together with
its sponsoring administration, the Netherlands) obtain ITU priority over the U.K.
It likewise has not shown that the Order has had any ongoing "concrete" effect on
its ability to raise capital. Second, only the ITU can decide whether to remove the
BERMUDASAT-1 filing from the ITU Master Register to redress Spectrum Five's
purported injury, and Spectrum Five has not shown that a favorable decision from
this Court is likely to have any effect at all on the ITU's decision, much less
provide a substantial likelihood of redress. Indeed, Spectrum Five previously
sought a stay before the FCC precisely because it believed that the "mere location
of EchoStar 6" in the new orbital slot for 90 days "will enable ESOC to cement
permanently" its filing in the ITU register. See Emergency Request for Stay,
EchoStar Satellite Operating Co. Application for STA, File No. SAT-STA-
20120320-00023, at 23 (April 5, 2013) ("Stay Request") (FCC Reply Add. at 25)
(emphasis added). Third, Spectrum Five fails in its attempts to reassure this Court
that the remedy it seeks--an order that would require the FCC to go back on its
word to its U.K. counterpart and take a position contrary to that agreement before
an international body--is any less than an extraordinary measure beyond this
Court's powers.

USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 4 of 53
2

ARGUMENT

I.

DISMISSAL IS WARRANTED.
A.

Spectrum Five Has Not Shown An Imminent Injury.

Spectrum Five does not contest that, before it could suffer any injury due to
interference from EchoStar 6, it must first fund, build, and launch its own satellite;1
the FCC must lift the freeze on Ku-DBS licenses; and Spectrum Five must apply
for and be granted such a license by the FCC.2 In addition, it must also persuade
the ITU that EchoStar 6 did not bring the BERMUDASAT-1 filing into use, even
though EchoStar maintains that that its satellite has been operating for more than
90 days at its new orbital location, and even though the ITU has already recorded
the filing in its Master Register as brought into use. See FCC Motion at 11-12
("Mot."); Spectrum Five Response at 3-4 ("Resp.").
Spectrum Five nevertheless argues that its injury here is not speculative
because "there is no dispute" that the STA enabled EchoStar 6 to secure ITU
priority, which stands as an additional obstacle to its plans. Resp. at 5. But the
Order can cause injury only if all the other obstacles are also overcome, and

1 When Spectrum Five abandoned efforts to construct a previous satellite for
over two years (after passing the same milestones it has passed in this case), the
Commission refused to extend compliance milestones and withdrew a conditional
grant. See Spectrum Five LLC, 26 FCC Rcd 10448 1, 5 (Int'l Bur. 2011).
2 In an ongoing rulemaking on Ku-DBS operations, the agency is
considering whether "tweener" operations such as Spectrum Five proposes serve
the public interest in light of possible harmful interference to established services.
Amendment of the Commission's Policies and Rules for Processing Applications in
the Direct Broadcast Satellite Service
, 21 FCC Rcd 9443 (2006).



USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 5 of 53
3

Spectrum Five has not shown that this is substantially likely. This Court has
repeatedly cautioned that an uncertain chain of 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)).
The cases on which Spectrum Five relies drive home this point. In Public
Citizen, this Court made clear that "[a]llegations of possible future injury do not
satisfy the requirement of Art[icle] III," and that "[a] threatened injury must be
certainly impending to constitute injury in fact." 489 F.3d at 1294 (quoting
Whitmore, 495 U.S. at 158 (emphasis in original)). Moreover, a simple increase in
the likelihood of injury is not sufficient--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.'" Id. at 1296. This "strict understanding" is evident in
Sherley v. Sibelius, 610 F.3d 69 (D.C. Cir. 2010), also cited by Spectrum Five
(Resp. at 4). There, petitioners were already active participants in the market in
question and so could establish that it was substantially likely that the challenged
order would affect them. 610 F.3d at 74. The Court contrasted this with other
cases in which "it was uncertain whether [petitioner] would enter the market," id.,


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 6 of 53
4

just as it is uncertain here whether Spectrum Five can overcome the multiple
obstacles it faces in order to enter this market.
Spectrum Five also claims that it was injured by the "regulatory uncertainty"
resulting from the STA, which caused it to "delay by five months its auction of the
South American payload capacity of its satellite" and thus interfered with its ability
to raise capital. Resp. at 4, 6-7. Spectrum Five does not explain how potential
future interference to U.S.-based service delayed an auction of South American
capacity. But, even as described, any injury has apparently already occurred.
Spectrum Five does not explain how any action from this Court can undo such an
injury now. In short, 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." New England Power Generators Ass'n, Inc. v. FERC, 707
F.3d 364, 369 (D.C. Cir. 2013); see also CNG Transmission Corp v. FERC, 40
F.3d 1289, 1293 (D.C. Cir. 1994) (finding injury where agency forced company to
write off $7.1 million loss, hampering ability to raise capital).

B.

Any Purported Injury Is Not Redressable By This Court.

Only the ITU can find that the EchoStar 6 satellite was or was not properly
"brought into use," and thus establish its priority over Spectrum Five's ITU filing.
Mot. at 13-14. This Court is "loath to find standing" in cases like this, where relief
is at the discretion of a governmental non-party. U.S. Ecology, Inc. v. United
States Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). Spectrum Five does not
contest that the ITU is an "independent actor[] not before the court[]" that
exercises "broad and legitimate discretion" that this Court "cannot presume ... to


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 7 of 53
5

control." Id. Instead, Spectrum Five asserts that a favorable outcome in this case
"will significantly increase the chances of favorable action by the ITU." Resp. at
1, 8, 9. As with injury, however, 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 "substantially likely," a showing this Court
consistently 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").
Previously, Spectrum Five was 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 ESOC to cement permanently" its filing in the ITU register. See
Stay Request at 23 (FCC Reply Add. at 25); see also id. (describing STA as "the
first step in an inevitable chain of events" leading to ESOC priority).
Now Spectrum Five claims this Court can take actions that will likely cause
the ITU to act in its favor, but its arguments are unconvincing. Contrary to its
assertion that ITU regulations require "that the satellite on which the U.K. relied ...
was authorized under U.S. law to be used for that purpose" (Resp. at 1), the
regulations that Spectrum Five cites make no reference to authorization. Instead,
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


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 8 of 53
6

requirement of valid legal status (Resp. at 8), is more naturally read as a technical
requirement regarding the ability to transmit or receive the relevant frequency
assignment. 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 speculative.
The cases cited by Spectrum Five underscore the inadequacy of its showing
on redressability. In Town of Barnstable, petitioners challenged an FAA decision
that found 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 any 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 drug, the petitioner
had demonstrated that "[t]he only thing stopping" VA doctors from filling out state
medical marijuana forms was a VHA directive, "the only reason" for which was
the DEA's classification of the drug. Americans for Safe Access v. DEA, 706 F.3d
438, 448 (D.C. Cir. 2013). Again, Spectrum Five makes no such showing that any
action by this Court will "likely" lead to a favorable result before the ITU.


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 9 of 53
7

C.

The Requested Relief Would Embroil This Court In Foreign
Relations.

Spectrum Five still seeks the extraordinary remedy of an order "direct[ing]
the FCC to take appropriate steps to cure the effects" of the STA (Resp. at 8
(quoting Spectrum Five Mot. at 20)), including "informing the ITU that [the FCC]
objects to the U.K.'s claim." Resp. at 9. As we have explained, such an objection
before the ITU would run directly counter to the commitment made by the FCC, on
behalf of the U.S., to the U.K. Mot. at 15. In addition to the legal obstacles to
such such an extraordinary remedy (see Mot. at 14-16), such an order would
severely hamper the FCC's ability to negotiate similar coordinations 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 government's
ability to negotiate these coordinations in the future.
In response, Spectrum Five recites the general principle that courts seek
remedies that make a party whole. Resp. at 7. But the cases that Spectrum Five
cites deal with an agency's authority to order refunds. See United Gas
Improvement Co. v. Callery Props., Inc., 382 U.S. 223, 229 (1965); AT&T Corp. v.
FCC, 448 F.3d 426, 433-35 (D.C. Cir. 2006); Exxon Co., U.S.A. v. FERC, 182
F.3d 30, 49-50 (D.C. Cir. 1999). They fall well short of the remedy Spectrum Five


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 10 of 53
8

seeks here--an order that an agency take a particular position before an
international organization contrary to a prior commitment.
Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 229-30
(1986), is also not to the contrary. There, the Court found it had authority to
determine whether a statute required the Secretary of Commerce to certify that
Japan's whale harvests diminished the effectiveness of an international
conservation program, even though the executive branch had agreed with Japan
that it would not make such a certification. Id. at 223, 228. Because the case
"present[ed] a purely legal question of statutory interpretation," id. at 230, it did
not call on the Court to "formulate national policies or develop standards for
matters not legal in nature," tasks for which courts are "fundamentally
underequipped." Id. (quotation marks and citation omitted). That is far afield
from Spectrum Five's request here that this Court craft an equitable remedy, not
compelled by any statute, directing the FCC to take a position before an
international body contrary to its commitment with its U.K. counterpart.
Spectrum Five next argues that the agency has not actually committed to the
U.K. to not object before the ITU because, Spectrum Five contends, if the STA is
vacated then "the FCC's commitment will be without effect." Resp. at 11-12.
This is incorrect. The Order describes the FCC's commitment as a straightforward
one to "not object to the U.K. Administration notifying the ITU that the
BERMUDASAT-1 Network was brought into use." Order 8 (Pet. Add. 129).
Nothing in that description indicates that the commitment is contingent on the
subsequent legal status of the FCC's STA.


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 11 of 53
9

Spectrum Five seeks to create ambiguity by misreading the letter from the
FCC to OFCOM, its U.K. counterpart, describing the commitment. Resp. at 12.
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." Letter from FCC, Int'l Bureau to OFCOM,
U.K. (Mar. 29, 2013) (Reply Add. at 40-41). 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. Resp. at 12. The reading makes no sense. An
undertaking to the U.K. that the FCC will simply memorialize the terms of a
satellite coordination 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." Letter from OFCOM, U.K. to FCC, Int'l
Bureau (Mar. 29, 2013) (Reply Add at 43). The U.K.'s letter, which is not
couched in terms of an "authorization," also belies Spectrum Five's contention
that, on vacatur, the FCC will be absolved of its commitment because there will be
no "authorization" "into which to insert" a commitment not to object. Resp. at 12.
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


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 12 of 53
10

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.
Spectrum Five cannot avoid that result with its passing suggestion that
vacatur of the Order by itself may suffice to redress its purported injury. Resp. at
1, 8. By Spectrum Five's admission, that remedy, like its other proposals, may
require the FCC, in order to comply with the Court's mandate, to "inform[] the
ITU that it objects to the U.K.'s claim." Resp. at 8-9. It thus equally interferes
with the FCC's commitments to OFCOM.

II.

EXPEDITION IS NOT WARRANTED.

Spectrum Five requests that this Court expedite the case by "scheduling oral
argument before a merits panel on the current motion papers." Resp. at 20. The
Commission objects to that request. The motion papers in this case address limited
issues, under a different standard of review, and with stricter page limits than
permitted by the Federal Rules for merits briefing. Deciding the case on these
papers alone would deprive the Court of full consideration of the issues. However,
as stated previously (Mot. at 23), while the Commission believes expedition is not
warranted, it stands ready to comply with an expedited schedule for plenary
briefing if the Court so orders.

CONCLUSION

The Court should dismiss the petition for review and notice of appeal for
lack of jurisdiction.




USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 13 of 53
11

Respectfully submitted,







Sean A. Lev
General
Counsel







Jacob M. Lewis
Associate
General
Counsel

/s/
Matthew
J.
Dunne






James M. Carr
Matthew
J.
Dunne
Counsel

Federal
Communications
Commission
Washington,
D.C.

20554
(202)
418-1740

September 23, 2013



USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 14 of 53

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.

ADDENDUM TO REPLY IN SUPPORT OF MOTION TO DISMISS



SEAN A. LEV

GENERAL COUNSEL
JACOB M. LEWIS
ASSOCIATE GENERAL COUNSEL
JAMES M. CARR
MATTHEW J. DUNNE
COUNSEL

FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D.C. 20554

(202) 418-1740
SEPTEMBER 23, 2013


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 15 of 53

Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554


In the Matter of
)


)

EchoStar Satellite Operating Company
)
File No. SAT-STA-20130320-00023

)
Call Sign : S2232
Application for Special Temporary Authority
)

Related to Moving the EchoStar 6 Satellite
)
from the 77 W.L. Orbital Location to the 96.2 )
W.L. Orbital Location, and to Operate at the
)
96.2 W.L. Orbital Location
)







SPECTRUM FIVE LLC'S

EMERGENCY REQUEST FOR A STAY






David Wilson
Todd M. Stansbury
President
Eve Klindera Reed
SPECTRUM FIVE LLC
Brett Shumate
1776 K Street, NW
Colleen King
Washington, DC 20006
WILEY REIN LLP

1776 K Street NW

Washington, DC 20006

202.719.7000 (phone)

202.719.7049 (fax)



Counsel to Spectrum Five LLC
April 5, 2013







FCC Reply Add. 1


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 16 of 53

TABLE OF CONTENTS


PAGE


I.
INTRODUCTION AND SUMMARY .............................................................................. 1
II.
BACKGROUND ............................................................................................................... 2
A.
Spectrum Five ........................................................................................................ 2
B.
ITU Procedures for Determining BSS System Priority and the
BERMUDASAT-1 Filing ...................................................................................... 3
C.
EchoStar's STA Request and Subsequent Proceedings Before the Bureau .......... 5
D.
The Bureau's Decision ........................................................................................... 9
III.
THE BUREAU'S DECISION SHOULD BE STAYED PENDING REVIEW BY
THE FULL COMMISSION. ........................................................................................... 10
A.
Spectrum Five Is Likely To Succeed On The Merits Of Its Challenge To
The Bureau's Order And Authorization. ............................................................. 11
1.
The Bureau's Grant Of ESOC's STA Request Conflicts With
Statutory And Regulatory Requirements And Established FCC
Precedent. ................................................................................................. 11
2.
Unnecessary Use Of The Expedited STA Procedures Deprived The
Bureau And The Public Adequate Time To Obtain All Necessary
Facts And Analyze The Technical Operations Affected By
Relocation Of ECHOSTAR 6. ................................................................. 16
3.
Grant Of The STA Will Harm The Public Interest By Suppressing
Competition.............................................................................................. 18
B.
The Equities Weigh Strongly In Favor Of A Stay. .............................................. 22
IV.
CONCLUSION ................................................................................................................ 28
Appendix A Declaration of David Wilson


FCC Reply Add. 2


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 17 of 53

Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554


In the Matter of
)


)

EchoStar Satellite Operating Company
)
File No. SAT-STA-20130220-00023

)
Call Sign : S2232
Application for Special Temporary Authority
)

Related to Moving the EchoStar 6 Satellite
)
from the 77 W.L. Orbital Location to the 96.2 )
W.L. Orbital Location, and to Operate at the
)
96.2 W.L. Orbital Location
)


SPECTRUM FIVE LLC'S

EMERGENCY REQUEST FOR A STAY

I.

INTRODUCTION AND SUMMARY


Pursuant to Commission Rules 1.431 and 1.102(b)(3),2 Spectrum Five LLC ("Spectrum
Five"), by its attorneys, hereby files this emergency request that the Federal Communications
Commission ("Commission") stay the International Bureau's ("Bureau") Order and
Authorization granting EchoStar Satellite Operating Corporation ("ESOC") Special Temporary
Authority ("STA") to relocate the EchoStar 6 satellite from the 76.8 W.L. orbital location to the
96.2 W.L. orbital location.3 Because of a significant risk that immediate irreparable harm will
result if the STA remains in effect, Spectrum Five respectfully requests Commission action on
this stay request as expeditiously as possible. At the very least, the Commission should enter a

1
47 C.F.R. 1.43.
2
47 C.F.R. 1.102(b)(3).
3
See EchoStar Satellite Operating Company, Application for Special Temporary Authority
Related to Moving the EchoStar 6 Satellite from the 77 W.L. Orbital Location to the 96.2 W.L.
Orbital Location, and to Operate at the 96.2 W.L. Orbital Location
, Order and Authorization,
DA 13-593 (Apr. 1, 2013) ("Order"). Spectrum Five is concurrently filing an Application for
Review of the Order.
1

FCC Reply Add. 3


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 18 of 53
brief administrative stay pending its full consideration of this request in advance of April 14,
2013.
Spectrum Five is likely to prevail on the merits of its Application for Review of the
Bureau's decision because it is in conflict with the Communications Act, Commission
regulations, Commission precedent, and established policies. In addition, the equities weigh
strongly in favor of staying the Bureau's decision pending review by the full Commission.
Absent a stay, Spectrum Five will suffer irreparable harm in the form of substantial competitive
injury. No other party not even ESOC will suffer harm remotely close to the competitive
injury that Spectrum Five will experience if the Bureau's decision is allowed to stand pending
review. The public interest, moreover, weighs in favor of preserving the status quo pending
review by the full Commission. For all these reasons, a stay should be granted.

II.

BACKGROUND

A.

Spectrum Five

Spectrum Five is a U.S.-based company that was formed to develop, launch and operate
satellite systems for the provision of additional, competitive, and innovative services to U.S.
consumers.4 Spectrum Five holds a license issued by the FCC to provide service in the 17/24
GHz reverse band from the 95.15 W.L. orbital location.5 In addition, Spectrum Five and its
wholly-owned subsidiary Spectrum Five BV (a Netherlands corporation) are parties to
agreements with the State of the Netherlands and the Government of the Netherland Antilles,
which authorize the launch and operation of satellite systems using 12/17 GHz and 17/25 GHz
frequencies at several orbital locations, including the nominal 95 W.L. location, for the purpose

4
Declaration of David Wilson 2 ("Wilson Decl.").
5
Id.; see Policy Branch Information; Actions Taken, Public Notice, Report No. SAT-
00834, DA No. 12-14, File No. SAT-T/C-20111013-00201 (Jan. 6, 2012).
2

FCC Reply Add. 4


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 19 of 53
of providing service to the United States.6 Pursuant to these agreements, the State of the
Netherlands acts as the sponsoring administration for Spectrum Five before the International
Telecommunication Union ("ITU") and has submitted filings for Spectrum Five's use of
frequencies and orbital locations, including that slot.7
Spectrum Five has long planned to introduce competitive Direct Broadcast Satellite
("DBS") service to the United States.8 It has patiently waited for the Commission to lift its
freeze on applications for authority to provide DBS services using new orbital and spectrum
resources, which has been in effect since 2005.9 In the meantime, Spectrum Five is developing a
hybrid Broadcast Satellite Service ("BSS")/reverse band platform that would enable it to provide
highly spectrum-efficient video, broadband, and other services to the United States and the
Americas from the 95 W.L. orbital location after the freeze is lifted.10

B.

ITU Procedures for Determining BSS System Priority and the
BERMUDASAT-1 Filing

DBS operations in the United States occur under the framework specified in ITU Radio
Regulations for the BSS. BSS operations occur within planned frequency bands set out in
Appendices 30 and 30A of the ITU Radio Regulations, which reflect the orbital locations and
frequency channels assigned to each administration that was included in the original BSS Plan.

6
Id.
7
Id.
8
Wilson Decl. 3.
9
See Direct Broadcast Satellite (DBS) Service Auction Nullified: Commission Sets Forth
Refund Procedures for Auction No. 52 Winning Bidders and Adopts a Freeze on All New DBS
Service Applications, Public Notice
, Public Notice, 20 FCC Rcd 20618 (2005) ("DBS Freeze
Order
").
10
Wilson Decl. 3.
3

FCC Reply Add. 5


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 20 of 53
An administration may seek to modify the BSS Plan, but before doing so must obtain the
agreement of any other administration that would be deemed "affected" by the proposed
modification.11 A proposed modification expires automatically if the agreement of all affected
administrations is not secured, and/or if the filing is not "notified" and "brought into use," within
eight years of its filing.12 If, on the other hand, those steps are completed and a satellite is
brought into use by being positioned at a particular slot for at least 90 days, then the proposed
modification is considered perfected and entitled, pursuant to ITU rules, to full protection, in
perpetuity, from any modification of the BSS Plan that was or is submitted by any other
administration after the date that the proposed modification was submitted.
On April 15, 2005, Bermuda submitted to the ITU a proposed modification to the Region
2 BSS Plan, through its BERMUDASAT-1 filing, which identified a service area covering the
entirety of the United States (including Alaska and Hawaii) and Bermuda.13 Multiple
administrations, including the United States would be deemed "affected" by this modification
under ITU Radio Regulations. The modification must be brought into use by April 14, 2013, or
it will expire. If, however, the BERMUDASAT-1 filing is perfected, the modification to the
BSS Plan forever will be entitled to full protection against any modification requests submitted
after its initial filing, including the Netherlands' January 28, 2011 modification filing that was
submitted on Spectrum Five's behalf (BSSNET3-95W).

11
ITU Radio Regulations, Appendix 30, Article 4.1.1.
12
ITU Radio Regulations, Appendix 30, Article 4.1.3.
13
See BERMUDASAT-1, published in Special Section AP30-30A/E/389 of IFIC 2553 (20
Sept. 2005); see also Letter from William S. Wiltshire, counsel for DIRECTV Enterprises, LLC,
to Marlene H. Dortch, at 2, Figure 1 (Feb. 25, 2013) ("DIRECTV Feb. 25 Opposition").
4

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USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 21 of 53

C.

EchoStar's STA Request and Subsequent Proceedings Before the Bureau

On February 20, 2013, ESOC filed a request for STA to relocate the EchoStar 6 satellite
for operations at the 96.2 W.L. orbital location. ESOC stated in its initial filing that grant of its
STA request was necessary "to accommodate the needs of its customer and development partner,
SES Satellites (Bermuda) Ltd. (`SES Bermuda,' and along with its affiliates, `SES')."14 ESOC
claimed that SES intended to use EchoStar 6 at that location in order to "evaluate and develop
commercial service opportunities in the Caribbean, Latin American, and North Atlantic markets
outside of the United States."15 It described those "opportunities" as including "the provision of
video programming and other services, including international maritime services, to consumers
in Bermuda and elsewhere."16 ESOC requested that the Bureau grant its request by March 12,
2013, "so that commercial development may begin at the earliest possible date."17
Although ESOC stated that its operations at 96.2 W.L. would be "pursuant to the
BERMUDASAT-1 filing," 18 it proposed service with parameters entirely different from those
portrayed in that filing.19 Indeed, although the service area covered by the BERMUDASAT-1
filing includes the entirety of the United States, the explained purpose of the STA was to

14
Application for Special Temporary Authority Beginning on or Before March 12, 2013 to
Move EchoStar 6 to, and Operate It at, 96.2 W.L., IBFS File No. SAT-STA-20130220-0023
(filed Feb. 20, 2013), at 2 ("STA Request").
15
Id.
16
Id.; see id. at 4 (noting plans to conduct an "assessment of the viability of direct-to-home
and other services, including international maritime services").
17
Id. at 2, 5, 7.
18
Id. at 2.
19
See id. at Exhibit 2, 1-2 & Figure 2-1.
5

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USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 22 of 53
evaluate opportunities "outside of the United States," as it had to be due to the existing freeze20
on applications for new domestic DBS services.21
Two parties initially opposed ESOC's STA Request: Spectrum Five and DIRECTV
Enterprises, LLC ("DIRECTV"). The oppositions exposed the real purpose behind the STA
Request: to prejudice the international coordination rights of the United States, and thereby
providers that either currently offer service to domestic customers (such as DIRECTV) or seek to
do so in the future (such as Spectrum Five), by securing international priority for the
BERMUDASAT-1 filing before its expiration on April 14, 2013.22 They also exposed numerous
legal and technical flaws in the STA filing, including that it failed to meet the Communications
Act's requirements for an STA grant, that grant of the STA would be inconsistent with the ITU
Radio Regulations, that it would impose an undue risk of international liability to the United
States should EchoStar 6 cause harmful interference or physical damage to other operators, that
it was unsupported by precedent, and that it proposed operations inconsistent with the freeze on
applications for authority to provide new DBS service.23 They emphasized, further, precedent

20
As noted above, the Commission adopted a freeze on DBS applications in 2005 that
remains in effect. See supra note 9; DBS Freeze Order, 20 FCC Rcd 20618.
21
See STA Request at 2, 4.
22
See, e.g., DIRECTV Feb. 25 Opposition, at 1, 4-5; Letter from Todd Stansbury, counsel
for Spectrum Five, LLC, to Marlene H. Dortch, at 2-3 (Mar. 12, 2013) ("Spectrum Five Mar. 12
Opposition
").
23
See generally DIRECTV Feb. 25 Opposition; Spectrum Five Mar. 12 Opposition; Letter
from William M. Wiltshire, counsel to DIRECTV, to Marlene H. Dortch (Mar. 12, 2013)
("DIRECTV Mar. 12 Ex Parte").
6

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squarely holding that bringing into use an ITU filing the unstated but transparent purpose of the
ESOC STA Request is not a proper basis on which to grant an STA.24
Only after these filings did ESOC acknowledge its motivation to accomplish "an efficient
move of the satellite before expiration of the underlying Bermuda ITU filing," to "allow it to
capitalize on a unique, but time-limited, opportunity to begin developing the 96.2 W.L. orbital
slot for new services and markets."25 It claimed, however, that "the fact that an STA grant may
have the incidental effect of bringing an ITU filing into use is irrelevant to the Commission's
public interest determination."26
In subsequent filings and at multiple meetings with Commission staff, Spectrum Five and
DIRECTV separately elaborated on the arguments they had previously presented and provided
additional reasons for denial of ESOC's STA Request.27 In particular, they emphasized the
serious, prejudicial, perpetual harm that would befall their own operations and future plans, as
well as the fact that the grant of the STA Request could result in the permanent loss of

24
See, e.g., DIRECTV Mar. 12 Ex Parte, at 2 n.6 (citing EchoStar Satellite L.L.C., 20 FCC
Rcd 10033 ( 9) (2005)); see also Letter from Todd M. Stansbury, counsel for Spectrum Five, to
Marlene H. Dortch (Mar. 29, 2013), at 8 & n.17 (citing same) ("Spectrum Five Mar. 29 Ex
Parte").
25
Letter from Dean Manson, EchoStar, to Marlene H. Dortch, at 1, 2 (Mar. 13, 2013); see
id. at 6.
26
Id. at 3 (emphasis added).
27
See, e.g., Letter from William S. Wiltshire, counsel for DIRECTV Enterprises, LLC, to
Marlene H. Dortch (Mar. 19, 2013) ("DIRECTV Mar. 19 Ex Parte #1) (written ex parte
presentation); Letter from William S. Wiltshire, counsel for DIRECTV Enterprises, LLC, to
Marlene H. Dortch (Mar. 19, 2013) (reporting on meeting held with staff and summarizing oral
ex parte presentation made during meetings); Letter from Todd M. Stansbury, counsel for
Spectrum Five, to Marlene H. Dortch (Mar. 20, 2013) ("Spectrum Five Mar. 20 Ex Parte");
Spectrum Five Mar. 29 Ex Parte; Letter from Todd M. Stansbury, counsel for Spectrum Five, to
Marlene H. Dortch (Apr. 1, 2013) ("Spectrum Five Apr. 1 Ex Parte").
7

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USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 24 of 53
opportunities for competition in the United States and increased service to United States
consumers, even though ESOC admitted it planned to offer no service to the United States.28
In the meantime, Spectrum Five and DIRECTV independently entered into private
coordination negotiations with ESOC in an attempt to find mutually agreeable approaches that
would permit ESOC to provide the services described in the STA. DIRECTV ultimately reached
a coordination agreement with ESOC, and thus withdrew its opposition to the STA Request on
March 27.29 Although DIRECTV previously had indicated its view that "even if" such
agreement were reached, "the procedural and institutional bases for denying the requested STA
will remain,"30 the effect of the agreement between ESOC and DIRECTV was to enable
DIRECTV to protect its own private business interests from harm as a result of ESOC's
operations pursuant to the STA. The Netherlands subsequently submitted a letter raising
concerns, similar to those voiced by Spectrum Five, regarding the impact that grant of the STA
Request would have on the Netherland's own ITU filings.31 For its part, ESOC persistently
refused to provide Spectrum Five with basic technical information necessary for coordination of
its operations with EchoStar 6,32 and never provided adequate responses to the myriad technical

28
See, e.g., DIRECTV Mar. 19 Ex Parte at 1; Spectrum Five Mar. 20 Ex Parte, at 1-2, 5;
Spectrum Five Mar. 29 Ex Parte, at 1, 3, 4-9; Spectrum Five Apr. 1 Ex Parte at 2.
29
Letter from William S. Wiltshire, counsel for DIRECTV Enterprises, LLC, to Marlene H.
Dortch (Mar. 27, 2013).
30
DIRECTV Mar. 12 Ex Parte at 6.
31
Letter from R. Agema, Radiocommunications Agency Netherlands (Mar. 28, 2013).
32
See, e.g., Letter from Todd Stansbury, counsel for Spectrum Five, LLC (Mar. 29, 2013).
8

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USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 25 of 53
and legal flaws that Spectrum Five, DIRECTV, and the Netherlands had identified. As the end
of March approached, ESOC made multiple demands for FCC action by April 1, 2013.33

D.

The Bureau's Decision

On April 1, 2013, without ever providing notice to the public of the STA Request, the
Bureau nevertheless granted the STA to ESOC. The Bureau expressly "agree[d] with Spectrum
Five's assessment" that "ESOC seeks temporary authority, rather than waiting for normal
processing of its application for regular authority, due to the April 14, 2013 deadline for the U.K.
to have a satellite at the 96.2 W.L. orbit location for purposes of bringing the BERMUDASAT-
1 filing into use."34 Sharply departing from precedent, the Bureau found it inappropriate to take
into account the "motivations of non-U.S. commercial operators related to their tactical approach
to ITU filing matters," and concluded that ESOC's expressed "need . . . to move a geostationary
satellite" amounted to "extraordinary circumstances" sufficient to warrant an STA.35 The
Bureau also rejected arguments that grant of the STA would violate the DBS processing freeze,36
found that commitments made by ESOC and SES with respect to Spectrum Five's U.S.-Licensed
17/24 BSS Satellite at 95.15 W.L. obviated any potential for prejudicing Spectrum Five's rights
with respect to that U.S. license,37 and rejected the arguments of Spectrum Five and the

33
See Letter from Bryan Tramont, counsel to EchoStar, to Marlene H. Dortch (Apr. 2,
2013) at 2; Letter from Anders N. Johnson, President, EchoStar Satellite Services LLC to
Marlene H. Dortch (Mar. 29, 2013) at 1-2; Letter from Bryan Tramont, counsel to EchoStar, and
Daniel Mah, Regulatory Counsel, SES Satellites (Bermuda) Ltd., to Marlene H. Dortch (Mar. 28,
2013) at 1.
34
Order 8.
35
Id. 9.
36
Id. 11-12.
37
Id. 13.
9

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USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 26 of 53
Netherlands with respect to the Netherlands' BSS filing at the 95.0 W.L orbital slot.38 Finally,
the Bureau purported to "clarify" certain matters.39 In the ordering clause, the Bureau expressly
stated that "[a]ny action taken or expense occurred as a result of operations pursuant to this
special temporary authority is solely at ESOC's own risk."40

III.

THE BUREAU'S DECISION SHOULD BE STAYED PENDING REVIEW BY
THE FULL COMMISSION.


In determining whether to grant a stay, "the Commission applies the four factor test
established in Virginia Petroleum Jobbers Association v. FPC, as modified in Washington
Metropolitan Area Transit Commission v. Holiday Tours, Inc."41 Under that test, the
Commission asks whether: "(i) Petitioners are likely to prevail on the merits; (ii) Petitioners will
suffer irreparable harm absent a stay; (iii) other interested parties will not be harmed if the stay is
granted; and (iv) the public interest favors grant of the stay."42 "To justify the granting of a stay,
a movant need not always establish a high probability of success on the merits. Probability of
success is inversely proportional to the degree of irreparable injury evidenced."43 In this case, all
four factors strongly weigh in favor of a stay.

38
Id. 14-17.
39
Id. 18.
40
Id. 20(c).
41
In re Regulation of Prepaid Calling Card Servs., Order, 22 FCC Rcd 5652, 7 (2007)
(citing Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958); Wash.
Metro. Area Transit Comm'n v. Holiday Tours, Inc.
, 559 F.2d 841, 843 (D.C. Cir. 1977)).
42
In re City of Boston, Mass, & Sprint Nextel, Order, 22 FCC Rcd 2361, 8 (2007)
(footnote omitted).
43
Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C. Cir. 1985); accord
Charter Commc'ns Entm't I, LLC, 22 FCC Rcd 13890, 13892 4 n.17 (Media Bureau 2007).
10

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USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 27 of 53

A.

Spectrum Five Is Likely To Succeed On The Merits Of Its Challenge To The
Bureau's Order And Authorization.

Spectrum Five is likely to prevail on review before the Commission because the Bureau's
grant of the STA request is in conflict with the Communications Act, the Commission's
regulations, and established Commission precedent. Moreover, the Bureau's grant of the STA
harms the public interest by foreclosing the ability of competitors to provide service to U.S.
customers in the future. Such harm to competition and the public cannot rationally be squared
with a statutory obligation to grant an STA only when necessary to avoid prejudice to the public.
1.
The Bureau's Grant Of ESOC's STA Request Conflicts With Statutory
And Regulatory Requirements And Established FCC Precedent.
Section 309(b) of the Communications Act establishes strict procedures to ensure that
certain material applications, including applications to operate communications satellites on
specified frequencies at specific orbital locations, are not granted without notice to the public and
a 30-day period for public comment.44 Subsections (c) and (f) of Section 309, and Section
25.120 of the Commission's Rules, carve out very narrow exceptions to this statutorily mandated
notice and comment obligation to enable the Commission, in rare instances, to authorize service
in an emergency without delay. To ensure that the public's right to review and comment on
applications affecting their rights is not abridged, the statute and the Commission's rules
necessarily establish a high bar for invoking these exceptions to the general notice-and-comment
procedures.45 Thus, the Communications Act and the FCC's regulations provide that "[t]he
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

44
47 U.S.C. 309(b).
45
47 U.S.C. 309(c).
11

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in the institution of these temporary operations would seriously prejudice the public interest."46
Without strict standards, the exception to public notice and comment could be employed in ways
that eviscerate the rule.47 Unfortunately, that is the case here.
First, the Bureau manufactures a theoretical "extraordinary circumstance," which if
allowed to stand, would effectively authorize any satellite to relocate to any slot for the provision
of any service, or even no service at all, under an STA without any notice to or comment from
the public. According to the Bureau, in "ordinary circumstances" satellites maintain their
"authorized orbital locations" using "propulsion systems ultimately controlled using radio
commands."48 The Bureau then concludes that the "need on the part of a licensee to move a
geostationary satellite . . . provides the necessary extraordinary circumstances" to justify an
STA.49 In other words, the Bureau holds that the movement of a satellite, which ordinarily
requires an application subject to public notice and comment procedures,50 is itself grounds for

46
47 C.F.R. 25.120(b)(1) (emphasis added); see also 47 U.S.C. 309(f) (emphasis
added).
47
It is fundamental that "`[a] statute ought, upon the whole, to be so construed that, if it can
be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.'" TRW
Inc. v. Andrews
, 534 U.S. 19, 31 (2001) (internal citation omitted); accord Donnelly v. FAA, 411
F.3d 267, 271 (D.C. Cir. 2005) ("We must strive to interpret a statute to give meaning to every
clause and word.").
48
Order, 9.
49
Id. The Bureau notes (at 9) that "in this case" DIRECTV and SES Bermuda had
entered into an operator-to-operator coordination agreement and that ESOC/SES Bermuda made
certain "commitments regarding" Spectrum Five's reverse band operations at 95 W.L., but
neither fact materially distinguishes the Bureau's holding here from just about any conceivable
future case in which an operator requests STA to relocate a satellite. Respecting legal rights of
other parties is certainly an appropriate consideration in the Commission's weighing of public
interest benefits and harms in an STA proceeding, but by no measure can it independently create
the "extraordinary circumstance" needed to justify an STA in the first instance.
50
See 47 U.S.C. 309(b).
12

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USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 29 of 53
circumventing public notice and comment procedures. Thus, if left undisturbed, the Bureau's
Order would enable the exception to swallow the rule, whole.
The Bureau cites DIRECTV Enterprises, LLC51 for the proposition that the FCC's
"practice" is to authorize relocation of satellites pursuant to STA. But, that decision granted
permanent authority to relocate a satellite pursuant to an application for modification of license
that was processed under notice and comment procedures as required by Section 309(b) of the
Communications Act, not under STA. Moreover, DIRECTV Enterprises, LLC concerned the
relocation of the DIRECTV 1R satellite to 55.8 E.L. to ensure continuity of service to
customers potentially affected by a launch delay of a new satellite.52 In a separate decision not
cited by the Bureau, the FCC authorized the transit of the DIRECTV 1R satellite to 55.8 E.L.
pursuant to STA, but in that case, there was a specific, demonstrable public interest benefit
continuity of specific existing services as described in DIRECTV's application for modification
of license that justified the STA.53 In contrast, no such rationale is provided here.
The Bureau expressly agreed with Spectrum Five that "ESOC seeks temporary authority,
rather than waiting for normal processing of its application for regular authority, due to the April
14, 2013 ITU deadline for the U.K. to have a satellite at the 96.2 W.L orbit location for
purposes of bringing the BERMUDASAT-1 filing into use."54 The Bureau then dismissed the

51
Order, 9 n.19 (citing DIRECTV Enterprises, LLC, Grant Stamp, File No. SAT-A/O-
20120817-00137, SAT-AMD-20120824-00142, SAT-AMD-2012-0913-00148 (granted Dec. 21,
2012)).
52
See DIRECTV Enterprises, LLC, File No. SAT-A/O-20120817-00137 at 2-3 (filed Aug.
17, 2012).
53
See DIRECTV Enterprises, LLC, Stamp Grant, File No. SAT-STA-20121109-00197, 3
(Dec. 14, 2012).
54
Order, 8.
13

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USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 30 of 53
obvious as mere "motivations" of operators regarding "ITU filing matters" that are not
appropriate to determining whether an STA would serve the public interest. 55 But the Bureau
does not, and cannot, reconcile this conclusion with its specific holding in the precedent
established with very same operator in EchoStar Satellite LLC that the bringing into use of an
ITU filing is not a public interest basis for an STA.56
The Bureau also failed to acknowledge other precedent cited by Spectrum Five and
DIRECTV holding that an STA must be supported by specific, demonstrable public interest
benefit, such as ensuring continuity of service or expanding service to customers.57 ESOC made
no representation that the EchoStar 6 satellite will be used to provide any actual service to any
consumer anywhere in the world. Indeed, because EchoStar 6 would not even cast a shadow on
much of the area that ESOC purportedly desires to serve (i.e., most of the Caribbean and Latin
America), and because it is not able to serve the U.S. in order to avoid dismissal due to the

55
Id.
56
See EchoStar Satellite L.L.C., 20 FCC Rcd. 10033, 9 (Int'l Bur. 2005) (denying request
for STA by EchoStar for the purpose of bringing into use an ITU filing by Mexico for the 77
W.L. orbital slot). The Bureau subsequently reinstated EchoStar's request for STA at 77 W.L.,
only upon a specific showing that grant of the STA would result in a real and demonstrable
benefit to the U.S. public. Specifically, EchoStar represented that it "can and will provide
service to the United States using the EchoStar 4 satellite" upon grant of the STA. EchoStar
Satellite L.L.C.
, 20 FCC Rcd 12507, 12509 (I.B. 2005). Of course, no such rationale exists here.
57
See, e.g., Applications of DIRECTV Enterprises LLC, 20 FCC Rcd 11772, 11775 (2005)
(granting a 180-day request for special temporary authority to relocate a DIRECTV satellite in
order to maintain continuity of DBS service for consumers); see also Policy Branch Information;
Actions Taken,
Report No. SAT-00909, File No. SAT-STA-20120621-00103 (Nov. 2, 2012 )
(Public Notice) (granting Intelsat License LLC's 180-day request for temporary authority to drift
a satellite where Intelsat's application asserted that temporary authority would serve the public
interest by allowing "Intelsat to expand customer services"); Policy Branch Information; Actions
Taken
, Report No. SAT-00894, File No. SAT-STA-20120817-00138 (Aug. 31, 2012) (Public
Notice) (granting DIRECTV's 60-day request for special temporary authority where DIRECTV
explained that temporary authority would allow the satellite to "help ensure continuity of service
for another DBS operator.").
14

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FCC's DBS processing freeze, it is hard to conjure any business that ESOC could provide, much
less a business that has to commence immediately to avoid serious harm to the public interest.
Moreover, Spectrum Five provided the Commission public information that both SES and ESOC
have several in-orbit satellites, most of which have been launched in the last three years and
operate with equal or higher power than proposed by EchoStar 6, that already provide service to
the very same locations that they claim they wish to serve. Given the low power levels specified
in ESOC's STA request, it is unlikely that ESOC could compete against any of the multiple Ku-
band based satellite service providers already serving the area, including their own.
Nor is there any finding by the Bureau that service must commence immediately to avoid
serious prejudice to the public. No finding could possibly be made, given that ESOC does not
commit to provide any service whatsoever at any time, and its sole express claim for the STA is
nothing more than the "unique, but time limited, opportunity" to bring into use the
BERMUDASAT-1 filing.58
Further, contrary to the Bureau's claim that "delay could place the Commission in the
position of resolving through inaction a potential dispute between other Administrations," the
Commission has instead created a potential dispute by its action of granting an STA for the
purpose of perfecting another country's ITU filing, contrary to the FCC's own precedent. Thus,
by employing the extraordinary remedy of an STA to benefit one party, the Bureau dictated the
outcome by picking the winner. In contrast, had the Bureau properly refrained from granting one
party an STA, it would have maintained a level playing field for all applicants interested in
securing authority to provide service to the U.S. Ironically, by granting an STA to enable
another administration to bring into use an ITU filing, the Bureau used its own extraordinary

58
ESOC March 13, 2013 Ex Parte Letter at 2.
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power to grant temporary relief in a manner that forecloses an opportunity to secure rights at
96.2 W.L. for the United States' own benefit.
In sum, the Bureau's Order failed to satisfy the basic statutory elements to grant an STA,
unlawfully deprived the public of its right to notice and comment on an application that
materially affected its rights, and conflicted with directly applicable precedent. To the extent the
Bureau was attempting to create a new permissive standard for STAs, moreover, it failed to
explain its departure from precedent, contrary to law.59 Therefore, Spectrum Five is likely to
prevail on the merits of its application for review.
2.
Unnecessary Use Of The Expedited STA Procedures Deprived The
Bureau And The Public Adequate Time To Obtain All Necessary Facts
And Analyze The Technical Operations Affected By Relocation Of
ECHOSTAR 6.
The expedited procedures used to consider ESOC's request to relocate the EchoStar 6
satellite were unnecessary and shortchanged the Bureau's ability to carefully review and confirm
that all material facts were provided to determine whether operation of the EchoStar 6 satellite at
96.2 W.L. as proposed was justified. Here, ESOC's failure to provide complete information to
the Bureau and false claims of urgency resulted in a materially deficient record and an
improperly issued decision.
ESOC initially claimed that it needed to begin relocating the satellite by March 12,
2013.60 The rationale for the deadline was to permit some unstated commercial "development"

59
See, e.g., F.C.C. v. Fox Television Stations, Inc., 132 S.Ct. 2307, 2317 (2012) ("A
fundamental principle in our legal system is that laws which regulate persons or entities must
give fair notice of conduct that is forbidden or required."); Satellite Broadcasting Company, Inc.
v. FCC
, 824 F.2d 1, 4 (D.C. Cir. 1987) ("The agency's interpretation is entitled to deference, but
if it wishes to use that interpretation to cut off a party's right, it must give full notice of its
interpretation.").
60
STA Request at 2, 5; ESOC February 27, 2013 Ex Parte Letter at 1, 4; ESOC March 11,
2013 Ex Parte at 1.
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to begin.61 After admitting that the STA was, contrary to prior representations, to bring into use
the BERMUDASAT-1 filing, ESOC adjusted its request and demanded the Bureau staff grant
the STA by April 1, 2013.62 This enormous pressure to circumvent the Commission's normal
internal review process was inappropriate and, ultimately, unnecessary. Based on public records
available to Spectrum Five, EchoStar 6 did not begin its drift until three days later on April 4.63
Thus, ESOC's demand for action was misplaced and deprived the Commission and interested
parties with the opportunity to fully address the highly technical merits of ESOC's STA request
and the public interest ramifications of using an STA solely to bring into use a non-U.S. ITU
filing that will materially affect U.S. interests.
Moreover, ESOC's STA Request failed to identify all of the administrations affected by
the proposed operation of the BERMUDASAT-1 filing, which is a material issue in confirming
ESOC's compliance with its legal obligations. ESOC incorrectly claimed in its STA Request
that Jamaica would be the only administration "affected" by the operation of EchoStar 6. 64
Spectrum Five provided a technical analysis demonstrating that EchoStar 6 would affect multiple
administrations, including the U.S., the Netherlands, and Russia.65 Again, Spectrum Five

61
Id.
62
See ESOC April 2, 2013 Ex Parte Letter at 2; ESOC March 29, 2013 Ex Parte Letter at
1-2; ESOC March 28, 2013 Ex Parte Letter at 1.
63
See http://www.n2yo.com/satellite/?s=26402 (last checked Apr. 4, 2013).
64
STA Request, Exhibit 2 at 4-5.
65
See Spectrum Five April 1, 2013 Ex Parte Letter (providing MSPACE analysis for
BERMUDASAT-1 filing). After Spectrum Five's several requests, ESOC provided only the
GXT files included in its application for modification of license, which are necessary to
determine if ESOC's representations were accurate. Running an MSPACE analysis is very time
consuming and requires that the data contained in the GXT files be entered manually, which in
some instances can take weeks. Knowing how long the analysis would take, Spectrum Five
requested the output file (SpaceCap) which results after the GXT files have been inputted.
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presented these findings to the FCC as soon as it possibly could, but since the Bureau acted on
the same day, it is clear that information that should have been material to the Bureau's review
was not, in fact, properly considered, rendering the Bureau's decision arbitrary and capricious in
violation of the Administrative Procedure Act.
3.
Grant Of The STA Will Harm The Public Interest By Suppressing
Competition.
The Bureau's failure to comply with statutory, regulatory, and established policy
requirements and its unnecessary expedited treatment of ESOC's STA request will harm the
public interest. As a result of the STA grant, ESOC will be able to preclude future competition66
and harm the ability of U.S. consumers to receive new and higher quality services.
By permitting ESOC to relocate EchoStar 6 for the sole purpose of bringing into use the
BERMUDASAT-1 ITU filing, the Bureau, for the first time in its history, has granted an STA to

ESOC declined to provide the output file, claiming it was "proprietary". Spectrum Five
completed the analysis on the morning of April 1 and presented the results to the Chairman's
office and the Bureau that same morning, approximately eight hours prior to grant.
66
Preserving competition in communications services has been a key congressional and
regulatory policy for decades, and must be taken into consideration in the Commission's public
interest analysis here. See, e.g., News Corporation and the DIRECTV Group, Inc., 23 FCC Rcd
3265, 3277 (2008) ("The Commission's public interest evaluation necessarily encompasses the
broad aims of the Communications Act, which include, among other things, a deeply rooted
preference for preserving and enhancing competition in relevant markets.") (internal quotation
marks omitted); see also Comprehensive Review of Licensing and Operating Rules for Satellite
Services, Notice of Proposed Rulemaking
, IB Docket No. 12-267, FCC 12-117 at 155 (Sept. 28,
2012) ("The Commission's licensing requirements are also intended to reinforce our
fundamental policy goal of providing space and earth station operators with sufficient flexibility
to implement technological advances and meet customer needs, while ensuring an operating
environment free from harmful interference and a competitive marketplace."); Revision of Rules
and Policies for the Direct Broadcast Satellite Service
, 11 FCC Rcd 9712, 9720-9721 (1995)
(explaining that the Commission has "consistently sought to promote effective competition" and
emphasizing that "competition is a relevant factor in weighing the public interest") (citing F.C.C.
v. RCA Communications, Inc.
, 346 U.S. 86, 94 (1953)); Competition in the Video Programming
Distribution Market
, 9 FCC Rcd 7442, 7447 (1994) ("the Commission has sought . . . to foster
the emergence of a competitive market for the delivery of video programming to consumers.").
18

FCC Reply Add. 20


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 35 of 53
perfect a non-U.S. ITU filing, and thereby enter it into the ITU's Master Registry forever more,
to the demonstrable detriment of U.S. national interests. Other competitors will be forced to
protect the operational parameters set forth in the BERMUDASAT-1 filing, which covers the
entire continental United States and Alaska and Hawaii, even though U.S. residents will not
receive a single service offering from ESOC under the STA.67 ESOC, one of the two incumbent
DBS providers, would essentially be able to block operations of any future DBS service to the
U.S. from any orbital location potentially affecting the 96.2 W.L. orbital location. In practical
terms, at least 500 MHz of extremely valuable spectrum that could otherwise be used to deliver
new service to the United States public would instead be forced to remain fallow.68
Failure to reverse the Bureau would also enable ESOC to violate the freeze on new DBS
proposals. Because all other operators would be required to protect the BERMUDASAT-1 filing
for all time, ESOC/SES would effectively lock up extremely valuable DBS spectrum from slots
short spaced to 96.2 W.L. by preserving for themselves the sole opportunity to apply for access
to the U.S. market when the freeze is ultimately lifted. Moreover, even though the Bureau
granted only temporary authority, the Order could negate the rights of other interested parties,
like Spectrum Five, to have competing applications considered for authority to enter the U.S.
market, in violation of their rights under Ashbacker.69 There, the Court found that "[w]hile the
statutory right of petitioner to a hearing on its application has in form been preserved, it has as a

67
Based on an initial analysis of ESOC's proposed operations at 96.2 W.L., EchoStar 6
will "affect" the Netherlands' BSSNET3-95W ITU filing and degrade Spectrum Five's BSS
operations at 95 W.L. by more than 4 dB. This fact is in stark contrast to ESOC's prior claims
that Spectrum Five would not be harmed by grant of the STA. In addition, DIRECTV's
operations at 101 W.L. would also be affected as they too would be degraded more than the 0.25
OEPM limit.
68
Spectrum Five April 1, 2013 Ex Parte Letter at 2.
69
Ashbacker Radio Corp. v. FCC, 326 U.S. 327 (1945).
19

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USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 36 of 53
practical matter been substantially nullified by the grant of the [ ] application."70 If ESOC and
SES are successful in bringing into use the BERMUDASAT-1 filing, no other operator could
possibly apply for authority to provide DBS service to the U.S. from this or adjacent orbital
locations as it will be controlled forevermore by the United Kingdom. As previously stated, all
operators are precluded from filing for rights to provide DBS services to the U.S.71 When the
freeze preventing such applications is lifted, ESOC's ITU rights will have the practical effect of
precluding the Commission from considering applications from other parties to provide
competitive DBS service to the U.S. public all because normal licensing procedures were
skirted by the Bureau's failure to apply the high standards for grant of STA required by statute.72
Although ESOC falsely claims that "Spectrum Five has no operational or planned
satellite service in the United States that would be adversely affected by an STA grant,"73
Spectrum Five has explained that its interest in ITU filings made by the Netherlands for BSS
service at 95 W.L., and its FCC-issued license for reverse band operations at 95 W.L., would
in fact be severely impacted.74 In particular, Spectrum Five is developing a hybrid BSS/reverse
band platform that would provide highly spectrum-efficient video, broadband and other services
to the U.S. and the Americas from the 95 W.L. orbital location. Grant of the STA would

70
Id. at 334.
71
DBS Freeze Order, 20 FCC Rcd 20618.
72
Given that the two incumbent DBS operators ESOC and DIRECTV have through the
coordination agreement reached between ESOC's partner SES and DIRECTV presumably
resolved any future DBS coordination issues regarding the BERMUDASAT-1 filing, the grant of
the STA was in practical effect the grant of the DBS rights in the proximity of 96.2 degrees WL
whenever the freeze is lifted.
73
ESOC March 27, 2013 Ex Parte Letter, at 1.
74
Spectrum Five March 20, 2013 Ex Parte Letter, at 1-2.
20

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USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 37 of 53
substantially hinder the ability of Spectrum Five (and other new entrants) from competing
against the incumbent providers of U.S. DBS service, even if ESOC never delivered a single
service to a single customer anywhere in the world from the 96.2 W.L. orbital slot.75
Moreover, these potential harms would not be limited to 96.2 W.L. By establishing the
precedent of authorizing temporary operations to bring into use ITU filings without requiring any
showing of extraordinary circumstances and despite demonstrable harm to U.S. interests, ESOC
could rely on an approval here to bring into use other BSS modifications at orbital locations of
strategic value to the U.S. (i.e., 86.5o W.L., 105.5 W.L. and 114.5 W.L) currently controlled by
SES.76
The harm caused by precluding future competitive, high power, spectrum efficient
services is made worse by the materially degraded service that ESOC/SES would certainly have
to provide from 96.2 W.L. if, and when, they seek access to the U.S. market. Due to the
operational constraints that SES had to have assumed in the coordination agreement with
DIRECTV, 96.2 W.L. will likely have to operate with lower power, larger antennas, and less
effective bandwidth that would an unencumbered service.

75
Spectrum Five March 20, 2013 Ex Parte Letter, at 1-2; see also DIRECTV March 4, 2013
Ex Parte Letter, at 2.
76
Specifically, the precedent established by grant of ESOC's STA would seemingly allow
ESOC/SES to file an application for a DBS satellite with operational technical parameters, and
then modify the authorization offset with a pointed beam outside the real intended coverage area
with a technical analysis demonstrating no operators are affected. The operator could then move
the satellite to the new location for 90 days to satisfy the ITU bring into use obligation. At that
point, other operators would be forced to enter into coordination agreements to protect their
future satellite replacements, whether or not ESOC/SES ever provided actual service. The same
satellite could be used in multiple locations to lock up valuable DBS spectrum and prevent any
meaningful competition from new entrants.
21

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Even ESOC acknowledged Chairman Genachowski's admonition that "we must make
better, more efficient use of spectrum."77 But granting the STA and precluding bandwidth
around 96.2 W.L. from being used for the benefit of the United States turns the Chairman's call
to arms for improved spectrum efficiency completely upside down. A more harmful STA could
hardly be imagined: FCC-issued authority to conduct ostensibly non-interfering, non-protected
operations outside the United States could be used to foreclose new competitive service
including future broadband service that would have been delivered inside the United States for
the benefit of the American public. This is warehousing at its worst. Accordingly, the
Commission is likely to overturn the Bureau's grant of STA to prevent this present and future
harm to U.S. customers.

B.

The Equities Weigh Strongly In Favor Of A Stay.


1. Absent a stay, Spectrum Five will suffer irreparable harm that is "both certain and
great; . . . actual and not theoretical."78 The Bureau's decision to allow ESOC to relocate the
EchoStar 6 satellite to the 96.2 W.L. orbital location will cause Spectrum Five to suffer
competitive injury.79 This type of economic harm is unquantifiable and thus irreparable.80 It is
precisely the type of harm that warrants a stay pending review.

77
ESOC March 11, 2013 Ex Parte Letter, at unnumbered page 2 (citing Prepared Remarks
of FCC Chairman Genachowski, Winning the Global Bandwidth Race: Opportunities and
Challenges for Mobile Broadband
, University of Pennsylvania Wharton, Philadelphia, PA,
Oct. 4, 2012).
78
Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam).
79
PGBA, LLC v. United States, 57 Fed. Cl. 655, 664 (2003) (explaining that "a lost
opportunity to compete may constitute an irreparable harm"); see also Autoskill Inc. v. Nat'l
Educ. Support Sys., Inc.
, 994 F.2d 1476, 1498 (10th Cir. 1993) (agreeing with the district court
that the loss of "investment and competitive position" constitutes irreparable harm), overruled on
other grounds TW Telecom Holdings Inc. v. Carolina Internet Ltd.
, 661 F.3d 495 (10th Cir.
2011); BasicComputer Corp. v. Scott, 973 F.2d 507, 512 (6th Cir. 1992) (concluding that "the
loss of fair competition . . . is likely to irreparably harm an employer"); Ferry-Morse Seed Co. v.
22

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USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 39 of 53

The Bureau's decision places Spectrum Five at a competitive disadvantage vis--vis
incumbent U.S. DBS operators (EchoStar/DISH and DIRECTV) because it substantially hinders
the company's ability to offer a competitive service.81 The mere location of EchoStar 6 at the
96.2 W.L. orbital slot for a minimum of 90 days, commencing by April 14, 2013, will enable
ESOC to cement permanently the modifications to the Region 2 BSS Plan set forth in the United
Kingdom's BERMUDASAT-1 ITU filing in the ITU Master Register.82 The Netherlands'
BSSNET3-95W filing on behalf of Spectrum Five was submitted after the BERMUDASAT-1
filing; accordingly, under ITU regulations, if the BERMUDASAT-1 filing is perfected, then
Spectrum Five and any other new entrant forever will be required to protect the
BERMUDASAT-1 modifications to the Region 2 BSS Plan, even if neither ESOC nor the U.K.
ever provide service to the United States from 96.2 W.L.83 Thus, the STA grant is the first step
in an inevitable chain of events that effectively will force any new entrant that would technically
"affect" BERMUDASAT-1 to secure permission from the United Kingdom and the
BERMUDASAT-1 operator before offering new competitive service to the U.S. public.84 Once
the BERMUDASAT-1 filing is permanently installed in the ITU Master Register, ESOC (and its

Food Corn, Inc., 729 F.2d 589, 592 (8th Cir. 1984) (breach of exclusive distribution agreement
constituted irreparable harm where company was disadvantaged in competitive market by
inability to market unique seed corn).
80
CSX Transp., Inc. v. Williams, 406 F.3d 667, 673-74 (D.C. Cir. 2005) (explaining that
"irreparable injury is suffered when monetary damages are difficult to ascertain or inadequate"
(quotation omitted)).
81
Wilson Decl. 5.
82
Id.
83
Id.
84
Id.
23

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USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 40 of 53
partner SES) will wield the preclusive power of the international protection available from the
filing to preserve for themselves alone the ability to enter the U.S. DBS market using satellite
slots short spaced to 96.2 W.L. along the geostationary arc when the Commission lifts the
freeze on new DBS applications.85 Absent a stay from the Commission, Spectrum Five, which is
developing a competing satellite video and broadband service, will suffer irreparable injury in
the form of the "lost opportunity to compete" against incumbent DBS operators because its
ability to offer a competing service will be at the mercy of a direct competitor.86

The Bureau's decision will prevent Spectrum Five from offering a BSS hybrid service to
United States consumers because it affords the incumbent DBS operator ESOC enormous
leverage over Spectrum Five's offering of this service.87 If allowed to stand, the decision thus
will necessarily impair Spectrum Five in its ongoing efforts to attract and retain investors to fund
its hybrid BSS/reverse band system, which would otherwise be able to provide highly spectrum-
efficient (and thus extremely valuable) video, broadband and other services to the U.S. and the
Americas from the 95 W.L. orbital location.88 If ESOC can block Spectrum Five's entry into
the DBS market, Spectrum Five's value as a company will be substantially diminished because
its ability to attract investors will be significantly reduced if the Commission does not protect the
rights of its licensees and overturn the Bureau's decision.89 It would be "exceedingly
speculative" to attempt to quantify the diminution in Spectrum Five's "value" caused by the

85
Id.
86
PGBA, LLC, 57 Fed. Cl. at 664.
87
Wilson Decl. 6.
88
Id.
89
Id.
24

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USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 41 of 53
inability to provide these services to the public.90 The "destruction of a business" is not "mere
economic injur[y] . . . for which adequate compensatory or other corrective relief will be
available at a later date."91
2. By contrast, a stay will not harm third parties because it would simply maintain the
status quo. The issue here is "whether injunctive relief would significantly harm other interested
parties."92 Even if such harm were identified, the Commission must "`balance the competing
claims of injury and . . . consider the effect on each party of the granting or withholding of the
requested relief.'"93
No third parties not even ESOC would be harmed by maintaining the status quo
during Spectrum Five's appeal. ESOC sought an STA merely to "evaluate and develop"
business opportunities in purportedly non-U.S. markets.94 If a stay is granted, nothing prevents
ESOC and its partner from pursuing opportunities to "evaluate and develop" services outside the
United States from the 96.2 W.L. orbital slot following normal procedures to modify the
EchoStar 6 license without STA. A stay will not disrupt existing services to the public because
ESOC is not currently providing "DBS service in the United States from the 96.2 W.L. orbital
location" and, indeed, is currently precluded from doing so due to the DBS freeze.95 In fact,

90
CSX Transp., Inc., 406 F.3d at 673-74.
91
Holiday Tours, 559 F.2d at 843 n.2 (internal citations omitted); see also Performance
Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1382 (6th Cir. 1995) ("financial ruin
qualifies as irreparable harm").
92
Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 110 (D.C. Cir. 1986).
93
Nat'l Wildlife Fed'n v. Burford, 835 F.2d 305, 326 (D.C. Cir. 1987) (citation omitted).
94
Order 2.
95
Id. 12.
25

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USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 42 of 53
ESOC failed, throughout the proceedings before the Bureau, to offer a single tangible, verifiable
detail of a single customer, anywhere in the world let alone in the United States, that would be
deprived of a single service unless the STA was immediately granted. Halting its effectiveness
to permit Commission review will thus, by definition, cause ESOC no harm.
Nor will expiration of the BERMUDASAT-1 cause any harm to ESOC, because its
proposed non-U.S. services would be essentially unprotected by the U.S.-centered beams
described in the BERMUDASAT-1 filing. In any event, any harm to ESOC was wholly of its
own making and is thus not entitled to weight in the balancing of harms.96 If it had truly desired
to commence service from the 96.2 W.L. orbital location for reasons other than bringing into
use the BERMUDASAT-1 filing, it wasted multiple opportunities for doing so on a timely basis.
For example, it could have filed an application to modify the EchoStar 6 license months ago, or
could have timely sought authority to relocate other potential in-orbit spares that it has long had
at its disposal very near the 96.2 W.L. orbital slot.
Further, in granting the STA the Bureau expressly stated that "[a]ny action taken or
expense incurred as a result of operations pursuant to this special temporary authority is solely at

96
E.g., Pappan Enters. Inc. v. Hardee's Food Sys. Inc., 143 F.3d 800, 805 (3d Cir. 1998)
(stating that claimed harm of party opposing preliminary injunction that "brought on by its own
conduct" is entitled to no weight in the analysis and awarding preliminary injunction). Cf. Tough
Traveler, Ltd. v. Outbound Prods.
, 60 F.3d 964, 968 (2d Cir. 1995) ("[A]ny such presumption of
irreparable harm is inoperative if the plaintiff has delayed either in bringing suit or in moving for
preliminary injunctive relief" because the "`failure to act sooner undercuts the sense of urgency
that ordinarily accompanies a motion for preliminary relief and suggests that there is, in fact, no
irreparable injury'"); Arthur v. Allen, 574 F. Supp. 2d 1252, 1256-57 (S.D. Ala. 2008) (rejecting
claim of irreparable harm where party was "dilatory to an extreme degree in initiating this
lawsuit" and "slept on his rights for years" because any harm was of his "own creation");
Mooreforce, Inc. v. U.S. Dep't of Transp., 243 F. Supp. 2d 425, 435 (M.D.N.C. 2003) (rejecting
claim of irreparable harm because "any irreparable harm the Plaintiffs face could perhaps be
considered a consequence of `their own procrastination'").
26

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USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 43 of 53
ESOC's own risk."97 Accordingly, any expenditure by ESOC of money or fuel, whether to
implement the Order or to comply with the terms of a stay, has or will be made expressly "at . . .
its own risk" and also is not properly considered as cognizable harm in the stay analysis. Finally,
even assuming ESOC could identify harm from a stay which it cannot the balance of harms
tips heavily in favor of a stay because Spectrum Five's competitive harm strongly outweighs any
harm to third parties.
3. The public interest also heavily favors granting a stay. Most importantly, a stay will
promote competition in the communications marketplace, which has long been a key
Congressional and regulatory policy goal. The Bureau's pro-incumbent decision suppresses
competition in the DBS market by giving a direct competitor who is not using the orbital
location to provide any service to the United States and has expressly stated that it has no plan to
do so perpetual, unilateral, power to preclude new entrants such as Spectrum Five from
entering the U.S. DBS market. The private coordination agreement between ESOC and
DIRECTV ensures that DIRECTV itself will suffer no harm, but does nothing to permit new
DBS competition.98 A stay is thus necessary to put new entrants on a level playing field that will
provide them with the opportunity to enter the DBS market when the Commission lifts the freeze
without fear that incumbent DBS providers are in a position to refuse them permission.
Moreover, a stay is necessary to protect U.S. national interests. As explained above, the
Bureau's decision grants the first STA to perfect a non-U.S. ITU filing to the detriment of U.S.
national interests and U.S. consumers. Requiring competitors to forever protect the operational
parameters set forth in the BERMUDASAT-1 filing harms U.S. interests. No service will occur

97
Order 20(c).
98
The private nature of the coordination agreement also means that the public has had no
opportunity to determine whether it has other aspects that might create public interest harms.
27

FCC Reply Add. 29


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 44 of 53
in the United States under the STA, but allowing the STA grant to stand would bring into use a
foreign ITU filing that would then receive permanent protection from interference for its own
U.S. services and constrain the U.S. services of other operators. Finally, due to the dramatically
inefficient use of spectrum that the STA permits, a stay is necessary to further the national policy
in favor of spectrum efficiency.

IV.

CONCLUSION


For all these reasons, Spectrum Five's emergency request for a stay of the Bureau's
Order and Authorization should be granted as expeditiously as possible. At the very least, prior
to April 14, 2013, the Commission should enter a temporary administrative stay of the Bureau's
order pending its review of this request. If the Commission fails to act on this request in an
expeditious manner, Spectrum Five respectfully reserves its right to seek further relief.

Respectfully submitted,

By: /s/ Todd M. Stansbury

Todd M. Stansbury
David Wilson
Eve Klindera Reed
President
Brett Shumate
SPECTRUM FIVE LLC
Colleen King
1776 K Street, NW
WILEY REIN LLP
Washington, DC 20006
1776 K Street NW

Washington, DC 20006

202.719.7000 (phone)

202.719.7049 (fax)



Counsel to Spectrum Five LLC



Dated: April 5, 2013



28

FCC Reply Add. 30


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 45 of 53

CERTIFICATE OF SERVICE



I, Pam Conley, hereby certify that on this 5th day of April, 2013, a copy of the foregoing
Emergency Request for a Stay is being sent via first class, U.S. Mail, postage paid, to the
following:


Pantelis Michalopoulos
Bryan N. Tramont
Stephanie Roy
Wilkinson Baker Knauer LLP
Steptoe & Johnson LLP
2300 N Street, NW
1330 Connecticut Avenue, NW
Suite 700
Washington, DC 20036
Washington, DC 20037
Counsel for EchoStar Satellite Operating
Counsel for EchoStar Satellite Operating
Corporation
Corporation


Daniel C.H. Mah
Karis A. Hastings
Regulatory Counsel
SatCom Law LLC
for SES Satellites (Bermuda) Ltd.
1317 F Street, N.W., Suite 400
1129 20th Street N.W., Suite 1000
Washington, DC 20004
Washington, DC 20036
Counsel for SES

William M. Wiltshire
Dr. the Hon. E Grant Gibbons, JP MP
Wiltshire & Grannis LLP
Minister of Economic Development
1200 18th Street, N.W.
Government Administration Building
Washington, D.C. 20036
30 Parliament Street
Counsel for DIRECTV Enterprises LLC
Hamilton HM 12
Bermuda
R. Agema

Radiocommunications Agency Netherlands
Emmasingel 1
P.O. Box 450
9700 AL Groningen
The Netherlands





/s/ Pam Conley






FCC Reply Add. 31


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 46 of 53



APPENDIX A




FCC Reply Add. 32


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 47 of 53

Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554


In the Matter of
)


)

EchoStar Satellite Operating Company
)
File No. SAT-STA-20130320-00023

)
Call Sign : S2232
Application for Special Temporary Authority
)

Related to Moving the EchoStar 6 Satellite
)
from the 77 W.L. Orbital Location to the 96.2 )
W.L. Orbital Location, and to Operate at the
)
96.2 W.L. Orbital Location
)




DECLARATION OF DAVID WILSON


1. I am the Chief Executive Officer ("CEO") of Spectrum Five LLC ("Spectrum Five" or
"the Company"), a satellite operations company. I am over the age of 18 and have
personal knowledge of the following facts, and if called and sworn as a witness, I could
and would testify competently thereto. I submit this declaration in support of Spectrum
Five's efforts to obtain an emergency stay of the International Bureau's ("IB") Order and
Authorization while the Commission reviews Spectrum Five's appeal.
2. Spectrum Five is a U.S.-based company that was formed to develop, launch and operate
satellite systems for the provision of additional, competitive, and innovative services to
U.S. consumers. Spectrum Five holds a license issued by the FCC to provide service in
the 17/24 GHz reverse band from the 95.15 W.L. orbital location. In addition, Spectrum
Five and its wholly-owned subsidiary Spectrum Five BV (a Netherlands corporation) are
parties to agreements with the State of the Netherlands and the Government of the
Netherland Antilles, which authorize the launch and operation of satellite systems using
12/17 GHz and 17/25 GHz frequencies at several orbital locations, including the nominal
1

FCC Reply Add. 33


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 48 of 53
95 W.L. location, for the purpose of providing service to the United States. Pursuant to
these agreements, the State of the Netherlands acts as the sponsoring administration for
Spectrum Five before the International Telecommunication Union ("ITU") and has
submitted filings for Spectrum Five's use of frequencies and orbital locations, including
that slot.
3. Spectrum Five has long planned to introduce competitive Direct Broadcast Satellite
("DBS") service to the United State. It has patiently waited for the Commission to lift its
freeze on applications for authority to provide DBS services using new orbital and
spectrum resources, which has been in effect since 2005. In the meantime, Spectrum
Five is developing a hybrid Broadcast Satellite Service ("BSS")/reverse band platform
that would enable it to provide highly spectrum-efficient video, broadband, and other
services to the United States and the Americas from the 95 W.L. orbital location after
the freeze is lifted.
4. I understand that the IB's Order and Authorization grants EchoStar Satellite Operating
Corporation ("ESOC") Special Temporary Authority ("STA") to relocate the EchoStar 6
satellite from the 76.8 W.L. orbital location to the 96.2 W.L. orbital location, and to
operate at 96.2 W.L. using the 12.2-12.7 GHz (space-to-Earth) and 17.3-17.8 GHz
(Earth-to-space) frequency bands.
5. The Bureau's decision places Spectrum Five at a competitive disadvantage vis--vis
incumbent U.S. DBS operators (EchoStar/DISH and DIRECTV) because it substantially
hinders the company's ability to offer a competitive service. The mere location of
EchoStar 6 at the 96.2 W.L. orbital slot for a minimum of 90 days, commencing by
April 14, 2013, will enable ESOC to cement permanently the modifications to the Region
2

FCC Reply Add. 34


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 49 of 53
2 BSS Plan set forth in the United Kingdom's BERMUDASAT-1 ITU filing in the ITU
Master Register. The Netherlands' BSSNET3-95W filing on behalf of Spectrum Five
was submitted after the BERMUDASAT-1 filing; accordingly, under ITU regulations, if
the BERMUDASAT-1 filing is perfected, then Spectrum Five--and any other new
entrant--forever will be required to protect the BERMUDASAT-1 modifications to the
Region 2 BSS Plan. Thus, the STA grant is the first step in an inevitable chain of events
that effectively will force any new entrant that would technically "affect"
BERMUDASAT-1 to secure permission from the United Kingdom and the
BERMUDASAT-1 operator before offering new competitive service to the U.S. public.
Once the BERMUDASAT-1 filing is permanently installed in the ITU Master Register,
ESOC (and its partner SES) will wield the preclusive power of the international
protection available from the filing to preserve for themselves alone the ability to enter
the U.S. DBS market using satellite slots short spaced to 96.2 degrees WL along the
geostationary arc when the Commission lifts the freeze on new DBS applications.
6. The Bureau's decision will prevent Spectrum Five from offering a BSS hybrid service to
United States consumers because it affords the incumbent DBS operator ESOC enormous
leverage over Spectrum Five's offering of this service. If allowed to stand, the decision
thus will necessarily impair Spectrum Five in its ongoing efforts to attract and retain
investors to fund its hybrid BSS/reverse band platform, which would otherwise be able to
provide highly spectrum-efficient (and thus extremely valuable) video, broadband and
other services to the U.S. and the Americas from the 95 W.L. orbital location. If ESOC
can block Spectrum Five's entry into the DBS market, Spectrum Five's value as a
company will be substantially diminished because its ability to attract investors will be
3

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USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 50 of 53
significantly reduced if the Commission does not protect the rights of its licensees and
overturn the Bureau's decision.
4

FCC Reply Add. 36


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 51 of 53
I declare under penalty of perjury that the foregoing is true and correct.

Executed: April ___, 2013
Washington, D.C.
______________________
David Wilson







FCC Reply Add. 37


USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 52 of 53
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
& United States of America,

Appellee.


CERTIFICATE OF SERVICE



I, Matthew Dunne, hereby certify that on September 23, 2013, I
electronically filed the foregoing Reply in Support of Motion to Dismiss
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.

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

Operating Corporation





USCA Case #13-1231 Document #1457862 Filed: 09/23/2013 Page 53 of 53
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 Dunne

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