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SES Americom, Inc. Granted Petition for Declaratory Ruling

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Released: January 16, 2013

Federal Communications Commission

DA 13-63

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

SES Americom, Inc.
)
IBFS File No. SAT-PDR-20070129-00024
)
Call Sign S2731
Petition for Declaratory Ruling Regarding Direct
)
Broadcast Satellite Service to the U.S. Market
)
from the 105.5º W.L. Orbital Location
)

ORDER

Adopted: January 16, 2013

Released: January 16, 2013

By the Chief, Satellite Division, International Bureau:

I.

INTRODUCTION

1.
With this Order, we grant the request of SES Americom, Inc. (SES Americom) for a
declaratory ruling regarding access to the U.S. market using a planned geostationary satellite orbit (GSO)
space station in the Direct Broadcast Satellite (DBS) service. The proposed satellite will operate under
the supervision of the United Kingdom (Gibraltar) at the 105.5º W.L. orbital location.1 We conclude that
SES Americom’s provision of service to U.S. customers, using the 12.2-12.7 GHz (space-to-Earth)
frequency band for downlink service transmissions, and the 17.3-17.8 GHz (Earth-to-space) frequency
band for uplink feeder links, as specified in this Order, would serve the public interest. Grant of this
request will promote competition in the United States by providing consumers with an additional choice
in DBS service offerings.

II.

DISCUSSION

A.

Application Processing Overview

2.
SES Americom’s proposed operations at the 105.5° W.L. orbital location are so-called
“tweener” operations, since they would occur in between two other orbital locations currently used for
service to the United States.2 The SES Americom Petition was placed on Public Notice on February 23,
2007.3
DIRECTV filed an opposition alleging that SES Americom’s request is procedurally and


1 SES Americom, Inc. Petition for Declaratory Ruling, IBFS File No. SAT-PDR-20070129-00024 (filed Jan. 29,
2007) (SES Americom PDR).
2 DIRECTV Enterprises, LLC (DIRECTV) operates DBS satellites with CONUS coverage at the 101° W.L. orbital
location and the 110° W.L. orbital location. DISH Operating L.L.C. (DISH) operates DBS satellites with CONUS
coverage at the 110° W.L. orbital location. For a more detailed discussion of DBS orbital locations, see Spectrum
Five, LLC Petition for Declaratory Ruling to Serve the U.S. Market Using Broadcast Satellite Service (BSS)
Spectrum from the 114.5° W.L. Orbital Location, Order, 21 FCC Rcd 14023, 14024, ¶ 2 (Int’l Bur. 2006) (Spectrum
Five Order
). The ITU Region 2 BSS Plan is comprised of the Plan for BSS in the band 12.2-12.7 GHz in ITU
Region 2, as contained in Appendix 30 of the ITU Radio Regulations, and the associated Plan for the feeder-links in
the frequency band 17.3-17.8 GHz for the BSS in Region 2, as contained in Appendix 30A of the ITU Radio
Regulations.
3 See Satellite Policy Branch Information: Satellite Space Applications Accepted for Filing, Public Notice, Report
No. SAT-00422 (rel. Feb. 23, 2007). SES Americom initially filed its petition for declaratory ruling on April 25,
(continued....)

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substantively defective.4 DIRECTV also argued that, unless and until the Commission adopts new rules
for DBS, the International Bureau lacks authority to grant tweener applications unless the proposed
system would not exceed the interference limits in the applicable ITU Radio Regulations or unless the
applicant has completed coordination with affected U.S. systems.5
SES Americom responded to
DIRECTV’s opposition,6 and DIRECTV replied.7
3.
In November 2006, the International Bureau granted two other tweener applications,
conditioning the grants so that the two grantees, Spectrum Five and EchoStar, could not operate in a
manner that affects other DBS operators unless they first coordinated with affected operators.8
DIRECTV, EchoStar, and Telesat Canada appealed the decision. On review, the Commission concluded
that the Bureau followed established procedures, in actions consistent with Commission guidance and
within the scope of its delegated authority, when the Bureau granted the Spectrum Five and EchoStar
tweener applications.9 On that basis, we reject DIRECTV’s argument that grant of tweener applications
must await action on new DBS rules.

B.

Market Entry Analysis

1.

General Framework

4.
The Commission’s DISCO II Order established a framework for analyzing requests for
non-U.S.-licensed space stations to serve the U.S. market. 10 This analysis considers the effect on
competition in the United States,11 eligibility and operating requirements,12 spectrum availability,13 and


(...continued from previous page)
2002, proposing to provide direct-to-home services to consumers in the United States from its AMC-14 space station
at the 105.5º W.L. orbital location. The Satellite Division found the Petition defective and dismissed it without
prejudice to re-filing. Letter from Robert G. Nelson, Chief, Satellite Division, International Bureau, to Nancy J.
Eskenazi, SES Americom, Inc., dated Nov. 29, 2006, 21 FCC Rcd 14020. As part of that action, the Satellite
Division waived the freeze on filing of new DBS applications to the extent necessary to allow SES Americom to re-
file its petition within 30 days. See, also Direct Broadcast Satellite 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, 20 FCC Rcd 20618, 20619 (2005).
4 Opposition of DIRECTV Enterprises, LLC (filed March 26, 2007) (DIRECTV Opposition).
5 DIRECTV Opposition at 4-5. See also Amendment of the Commission’s Policies and Rules for Processing
Applications in the Direct Broadcast Satellite Service, Notice of Proposed Rulemaking, 21 FCC Rcd 9443 (2006).
6 Response of SES Americom, Inc. (filed April 5, 2007).
7 Reply of DIRECTV Enterprises, LLC (filed April 12, 2007).
8 Spectrum Five Order, 21 FCC Rcd 14023; EchoStar Satellite L.L.C. Application to Construct, Launch and Operate
a Direct Broadcast Satellite at the 86.5° W.L. Orbital Location, Order and Authorization, 21 FCC Rcd 14045 (Int’l
Bur. 2006) (EchoStar-86.5W Order).
9 EchoStar Satellite Operating Corporation and Spectrum Five, LLC, Memorandum Opinion and Order, 23 FCC
Rcd 3252 (2008) (EchoStar/Spectrum Five MO&O).
10 Amendment of the Commission’s Regulatory Policies to Allow Non-U.S.-Licensed Space Stations to Provide
Domestic and International Satellite Service in the United States, Report and Order, 12 FCC Rcd 24094 (1997)
(DISCO II Order), on reconsideration, First Order on Reconsideration, 15 FCC Rcd 7207 (1999).
11 DISCO II Order, 12 FCC Rcd 24094, at 24107-56, ¶¶ 30-145 (discussed in section II.B.2 infra).
12 Id. at 24159-69, ¶¶ 151-74 (To the extent relevant, these matters are discussed in sections II.B.3-4 infra).
13 Id. at 24157-59, ¶¶ 146-50 (discussed in section II.B.3 infra).
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national security, law enforcement, foreign policy, and trade concerns.14 Thus we evaluate the SES
Americom PDR under the established framework.15
2.

Competition Considerations

5.
In the DISCO II Order, the Commission adopted two different variations of the
framework under which it evaluates a foreign entrant’s effect on competition in the U.S. satellite market.
First, in cases where the non-U.S. satellite is licensed by a country that is a member of the WTO and will
provide services covered by the U.S. commitments under the WTO Basic Telecom Agreement, the
Commission established a presumption that entry will further competition in the United States. The U.S.
commitments specifically exclude, however, direct-to-home (DTH) services, DBS, and Digital Audio
Radio Service.16 For such non-covered services, and for countries not members of the WTO, the
Commission conducts an Effective Competitive Opportunities (ECO-Sat) analysis for non-U.S.-licensed
space stations. Under this second variation, applicants seeking to access the U.S. market via a foreign
satellite must demonstrate that U.S.-licensed space stations have effective competitive opportunities to
provide analogous services in the country in which the satellite is licensed and in all “route market”
countries.17 We examine in particular de jure and de facto barriers to entry, and whether any such barriers
would cause competitive distortions in the United States.18
6.
In this case, SES Americom is seeking authority to provide DBS in the United States
from AMC-20, a satellite under the supervision of the United Kingdom (Gibraltar), and on various route
markets, including the United Kingdom, Gibraltar, and various British Overseas Territories in the Atlantic
Ocean and Caribbean Basin.19 Since the SES Americom PDR was filed, the Satellite Division has found
the ECO-Sat test is satisfied for the United Kingdom and Gibraltar, Bermuda, the British Virgin Islands,
and the Cayman Islands.20 Thus, we need only examine the route markets to Anguilla, Turks & Caicos,
and Montserrat. SES Americom states that none of these island jurisdictions has relevant written
regulations, but SES Americom states that there are no barriers to entry by BSS services based on
communications with regulatory officials in each territory.21 SES Americom thus asserts that the ECO-
Sat test is satisfied for these route markets. No party commented on SES Americom’s ECO-Sat
submission, and there is nothing in the record that contradicts SES Americom. We therefore have no
evidence in the record that suggests the existence of market entry barriers to Anguilla, Turks & Caicos,
and Montserrat. Accordingly, we find that the AMC-20 satellite’s entry into the U.S. market for the


14 Id. at 24169-72, ¶¶ 175-82 (discussed in section II.B.4 infra).
15 Foreign-licensed operators seeking U.S. market access must file the same information requested under Section
25.114 of the Commissions rules, 47 C.F.R. § 25.114, that applicants for a U.S. license in the same service must file.
See DISCO II Order, 12 FCC Rcd at 24175, ¶ 190. The DISCO II Order decided that foreign DBS operators
seeking access to the United States must file the same information as U.S. applicants under Section 100.13 of the
Commission’s rules. Section 100.13 has since been eliminated, as DBS applications are now filed in accordance
with the general Part 25 satellite rules. See Policies and Rules for the Direct Broadcast Satellite Service, Report and
Order
, 17 FCC Rcd 11331 (2002).
16 DISCO II Order, 12 FCC Rcd at 24104, ¶ 25.
17 47 C.F.R. § 25.137(a). A route market is a market in which a satellite transmission originates or terminates. See
DISCO II Order
, 12 FCC Rcd at 24130, ¶ 78.
18 DISCO II Order, 12 FCC Rcd at 24137, ¶ 99.
19 SES Americom PDR at 12.
20 IBFS File No. SAT-ASG-20080609-00120 (adding the AMC-21 space station to the Commission’s Permitted
Space Station List, based on a finding that the ECO-Sat Test is satisfied for these and other route markets).
21 SES Americom PDR at 14.
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purpose of offering DBS services in the 12.2-12.7 GHz band will not negatively effect competition for
these services in the U.S. market, including Alaska and Hawaii.
3.

Technical Qualifications and Spectrum Availability

7.
In the DISCO II Order, the Commission determined that, given the scarcity of
geostationary-satellite orbital locations and spectrum resources, it would consider spectrum availability as
a factor in determining whether to allow a non-U.S.-licensed space station to serve the market in the
United States.22 This is consistent with the Chairman’s Note to the Basic Telecom Agreement, which
states that WTO Members may exercise their domestic spectrum/frequency management policies when
considering foreign entry.23 Thus, in the DISCO II Order, the Commission stated that when grant of
access would create interference with U.S.-licensed systems, it might impose technical constraints on the
non-U.S.-licensed system’s operations in the United States or, when conditions cannot remedy the
interference, deny access.
8.
DIRECTV contends that SES Americom has failed to meet the requirements of the
Commission’s rules24 to demonstrate that its DBS satellite network could operate satisfactorily with
assignments in the BSS and feeder link Plans.25 The Commission addressed similar objections in the
EchoStar/Spectrum Five MO&O and concluded that those concerns could be appropriately addressed by
imposing conditions regarding potential interference to U.S. DBS operations.26 We see no reason to take
a different approach in this case.27 There are no factual differences between this case and those addressed
in the EchoStar/Spectrum Five MO&O that would warrant a different outcome. The conditions imposed
here are identical in all material respects to conditions the Commission described and affirmed in the
EchoStar/Spectrum Five MO&O.28
4.

Legal Qualifications and Other Considerations

9.
SES Americom holds a number of FCC licenses, and nothing in the record calls into
question its legal qualifications. In accordance with the DISCO II Order, national security, law
enforcement, foreign policy, and trade concerns are included in the public interest analysis.29 The record
does not include any information that would give rise to such concerns.


22 DISCO II Order, 12 FCC Rcd at 24159, ¶ 150.
23 Chairman of the World Trade Organization Group on Basic Telecommunications, Chairman’s Note, Market
Access Limitations on Spectrum Availability, 36 I.L.M. at 372.
24 47 C.F.R. § 25.114(d)(13)(i).
25 DIRECTV Opposition at 6.
26 EchoStar/Spectrum Five MO&O, 23 FCC Rcd at 3259, ¶ 19.
27 SES Americom indicates that it will seek to achieve coordination with U.S. DBS operators, and “contemplates
adjustments to the operations as necessary to comply with the terms of coordination.” SES Americom Response at 7.
SES Americom indicates that it is willing “to operate at a lower power than the incumbents and take other steps in
order to facilitate coordination.” SES Americom Response at 4.
28 Spectrum Five Order, 21 FCC Rcd at 14042-4, ¶ 43; EchoStar-86.5W Order, 21 FCC Rcd at 14059-60, ¶ 28;
affirmed by EchoStar/Spectrum Five MO&O, 23 FCC Rcd at 3255, ¶ 8 (Bureau conditioned the grants “so that
Spectrum Five and EchoStar may not operate in a manner that affects other DBS operators unless they first
coordinate with affected operators”).
29 DISCO II Order, 12 FCC Rcd at 24170-72, ¶¶ 178-82.
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5.

Due Diligence

10.
The Commission’s rules establish a milestone schedule for DBS authorization holders in
order to ensure that entities exercise due diligence in constructing their systems, under which
authorization holders must complete contracting for all system satellites within one year of grant;
complete construction of the first satellite in the system within four years of grant; and all satellites in the
system must be in operation within six years of grant. 30 In addition to this schedule of milestones, the
Spectrum Five Order and the EchoStar-86.5W Order included a requirement for completion of critical
design review (CDR) within two years after grant, and filing of annual progress reports that illustrate the
steps taken toward meeting milestones.31 In those orders, the Bureau explained that the annual reports
were needed to ensure that the satellite operators were taking all necessary action to meet their
milestones. 32 Nothing in the record of this proceeding suggests that different treatment is warranted with
respect to SES. Accordingly, we adopt the same conditions for this grant.

III.

CONCLUSION

11.
Based on the foregoing, we conclude that SES Americom’s request for access to the
United States market via the AMC-20 satellite is consistent with the Commission’s rules and policies
regarding access to the United States by non-U.S.-licensed satellites. We therefore grant SES
Americom’s PDR, subject to the conditions set forth in this Order, finding such grant to be in the public
interest.

IV.

ORDERING CLAUSES

12.
Accordingly, pursuant to Section 303(r) of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 303(r), and Section 25.137 of the Commission’s rules, 47 C.F.R. § 25.137, the
petition for declaratory ruling filed by SES Americom, Inc., IBFS File No. SAT-PDR-20070129-00024,
regarding access to the United States market in the Direct Broadcast Satellite service, using a proposed
space station, AMC-20 (Call Sign 2731), which will operate under the supervision of the United Kingdom
(Gibraltar) at the 105.5° W.L. orbital location IS GRANTED.
13.
Accordingly, IT IS ORDERED that SES Americom, Inc. IS GRANTED access to the
United States to provide Direct Broadcast Satellite service from the AMC-20 space station to be located at
the 105.5° W.L. orbital location, and using the 12.2-12.7 GHz (space-to-Earth) and 17.3-17.8 GHz
(Earth-to-space) frequency bands, in accordance with the terms, conditions, and technical specifications
set forth in SES Americom, Inc.’s petition for declaratory ruling and the Federal Communications
Commission’s rules not waived herein, and subject to the following conditions:
a.
Communication services originating in the United States will be provided via the AMC-
20 satellite only to points in Bermuda, the British Virgin Islands, Anguilla, Turks &
Caicos, Montserrat, the Cayman Islands, and the United States.


30 47 C.F.R. § 25.148(b).
31 Spectrum Five Order, 21 FCC Rcd at 14041-2, ¶ 40-41; EchoStar-86.5W Order, 21 FCC Rcd at 14058-59, ¶ 25-
26. Requiring the CDR milestone and submission of annual reports is consistent with the requirements for other
geostationary orbit satellite systems. See 47 C.F.R. §§ 25.164, 25.210(l). We note that in the DBS Notice, the
Commission sought comment on whether to apply these requirements to DBS operators. See DBS Notice, 21 FCC
Rcd at 9456-57, ¶¶ 26-27.
32 Spectrum Five Order, 21 FCC Rcd at 14042, ¶ 41; EchoStar-86.5W Order, 21 FCC Rcd at 14059, ¶ 26.
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b.
If SES Americom, Inc. makes any changes to the frequencies, antenna beam patterns, or
power levels of the AMC-20 space station to comply with coordination obligations or to
adjust its operations in order to not affect the operations of other DBS operators, SES
Americom, Inc. must file an application for modification of its market access grant to
reflect these changes, no more than 30 days after completing the critical design review
for AMC-20.
c.
SES Americom, Inc. may operate feeder links and service links originating or terminating
in the United States on its AMC-20 space station in a manner that does not exceed the
interference limits in Annex 1 to Appendices 30 and 30A of the ITU Radio Regulations33
at any location within the U.S. service areas of any of the DBS satellite networks serving
the U.S. pursuant to a Commission authorization. Upon a showing to the Commission of
successful coordination with the operators of those networks, SES Americom, Inc. may
operate in a manner consistent with such coordination.
d.
SES Americom’s U.S. operations on the AMC-20 satellite are subject to the provisions of
Article 4.2 of Appendices 30 and 30A of the ITU Radio Regulations. Even after launch
of a satellite that would operate pursuant to an entry in the ITU plan or pursuant to an
earlier filed modification, SES Americom, Inc. may continue operations: (i) upon a
showing of coordination with such satellite, or (ii) if such satellite is not affected by
continued U.S. operations of the AMC-20 satellite and associated earth stations. SES
Americom’s U.S. operations shall be in compliance with applicable current and future
operational requirements as a result of coordination agreements reached with other
satellite systems.
e.
Until it has successfully coordinated with affected operators, SES Americom, Inc. must
inform its customers that its service is subject to coordination agreements with other
operators, both foreign and domestic, and that SES Americom, Inc. may be required to
discontinue or alter service, possibly including replacement of subscriber antennas.
f.
SES Americom, Inc.’s DBS operations must be conducted consistent with all rules
applicable to Direct Broadcast Satellite service/direct-to-home FCC licensees (e.g., the
geographic service requirements of 47 C.F.R. § 25.148(c), the public interest obligations
of 47 C.F.R. § 25.701, and the emergency alert system rules in 47 C.F.R. Part 11). In
addition, to the extent that SES Americom, Inc. offers television broadcast channels to
subscribers pursuant to the statutory copyright license, it must comply with all applicable
statutory requirements and Commission rules related to such carriage.
g.
This grant is conditioned upon SES Americom, Inc.’s Gibraltar-issued authorization for
the AMC-20 satellite remaining in full force and effect.
h.
SES Americom, Inc. is afforded 30 days from the date of the release of this grant to
decline it, as conditioned. Failure to respond within this period will constitute formal
acceptance of the authorization, as conditioned.
14.
IT IS FURTHER ORDERED that this grant is subject to any rules adopted in response to
the Notice of Proposed Rulemaking in IB Docket 06-160.


33 In particular, SES Americom, Inc. shall not exceed a 0.25 dB change in overall equivalent protection margin with
respect to the reference situation that exists for DBS satellites serving the United States.
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15.
IT IS FURTHER ORDERED that this Declaratory Ruling will become effective upon
SES Americom, Inc. filing in the public record in this proceeding: (1) an authorization under the United
Kingdom Outer Space Act, or under that Act pursuant to authority granted to the Gibraltar Regulatory
Authority, for the space operations of the AMC-20 satellite, and (2) evidence that relevant United
Kingdom authorities have committed to register the satellite with the United Nations pursuant to the terms
of the Convention on Registration of Objects launched into Outer Space.
16.
IT IS FURTHER ORDERED that this grant of market access to SES Americom, Inc. for
the AMC-20 space station at the 105.5º W.L. orbital location will be null and void with no further action
on the Commission’s part if the space station is not constructed, launched, and placed into operation in
accordance with the following schedule:
a. Enter into a binding contract for construction within 1 year (January 16, 2014);
b. Complete the Critical Design Review within 2 years (January 16, 2015);
c. Complete construction within 4 years (January 16, 2017);
d. Launch and begin operations within 6 years (January 16, 2019).
17.
IT IS FURTHER ORDERED that SES Americom, Inc. shall file, within thirty business
days of completion of Critical Design Review, a revised statement detailing the post-mission disposal
plans for the space station at end of life, including the quantity of fuel that will be reserved for post-
mission disposal maneuvers. The statement must disclose the altitude selected for a post-mission disposal
orbit and demonstrate that the perigee altitude for a post-mission disposal orbit meets the requirements of
Section 25.283(a) of the Commission’s rules governing end-of-life disposal of geostationary satellite orbit
space stations.
18.
IT IS FURTHER ORDERED that SES Americom, Inc. must submit annual progress
reports that illustrate the steps it has taken toward meeting its milestones. Progress reports will be due
every June 30, with the first report due June 30, 2013, until AMC-20 has been launched and is operating.
19.
This action is issued pursuant to Section 0.261 of the Commission’s rules on delegated
authority, 47 C.F.R. § 0.261, and is effective immediately. Petitions for reconsideration under Section
1.106 or applications for review under Section 1.115 of the Commission’s rules, 47 C.F.R. §§ 1.106,
1.115, may be filed within 30 days of the date of release of this Declaratory Ruling.
FEDERAL COMMUNICATIONS COMMISSION
Robert G. Nelson
Chief, Satellite Division
International Bureau
7

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