**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File Nos.:                   |
|                                  | *) | SAT-LOI-20050312-00062       |
| **Spectrum Five, LLC**           | ** |                              |
|                                  |    | SAT-LOI-20050312-00063       |
| Petition for Declaratory Ruling  | *  |                              |
| to Serve                         | *) | Call Signs: S2667, S2668     |
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| the U.S. Market Using Broadcast  |    |                              |
| Satellite Service (BSS) Spectrum | *  |                              |
| from the 114.5°                  | *) |                              |
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| W.L. Orbital Location            |    |                              |
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**ORDER AND AUTHORIZATION**

**Adopted: November 29, 2006 Released: November 29, 2006**

By the Acting Chief, International Bureau:

# INTRODUCTION

1.  In this Order, we grant Spectrum Five, LLC's ("Spectrum Five")
    request for declaratory ruling seeking access to the United States
    from two Netherlands-authorized satellites to provide Direct
    Broadcast Satellite ("DBS") service to U.S. consumers.[^1] Our
    decision to grant Spectrum Five authority to access the United
    States from two satellites to be located at the 114.5° W.L. orbital
    location will offer an opportunity for increased competition in the
    U.S. DBS market. Increased competition could provide consumers more
    satellite programming choices, more alternatives in subscription
    video providers and services at reduced prices for those services,
    and further technological innovation.

# BACKGROUND

2.  *DBS Regulatory History*. DBS satellites serving the United States
    are governed by Commission policies and rules. Their operation is
    also governed by international regulations administered by the
    International Telecommunication Union ("ITU").[^2] The ITU Radio
    Regulations apportion spectrum and orbit locations for the
    Broadcasting Satellite Service ("BSS")[^3] among all nations in
    various geographic regions in certain planned frequency bands[^4] on
    a regional basis through agreements reached at Regional and World
    Radiocommunication Conferences.[^5] This differs from the process in
    most fixed-satellite service ("FSS") bands where orbital locations
    are selected by administrations on a first-come, first-served basis,
    subject to resolving interference issues through satellite
    coordinations. In the early 1980\'s, ITU members reached agreement
    on assigning BSS spectrum at specific orbit locations among the
    ITU\'s Region 2 member countries.[^6] Under the terms of the Region
    2 BSS and feeder link Plans, the United States is assigned eight
    orbital locations for providing broadcasting-satellite service.[^7]
    The eight U.S. orbital positions, proceeding from east to west (all
    West Longitude), are 61.5, 101, 110, 119, 148, 157, 166, and 175°.
    Three of these orbital locations, 101 W.L., 110 W.L., and 119 W.L.,
    can provide coverage of the 48 contiguous United States ("CONUS").
    Each of the eight orbital locations is capable of providing 32
    channels, each using 24 megahertz of bandwidth.[^8] Currently, U.S.
    DBS orbit assignments are separated by at least nine degrees. The
    nine-degree orbital spacing in the DBS service enables subscribers
    to use earth station antennas that are smaller than those generally
    employed for C- and Ku-band services.[^9]

3.  The orbital spacing between DBS satellites serving the same
    geographic area, combined with both the satellite transmit
    characteristics and receive earth station antenna performance,
    determines the amount of interference a DBS system will
    receive.[^10] The Commission took notice of the possibility of
    reduced-spacing DBS satellites in 2002. In the *Part 100 Order*, the
    Commission stated that provision of service "into the United States
    from future entrants such as non-U.S. DBS satellites could result in
    smaller satellite spacing than the current nine-degree separation
    between U.S. DBS orbital locations."[^11] Also in the *Part 100
    Order,* the Commission adopted Section 25.114(c)(22)(i), which
    required that applicants provide sufficient technical showings that
    their proposed systems could operate satisfactorily if all
    assignments in the BSS and feeder-link Plans are implemented,[^12]
    and Section 25.114(c)(22)(ii),[^13] which required that applicants
    provide analyses of the proposed system with respect to the limits
    in Annex 1 to Appendices 30 and 30A of the ITU Radio
    Regulations.[^14] The Commission also adopted Section 25.148(f),
    which states that operation of DBS systems with characteristics
    differing from those in the Appendix 30 and 30A plans may be
    permitted with adequate technical showing, and if a request has been
    made to the ITU to modify the appropriate Plans to include the
    system's technical parameters.[^15] The Commission also stated that
    in accordance with the ITU Radio Regulations, other countries
    wishing to serve the United States will normally have to modify
    their assignments in the ITU BSS and feeder-link Plans to allow them
    to provide service in the United States. The ITU modification
    process will identify the U.S. DBS systems that are affected by the
    proposed Plan modification of another administration, giving the
    United States an opportunity to work with the subject administration
    to ensure that no modification is made that will cause harmful
    interference to U.S. DBS systems.[^16] Considering these factors,
    the Commission found it unnecessary to adopt DBS receive earth
    station antenna performance requirements.[^17]

4.  *Spectrum Five Petitions*. Spectrum Five proposes to provide DBS
    service to U.S. consumers using two satellites at the 114.5° W.L.
    orbital location. The 114.5° W.L. orbital location that Spectrum
    Five proposes to use is less than nine degrees away from DBS
    satellites currently operated by DIRECTV and EchoStar that serve the
    United States from U.S.-assigned Region 2 BSS Plan orbit
    locations.[^18] The Spectrum Five Petitions were placed on Public
    Notice on April 15, 2005.[^19] SES Americom, EchoStar, and DIRECTV
    filed oppositions, comments, and reply comments.[^20] SES Americom
    noted that it has priority at the ITU for the 114.5º W.L. orbital
    location via a filing made by the United Kingdom on behalf of the
    Gibraltar Regulatory Authority.[^21] SES Americom also says that if
    the Commission grants the Spectrum Five Petitions, such grant must
    include a condition that Spectrum Five is not entitled to
    interference protection from networks operating under prior ITU
    filings.[^22] DIRECTV requests us to dismiss the Spectrum Five
    Petitions for failure to provide a sufficient technical showing as
    required by Section 25.114(d)(13)(i) of the Commission's rules.[^23]
    In addition, DIRECTV alleges that Spectrum Five's proposed
    operations will interfere with its existing and future
    operations.[^24] EchoStar urges us to dismiss the petitions without
    prejudice or defer action on them until the Commission "concludes in
    a rulemaking proceeding that the interference that may be caused by
    \[reduced spacing\] satellites into U.S. orbital locations has been
    adequately addressed."[^25] In particular, EchoStar raises concerns
    that the triple-feed antennas it is exploring for use in its system
    "complicates the interference analysis" for reduced-spacing DBS
    satellites in the vicinity of CONUS DBS satellites.[^26]

#  dISCUSSION

## Filing and Processing Requests to Provide DBS Service in the United States 

5.  We grant Spectrum Five's Petitions pursuant to our statutory
    authority to grant authorizations where the applicant is legally,
    technically, and financially qualified and the public interest will
    be served.[^27] Although the Commission is seeking comment on rules
    for processing applications and petitions for the provision of DBS
    service,[^28] the pendency of that proceeding does not prevent us
    from acting on the Spectrum Five Petitions.[^29] Specifically, given
    the Commission's general statutory authority under Sections 308 and
    309 of the Communications Act, coupled with the application filing
    requirements and rules regarding non-interference showings, we find
    that we can process the Spectrum Five Petitions consistent with the
    public interest, convenience, and necessity.[^30]

6.  We disagree with EchoStar and DIRECTV, who both argue that the
    Spectrum Five Petitions should be dismissed and/or that we should
    defer action on them until the Commission can complete a rulemaking
    proceeding addressing the technical issues associated with reduced
    spacing DBS.[^31] Instead, we find that current Commission rules can
    accommodate DBS applications filed prior to the freeze that specify
    operations at locations other than the eight orbital slots assigned
    to the United States in the ITU Region 2 Plan (as specified in
    Appendices 30 and 30A of the ITU Radio Regulations). The
    Commission's Part 25 rules refer to and incorporate provisions of
    the ITU Radio Regulations for purposes of analyzing applications for
    DBS with technical parameters that differ from those in the Region 2
    Plan. Specifically, Section 25.114(d)(13)(i) requires that for
    satellites in the DBS service, applicants must submit a "sufficient
    technical showing that the proposed system could operate
    satisfactorily if all assignments in the BSS and feeder link Plans
    were implemented."[^32] This showing is intended to demonstrate that
    the proposed system will meet its performance objectives given the
    Region 2 Plan assignments. Section 25.114(d)(13)(ii) requires
    "\[a\]nalyses of the proposed systems with respect to the limits in
    Annex 1 to Appendices 30 and 30A" of the International
    Telecommunication Union Radio Regulations.[^33] This showing is
    intended to demonstrate how the proposed system will affect
    operating DBS systems and those systems that are subject to pending
    Region 2 modification proposals. Section 25.148(f) requires that
    "DBS operations must be in accordance with the sharing criteria and
    technical characteristics contained in Appendices 30 and 30A of the
    ITU Radio Regulations. Operation of systems using differing
    technical characteristics may be permitted, with adequate technical
    showing, and if a request has been made to the ITU to modify the
    appropriate Plans to include the system's technical
    parameters."[^34] Further, as noted previously, the *Part 100 Report
    and Order* contemplated reduced spacings.[^35] Thus, if an applicant
    can coordinate its proposal with other U.S. DBS operators and secure
    agreement with other operators already having assignments in the
    Region 2 Plans or with prior requests for Plan modifications, we
    believe our rules allow us to consider these applications prior to
    completing the rulemaking proceeding.

7.  Section 25.156(d)(6) of the Commission's rules provides that a DBS
    application is entitled to comparative consideration with one or
    more conflicting applications if they are mutually exclusive and the
    application was filed by the "cut-off" date specified in a public
    notice.[^36] In this case, no cut-off date was ever established and
    no other applications or petitions for a DBS satellite at 114.5°
    W.L. were received by the Commission. We acknowledge that the
    Commission is seeking comment on licensing procedures for both
    Region 2 Plan and non-Plan DBS satellite applications in a Notice of
    Proposed Rulemaking.[^37] However, the need to determine processing
    procedures for DBS satellite applications does not prevent us from
    acting on the Spectrum Five Petitions at this time. We have granted
    applications in the past, absent specific licensing procedures,
    when, as now, mutual exclusivity is not present among pending
    applications[^38] and the public might benefit from expeditious
    processing and delivery of new or expanded service offerings.[^39]
    Indeed, we used such an approach when granting earth station
    licenses to Digital Broadband Applications Corp ("DBAC") and Pegasus
    Development Corporation ("Pegasus") to use Canadian DBS satellites
    to provide service in the United States.[^40] As noted above, given
    the application filing requirements and rules regarding
    non-interference showings, coupled with our general statutory
    authority under Sections 308 and 309 of the Communications Act, we
    can process an application provided that it is complete and we find
    that grant would serve the public interest, convenience, and
    necessity.[^41]

8.  Next, we address the information that non-U.S. licensed DBS
    satellite operators must provide when they wish to serve the U.S.
    market. The Commission decided in the *DISCO II* proceeding that
    entities wishing to serve the United States with a non-U.S.
    satellite, including DBS satellites, must file the same information
    as applicants for a U.S. space station license, whether or not that
    satellite is already licensed by another administration.[^42]
    Consequently, foreign-licensed DBS operators seeking U.S. market
    access[^43] and entities filing earth station applications to access
    foreign-licensed DBS satellites must file the same information
    requested under Section 25.114 of the Commission's rules that U.S.
    DBS applicants must file (including, without limitation, the
    technical characteristics of the satellite as specified in Sections
    25.114(c) and 25.114(d)(1)-(5) and the analyses required under
    Section 25.114(d)(13)).[^44] Other requirements for requests to
    operate with non-U.S. licensed space stations, including the
    effective competitive opportunities analysis, are contained in
    Section 25.137 of the Commission's rules.[^45] For all requests to
    serve the U.S. market from foreign-licensed space stations, the
    Section 25.114(d)(13)(ii) analysis must take into account all
    U.S.-licensed Region 2 Plan assignments and all pending Region 2
    Plan modifications that will be licensed by the United States. In
    the alternative, no technical showing is necessary under Section
    25.114(d)(13)(ii) if the petitioner provides evidence of agreements
    with all providers of DBS services to the United States that would
    be affected by the proposed system.

## Framework for Review

9.  In *DISCO II,* the Commission set forth the public interest analysis
    applicable in evaluating applications to use non-U.S.-licensed space
    stations to provide satellite service in the United States. This
    analysis considers the effect on competition in the United
    States,[^46] eligibility and operating requirements,[^47] spectrum
    availability,[^48] and national security, law enforcement, foreign
    policy, and trade concerns.[^49] Because the Commission does not
    issue duplicative U.S. licenses for space stations licensed under
    the jurisdiction of another administration,[^50] a U.S. earth
    station application often represents the Commission's first
    opportunity to evaluate whether the foreign space station complies
    with the Commission's technical, legal, and financial qualification
    requirements. The first earth station application seeking to
    communicate with a particular foreign satellite must therefore
    include the same detailed information about the space station and
    its operations that the Commission requires from U.S. space station
    applicants.[^51] As noted above, foreign-licensed DBS operators
    seeking U.S. market access and entities filing earth station
    applications to access foreign-licensed DBS satellites must file the
    same information requested under Section 24.114 that U.S. DBS
    applicants must file. In the first reconsideration of the *DISCO II
    Order*, the Commission decided that the operator of a non-U.S.
    licensed space station could also seek access to the U.S. market
    through a Petition for Declaratory Ruling.[^52] This is the manner
    in which Spectrum Five seeks to access the U.S. market, and thus we
    evaluate the Spectrum Five request under this framework.

### Competition Considerations

10. In the *DISCO II Order,* the Commission adopted two different
    frameworks under which it would evaluate the 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 World Trade Organization ("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
    include FSS, but specifically exclude direct-to-home (DTH) services,
    DBS, and Digital Audio Radio Service (DARS).[^53] For such
    non-covered services, the Commission conducts an Effective
    Competitive Opportunities ("ECO-Sat") analysis for non-U.S.-licensed
    space stations. Under this analysis, 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 countries in which
    communications with the U.S. earth station will originate or
    terminate (*i.e*., the "route" markets).[^54]

11. In this case, Spectrum Five is seeking authority to provide DBS via
    two proposed foreign-licensed satellites, Spectrum 1A and Spectrum
    1B. In addition to its desire to serve the United States, Spectrum
    Five indicates that it will provide service to the Netherlands
    Antilles and will originate one channel of TV service there.[^55]
    The proposed satellites will operate under authority from the
    Netherlands (including the Netherlands Antilles), which is a
    WTO-Member country.[^56] We therefore examine whether there are
    effective competitive opportunities for U.S.-licensed space stations
    to provide service, analogous to Spectrum Five's proposed service,
    in the Netherlands and Netherlands Antilles (the "ECO-Sat"
    analysis).[^57] 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.[^58]

12. Spectrum Five states that there are no *de jure* and no *de facto*
    barriers to entry "for any entity proposing to use a U.S.-licensed
    satellite to deliver DBS services to the Netherlands or Netherlands
    Antilles markets."[^59] Spectrum Five also notes that "\[s\]everal
    foreign satellite operators already provide DBS services in the
    Netherlands."[^60] No parties commented on Spectrum Five's ECO-Sat
    submission, and there is nothing in the record that contradicts
    Spectrum Five's statements. Thus, we have no evidence on the record
    that suggests the existence of market entry barriers to the
    Netherlands or Netherlands Antilles.[^61]

13. Accordingly, we find that the Spectrum 1A and 1B satellites'
    proposed entry into the U.S. market for the purpose of offering DBS
    services in the 12.2-12.7 GHz band will enhance competition for
    these services in the U.S. market, including Alaska and Hawaii. If
    Spectrum Five chooses in the future to provide service from the
    United States to any other nations within these satellites'
    footprints, Spectrum Five must notify the Commission so that it can
    conduct an ECO-Sat test for the additional route market(s).

### Eligibility Requirements

##### Legal Qualifications

14. In the *DISCO II Order*, the Commission stated that it would require
    non-U.S. space station operators to meet the same technical, legal,
    and financial qualifications that U.S.-licensed space station
    operators must meet to obtain a license.[^62] We find nothing in
    Spectrum Five's petitions to suggest that it is not legally
    qualified to provide service to the United States using the
    requested frequencies on the Spectrum 1A and Spectrum 1B satellites.

##### Technical Qualifications

15. *Technical Description and Waiver Request*. Spectrum Five proposes
    to position its two satellites, Spectrum 1A and Spectrum 1B, at the
    114.5º W.L. orbital location, and maintain them in identical orbits
    with ± 0.05º longitudinal stationkeeping.[^63] Spectrum Five states
    that Spectrum 1A will make use of 16 transponder center frequencies
    (the even-numbered transponder center frequencies described in
    Appendices 30 and 30A of the ITU Radio Regulations for the Region 2
    Plans) with a transponder bandwidth of 24 megahertz.[^64] The
    downlink is right-hand circularly polarized (RHCP) and the uplink is
    left-hand circularly polarized (LHCP), except for beams 51 and 52
    (serving the Netherlands Antilles), which are polarized LHCP in the
    downlink and RHCP in the uplink. Spectrum Five states that Spectrum
    1A also may provide additional spot beams operating on the opposite
    polarization set in order to provide additional capacity in specific
    spot beams, such as those serving the northeast megalopolis.[^65]
    Spectrum Five states that Spectrum 1B will make use of 16
    transponder center frequencies (the odd-numbered transponder center
    frequencies described in Appendices 30 and 30A for the Region 2
    Plans), with a transponder bandwidth of 24 megahertz. The downlink
    is polarized LHCP and the uplink is polarized RHCP, including the
    Netherlands Antilles. The downlink polarizations for Spectrum 1A and
    Spectrum 1B are opposite those normally used in DBS systems serving
    the U.S. Spectrum Five states that it will operate its telecommand
    link at 17.305 GHz, and its telemetry links at 12.201 GHz and 12.205
    GHz, with a beacon at 12.203 GHz.[^66] Spectrum Five further states
    that it will conduct its on-orbit TT&C operations from an earth
    station located in the Netherlands Antilles.[^67]

16. In its petitions, Spectrum Five requests a partial waiver of the
    requirement in Section 25.114(d)(3) of the Commission's rules[^68]
    to supply an antenna gain contour diagram in .gxt format[^69] for
    each transmit and receive antenna beam. Spectrum Five states that
    since its system uses only circular spot beams, it can provide the
    characteristics of those beams required to assess the performance of
    the system and its interference potential much more succinctly and
    much more usefully in the form of a text file. DIRECTV objects to
    Spectrum Five's request, stating that the information submitted is
    not sufficient to allow other interested parties, such as DIRECTV,
    to perform a complete analysis of the potential interference from
    the proposed satellite.[^70] DIRECTV states that .gxt files are the
    common format used with the ITU's GIMS and MSPACE software to
    analyze interference scenarios.[^71]

17. In its consolidated response, Spectrum Five points out that it
    submitted a Microsoft Access (.mdb) file in the exact format
    required by the ITU for proposed Plan modifications.[^72] This file
    is located in the Commission's IBFS database for Spectrum Five's two
    applications, and is called SF_BSS5_SPOT.mdb. Although this file
    does contain descriptions of Spectrum Five's spot beams, it is in a
    format that is not readable by the ITU's GIMS software. However, we
    note that the ITU's GIMS database now includes Spectrum Five's 53
    spot beams under the SF_BSS5 satellite name.[^73] This permits all
    parties with access to the GIMS software to use this tool to examine
    Spectrum Five's spot beams. The information provided by Spectrum
    Five in its application is therefore sufficient for us to determine
    whether the system meets the Commission's technical
    requirements.[^74] We therefore conditionally grant Spectrum Five's
    request for a partial waiver of the requirement to supply an antenna
    gain contour diagram in .gxt format for each transmit and receive
    antenna beam.

18. However, we recognize that Spectrum Five will have to conduct
    coordination negotiations with the affected DBS operators at the
    110º W.L. and 119º W.L. orbital locations, and that the
    characteristics of its downlink antenna beams may change in order to
    achieve agreement with those operators. Therefore, we condition
    grant of Spectrum Five's Petitions on its supplying, within 30 days
    of completing critical design review, the final characteristics of
    its beams to the Commission in the form of .gxt files for each beam,
    or in the alternative, as a GIMS database file containing the
    characteristics of all of its beams.

19. Spectrum Five also requests a partial waiver of the requirement in
    Section 6 of the Commission's Form 312, Schedule S to supply a
    service area diagram in Adobe Acrobat (pdf) format for each service
    area.[^75] Spectrum Five requests the waiver "to the extent that
    Section 6 of Schedule S could be construed to require separate and
    distinct service area diagram files in .pdf format for each of its
    53 beams."[^76] No parties objected to this waiver request.

20. No waiver is necessary because Schedule S allows the service area
    information to be provided in the form of a .gxt file, a
    description, or a .pdf file. Spectrum Five has provided an adequate
    description of its service areas in Schedule S and in its Technical
    Appendix. However, for the same reasons we discussed above regarding
    Spectrum Five's antenna beam gain contour diagrams, we condition
    grant of Spectrum Five's Petitions on its supplying updated service
    area information for each of its antenna beams once its final
    spacecraft design and operating characteristics have been
    determined.

21. In addition, Spectrum Five requests a partial waiver of the
    requirement in the Commission's Form 312, Schedule S, Section 10, to
    supply a complete listing of all transponders supported by its space
    stations.[^77] Spectrum Five states that because of the
    configuration of the satellite, a complete listing would require
    Spectrum Five to define 198 transponders. Spectrum Five states that
    defining all 198 transponders would be burdensome and unnecessary,
    because the 53 beams can be divided into four groups, and the beams
    in each group have transponders that are essentially identical.
    Therefore, Spectrum Five has defined 16 representative spot beam
    transponders (designated T-1A through T-4D).[^78]

22. Upon examination of the Schedule S and the Technical Appendix to
    Spectrum Five's application, we find that there is a sufficiently
    complete description of the transponder characteristics of the
    Spectrum 1A and Spectrum 1B satellites to enable the Commission to
    determine whether or not Spectrum Five's proposed space stations
    meet the Commission's technical requirements. We therefore grant
    Spectrum Five's request for a partial waiver of the requirement to
    supply the information listed in Section 10 of Schedule S.

23. *Interference Concerns*. In its petitions, Spectrum Five presents an
    interference analysis of its own system with respect to the ITU
    Region 2 BSS Plan assignments and proposed modifications to the
    Region 2 Plans.[^79] Spectrum Five used the ITU Radiocommunication
    Bureau\'s MSPACE software to conduct its analysis.[^80] The MSPACE
    software calculates a metric called overall equivalent protection
    margin ("OEPM").[^81] The OEPMs for all the channels and test points
    of all the beams of a particular satellite network defines the
    "reference situation" for that network. When a plan modification
    request is submitted to the ITU, the ITU uses the MSPACE software to
    calculate the effect of the proposed new network on the OEPMs of all
    the networks already in the plan or pending. If the effect of the
    proposed network is to reduce the OEPM of any channel and test point
    of any network in the plan or pending by 0.25 dB or more, that
    network is considered to be "affected" and the new network can only
    be added to the plan with the agreement of all the administrations
    whose networks are affected.

24. Spectrum Five's analysis showed that many U.S. Region 2 BSS Plan
    entries and proposed modifications to the Region 2 Plans at the 110º
    W.L. and 119º W.L. nominal orbital locations would be affected by
    substantially more than the 0.25 dB change in OEPM criterion used by
    the ITU to identify networks as being affected by a proposed
    modification to the Region 2 Plans. In Table 2 of Exhibit 1 to the
    Technical Appendix in Spectrum Five's petition, Spectrum Five
    identifies eight U.S. Region 2 Plan entries that would experience a
    decrease in OEPM of more than 0.25 dB, with decreases in OEPM
    ranging from 0.5 dB to 6.4 dB. Spectrum Five also identifies 14
    proposed U.S. modifications to the Region 2 Plans that would suffer
    OEPM decreases of more than 0.25 dB, with decreases ranging from 3.5
    dB to 16.7 dB. These levels trigger the ITU agreement-seeking
    process between the Netherlands, through which Spectrum Five filed
    its proposed Region 2 Plan modifications, and the United States.

25. DIRECTV and EchoStar raise a number of objections to Spectrum Five's
    proposal. In its opposition, DIRECTV asserts that the Spectrum Five
    Petition "is subject to dismissal for failure to comply with Section
    25.114(d)(13)(i) of the Commission's rules," which DIRECTV says
    "requires applicants seeking to use assets not specified in the BSS
    Plan to provide a sufficient technical showing that the proposed
    system could operate satisfactorily if all assignments in the BSS
    Plan were implemented."[^82] DIRECTV states that the interference
    analyses presented by Spectrum Five in Exhibit 1 to its Technical
    Appendix show that 22 beams of the U.S. DBS systems at 110º W.L. and
    119º W.L. would experience OEPM degradations of more than 10 dB, and
    many more beams would experience OEPM degradations of between 5 and
    10 dB.[^83] DIRECTV states that there is no coordination agreement
    between the existing U.S. operators and Spectrum Five, and therefore
    Spectrum Five's petitions are not ripe and should be denied.[^84] In
    its opposition, EchoStar states that it is considering a new
    multi-feed antenna that will make coordination with short-spaced DBS
    satellites more difficult.[^85] EchoStar also asserts serious
    concerns about whether Spectrum Five's proposed system can be
    coordinated internationally.[^86] In support of this assertion,
    EchoStar provides a response raising several technical concerns that
    it believes Spectrum Five has treated over-optimistically. Among
    these concerns are (i) real-world DBS subscriber antenna performance
    characteristics, (ii) the wide range of EIRP levels of both existing
    DBS systems and Spectrum Five's proposed system over their
    respective service areas, (iii) the need to maximize the capacity of
    DBS satellite transponders through efficient modulation and coding
    techniques, (iv) the actual orbital locations of DBS satellites,
    including offsets from the nominal locations and stationkeeping
    tolerances, and the resulting topocentric angles between the
    existing and proposed satellites, and (v) the evolving nature of the
    DBS industry, which requires flexibility for innovation to meet new
    requirements such as providing local-into-local and high-definition
    service.[^87]

26. In its consolidated response, Spectrum Five states that DIRECTV does
    not provide any specific technical information showing that Spectrum
    Five's system would result in actual harmful interference to
    DIRECTV's operations.[^88] Spectrum Five rebuts DIRECTV's concerns
    about the difficulty of coordinating its system with DIRECTV's,
    pointing out that DIRECTV relied exclusively on the MSPACE analysis
    of Spectrum Five's system.[^89] Spectrum Five provides a Technical
    Appendix in its consolidated response in which it claims that (i)
    DIRECTV's opposition was based on misleading assumptions and
    proposed interference thresholds; (ii) the use of real-world
    parameters dramatically lowers the calculated interference from
    Spectrum Five's system into DIRECTV's; (iii) the large negative OEPM
    margins for DIRECTV's USABSS-18 system exist even without
    considering interference from Spectrum Five's system; and (iv)
    several interference mitigation techniques exist that Spectrum Five
    could employ to facilitate coordination with the existing
    operators.[^90]

27. Spectrum Five points out that EchoStar does not assert that Spectrum
    Five's system will interfere with EchoStar's DBS system.[^91]
    Spectrum Five states that the Commission has licensed U.S. DBS
    systems subject to completion of the international agreement-seeking
    process that is required to modify the Region 2 Plans.[^92] Spectrum
    Five also asserts that EchoStar's use of its new multi-feed antenna
    would be protected under the Region 2 Plan modification process only
    to the extent that the Region 2 Plan had been modified to
    incorporate the characteristics of this new antenna, but that this
    has not yet occurred.[^93]

28. DIRECTV argues that the Spectrum Five Petitions do not comply with
    Commission rule requirements and should be dismissed.[^94]
    Specifically, DIRECTV states that Section 25.114(d)(13)(i) requires
    that an applicant whose DBS system parameters differ from the Region
    2 Plan must provide a technical showing sufficient to demonstrate
    that "the proposed system could operate satisfactorily if all
    assignments in the \[Region 2 Plan\] were implemented," and thus,
    Spectrum Five has the burden to demonstrate that its system *as
    proposed* could operate harmoniously with DBS systems already in the
    Region 2 Plan.[^95] DIRECTV performed a C/I analysis based on data
    supplied by Spectrum Five in Tables 7 and 8 of the Technical
    Appendix to its petition, and states that its operations at 110°
    W.L. and 119° W.L. would experience substantial disruptions from
    Spectrum Five's proposed operations at 114.5° W.L.[^96] DIRECTV
    points out that these C/I levels are significantly below the 21 dB
    level that Spectrum Five mentions in Exhibit 1 to the Technical
    Appendix to its petition as being the interference protection
    criterion used in the WRC-2000 modification to the Region 1 and 3
    Plans.[^97]

29. Spectrum Five has shown a willingness to modify the technical
    characteristics of its system to achieve a coordination agreement
    with the existing DBS operators. The performance objectives Spectrum
    Five provides in its Technical Appendix include a 15.2 dB downlink
    C/I and a 99.8% availability target (*i.e.* 0.2% unavailability, or
    about 1052 minutes a year).[^98] This means that Spectrum Five is
    willing to accept more interference than DIRECTV, which targets a 21
    dB net C/I and at least 99.9% availability (*i.e.* outages lasting
    no more than 526 minutes a year). Spectrum Five also indicated that
    it could modify its spot beam power levels, increase its antenna
    size, and use rate 1/3 coding to meet coordination objectives.[^99]
    In addition, Spectrum Five has stated that "decreasing \[its\] power
    level while increasing the size of \[its\] customer dishes was among
    the interference mitigation techniques available to parties during
    coordination."[^100] Spectrum Five believes that it can successfully
    coordinate its system with any affected networks operating pursuant
    to the current Region 2 BSS Plans.[^101]

30. Given Spectrum Five's stated willingness to tolerate additional
    interference and use larger-than-average DBS receive dishes, we are
    satisfied that granting the Spectrum Five Petitions on the condition
    that it coordinate with EchoStar and DIRECTV will protect those
    existing operations.[^102] Specifically, Spectrum 5 shall not
    operate the feeder links and service links originating or
    terminating in the United States on its Spectrum 1A and Spectrum 1B
    satellites in a manner that exceeds the limits in Annex 1 to
    Appendices 30 and 30A of the ITU Radio Regulations[^103] that
    trigger the agreement-seeking process under No. 4.2 of Appendices 30
    and 30A at any location within the service areas of any affected
    operators[^104] that lie within the territory of the United States,
    until Spectrum Five has obtained the agreement of those operators.
    We also require Spectrum Five to submit evidence of these agreements
    to the Commission. Spectrum Five's satellite operations are not
    guaranteed protection from interference from other systems operating
    in accordance with the ITU Radio Regulations unless and until the
    Region 2 BSS Plan and its associated feeder link Plan are modified
    to include the technical parameters of Spectrum 1A and Spectrum 1B.
    EchoStar's and DIRECTV's concerns regarding the impact of Spectrum
    1A and Spectrum 1B on their future operations can be addressed in
    the coordination negotiations.[^105]

31. We reject DIRECTV's argument that we cannot grant market access
    prior to completion of coordination with U.S. operators.[^106]
    Rather, as Spectrum Five points out,[^107] the Commission has noted
    the significance of the coordination process for foreign providers
    of DBS:

> Moreover, in accordance with the International Radio Regulations,
> other countries wishing to serve the United States will normally have
> to modify their assignments in the ITU BSS and feeder-link Plans to
> allow them to provide service here. That process will identify the
> U.S. DBS systems that are affected by the proposed Plan modification
> of another Administration.[^108] The United States will have an
> opportunity to work with the Administration proposing the Plan
> modification to ensure protection of U.S. DBS systems. Considering
> these factors, we do not find it necessary to adopt DBS receive earth
> station antenna performance requirements at this time. *We find that
> our existing rules should provide adequate protection of U.S. DBS
> systems, while still preserving options for future entrants.*[^109]

This neither forecloses the possibility of granting a foreign entity
U.S. market access on the condition of successful coordination with U.S.
operators, nor does it require coordination as a prerequisite to grant
of market access. Therefore, we believe grant of the Spectrum Five
Petitions, subject to the conditions described herein, is
warranted.[^110]

##### Financial Qualifications

32. In the *First Space Station Reform Order,* the Commission eliminated
    the financial requirements then in place for space station
    applicants and replaced them with a bond requirement.[^111] In
    accordance with this requirement, any entity awarded a license for a
    geostationary satellite must execute a payment bond, payable to the
    U.S. Treasury, within 30 days of the date of the license
    grant.[^112] This requirement is intended to ensure that licensees
    are financially able and committed to implementing their systems in
    a timely manner. The bond is payable upon failure to meet any of the
    implementation milestones included in every license, where the
    licensee has not provided adequate justification for extending the
    milestone. Licensees may reduce the amount of the bond upon meeting
    each milestone. Once the licensee meets the last milestone, that is,
    it launches the satellite, it no longer has any bond obligation.
    This requirement applies to both U.S.-licensed space stations and
    non-U.S.-licensed space stations that seek to serve the U.S.
    market.[^113]

33. The Commission excepted DBS and DARS licenses from the bond
    requirement because at the time the bond requirement was adopted,
    DBS and DARS licenses were issued pursuant to another licensing
    procedure, *i.e*., competitive bidding.[^114] Thus, we cannot impose
    the bond requirement, at this time, on DBS licensees.[^115] However,
    we note that in the *DBS Notice*, the Commission seeks comment on
    whether to expand the Space Station Licensing Reform licensing
    framework, including the bond requirement of Sections 25.137(d)(4)
    and 25.165, to DBS.[^116] If the Commission adopts rules requiring
    DBS licensees to post a bond, we will modify Spectrum Five's market
    access grant accordingly.

### Spectrum Availability

34. In the *DISCO II Order,* the Commission determined that, given the
    scarcity of geostationary-satellite orbit locations and spectrum
    resources, it would consider spectrum availability as a factor in
    determining whether to allow a foreign satellite to serve the United
    States.[^117] Specifically, the Commission stated that when grant of
    access would create interference with U.S.-licensed systems, the
    Commission may impose technical constraints on the foreign
    satellite's operations in the United States or, when the
    interference cannot be remedied, deny access.[^118]

35. The Spectrum 1A and Spectrum 1B satellites will provide service to
    the United States from the 114.5° W.L. orbital location in the DBS
    band of 12.2-12.7 GHz. As we have discussed, EchoStar and DIRECTV
    each have DBS satellites less than nine degrees away from this
    location, and Spectrum Five has not supplied an interference
    analysis demonstrating that the Spectrum 1A and Spectrum 1B
    satellites, as described in its Petitions, will be compatible with
    those existing operations. Therefore, Spectrum Five may not commence
    operations in the United States if it affects DIRECTV's and
    EchoStar's respective operations at both the 110° and 119° W.L.
    orbital locations, until it has coordinated with EchoStar and
    DIRECTV.[^119] In addition, as in all other orders permitting
    non-U.S. satellites to serve the United States, we require all
    communications between earth stations in the United States and
    Spectrum 1A and Spectrum 1B in the BSS band to comply with all
    satellite coordinations reached by the Netherlands and other
    administrations.

### Other DISCO II Requirements 

36. As described above, in accordance with the *DISCO II Order,*
    national security, law enforcement, foreign policy, and trade
    concerns are included in the public interest analysis.[^120] SES
    Americom, Inc. ("SES Americom") points out that it has ITU date
    priority over Spectrum Five to employ BSS frequencies at the 114.5°
    W.L. orbital location via two filings submitted by the United
    Kingdom (USAT-S2 and USAT-S2 MOD-A) on behalf of SES Americom's
    subsidiary SES Satellites (Gibraltar) Limited.[^121] SES Americom
    asks that the Commission condition any Spectrum Five grant such that
    Spectrum Five (a) is not entitled to interference protection from
    networks operating pursuant to prior ITU filings and (b) must
    coordinate with affected systems of other administrations that have
    ITU date priority.[^122] Spectrum Five responds that these
    conditions are unnecessary because the "FCC does not condition or
    delay market entry pending coordination between or among foreign
    administrations."[^123] Spectrum Five does state that it "will
    comply with all ITU requirements and obligations under the BSS
    Region 2 plan."[^124]

37. Spectrum Five may access the U.S. market subject to the provisions
    of Article 4.2 of Appendices 30 and 30A of the International Radio
    Regulations. In addition, Spectrum Five may continue to access the
    U.S. market, even after launch of a satellite consistent with an
    entry in the ITU plan or pursuant to an earlier filed modification,
    upon a showing of coordination with such satellite.[^125] Absent
    coordination, continued operation is still possible within the
    confines of Appendices 30 and 30A, provided that no other authorized
    operators are affected.[^126] We also condition Spectrum Five's
    authority to serve the U.S. on its compliance with applicable
    current and future operational requirements as a result of
    coordination agreements reached with other satellite systems.[^127]

38. In addition, until it has successfully coordinated with affected
    operators, Spectrum Five must inform its customers that its service
    is subject to coordination agreements with other operators, both
    foreign and domestic, and that Spectrum Five may be required to
    discontinue or alter service (*e.g*., by replacement of subscriber
    antennas). We have similarly conditioned other market access grants
    when a higher priority filing existed at the ITU.[^128]

## General DBS Requirements

39. Spectrum Five will be subject to the same service rules and
    obligations as existing DBS licensees. This includes the geographic
    service area requirements under Section 25.148(c), the public
    service obligations detailed in Section 25.701, and the emergency
    alert system rules in 47 C.F.R. Part 11.[^129] These rules apply to
    DBS, regardless of whether a licensee's satellites are part of the
    original Region 2 Plans, because the rules apply to all entities
    licensed to operate DBS satellites serving the United States in the
    12.2-12.7 GHz DBS frequency band.[^130] In addition, DBS licensees,
    including licensees of reduced spacing DBS satellites, that offer
    television broadcast channels to subscribers pursuant to the
    statutory copyright license must comply with all applicable
    statutory requirements and Commission rules related to such
    carriage.[^131] Therefore, to the extent that Spectrum Five falls in
    this category, it must comply with such rules and requirements.
    Further, to the extent applicable, Spectrum Five will be subject to
    any rules and policies that result from the *DBS Notice*.

## Due Diligence

40. Section 25.148(b) of the Commission's rules establishes a milestone
    schedule for DBS authorization holders in order to ensure that
    entities exercise due diligence in constructing their systems.[^132]
    According to this schedule, 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.[^133] We require that Spectrum
    Five adhere to this milestone schedule. We also require that
    Spectrum Five complete its critical design review (CDR) two years
    after this grant. The Commission has defined critical design review
    as "the stage in the spacecraft implementation process at which the
    design and development phase ends and the manufacturing phase
    starts."[^134] Although the Commission has not prescribed a
    particular method for demonstrating that the CDR milestone has been
    met, evidence of compliance may include:

    \(1\) evidence of a large payment of money, required by most
    construction contracts at the time of the spacecraft CDR; (2)
    affidavits from independent manufacturers; and (3) evidence that the
    licensee has ordered all the long lead items needed to begin
    physical construction of the spacecraft.[^135]

41. In addition to the milestones it must meet, Spectrum Five must also
    file 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, 2007, until the Spectrum
    Five system has been launched and is operating. Submission of annual
    reports is consistent with the reporting requirements of other fixed
    satellite service operators.[^136] We require the submission of
    these reports in order to ensure that Spectrum Five is taking all
    necessary action to meet its milestones.

# cONCLUSION

42. Based on the foregoing, we conclude that Spectrum Five's request for
    access to the United States market via the Spectrum 1A and Spectrum
    1B satellites is consistent with the Commission's rules and policies
    regarding access to the United States by non-U.S.-licensed
    satellites. We therefore grant Spectrum Five's petitions, subject to
    the conditions set forth in this Order, finding such grant to be in
    the pubic interest.

# ORDERING CLAUSES 

43. Accordingly, IT IS ORDERED that, pursuant to Sections 303(r), 308,
    and 309 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    303(r), 308, and 309, and Sections 0.261 and 25.137 of the
    Commission's rules, 47 C.F.R. §§ 0.261 and 25.137 (a), Spectrum
    Five, LLC's Petitions for Declaratory Ruling to Serve the U.S.
    Market Using BSS Spectrum from the 114.5° W.L. Orbital Location,
    File Nos. SAT-LOI-20050312-00062 and SAT-LOI-20050312-00063, ARE
    GRANTED IN PART. Accordingly, Spectrum Five, LLC IS GRANTED access
    to the United States to provide direct broadcast satellite service
    from the Spectrum 1A and Spectrum 1B satellites to be located at the
    114.5° W.L. orbital location in the DBS band (12.2-12.7 GHz
    (space-to-Earth)), subject to the following conditions:

#### Communication services originating in the United States will be provided via the Spectrum 1A and Spectrum 1B satellites only to points in the Netherlands, Netherlands Antilles, and the United States.

#### Within 30 days of completion of critical design review, Spectrum Five must supply the final characteristics of its beams to the Commission in the form of .gxt files for each beam, or in the alternative, as a GIMS database file containing the characteristics of all of its beams.

#### Within 30 days of completion of critical design review, Spectrum Five must supply updated service area information for each of its antenna beams. Spectrum Five must also provide all the technical characteristics of the satellites modified as a result of the coordination process.

#### Spectrum Five may operate feeder links and service links originating or terminating in the United States on its Spectrum 1A and Spectrum 1B satellites in a manner that does not exceed the interference limits in Annex 1 to Appendices 30 and 30A of the ITU Radio Regulations[^137] at any location within the U.S. service areas of any affected operators.[^138] Upon a showing to the Commission of successful coordination with any such affected operator (pursuant to Article 4.2 of Appendices 30 and 30A of the Radio Regulations), Spectrum Five may operate in a manner consistent with such coordination.

#### Spectrum Five's U.S. operations on the Spectrum 1A and 1B satellites are subject to the provisions of Article 4.2 of Appendices 30 and 30A of the International 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, Spectrum Five 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 Spectrum 1A and 1B satellites and associated earth stations. Spectrum Five'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. 

#### Until it has successfully coordinated with affected operators, Spectrum Five must inform its customers that its service is subject to coordination agreements with other operators, both foreign and domestic, and that Spectrum Five may be required to discontinue or alter service (*e.g*., by replacement of subscriber antennas). 

#### Spectrum Five's DBS operations must be conducted consistent with all rules applicable to other Commission direct broadcast satellite/direct-to-home licensees (*e.g*., 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 Spectrum Five 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.

#### This grant is conditioned upon Spectrum Five's Netherlands-issued authorization for the Spectrum 1A and Spectrum 1B satellites remaining in full force and effect.

#### Spectrum Five 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.

44. IT IS FURTHER ORDERED that this grant is subject to any rules
    adopted in the Notice of Proposed Rulemaking Proceeding in IB Docket
    06-160.

45. IT IS FURTHER ORDERED that Spectrum Five must comply with the
    milestone schedule required by Section 25.148(b) of the Commission's
    rules, 47 C.F.R. § 25.148(b): (1) Within o*ne year* of grant:
    complete contracting for all system satellites. (2) Within f*our
    years* of grant: complete construction of the first satellite in the
    system. (3) Within s*ix years* of grant: all satellites in the
    system must be in operation. In addition, Spectrum Five must
    complete its critical design review within two years of this grant.

46. IT IS FURTHER ORDERED that Spectrum Five file 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, 2007, until the Spectrum Five
    system has been launched and is operating.

47. IT IS FURTHER ORDERED that Spectrum Five's request to waive the
    information requirements of Section S6, S8, and S10 of Schedule S,
    as required by Sections 25.114(a), (c) of the Commissions rules, 47
    C.F.R. §§ 25.114(a), (c), IS GRANTED to the extent as described
    herein.

48. This *Order and Authorization* 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

> John V. Giusti
>
> Acting Chief, International Bureau

[^1]: *See* Spectrum Five LLC, Petitions for Declaratory Ruling To Serve
    the U.S. Market Using BSS Spectrum from the 114.5º W.L. Orbital
    Location, File Nos. SAT-LOI-20050312-00062 and
    SAT-LOI-20050312-00063 (filed March 12, 2005) ("Spectrum Five
    Petitions"). The content of these petitions is substantially the
    same and they will be referred to as the "Spectrum Five Petitions"
    throughout this Order. Spectrum Five requests authority to provide
    DBS services, including local-into-local services, to the United
    States (including Alaska and Hawaii), Puerto Rico, and the U.S.
    Virgin Islands.

[^2]: The ITU, headquartered in Geneva, Switzerland, is an international
    organization within the United Nations System where administrations
    coordinate global telecommunication networks and services.

[^3]: BSS is the international term used for a radiocommunication
    service in which signals transmitted or retransmitted by space
    stations are intended for direct reception by the general public.
    *See* 47 C.F.R. § 2.1. DBS is the term used in the United States to
    describe the domestic implementation of the BSS international
    service in the 12.2-12.7 GHz band.

[^4]: The provisions of Appendices 30 and 30A of the International Radio
    Regulations are applicable to the BSS in the frequency bands
    11.7-12.2 GHz (Region 3), 11.7-12.5 GHz (Region 1) and 12.2-12.7 GHz
    (Region 2), and to their associated feeder links in the bands
    14.5-14.8 GHz and 17.3-18.1 GHz (Regions 1 and 3) and 17.3-17.8 GHz
    (Region 2). Other BSS allocations are not subject to the provisions
    of these Plans.

[^5]: The Regional Administrative Radio Conference in 1983 ("RARC‑83\")
    developed and adopted the Region 2 BSS and feeder-link Plans. It was
    not until 1985, at the World Administrative Radio Conference ("WARC
    Orb‑85\"), that the Region 2 Plans were adopted internationally
    worldwide and became a part of the ITU\'s Radio Regulations. The
    Regions 1 (Europe and Africa) and 3 (Asia-Pacific) BSS Plan became a
    part of the ITU Radio Regulations in 1977 at the World
    Broadcasting-Satellite Administrative Radio Conference ("WARC-77\").
    The Regions 1 and 3 feeder-link Plan became a part of the ITU Radio
    Regulations in 1988 at the World Administrative Radio Conference
    ("WARC Orb-88\").

[^6]: ITU Region 2 includes North, Central, and South America and
    Greenland. *See* Article 5, Section I of the ITU Radio Regulations.
    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
    broadcasting-satellite service in Region 2, as contained in Appendix
    30A of the ITU Radio Regulations.

[^7]: *See* Appendix 30 of the ITU\'s Radio Regulations.

[^8]: Digital compression enables operators to carry multiple
    video-programming services per 24 megahertz DBS channel. Current
    technology permits up to 12 digital channels per 24 megahertz DBS
    channel. *See e.g.*
    [http://www.lyngsat.com/packages/dish110.html]{.underline} (visited
    on October 18, 2006) showing a large percentage of the transponders
    (24 MHz DBS channels) carrying 12 or more channels of television
    programming.

[^9]: Earth station antennas with a diameter of 45 cm (18 inches) are
    commonly employed in the DBS service, whereas earth station antennas
    employed in the Ku-band direct-to-home (DTH)-FSS are generally on
    the order of 0.84 to 1 meter (about 36 inches) in diameter and earth
    station antennas employed in the C-band DTH-FSS are generally on the
    order of 3 meters (about 10 feet).

[^10]: Policies and Rules for the Direct Broadcast Satellite Service,
    *Report and Order*, IB Docket No. 98-21, 17 FCC Rcd 11331, 11391 at
    para. 129 (2002) ("*Part 100 Order"*).

[^11]: *Part 100 Order*, 17 FCC Rcd at 11391, para. 129 (2002).

[^12]: This rule section has since been renumbered as 25.114(d)(13)(i).

[^13]: This rule section has since been renumbered as 25.114(d)(13)(ii).

[^14]: Annex 1 contains technical criteria for determining whether a
    proposed BSS system will affect radiocom-munications systems of
    other administrations.

[^15]: The modification procedures for the Region 2 Plans are stipulated
    in Section 4.2 of Article 4 of Appendices 30 and 30A of the ITU
    Radio Regulations. Administrations start the process by filing the
    information required by Appendix 4 of the Radio Regulations to
    request a modification to the Plan. For U.S. Plan modifications, the
    Appendix 4 information is prepared by the satellite operators and
    submitted to the Commission, which reviews the information and
    forwards it to the ITU/BR. The Appendix 4 information includes such
    BSS satellite parameters as antenna beam footprint, transmitted
    power, modulation techniques, forward-error-correction techniques,
    earth station antenna characteristics (including typical subscriber
    terminal characteristics), and satellite orbital location.

[^16]: As used in this order, the term "affected" or "affected operator"
    has the meaning given in the Annex 1 of Appendices 30 and 30A of the
    ITU Radio Regulations. Carrier-to-interference ratio is a measure at
    a reference point\--typically, the input to the receiver\--of the
    amount of power in the wanted signal, the "carrier" (C), compared to
    the amount of power in the interfering signal (I). The assessment of
    interference between ITU Region 2 Plan assignments is based on the
    concept of overall equivalent protection margin ("OEPM"). The OEPM
    is the overall margin relative to a predefined level of aggregate
    C/I ratio. The C/I ratio takes account of the interference from the
    co-channel operation of the interfering satellite as well as the
    nearest and next nearest neighboring channels both above and below
    the wanted channel in frequency. The interference is summed for all
    the beams of every assignment in the plan and every plan
    modification request preceding the proposed plan modification. This
    calculation is done for a number of earth station locations defined
    as downlink test points for each potentially affected plan
    assignment or preceding plan modification request. According to
    Annex 1 of Appendices 30 and 30A, if the effect of the proposed
    network is to reduce the OEPM of any channel and test point of any
    network in the plan or pending plan modification below -0.25 db, or
    if already negative, by 0.25 dB or more, that network is considered
    to be "affected" and the new network can only be added to the plan
    with the agreement of all the administrations whose networks are
    affected.

[^17]: *Part 100 Order,*17 FCC Rcd 11331, 11391-92 at para. 130.

[^18]: DIRECTV operates DBS satellites at 101°, 110°, and 119° W.L.
    EchoStar operates DBS satellites at 61.5°, 110°, 119°, and 148° W.L.

[^19]: *See* Satellite Policy Branch Information: Applications Accepted
    for Filing, *Public Notice*, Report No. SAT-00284 (rel. April 15,
    1005).

[^20]: EchoStar and DIRECTV filed reply comments in response to Spectrum
    Five's Consolidated Response to the EchoStar and DIRECTV oppositions
    and SES Americom comments.

[^21]: SES Americom comments on Spectrum Five LLC File Nos.
    SAT-LOI-20050312-00062/63 at 1-2.

[^22]: *Id*. at 3. *See also* Letter from Paul J. Canessa, Chief
    Executive, Gibraltar Regulatory Authority, to Chairman Kevin J.
    Martin, Federal Communications Commission, May 12, 2005.

[^23]: DIRECTV Opposition to Spectrum Five LLC File Nos.
    ST-LOI-20050312-00062/63, at 1-2. Section 25.114(d)(13)(i) requires
    that applicants for DBS systems with technical characteristics that
    differ from those specified in the ITU Region 2 Plans "shall provide
    sufficient technical showing that the proposed system could operate
    satisfactorily if all assignments in the BSS and feeder link Plans
    were implemented." 47 C.F.R. § 25.114(d)(13(i). *See also* Letter
    from William Wiltshire, Counsel for DIRECTV, Inc., to Marlene H.
    Dortch, Secretary, Federal Communications Commission, August 24,
    2006.

[^24]: DIRECTV Opposition to Spectrum Five LLC File Nos.
    SAT-LOI-20050312-00062/63, at 4-6.

[^25]: EchoStar Opposition to Spectrum Five LLC File Nos.
    SAT-LOI-20050312-00062/63, at 1-4.

[^26]: EchoStar Opposition to Spectrum Five LLC File Nos.
    SAT-LOI-20050312-00062/63, at 3.

[^27]: *See, e.g*., PANAMSAT LICENSEE CORP., Application for authority
    to construct, launch and operate a hybrid international
    communications satellite, *Order and Authorization*, 14 FCC Rcd 2719
    (1998).

[^28]: Amendment of the Commission's Policies and Rules for Processing
    Applications in the Direct Broadcast Satellite Service; Feasibility
    of Reduced Orbital Spacing for Provision of Direct Broadcast
    Satellite Service in the United States, IB Docket No. 06-160,
    *Notice of Proposed Rulemaking*, FCC 06-120, rel. August 18, 2006.
    (*DBS Notice*).

[^29]: Although the Commission has adopted a freeze on applications for
    new DBS service, Spectrum Five filed its petitions prior to the
    imposition of the freeze, which was limited to "applications for
    licenses for new space stations or for new requests for market
    access by foreign-licensed space stations." *See* 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). Accordingly, the Spectrum Five Petitions are not
    subject to the freeze.

[^30]: *See* 47 C.F.R. §§ 25.114(d)(13), 25.156(a); 47 U.S.C. § 308(a)
    (stating that "the Commission may grant construction permits and
    station licenses . . . only upon written application therefore
    received by it"); § 308(b) (requiring that Section 308(a)
    applications set forth "such facts as the Commission by regulation
    *may* prescribe," but not requiring the Commission to prescribe such
    regulations) (emphasis added); § 309(a) (stating that "the
    Commission shall determine . . . whether the public interest,
    convenience, and necessity will be served by the granting of \[a
    Section 308\] application," and, if so, the Commission "shall grant
    such application"). 47 U.S.C. §§ 308, 309. *See also* *DBS Notice*,
    FCC 06-120, para. 21.

[^31]: EchoStar Opposition at 4; DIRECTV Opposition at 2, 6; EchoStar
    Reply to Consolidated Response of Spectrum Five LLC.

[^32]: 25 C.F.R. § 25.114(d)(13)(i).

[^33]: 25 C.F.R. § 25.114(d)(13)(ii).

[^34]: 47 C.F.R. § 25.148(f). Section 25.111(c) provides additional
    guidance regarding the filing of plan modifications at the ITU. In
    particular, this rule indicates what U.S. applicants and licensees
    must provide to the Commission so that it may file plan
    modifications on the licensee's/applicant's behalf. *See* 47 C.F.R.
    § 25.111(c).

[^35]: *See supra* para. 3.

[^36]: 25 C.F.R. § 25.156(d)(6).

[^37]: Although the Commission is considering expanding the streamlined
    satellite application processing rules (*e.g*.,
    first-come/first-served processing) to DBS, it may continue to
    consider pending applications under the existing Part 25 framework.

[^38]: *See Ashbacker Radio Corp. v. FCC*, 326 U.S. 327 (1945). The
    Court held in *Ashbacker* "that where two *bona fide* applications
    are mutually exclusive the grant of one without a hearing to both
    deprives the loser of the opportunity which Congress chose to give
    him." *Ashbacker*, 326 U.S. at 333.

[^39]: *See, e.g*., PANAMSAT LICENSEE CORP., 14 FCC Rcd 2719 (1998).

[^40]: *See* Digital Broadband Applications Corp., Consolidated
    Application for Authority to Operate U.S. Earth Stations with a
    U.S.-Licensed Ku-Band FSS Satellite and Canadian-Licensed Nimiq and
    Nimiq 2 Satellites to Offer Integrated Two-Way Broadband Video and
    Data Service Throughout the United States (Call Sign E020010),
    *Order*, 18 FCC Rcd 9455 (2003) ("*DBAC Order*"); Pegasus
    Development Corporation, Consolidated Applications for Authority to
    Operate one U.S. Transmit/Receive Fixed Earth Station (Call Sign
    E010320) and 1,000,000 Receive-Only Earth Stations (Call Sign
    E020022) with the Canadian-Licensed Nimiq 1 and Nimiq 2 Satellites
    to Offer Direct Broadcast Satellite Service Throughout the United
    States, *Order*, 19 FCC Rcd 6080 (2004) ("*Pegasus Order*"). No U.S.
    applications for satellites at the Canadian locations were pending
    when the DBAC and Pegasus applications were under consideration. We
    granted both the DBAC and Pegasus applications, in part, because
    co-frequency receive-only operations are not mutually exclusive and
    gateway stations that provide feeder links to/from the same DBS
    satellite can operate at different frequencies or polarizations.

[^41]: *See* 47 C.F.R. § 25.156(a); 47 U.S.C. § 308(a) (stating that
    "the Commission may grant construction permits and station licenses
    . . . only upon written application therefore received by it"); §
    308(b) (requiring that Section 308(a) applications set forth "such
    facts as the Commission by regulation *may* prescribe," but not
    requiring the Commission to prescribe such regulations) (emphasis
    added); § 309(a) (stating that "the Commission shall determine . . .
    whether the public interest, convenience, and necessity will be
    served by the granting of \[a Section 308\] application," and, if
    so, the Commission "shall grant such application"). 47 U.S.C. §§
    308, 309. We are not granting Spectrum Five a license authorization,
    rather we grant Spectrum Five U.S. market access rights pursuant to
    the procedure adopted in *DISCO II* (*see* Amendment of the
    Commission\'s Regulatory Policies to Allow Non-U.S. Licensed Space
    Stations to Provide Domestic and International Service in the United
    States, *Report and Order*, IB Docket No. 96-111, 12 FCC Rcd 24094
    (1997) ("*DISCO II*" or "*DISCO II Order*")). Thus, while we are not
    taking action directly under Sections 308 and 309, since Spectrum
    Five will not hold a Commission license, we are applying the
    procedural framework of Sections 308 and 309, bearing in mind our
    World Trade Organization (WTO) commitments to treat satellite
    operators licensed in the Netherlands, such as Spectrum Five, no
    less favorably than we treat U.S.-licensed satellite operators.

[^42]: *DISCO II*, 12 FCC Rcd 24094, 24175 at para. 190 (1997). *DISCO
    II* specifically said 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 Part 100
    Order*.

[^43]: Typically, foreign satellite operators file requests for U.S.
    market access in the form of a letter of intent or Petition for
    Declaratory Ruling or earth station application (if the foreign
    space station is already in operation).

[^44]: *See* 47 C.F.R. § 25.114. The analyses required under Section
    25.114(d)(13) must take into account both the Appendix 30 BSS Plans
    and the Appendix 30A feeder link Plans. *Id.*

[^45]: *See* 47 C.F.R. § 25.137.

[^46]: *DISCO II Order*, 12 FCC Rcd 24094, at 24107-56, paras. 30-145.

[^47]: *Id.* at 24159-69, paras. 151-74.

[^48]: *Id.* at 24157-59, paras. 146-50.

[^49]: *Id.* at 24169-72, paras. 175-82.

[^50]: *Id.* at 24174, para. 188.

[^51]: *See* 47 C.F.R. § 25.137.

[^52]: 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, *First Order
    on Reconsideration*, 15 FCC Rcd 7207 (1999) ("*DISCO II First
    Reconsideration*").

[^53]: *DISCO II Order,* 12 FCC Rcd 24094, 24104, at para. 25.

[^54]: 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 24094, 24130 at para. 78.

[^55]: Spectrum Five Petitions at 1, 16.

[^56]: *See*
    http://www.wto.org/english/thewto_e/countries_e/netherlands_e.htm.
    Spectrum Five provided a summary of an October 22, 2004 agreement
    with the Netherlands Radio Communications Agency that gives Spectrum
    Five "exclusive use of the 114.5° W.L. orbital location with respect
    to" the DBS frequencies. Spectrum Five Petitions at 10-11. Spectrum
    Five included with its petitions a copy of the ITU filing
    (identified as BSS-5) that the Netherlands submitted on Spectrum
    Five's behalf. Subsequently, the Netherlands Radio Communication
    Agency sent the Commission a letter, noting that the Netherlands
    authorized Spectrum Five to provide DBS with the BSS-5 satellites
    and seeking U.S. agreement to modification of the Region 2 BSS plan.
    *See* Letter from A. J. van Dijken, Head Frequency Planning and
    Co-ordination Section Radiocommunications Agency Netherlands, to
    Kevin J. Martin, Chairman, Federal Communications Commission, March
    18, 2005. We find that, cumulatively, this documentation satisfies
    the information requirements of Section 25.137(c). *See* 47 C.F.R. §
    25.137(c) (requiring non-U.S.-licensed geostationary orbit
    (GSO)-like satellite systems seeking market access to demonstrate
    that the satellite is in orbit and operating, or that the system has
    a license from another administration, or that the system has been
    submitted for coordination to the ITU).

[^57]: *See* 47 C.F.R. § 25.137(a). The Commission said in *DISCO II*
    that when evaluating requests to provide DBS, DTH, and DARS from a
    non-U.S. satellite, it would apply the ECO-Sat test to the non-U.S.
    satellite's home market and all routes that it proposes to serve.
    *See DISCO II*, 12 FCC Rcd 24094, 24136 at para. 98.

[^58]: *Id.* at 24137, para. 99.

[^59]: Spectrum Five Petitions at 16.

[^60]: *Id.*

[^61]: *See also,* Promoting Market Access for the Provision of
    Satellite Services, Background Paper for the U.S. Trade
    Representative, prepared by the Satellite Industry Association
    ("SIA"), July 27, 2005. In this paper, SIA identifies countries that
    it believes have WTO offers that should be amended to reflect more
    open trade policies; the Netherlands is not among those countries
    that SIA identifies.

[^62]: *DISCO II,* 12 FCC Rcd 24094, 24161-63, at paras. 154-59.

[^63]: Spectrum Five Petitions, Technical Appendix at 11.

[^64]: Spectrum Five Petitions, Technical Appendix at 1.

[^65]: Spectrum Five Petitions, Technical Appendix at 1.

[^66]: Spectrum Five Petitions, Technical Appendix at 16.

[^67]: Spectrum Five Petitions, Technical Appendix at 2.

[^68]: 47 C.F.R. § 25.114(d)(3).

[^69]: The .gxt format is the format produced and used by the ITU's
    Graphical Interference Management System (GIMS) software. *See*
    http://www.itu.int/ITU-R/software/space/gims/index.html (last
    visited November 7, 2005).

[^70]: DIRECTV Opposition at 5. DIRECTV also asserts that providing the
    .gxt files would not be burdensome, as demonstrated by the fact that
    it submitted .gxt files to the Commission for its three spot-beam
    satellites, DIRECTV 4S, DIRECTV 7S, and DIRECTV 9S. DIRECTV
    Opposition at 5.

[^71]: *Id.* GIMS is a software package that allows the capture and
    modification of graphical data, such as antenna gain contour
    diagrams and service area diagrams, relating to the electronic
    notification of satellite networks.  MSPACE is a software package
    designed to determine the coordination requirements for space
    networks in Appendices 30, 30A and 30B of the ITU Radio Regulations.
    For additional information regarding MSPACE, s*ee*
    http://www.itu.int/ITU-R/space/plans/MSPACEg_files/SPS_v5_readme.html.
    For additional information regarding MSPACE, s*ee*
    http://www.itu.int/ITU-R/space/plans/MSPACEg_files/SPS_v5_readme.html.

[^72]: Spectrum Five Consolidated Reply, note 37.

[^73]: The ITU GIMS reference database (REFDB) is published by the ITU
    Radiocommunication Bureau twice a year on the SRS CD-ROM. The
    Radiocommunication Bureau publishes incremental updates every two
    weeks on the IFIC CD-ROM.

[^74]: Our conditional grant of Spectrum Five's request for a partial
    waiver of our rules to allow it to file technical information in a
    different format is warranted in this instance because in
    these limited circumstances we hold that sufficient information was
    on file for the public to comment on the application. Further, we
    note that Spectrum Five appropriately sought a waiver of our rules
    and did not file inconsistent data or confusing data. *Compare*,
    Letter to David K. Moskowitz, Senior Vice President and General
    Counsel, EchoStar Satellite corporation, from Thomas S. Tycz, Chief,
    Satellite Division, International Bureau, Federal Communications
    Commission, 19 FCC Rcd 2216 (Int'l. Bur., Sat. Div., 2004), affirmed
    on reconsideration, 19 FCC Rcd 24953 (2004) (application dismissed
    where the applicant failed to provide technical information required
    under the rules and the application contained inconsistent frequency
    assignment requests which made it impossible to determine with
    certainty which frequencies were being sought). 

[^75]: Spectrum Five Petitions, Addenda to Schedule S and Requests for
    Partial Waivers at 2.

[^76]: *Id*. at 3.

[^77]: Spectrum Five Petitions, Technical Appendix at 4.

[^78]: *Id.*

[^79]: Spectrum Five Petitions, Exhibit 1 to Technical Annex.

[^80]: For additional information regarding MSPACE, s*ee*
    http://www.itu.int/ITU-R/space/plans/MSPACEg_files/SPS_v5_readme.html
    .

[^81]: *See supra* n. 16.

[^82]: DIRECTV Opposition at 1-2.

[^83]: DIRECTV Opposition at 3.

[^84]: DIRECTV Opposition at 4.

[^85]: EchoStar Opposition at 3. We note that to date, EchoStar has not
    provided the Commission a detailed technical description of its new
    multi-feed antenna.

[^86]: EchoStar Reply Comments at 3.

[^87]: EchoStar Reply Comments, Attachment A at 1.

[^88]: Spectrum Five Consolidated Response at 3.

[^89]: *Id.*

[^90]: Spectrum Five Consolidated Response at 9 and Technical Appendix.

[^91]: *Id.*

[^92]: Spectrum Five Consolidated Response at 5-6.

[^93]: Spectrum Five Consolidated Response at 8.

[^94]: DIRECTV Reply Comments at 2-3.

[^95]: *Id.*

[^96]: According to DIRECTV's analysis, the C/I values would be below 15
    dB in nine out of ten cities for DIRECTV 6 operating at 110º W.L.,
    and in six out of ten cities for DIRECTV 7S operating at 119º W.L.
    (DIRECTV Reply Comments at 5.) DIRECTV 6 has recently been replaced
    by DIRECTV 5 at the 110º W.L. orbital location. The technical
    characteristics of DIRECTV 5 are very similar to those of DIRECTV 6.

[^97]: 21 dB is also the aggregate protection criterion advocated by
    DIRECTV in its Petition for Rulemaking. *See* DIRECTV Petition for
    Rulemaking at 17.

[^98]: Spectrum Five Petitions, Technical Appendix at 7 (Table 4).

[^99]: Spectrum Five Consolidated Reply, Technical Appendix at 4.

[^100]: Spectrum Five June 23, 2005 *Ex Parte* *Presentation* at 1.

[^101]: Spectrum Five PDR, Exhibit 1 to Technical Annex at 6.

[^102]: *But see* EchoStar Satellite LLC, *Order*, DA 05-1955, rel. July
    6, 2005 (denying EchoStar's application for a Ku-band FSS satellite
    at the 101° W.L. orbital location pursuant to Section 25.158 of the
    Commission's rules, because it would cause harmful interference to
    Mobile Satellite Ventures Subsidiary LLC's previously licensed
    operations at the same location). ("*EchoStar 101 Denial Order"*).
    The Commission's two-degree spacing policy for FSS has been in place
    for over 20 years. *See* Licensing of Space Stations in the Domestic
    Fixed-Satellite Service and Related Revisions of Part 25 of the
    Rules and Regulations, *Report and Order*, FCC 83-184, 54 Rad. Reg.
    2d 577 (rel. Aug. 16, 1983); summary printed in 48 F.R. 40233 (Sept.
    6, 1983). To implement this policy, the Commission adopted
    requirements for providing interference analyses as well as EIRP
    density and PFD limits to limit harmful interference into adjacent
    satellites. *See* 47 C.F.R §§ 25.114, 25.134, 25.137, 25.138. *See
    also*, Interference Analysis Public Notices, DA 04-1708 (rel. June
    16, 2004); SPB-195, 18 FCC Rcd 25099 (2003). Similarly, the
    Commission adopted antenna diameter and performance requirements,
    and power restrictions to ensure that earth stations communicating
    with satellites at two-degree orbital separations would not cause
    unacceptable interference to adjacent satellite systems using the
    same frequency bands. *See* 47 C.F.R. §§ 25.134, 25.209, 25.211, and
    25.212. *See* Declaratory Order, 2 FCC Rcd 2149 (Com. Car. Bur.,
    1987), cited in 47 C.F.R. § 25.134.) The two-degree interference
    rule provides well-settled criteria for evaluating the potential for
    interference into adjacent operators, whereas similar technical
    performance rules do not exist for DBS. Thus, our grant of the
    Spectrum Five Petitions would not be the same if they were for
    GSO-FSS satellites that sought less than two-degree spacing and
    merely alleged sharing was possible. *See* *EchoStar 101 Denial
    Order*.

[^103]: In particular, Spectrum Five shall not exceed a 0.25 dB change
    in overall equivalent protection margin with respect to the
    reference situation that existed for DBS satellites serving the U.S.

[^104]: In this context, an "affected" operator is one that is deemed
    affected in Appendices 30 and 30A of the ITU Radio Regulations.

[^105]: DIRECTV Opposition at 1, 5; EchoStar Opposition at 1-3.

[^106]: DIRECTV Reply at 6-7. DIRECTV says that there is no precedent
    "to indicate that the Commission contemplated granting market access
    to non-U.S. systems before the 'adequate protection' provided by
    coordination with U.S. systems had been successfully completed."
    DIRECTV Reply at 7.

[^107]: Spectrum Five Consolidated Reply at 5-6.

[^108]: Affected DBS systems will be determined on the basis of the
    limits contained in Annex 1 to Appendix 30.

[^109]: *Part 100 Order*, 17 FCC Rcd 11331, 11391-92 at para. 130
    (emphasis added, citations omitted).

[^110]: We observe that Spectrum Five's citation to the International
    Bureau's *Televisa International* decision in support of its
    argument that we grant it market access pending coordination, is
    inapposite. Spectrum Five Consolidated Reply at 6. *See also*
    Televisa International, LLC, *Order and Authorization*, 13 FCC Rcd
    10074 (1997) ("*Televisa International*"). In *Televisa
    International*, we granted a Mexican FSS satellite access to the
    U.S. to provide DTH services, but because the satellite operator did
    not provide evidence of coordination with nearby satellite
    operators, we authorized Televisa's receive dishes on an
    unprotected, non-interference basis. *Televisa International*, 13
    FCC Rcd at 10074, 10078, paras. 1, 12. However, FSS is regulated
    under our two-degree spacing policies (*see* n. 102, *supra*), and
    DTH service is the subject of a bilateral agreement between the
    United States and Mexico regarding provision of satellite services
    in both nations. *Televisa International*, 13 FCC Rcd at 10074-75,
    para. 2. In contrast, we have no spacing rules with regard to the
    provision of DBS service and the United States has no agreements
    with the Netherlands or Netherlands Antilles regarding provision of
    DBS.

[^111]: *See* Amendment of the Commission's Space Station Licensing
    Rules and Policies, *First Report and Order and Further Notice of
    Proposed Rulemaking,* 18 FCC Rcd 10760, 10826, at para. 170 (2003)
    ("*First Space Station Reform Order"*).

[^112]: *See* 47 C.F.R. § 25.165.

[^113]: *First Space Station Reform Order*, 18 FCC Rcd 10760*,* 10875 at
    para. 309.

[^114]: *First Space Station Reform Order*, 18 FCC Rcd 10760, 10764-65
    at n. 4 and Amendment of the Commission\'s Space Station Licensing
    Rules and Policies, *Notice of Proposed Rulemaking*, IB Docket No.
    02-34, 17 FCC Rcd 3847, 3859 at n.4 (2002) ("*Space Station Reform
    NPRM or Notice*"). As noted above, given the recent *Northpoint*
    ruling by the U.S. Court of Appeals for the D.C. Circuit, DBS
    applications are currently not eligible for auction. *See supra*
    para. 6.

[^115]: The previous financial qualification requirements (which
    included submission of financial statements) have been eliminated
    entirely by *First Space Station Reform Order* and therefore we
    cannot impose them on DBS licensees, or any satellite licensee. *See
    supra* n. 111.

[^116]: *See* 47 C.F.R. §§ 25.165 (establishing the bond requirement for
    satellite licensees) and 25.137(d)(4) (making the bond requirement
    apply both to earth station applicants seeking access to foreign
    satellites and to non-U.S.-licensed satellite operators seeking
    access to the United States market). *See also DBS Notice*, FCC
    06-120, para. 26.

[^117]: *DISCO II Order*, 12 FCC Rcd 24094, 24159 at para. 150.

[^118]: *Id.*

[^119]: As discussed below, we impose milestones on Spectrum Five in
    connection with this grant. *See infra* paras. 43-44. We note that
    coordination difficulties do not justify extension of milestone
    requirements. *See* LORAL SPACECOM CORPORATION
    (Debtor-in-Possession), Application for Extension of Milestone
    Dates, *Memorandum Opinion and Order*, DA 05-1962 (rel. July 7,
    2005).

[^120]: *DISCO II Order*, 12 FCC Rcd 24094, 24170-72 at paras. 178-82.

[^121]: SES Americom comments at 1-2.

[^122]: *Id*. at 3.

[^123]: Spectrum Five Consolidated Reply at 7.

[^124]: *Id*. at 8.

[^125]: *First Space Station Reform Order,* 18 FCC Rcd 10760, 10870-71
    at para. 296.

[^126]: *See id. See also* note 16.

[^127]: *See* SES Americom comments at 1-2.

[^128]: *See, e.g.,* Loral Spacecom Corporation, Petition for
    Declaratory Ruling to Add Telstar 13 to the Permitted Space Station
    List, *Order*, 18 FCC Rcd 16374 (DA 03-2624) (2003).

[^129]: *See* 47 C.F.R. §§ 25.148(c), 25.701. Spectrum Five indicated
    that it would serve Alaska and Hawaii pursuant to Section 25.148(c).
    *See* Spectrum Five Petitions at 10. In 2005, the Commission adopted
    revised emergency alert system ("EAS") rules that now extend to DBS.
    *See* Review of the Emergency Alert System, EB Docket No. 04-296,
    *First Report and Order and Further Notice of Proposed Rulemaking*,
    FCC 05-191 (rel. Nov. 10, 2005) and 47 C.F.R. Part 11.

[^130]: *See, e.g*., *DBAC Order*, 18 FCC Rcd 9455, 9469-70 at para. 39;
    *Pegasus Order*, 19 FCC Rcd 6080, 6092 at para. 28.

[^131]: *See* 17 U.S.C. §§ 119 & 122. *See also* 47 U.S.C. §§ 338 & 339;
    47 C.F.R. § 76.66.

[^132]: *See* 47 C.F.R. § 25.148(b).

[^133]: *Id*. By contrast, Section 25.164 of the Commission's rules
    establishes a milestone schedule for GSO satellite system licensees,
    other than DBS and DARS satellite systems. Under this milestone
    schedule, one year after grant, the grantee must enter into a
    binding, non-contingent construction contract; at two years,
    complete critical design review; at three years begin construction
    of the first satellite; at five years, launch and operate the
    satellite. 47 C.F.R. § 25.164.

[^134]: *First Space Station Reform Order*, 18 FCC Rcd 10760, 10833 at
    para. 191.

[^135]: *Id*.

[^136]: *See* 47 C.F.R. § 25.210(l). We note that in the *DBS Notice*,
    the Commission seeks comment on whether to require all DBS operators
    to be subject to annual reporting requirements. *See DBS Notice* at
    para. 27.

[^137]: In particular, Spectrum Five shall not exceed a 0.25 dB change
    in overall equivalent protection margin with respect to the
    reference situation that existed for DBS satellites serving the U.S.

[^138]: In this context, an "affected" operator is one that is deemed
    affected in Appendices 30 and 30A of the ITU Radio Regulations.