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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** DA 98-25 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of the Applications of ) ) COMSAT CORPORATION ) ) For Special Temporary Authority pursuant to ) File No. 42-SAT-STA-97 Section 214 of the Communications Act of 1934, ) as amended, to provide Mini-M services via the ) Inmarsat system in the U.S. and points beyond. ) For Special Temporary Authority pursuant to ) File No. 548-SSA-97(50) Title III of the Communications Act of 1934, ) as amended, to operate up to 50 PLANET 1 ) Terminals by Comsat customers in the U.S. ) ORDER Adopted: January 7, 1998 Released: January 8, 1998 By the Chief, International Bureau Introduction 1. By this Order we deny, without prejudice, Comsat Corporation's applications for special temporary authority ("STA") to operate up to 50 mobile earth terminals in the United States and to use these terminals to provide service via the Inmarsat system in the United States and to points beyond the United States. We find that Comsat has not demonstrated extraordinary circumstances necessary for grant of an STA. Further, the Commission recently issued a Report and Order establishing a framework under which it would evaluate requests to provide U.S. domestic service via INTELSAT or Inmarsat. Comsat may refile its STA requests to comply with the standards enunciated by the Commission in the DISCO II Report and Order. Additionally, we grant Comsat 30 days to amend its underlying applications to these STA requests and an additional pending application to provide Inmarsat service within the United States in order to comply with the Commission's DISCO II decision and other requirements in this order. Failure to do so will result in dismissal of these applications without prejudice. Backgrou nd 2. Comsat filed applications requesting authority to construct and operate up to 5,000 mobile earth stations in the "L-band" in the United States in conjunction with its Inmarsat-3 satellites (its PLANET 1 service). Comsat further applied for Section 214 authority to provide digital service via Inmarsat within the United States via small terminals using Inmarsat satellites in the Atlantic and Pacific Ocean Regions. It filed the STA requests at issue here to allow it to provide PLANET 1 service pending Commission consideration of the underlying applications. In support of its STA requests, Comsat argues that robust consumer demand for PLANET 1 terminals in the U.S. market, coupled with the adverse effect that its inability to market the PLANET 1 terminal in the domestic market is having on the company's overseas sales, constitute emergency-like circumstances and warrants an immediate grant of its STA requests. In addition, it indicates that the PLANET 1 terminals are needed to provide emergency support services for safety and rescue teams. 3. Several prospective PLANET 1 customers filed letters in support of the STA requests, expressing their interest in using the Planet 1 terminals, both domestically and internationally. American Mobile Satellite Corporation ("AMSC") and Motorola Satellite Communications, Inc. filed Petitions to Deny. Comsat opposed these petitions and AMSC and Motorola replied. 4. AMSC holds a license for a Mobile Satellite System (MSS) and is operating a geostationary satellite in portions of the L-band. AMSC contends that it has the satellite capacity and terminals to provide the services sought by Comsat's customers and, therefore, the Commission should observe its general practice of prohibiting Inmarsat from providing land mobile and aeronautical satellite communications services within the domestic U.S. market. AMSC further claims that Comsat fails to provide sufficient information regarding (1) its ability to meet the operating requirement of giving priority and preemptive access to transmissions involving aeronautical safety services, which also operate in the L-band, (2) the adequacy of available spectrum for PLANET 1 terminals, and (3) technical and safety issues concerning spurious emissions. AMSC also asserts, in response to Comsat's contention, that no evidence of foreign competitors providing service in the U.S. domestic market is provided by Comsat. Regardless, it argues that this would be an insufficient reason to grant the STA requests. 5. Motorola asserts that (1) the PLANET 1 terminals will cause harmful interference to its licensed "Iridium" satellite system, which will operate in frequencies adjacent to those proposed by Comsat for PLANET 1 service, (2) spurious emissions from PLANET 1 terminals are higher than the standard proposed by the mobile satellite services industry, and (3) Commission policies prohibit use of Inmarsat satellites to provide service within the domestic market, except in cases of emergency, natural disaster, or to serve existing customers pending the outcome of a Commission rulemaking proceeding. Motorola contends that Comsat makes no showing to satisfy any of these exceptions. It urges the Commission to postpone granting Comsat's request until the Commission resolves the legal and policy issues in other proceedings, including DISCO II. 6. In opposition, Comsat argues that special temporary authority will enable it to conduct a limited marketing test so that its PLANET 1 terminal sales and engineering personnel can develop the skills necessary to respond to customer demand upon the grant of its PLANET 1 Domestic Service Application. It further states that (1) no more than 5 KHz of spectrum in the L-band will be used, (2) PLANET 1 terminals will not cause harmful interference to Motorola's system, and (3) PLANET 1 terminals will serve a much broader market and number of users than does AMSC. Furthermore, Comsat asserts that temporary authorization is necessary in light of customer demand and foreign competition concerns in the domestic market. Finally, Comsat contends that its request is consistent with Commission rules and policies and that exigent circumstances necessitate a grant of its request. Discuss ion 7. We are not persuaded that extraordinary circumstances exist here to warrant temporary domestic authorization of the PLANET 1 terminals. Commission rules state that special temporary authority may be granted upon a finding of "extraordinary circumstances requiring temporary operations in the public interest, and that delay in the institution" of particular "proceedings would seriously prejudice the public interest." The rule also states that "[c]onvenience to the applicant, such as marketing considerations" do not constitute the kind of extraordinary circumstances necessary for a grant of temporary operations. Further, the Commission has recently established the policy on which we would consider applications for use of Inmarsat in the domestic United States. Therefore, we would not authorize Comsat's STA requests prior to it complying with the DISCO II policy decisions. 8. In the past, Commission authorization of Comsat's use of Inmarsat satellites to provide domestic mobile satellite communications has been limited to two types of circumstances. The first has been where Comsat's portable terminals were the only adequate means of conducting urgent communications in the aftermath of a natural disaster. The second has been where Inmarsat is the only means for providing interim capacity for mobile satellite services in the domestic market pending (a) the construction, launch, or operation of a mobile satellite system and service by a United States satellite licensee or (b) the resolution of a related Commission rulemaking proceeding. Comsat's arguments fail to consider these two key distinctions inherent in prior orders that authorized interim or temporary domestic communications services via Inmarsat satellites. Moreover, pending resolution of the issues raised by Comsat's application, alternative facilities are available. AMSC is authorized to provide domestic mobile and aeronautical satellite services. AMSC markets a terminal similar in size and weight to the PLANET 1 terminal that can be used to provide emergency communications services for rescue workers and emergency response teams within the United States. 9. Furthermore, Comsat's assertions regarding foreign competition do not warrant grant of its STA Requests. It particularly alleges that foreign competitors are selling PLANET 1 terminals in the U.S., circumventing Commission rules, and therefore, it needs temporary authority in order to compete. The assertion that any company is operating in the U.S. illegally and without Commission authorization, including Comsat, is not a justification for grant of special temporary authority. On the other hand, Comsat's allegations that foreign competitors are avoiding Commission rules or other U.S. laws is of concern to the Commission. The Commission's staff sua sponte is investigating these allegations, including the suggestion that Comsat has operated the PLANET 1 system in the domestic U.S. market illegally. The Commission has authority to institute forfeiture and revocation proceedings upon a finding of illegal operation. 10. We will, nevertheless, afford Comsat the opportunity to refile its underlying applications to comply with recent Commission policy decisions on use of Inmarsat for domestic service. We will then consider any new STA requests. The Commission adopted a framework, on November 25, 1997, under which it would consider requests for access by non-U.S. licensed satellites into the United States. As part of this framework, the Commission said that applications from Comsat to provide U.S. domestic services via INTELSAT and Inmarsat must be accompanied by a waiver of immunity from suit that Comsat has in its role as U.S. Signatory to these organizations, and a demonstration that provision of domestic services will enhance competition in the U.S. market. 11. Finally, Comsat also seeks to provide Inmarsat mini-M service using PLANET 1 terminals to points beyond the United States. We would be willing to authorize this "international" use apart from any consideration regarding domestic use. However, Comsat does not adequately address the issue of whether PLANET 1 terminals, purely as an operational and technical matter, can be limited to international service only. Given the insufficient record on this issue, we cannot yet authorize Comsat to provide international service using PLANET 1 terminals. We require Comsat to amend its applications to show that service using PLANET 1 terminals via Inmarsat-3 can be restricted to calls originating in the United States and terminating outside the United States, or vice-versa, as well as a demonstrated assurance that it will not be used domestically. We will then be prepared to act on this aspect of Comsat's applications, notwithstanding outstanding issues regarding domestic services. Ordering Clauses 12. Accordingly, IT IS ORDERED that Application File No. 548-SSA-97(50) and 42-SAT-STA-97 ARE DENIED WITHOUT PREJUDICE to Comsat refiling these applications consistent with this order. 13. IT IS FURTHER ORDERED that Comsat is afforded 30 days in which to amend its underlying applications (File Nos. 1281-DSE-P/L-96 and ITC-95-341) to demonstrate its compliance with DISCO II as delineated in paragraph nine or the requirements in paragraph ten and to amend its application (File No. 1281-DSE-P/L-96) to comply with paragraph 11 above. A failure to amend these applications appropriately will result in their dismissal without prejudice. 14. 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. FEDERAL COMMUNICATIONS COMMISSION Regina M. Keeney Chief, International Bureau