******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of Comm, Inc. Application for Authority to Construct, Launch, and Operate a Ka-Band Satellite System in the Fixed-Satellite Service File Nos. 163 through 166-SAT-P/LA-95 201-SAT-MISC-95 ORDER AND AUTHORIZATION Adopted: May 8, 1997 Released: May 9, 1997 By the Chief, International Bureau: Introduction 1. With this Order, we authorize Comm, Inc. ("Motorola") to launch and operate a satellite system in geostationary-satellite orbit ("GSO") to provide fixed-satellite services ("FSS") in the Ka-band. This allows Motorola the opportunity to provide advanced, broadband communication services to consumers. Background 2. Comm. Inc., a Delaware corporation, is a wholly owned subsidiary of Motorola, Inc., also a Delaware corporation. Motorola filed its application for its 28 GHz "Millennium" system with the Commission in September 1995. It proposes to construct, launch, and operate four GSO FSS satellites located in four orbital locations. It requests authority to locate a satellite at each of the following orbital locations: 105ø W.L.; 103ø W.L.; 88ø W.L.; and 86ø W.L. 3. Motorola proposes to support residential and business communications that include: telecommuting, education, medical information access, home shopping, information services, access to on-line services and the Internet. It proposes to offer "bandwidth on demand" which allows subscribers to pay only for the spectrum resources that they need. Motorola proposes to offer services on a non-common carrier basis. 4. Motorola requests use of 750 megahertz of spectrum in the 28.35-28.6 and 29.5-30.0 GHz bands for service uplink operations and 750 megahertz of spectrum in the 18.55-18.8 and 19.7-20.2 GHz bands for its service downlink operations. It also requests authority for inter-satellite links to connect the satellites in the 59.5-60.5 and 62.5-63.5 GHz bands. Motorola proposes to operate its tracking, telemetry and command ("TT&C") in the 6.419 - 6.425 GHz (C-band) and the 4.194 and 4.200 GHz (C-band) bands during launch, deployment, and transfer operations. 5. Each satellite in the Millennium system will carry 57 transponders with 32 antenna beams, approximately 25 of which will be capable of using dual polarization. Both right- and left-hand circular polarization will be used. 6. Several other GSO FSS applicants filed petitions to deny and other pleadings in response to the public notice. As further discussed below, the GSO FSS applicants later withdrew these pleadings. Relevant Domestic Decisions 1. DISCO I 7. In January 1996, the Commission in the DISCO I Report and Order, abolished all distinctions between U.S. domestic satellites and international separate system satellites. This allows all U.S. - licensed satellites to provide any mix of domestic or international satellite services they choose, subject only to the licensee obtaining all applicable international approvals and authorization by other administrations to provide service to, from or within their respective territories. Therefore, all FSS licensees in the Ka-band are permitted to provide any combination of domestic and international services without obtaining approval from the Commission for specific service areas. 2. 28 GHz Band Segmentation Decision 8. In July 1996, the Commission adopted a band plan for U.S. commercial operations in the Ka-band. This band plan designates discrete band segments in the 17.7-20.2 GHz and 27.5-30.0 GHz frequency bands for the Local Multipoint Distribution Service ("LMDS"), the fixed service, the GSO FSS service, the non-geostationary satellite orbit ("NGSO") FSS service, and feeder links for certain NGSO mobile satellite service ("MSS") systems. Of the total 2.5 GHz of spectrum available in each transmission direction, we concluded, based on the representations of the GSO FSS applicants, that 1 GHz in both transmission directions was needed to support GSO FSS systems. The 28 GHz band plan designates the following frequencies for GSO FSS systems. We have also noted any other services that are designated in the band plan to share the band on an equal basis: GSO FSS - Designated Band Segments Other Co-Primary Designations 17.7-18.8 GHz (downlink) Fixed 19.7-20.2 GHz (downlink) 28.35-28.6 GHz (uplink) 29.25-29.5 GHz (uplink) NGSO MSS feeder links 29.5-30.0 GHz (uplink) 3. Orbital Assignments 9. In May 1996, the International Bureau, acting on delegated authority, assigned orbit locations to those 28 GHz GSO FSS applicants in the first processing round that proposed to provide international FSS from their GSO systems. This assignment plan was the result of the GSO FSS applicants' successful efforts to resolve their conflicts over orbit locations for satellites in the 62ø W.L. to 175.25ø E.L. region of the orbital arc. 10. In February 1997, the GSO FSS applicants, due to their continued efforts, reached an agreement regarding conflicts over locations in the remainder of the orbital arc. Specifically, this agreement covered locations between 67ø W.L. to 148ø E.L., which are best suited for providing service to the United States. As part of this agreement, the GSO FSS applicants also agreed to withdraw their petitions to deny and other pleadings filed with respect to each others' 28 GHz band applications. This agreement effectively eliminated all obstacles to quick grant of the GSO FSS applications. By a separate Order issued today, we adopt an Assignment Plan implementing the orbital assignment agreement. The Assignment Plan assigns additional locations to Motorola at 91ø W.L., 87ø W.L., 77ø W.L. and 75ø W.L. Discussion A. Qualifications 11. Before the Commission authorizes any space station applicant, we first need to determine whether an applicant is legally, technically, and financially qualified to hold a Commission license. The rules set forth in Part 25 of the Commission's rules governing the FSS apply, in general, to FSS systems in the Ka-band. We recognize we will need to modify these rules, to some extent, to incorporate operations at 28 GHz. Such modifications are the subject of an ongoing rulemaking. We expect to release a Report and Order in this proceeding shortly. Nevertheless, because Motorola's system is not mutually exclusive with any other U.S. commercial satellite application on file, and can be evaluated under current Part 25 rules, we do not view the rulemaking as a bar to considering Motorola's license now. Rather, we will condition any grant to Motorola on it complying with all rules adopted in the 28 GHz Band Satellite Report and Order. Financial Qualifications 12. Although financial qualification requirements for GSO FSS systems will be discussed in greater detail in the forthcoming 28 GHz Band Satellite Report and Order, the Commission has in the past, based financial requirements for satellite services on the basis of entry opportunities in the particular service being licensed. In cases where we can accommodate all pending applications and where there is sufficient remaining capacity to address additional requests that may arise, we have not looked to current financial ability as a prerequisite to a license grant. This is because the grant of an authorization to one applicant will not prevent another qualified applicant from going forward with a proposal in the same service. We ensure that licensees timely build their systems by requiring them to meet specified implementation milestones. In contrast, where applications for satellites exceed the number of satellites we can accommodate, we have adopted a standard that requires applicants to demonstrate evidence of internal assets or committed financing sufficient to cover construction, launch, and first year operating costs. This is based on our experience that under-financed licensees have significant difficulty in raising the requisite financing. 13. Because all of the first-round 28 GHz GSO applicants agreed to orbit locations, and because other orbit locations remain available for additional GSO FSS satellites, authorization of all proposed systems does not preclude use of this band by other applicants for GSO FSS systems. Consequently, it is not necessary to rule on any of the first-round 28 GHz applicants' financial qualifications. We previously granted a similar waiver to Norris Satellite, Inc., which was awarded a license to provide satellite services in the 28 GHz band in 1992. We intend to rigorously enforce the system milestone schedule to ensure that Motorola proceeds in a timely manner and does not tie up valuable orbital locations or spectrum to the exclusion of other qualified applicants. Technical Qualifications 14. Applicants for space station authorizations also must meet certain technical qualification requirements. As noted, we are in the process of modifying these rules somewhat, to incorporate operations in the 28 GHz band. For example, we envision that we will need to modify the definition of full frequency reuse for systems employing circular polarization. In its application, Motorola represents that it intends to operate under the existing technical rules for the FSS in Part 25 of the Commission's rules. However, Motorola also asks the Commission to grant it a waiver of some of the provisions of Section 25.210 of the Commission's Rules, concerning frequency reuse. Motorola asserts it meets the intent of these rules in all respects and maximizes system capabilities through the efficient use of the spectrum. Specifically, Motorola requests a waiver of Section 25.210(c) to permit the use of circular polarization. It also asserts that because the Millennium System uses demodulation and remodulation on board the satellite, the downlink power is independent of uplink signal level and Section 25.210(b) does not apply. 15. Nothing in Motorola's application suggests its system will not be able to operate within modified Part 25 technical parameters. Rather than delaying action on Motorola's application until these modifications are adopted, or considering waivers of rules that will be changed to accommodate operations at 28 GHz, we condition Motorola's authorization on it complying with the forthcoming technical rules in the 28 GHz Band Satellite Report and Order. B. Spectrum Issues 16. In the following text we discuss specific issues related to the frequency bands Motorola proposes for its service uplinks, service downlinks, its inter-satellite links, and its TT&C functions during transfer orbit operations. Service Uplinks 17. As noted, the 28 GHz band plan designates 1000 MHz of spectrum in the 28.35-28.6 and the 29.25-30.0 GHz band for uplink GSO FSS operations. Two hundred fifty megahertz of this spectrum at 29.25-29.5 GHz is to be shared on a co-primary basis with NGSO MSS feeder links. In its application, Motorola proposes to use spectrum at 28.35-28.6 and 29.50-30.0 GHz for its service uplinks. 18. Motorola's request is consistent with the band plan and we therefore grant Motorola authority to operate in those bands in the United States. Service Downlink Bands 19. The 28 GHz band plan designates the 17.7-18.8 GHz and 19.7-20.2 GHz bands for GSO FSS operations, with the entire 17.7-18.8 GHz band to be shared on a co-primary basis with the fixed service. In adopting the band plan, we noted that GSO FSS operations in the 17.7-18.8 GHz band will be restricted by: the need to protect the broadcast satellite service in the 17.7-17.8 GHz band (after April 2007), power flux density limits to protect the earth exploration-satellite service in the 18.6-18.8 GHz band, and the need to coordinate with fixed services throughout the band. We concluded that the GSO FSS systems should be able to coordinate sufficient spectrum with other users within this 1.1 GHz band, to give them, together with the 500 MHz designated at 19.7-20.2 GHz, access to sufficient downlink spectrum to correspond with the 1000 MHz of uplink spectrum designated for GSO FSS in the 27.5-30.0 GHz range. 20. In its application, which it filed before the final band plan was adopted, Motorola proposes to use 750 MHz of spectrum at 18.55-18.8 and 19.7-20.2 GHz for its service downlinks. Motorola also requests authority to amend or modify its proposed frequencies to conform with any allocation decisions and service rules that may be adopted for Ka-band satellite systems. 21. In the interest of expediting the licensing process, we grant here that portion of Motorola's downlink request that is consistent with the 28 GHz Band Plan and where there are no other primary commercial operations. Specifically, we authorize Motorola to operate a system with service downlinks in the 19.7-20.2 GHz band. We will not give Motorola operating authority in its other requested downlink band at this time. Although its request to use the 18.55-18.8 GHz band is compatible with the band plan, it is premature to grant operating authority in any portion of the GSO FSS-designated 17.7-18.8 GHz band. As noted, this 1.1 GHz of spectrum is to be shared on a co-primary basis with other services, constraining GSO FSS operations in this band and requiring coordination with other users. Nevertheless, we anticipate that GSO FSS licensees will be able to identify and coordinate 500 MHz in this band to give these systems a total of up to 1000 MHz in each transmission direction. Motorola has asked for 750 MHz of downlink spectrum. We have already authorized it operating authority for 500 MHz at 19.7-20.2. Once Motorola has determined exactly which 250 MHz it wishes to use in the 17.7-18.8 GHz band, it should file a modification application to operate in these frequencies. In the interim, Motorola is of course free to begin construction in these bands at its own risk. 22. In addition, Motorola must coordinate with the U.S. Government systems operating in the 17.7-18.8 and 19.7-20.2 GHz bands in accordance with footnote US 334 to the Table of Frequency Allocations. This footnote requires coordination of commercial systems with U.S. Government systems in the 17.8-20.2 GHz band. Transfer Orbit Telemetry 23. Motorola proposes to conduct its TT&C operations during transfer orbit maneuvers in the 6.419 to 6.425 GHz (C-band) for Earth-to-space transmissions and in the 4.194 and 4.200 GHz band for space-to-Earth transmissions (C-band). Once successfully at the assigned orbit location, Motorola proposes to conduct TT&C operations solely in the Ka- band. 24. Under the U.S. Table of Frequency Allocations, TT&C operations may be provided in frequency bands allocated to the Space Operations Service or within the bands in which the particular satellite system will be providing service. Motorola proposes to conduct transfer orbit TT&C functions for its 28 GHz system in the C-band, which is neither allocated to the Space Operations Service nor is the system's service band. Consequently, the proposed TT&C operations would constitute a non-conforming use of the Table of Frequency Allocations. The Commission has, however, permitted non-conforming uses in situations where the non-conforming use would not interfere with any conforming service and grant would otherwise serve the public interest. Here, Motorola would make only temporary use of the C-band, and would do so because there is no Ka-band global network yet in place by which it can monitor a satellite's launch and early operations. Nevertheless, Motorola has not provided a technical showing that it can conduct C-band TT&C operations on a non- interference basis. Thus, we will not grant Motorola's request. If Motorola wishes to pursue C-band transfer orbit operations, it must file a modification application in which to do so, accompanied by either (1) an exhibit demonstrating Motorola's operations will not interfere with other conforming operations in the band; or (2) a showing that it has successfully coordinated its proposed operations with all affected operators in the band. Inter-Satellite Links 25. Motorola plans to use inter-satellite links between adjacent Millennium satellites to provide connectivity between the coverage regions of different satellite orbit locations. Motorola proposes to use the 59.5-60.5 and 62.5-63.5 GHz band for these operations. We are not now in a position, however, to assign specific spectrum to Motorola for inter-satellite link service. The 59-64 GHz band is allocated domestically and internationally on a co- primary basis to the inter-satellite service, the fixed service, the mobile service, and the radiolocation service. These bands are also shared on a co-equal basis with U.S. Government operations. There appear to be significant interference problems associated with commercial GSO and NGSO operations and U.S. Government operations at 59-64 GHz. 26. Another alternative for inter-satellite links is the 54.25-58.2 GHz band which two other GSO FSS applicants propose to use for inter-satellite operations. Licensing inter- satellite link operations in this band, however, is similarly premature. This band is allocated domestically and internationally on a co-primary basis to the earth exploration-satellite service (EES), fixed, mobile, space research and inter-satellite services. Use of these bands is shared on a co-equal basis between U.S. Government operations and commercial operations. GSO FSS operators must meet a power flux density (pfd) limit at an altitude between 0 and 1000 kilometers to protect passive NGSO satellite system operations. The appropriate pfd limit has been the subject of study within the ITU Radiocommunication Sector and will be finalized at WRC-97. Any GSO inter-satellite link operation in these bands would be subject to coordination with U.S. Government operations in the band and the pfd limit that is to be determined at WRC-97. 27. The Commission and the National Telecommunications and Information Administration (NTIA), which has primary jurisdiction over U.S. Government use of spectrum, have had discussions regarding the interference problems that would be associated with commercial GSO FSS inter-satellite link operations at 54.25-58.2 GHz and 59-64 GHz. The 54.25-58.25 GHz band appears more promising for the inter-satellite service to support commercial GSO FSS operations. We are also working with NTIA to develop a U.S. proposal for WRC-97 for an allocation in the 65-71 GHz band for inter-satellite service links for NGSO and GSO FSS systems. We are optimistic that we will obtain sufficient spectrum internationally to support the inter-satellite link operations of all licensed 28 GHz band systems. Once suitable spectrum is available, we will allow Motorola to revise its requested inter-satellite link bands accordingly. 28. Nevertheless, we will not delay Motorola's license pending the allocation of suitable spectrum for inter-satellite links. We will require Motorola to apply for operating authority on specific operating frequencies once these frequencies have been identified. Further, because Motorola will not be able to proceed beyond the initial phases of construction until the inter-satellite link issues are resolved, we will not impose any system implementation milestones until we grant Motorola authority to launch and operate a GSO FSS system using specific inter-satellite link spectrum. Although we are not imposing specific milestones at this time, we will hold Motorola to a strict milestone schedule once its inter-satellite link frequencies are authorized. Specific implementation milestones for 28 GHz band satellite systems will be discussed further in the 28 GHz Band Satellite Report and Order. In the interim, Motorola is, of course, free to begin construction at its own risk. C. Regulatory Treatment 29. In our DISCO I Report and Order, we determined that all FSS operators in the C-band and Ku-band could elect to operate on a common carrier or non-common carrier basis. As we will discuss in more detail in the 28 GHz Band Satellite Report and Order, we see no reason to treat Ka-band FSS licensees differently. 30. Motorola seeks authority to operate on a non-common carrier basis. The Commission traditionally has evaluated requests to operate on a non-common carrier basis using the analysis set forth in National Association of Regulatory Utility Commissioners v. FCC, (NARUC I). Under NARUC I, we may regulate an entity as a private carrier unless: (1) there is or should be any legal compulsion to serve the public indifferently; or (2) there are reasons implicit in the nature of the service to expect that the entity will in fact hold itself out indifferently to the eligible user public. 31. We have already authorized one 28 GHz FSS operator in the United States. Today we are authorizing thirteen more. Dozens of FSS satellites are now operating in the C- and Ku-band. In addition, the recent World Trade Organization agreement will open the U.S. market to foreign satellites. Thus, with respect to the first prong of NARUC I, sufficient competitive capacity is and will continue to be available to assure the U.S. public access to FSS. With regard to the second prong of NARUC I, we see no reasons why 28 GHz operators will hold themselves out indifferently to the public. We will therefore allow Motorola to operate as a non-common carrier. D. International Coordination 32. In general, we will follow the applicable advance-publication, coordination, and notification procedures as set forth in the ITU Radio Regulations in coordinating Motorola's satellites with other affected administrations. We will discuss in more detail international coordination procedures among U.S.-licensed FSS Ka-band systems, both GSO and NGSO, in the 28 GHz Band Satellite Report and Order. E. Exclusive Arrangements 33. To facilitate global competition, we are planning to adopt limitations on 28 GHz FSS licensees' ability to enter into exclusive arrangements with other countries. These restrictions will be discussed in more detail in the 28 GHz Satellite Report and Order. We intend to construe these arrangements bearing in mind that spectrum coordination and availability in particular countries may limit the ability of 28 GHz licensees to provide service to those countries. Accordingly, Motorola must comply with any such restrictions adopted. Conclusion 34. Accordingly, upon review of Comm, Inc.'s application to implement a 28 GHz GSO satellite system to provide domestic and international FSS, we find that Comm, Inc. is qualified to be a Commission licensee and that, pursuant to Section 309 of the Communications Act of 1934, as amended, 47 U.S.C.  309, that grant of this application will serve the public interest, convenience, and necessity. As specified in the Assignment of Orbital Locations to Space Stations in the Ka-Band, we have assigned Comm, Inc. to the 91ø W.L., 87ø W.L, 77ø W.L, and 75ø W.L orbital locations. Ordering Clauses 35. IT IS ORDERED that Application File Nos. File Nos. 163 through 166-SAT- P/LA-95, ARE GRANTED, and Comm, Inc. IS AUTHORIZED to launch and operate four GSO FSS satellites, to provide fixed-satellite service in the United States in the 19.7-20.2, 28.35-28.6 and 29.5-30.0 GHz frequency bands, in accordance with the Assignment of Orbital Locations to Space Stations in the Ka-Band, DA 97-967 (adopted May 8, 1997), consistent with the Commission's Part 25 rules governing satellite operations, unless specifically waived herein, and any modifications to our rules that we adopt for 28 GHz GSO FSS systems in the forthcoming 28 GHz Band Satellite Report and Order. 36. IT IS FURTHER ORDERED that Application File No. 201-SAT-MISC-95 IS DISMISSED as moot. 37. IT IS FURTHER ORDERED that Comm, Inc. must comply with all rules to be adopted for GSO FSS systems in the 28 GHz Band Satellite Report and Order and must file a letter with the Commission, within 60 days of the effective date of this Report and Order, representing that it will construct its system in compliance with any rules adopted in this Report and Order. Failure to submit such a letter within this time frame is grounds for rendering this authorization null and void. 38. IT IS FURTHER ORDERED that Comm, Inc. must coordinate all of its Ka- band downlink operations with the U.S. Government systems in accordance with footnote US334 to the Table of Frequency Allocations, 47 C.F.R.  2.106. 39. IT IS FURTHER ORDERED that the license term for each space station is ten years and will begin to run on the date Comm, Inc. certifies to the Commission that the satellite has been successfully placed into orbit and the operations fully conform to the terms and conditions of this authorization. 40. IT IS FURTHER ORDERED that this authorization is subject to the completion of consultations under Article XIV of the INTELSAT Agreement. Upon completion of these consultations, and notification by the Department of State that the United States has fulfilled its international obligations with respect to INTELSAT, no further action by this Commission will be required. 41. IT IS FURTHER ORDERED that Comm, Inc. will prepare any necessary submissions to the International Telecommunication Union (ITU) and to affected administrations for the completion of the appropriate coordination and notification obligations for these space stations in accordance with the ITU Radio Regulations. We also remind all licensees that no protection from interference caused by radio stations authorized by other Administrations is guaranteed unless coordination procedures are timely completed or, with respect to individual administrations, by successfully completing coordination agreements. Any radio station authorization for which coordination has not been completed may be subject to additional terms and conditions as required to effect coordination of the frequency assignments of other Administrations, 47 C.F.R.  25.111(b). 42. IT IS FURTHER ORDERED that the temporary assignment of any orbital location to Comm, Inc. is subject to change by summary order of the Commission on 30 days' notice and does not confer any permanent right to use the orbit and spectrum. Neither this authorization nor any right granted by this authorization, shall be transferred, assigned or disposed of in any manner, voluntarily or involuntarily, or by transfer of control of any corporation holding this authorization, to any person except upon application to the Commission and upon a finding by the Commission that the public interest, convenience and necessity will be served thereby. 43. IT IS FURTHER ORDERED that Comm, Inc. is afforded thirty days from the date of the release of this order and authorization to decline this authorization as conditioned. Failure to respond within that period will constitute formal acceptance of the authorization as conditioned. 44. This Order is issued pursuant to Section 0.261 of the Commission's rules on delegations of authority, 47 C.F.R.  0.261, and is effective upon release. Petitions for reconsideration under Section 1.106 or applications for review under Section 1.115 of the Commission's rules, 47 C.F.R.   1.106, 1.115, may be filed within 30 days of the date of public notice of this order (see 47 C.F.R.  1.4(b)(2)). FEDERAL COMMUNICATIONS COMMISSION Peter F. Cowhey Chief, International Bureau