Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  |                              |
|                                  | *) |                              |
| ECHOSTAR SATELLITE LLC           | ** |                              |
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| (f/k/a EchoStar Satellite        | *  |                              |
| Corporation)                     | *) |                              |
|                                  | ** |                              |
| Application for Authority to     |    |                              |
| Construct, Launch and Operate a  | *  |                              |
| Geostationary Satellite in the   | *) |                              |
| Fixed Satellite Service Using    | ** |                              |
| the Extended Ku-Band Frequencies |    |                              |
| at the 101° W.L. Orbital         | *  |                              |
|                                  | *) |                              |
| Location                         | ** |                              |
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|                                  | ** |                              |
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|                                  | *) |                              |
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+----------------------------------+----+------------------------------+

**ORDER ON RECONSIDERATION**

**Adopted:** December 27, 2004 **Released:** December 27, 2004

By the Chief, International Bureau:

# introduction

1.  By this Order, we deny EchoStar Satellite LLC's (EchoStar) Petition
    for Reconsideration of the Satellite Division's (Division) dismissal
    of EchoStar's application to construct, launch, and operate a
    geostationary satellite in the Fixed Satellite Service (FSS) using
    the extended Ku-band at the 101° W.L. orbital location. We are
    persuaded that the Division's dismissal on the ground that
    EchoStar's filings were incomplete and internally inconsistent was
    correct.

# background

2.  In August 2003, EchoStar filed an application to construct, launch,
    and operate a satellite at the 101° W.L. orbital location that would
    provide Fixed-Satellite Service (FSS) in the 10.70-10.75 GHz and
    11.20-11.45 GHz (downlink) and the 12.75-13.00 GHz and 13.15-13.20
    GHz (uplink) frequencies.[^1] In November 2003, EchoStar filed an
    amendment to its application outlining two system upgrades.[^2] On
    February 9, 2004, the Division dismissed EchoStar's application.[^3]
    The Division found that EchoStar's amended application was not in
    compliance with Section 25.114(c) of the Commission's rules,[^4]
    which requires all space station applicants to submit all applicable
    items of information listed in its subsections, and Section
    25.112(a)(1) of the Commission's rules,[^5] which provides that an
    application will be unacceptable for filing if "the application is
    defective with respect to completeness of answers to questions,
    informational showings, internal inconsistencies, execution, or
    other matters of a formal character."

3.  Among other things, Section 25.114(c)(4) requires that each
    application contain information identifying which antenna beams are
    connected or switchable to each transponder and tracking, telemetry,
    and control (TT&C) function.[^6] In its Amendment, EchoStar added
    the ability to switch the satellite receive beam to a pair of
    independently steerable uplink spot beams and the ability to switch
    downlink transmissions from the single large coverage beam to a
    total of nine fixed spot beams.[^7] The Division found that EchoStar
    failed to provide technical information to indicate which
    transponders would be connected to which spot beams in either the
    uplink or downlink direction.[^8]

4.  The Division also found that EchoStar made inconsistent frequency
    assignment requests in its November 2003 Amendment. In both the
    Application and the Amendment, EchoStar stated that it was
    requesting authority to operate in the 10.70-10.75 GHz and
    11.20-11.45 GHz frequency bands and the 12.75-13.00 GHz and
    13.15-13.20 GHz frequency bands. The Channel Frequency Plan outlined
    in Table A.4-1 of Section A.4 of the Attachment to the Amendment,
    however, indicated that two transponders would operate in the
    10.9515-10.9785 GHz and 10.9615-10.9885 GHz frequency bands, which
    were not requested in either the Application or Amendment. Moreover,
    the Channel Frequency Plan showed no transponders operating in the
    10.70-10.75 GHz band that was requested in both the Application and
    Amendment. Further, in Section II of the Amendment, where EchoStar
    described the proposed changes to the Application, it mentioned
    neither the addition of new frequency bands, nor the deletion of
    previously requested bands.[^9] Rather, the Amendment cited only
    changes in the uplink service area, the resulting receive antenna
    gain decreases and downlink budget modifications, and the addition
    of spot beams in both the uplink and downlink transmission
    paths.[^10]

5.  The Division further found that EchoStar did not mention new
    frequencies in Section A.1 of the Technical Annex to the Amendment,
    where it further described the proposed technical changes.[^11] In
    the Amendment, EchoStar stated that none of the changes made to the
    design of the EchoStar-101 W satellite would increase interference
    to any other user of the spectrum and that the changes involved
    increased flexibility, increased spectrum efficiency, or both.
    EchoStar also stated that the satellite would use the 11.2-11.45 GHz
    and a portion of the 10.7-10.75 GHz band for downlink transmissions,
    but did not mention any use of the 10.95-11.0 GHz frequency
    band.[^12] Moreover, in Section A.24 of the Amendment, EchoStar
    stated that the power flux density limits of Section 25.208 of the
    Commission's rules were sufficient to protect Fixed Service
    operations in the 10.7-10.95 GHz frequency band.[^13] Given these
    inconsistencies, the Division was unable to determine precisely
    which frequency assignments EchoStar was seeking.[^14]

6.  EchoStar filed a Petition for Reconsideration of the dismissal of
    its amended application.[^15] Mobile Satellite Ventures Subsidiary
    LLC (MSV) filed an Opposition to EchoStar's Petition.[^16] EchoStar
    filed a Reply to the Opposition.[^17]

# discussion 

**A. Positions of the Parties**

7.  In its Petition, EchoStar argues that the Division should not have
    dismissed its amended application because it was substantially
    complete as filed.[^18] EchoStar contends that its failure to
    identify which antenna beams are connected or switchable to each
    transponder and TT&C function does not render its amended
    application incomplete because this defect can be corrected without
    prejudice to anyone.[^19] EchoStar further asserts that the
    discrepancy in the requested frequency assignments was a
    typographical error that could have been resolved by looking at the
    application as a whole.[^20] EchoStar states that its amended
    application, when viewed as a whole, indicates clearly that it did
    not intend to change its requested frequency assignments with the
    filing of the Amendment, but instead intended to use the frequencies
    specified in its Application.[^21] In addition, EchoStar states that
    the Division improperly applied a letter-perfect standard in
    reviewing the subject amended application, rather than the
    "substantially complete" standard.[^22]

8.  In its Opposition, MSV, which has a pending application to operate a
    satellite in, among other bands, the 10.70-10.75/13.15-13.20 GHz
    bands at the 101° W.L. orbit location,[^23] notes that it agrees
    that satellite applications should be held to a "substantially
    complete," rather than a "letter perfect," standard.[^24] MSV
    contends, however, that EchoStar's amended application was not
    substantially complete because it was impossible to determine with
    certainty which frequencies EchoStar was applying for, as well as
    the manner in which its transponders and antenna beams were to be
    connected.[^25] Moreover, MSV asserts that the inconsistencies and
    omissions in EchoStar's amended application were not "minor,"[^26]
    as EchoStar claims, and states that it is essential that frequencies
    are accurately specified in applications so that potential
    applicants have unambiguous notice as to which frequencies are
    available for assignment.[^27] In addition, MSV notes that, if the
    Bureau were to adopt a policy requesting applicants to clarify
    ambiguous information, as EchoStar asserts the Division should have
    done with it, it would disserve the public interest in an expedited
    satellite licensing process.[^28] Further, MSV notes that such a
    policy would be counter to the Commission's first-come, first-served
    satellite licensing framework, the primary goal of which is to
    expedite satellite licensing.[^29]

    **B. Substantially Complete Standard**

9.  We reject EchoStar's contention that the Division applied a
    "letter-perfect" standard in reviewing its amended application. In
    the *First Space Station Reform Order*, the Commission specifically
    rejected the letter-perfect standard, deciding instead to continue
    to require applications to be "substantially complete" when
    filed.[^30] The Commission defined "substantially complete" as
    providing the information which is required by the Commission's
    rules.[^31] It explained that requiring satellite applications to be
    substantially complete when filed is an important part of its
    satellite licensing procedures. In the *First Space Station Reform
    Order*, the Commission adopted procedures and rules establishing
    satellite licensees' operating rights clearly and quickly, and as a
    result, allowed licensees to provide service to the public much
    sooner than might be possible under its previous licensing
    procedures.[^32] Finding defective applications acceptable for
    filing is not consistent with the rules and policies adopted by the
    Commission in the *First Space Station Reform Order* and only serves
    to create uncertainty and inefficiencies in the licensing process.
    More importantly, the Commission explained that the policy against
    accepting applications that do not meet the substantially complete
    standard is necessary to discourage speculation,[^33] and was needed
    to ensure that those licensees ready and willing to proceed with
    their satellite construction plans could do so.[^34]

10. It was never intended that any single error in the information
    required to be provided, no matter how minor, would be the basis for
    a dismissal. Thus, for example, an application which refers to a
    proposed band use at 5.925-6.425 MHz (instead of the intended
    5925-6425 MHz or 5.925-6.425 GHz) would be recognized immediately as
    a typographical error. Under our substantially complete test, this
    type of error, standing alone, would not constitute a sufficient
    basis for dismissal, as would be the case with a letter perfect
    standard. However, the errors in EchoStar's amended application
    cannot be dismissed as typographical errors. For example, EchoStar
    failed to disclose which antenna beams are connected or switchable
    to each transponder and TT&C function, which is information that
    applicants are required to provide under Section 25.114 of the
    Commission's rules.

    **C. Completeness of EchoStar's Application**

11. We disagree that EchoStar's amended application met the Commission's
    substantially complete standard. First, we find no merit in
    EchoStar's assertion that its failure to provide information to
    identify which antenna beams are connected or switchable to each
    transponder and TT&C function is a minor error and is not the kind
    of defect that should render an application less than substantially
    complete.[^35] EchoStar contends that this information is of little
    importance at this stage of the satellite proposal because it will
    inevitably be shared with other licensees in the coordination
    process.[^36] However, Section 25.114(c) of the Commission's rules
    clearly and explicitly requires all space station applicants to
    submit with their application items of information, including the
    identification of which antenna beams are connected or switchable to
    each transponder and TT&C function.[^37] This information allows the
    Commission, existing operators and potential applicants to identify
    which frequencies and locations are impacted by the pending
    application, which ones are available and the extent to which the
    proposed frequency uses and locations require coordination.
    EchoStar's failure to provide this required information rendered its
    application substantially incomplete and therefore defective.

12. Second, we reject EchoStar's argument that the discrepancies in the
    requested frequency assignments in its amended application were not
    of such magnitude as to render its application substantially
    incomplete. This frequency information is required to be filed
    because, *inter alia*, it is one of the essential technical
    parameters that is used to determine whether an application is
    mutually-exclusive with a previously filed application. Nor is it
    the responsibility of the agency, as EchoStar suggests, to select
    for an applicant the desired frequencies from among differing
    frequencies provided in an application. As the Court in *Salzer*
    explained, \"\[I\]t is not the agency\'s task to select for an
    applicant the type of operation that will minimize impermissible
    interference.\"[^38] Moreover, even if EchoStar's application did
    not have frequency discrepancies, it would still be substantially
    incomplete because it did not include antenna beam and TT&C
    information required by Section 25.114.

13. Third, allowing EchoStar to cure its deficiencies is not in the
    public interest or the interest of private parties. The Commission
    explained in the *First Space Station Reform Order* that requiring
    applications to include all the information called for by the
    Commission's rules helps to ensure that the applicant is ready and
    willing to construct the satellite it proposes in its
    application.[^39] Under the first-come, first-served filing-date
    priority procedure now in place for satellite applications such as
    EchoStar's, the Commission will grant the first application in the
    processing "queue" if the applicant is qualified and grant would not
    cause interference to a previously licensed satellite.[^40] Allowing
    applicants to cure applications after they are filed could adversely
    impact other applicants filing complete applications that are
    "second-in-line" to the first application. Moreover, allowing
    applicants to "cure" defects, of the type noted herein, after filing
    could encourage applicants to file incomplete, internally
    inconsistent, or otherwise defective applications to receive
    "first-in-line" status. This is patently inconsistent with the
    rationale underlying the "first-come, first-served" procedure, which
    is designed to expedite service to *the public*.

    **D. Consistency with Precedent**

14. We are not persuaded by EchoStar's argument that the dismissal of
    its amended application as incomplete is inconsistent with previous
    practices. Since the *First Space Station Reform Order* was adopted,
    the Bureau has strictly enforced its Part 25 rules, which require
    the Bureau to return as unacceptable any application that "is
    defective with respect to completeness of answers to questions,
    informational showings, \[or\] internal inconsistencies."[^41]
    Indeed, the Bureau has returned 19 applications as defective since
    it reaffirmed this policy in the *First Space Station Reform
    Order*.[^42] These actions followed the Commission's policy of
    dismissing applications that do not contain information that is
    clearly required by the Commission's rules. In those unusual
    instances where the Commission's satellite information requirements
    have not been clearly set forth in a Commission rule, Order or
    Public Notice, we issue Public Notices to clarify the rules, but do
    not dismiss applications that do not contain the relevant
    information if they were filed before the release of the Public
    Notice.[^43] Thus, contrary to EchoStar's assertion, the Division
    has followed the Commission's policy of dismissing applications that
    do not comply with its rules.[^44]

15. Nevertheless, EchoStar cites two instances in which the Division
    requested missing information from applicants, rather than dismiss
    an application.[^45] One of these was in February 2004, when the
    Bureau requested EchoStar to supply information relating to three
    EchoStar direct broadcast satellite (DBS) applications that were
    filed in June 2003.[^46] In requesting this information, the Bureau
    recognized that the *First Space Station Reform Order* specifically
    exempted DBS from its purview.[^47] Indeed, to clarify that the
    Bureau would hold DBS applicants to the same standard as those
    applicants covered by the *First Space Station Reform Order,* it
    issued a Public Notice[^48] in January 2004 reminding DBS applicants
    that they are subject to Part 25's application filing requirements.
    Because of apparent confusion regarding Bureau policy with respect
    to DBS applicants, the Bureau noted in the Public Notice that DBS
    applications which were filed *before* the release of the Public
    Notice that did not meet the filing requirements would not be
    dismissed but would be subject to a Commission letter requesting the
    required information.[^49] Consequently, the Bureau sent EchoStar a
    letter asking for additional information on three DBS applications,
    all of which were filed before it issued the *DBS Public Notice.*

16. EchoStar also argues that the Division\'s treatment of an
    application filed by Loral Skynet Network Services, Inc. (Loral) to
    modify a licensed earth station to add a foreign satellite as a new
    point of communication is inconsistent with the dismissal of
    Echostar\'s amended application. We disagree. Loral's application
    was substantially complete when filed, in that Loral provided all
    the information required by the Commission\'s rules. The staff did
    not provide Loral an opportunity to supply additional information
    that was omitted from its application, but rather asked Loral to
    clarify and to reformat certain information contained in the
    application.[^50] For example, the earth station sought to
    communicate with a satellite that contains two payloads (C- and
    Ku-bands) that are licensed by two different administrations (Tonga
    and China). The satellite itself has three different commonly used
    names, *i.e*., Tongasat C and Telstar 18 for the C-band payload and
    Apstar V for the Ku-band. To assist in processing the application,
    the letter requested that Loral clarify the relationship between the
    names and satellite payloads of the spacecraft, among other
    things.[^51] The Division later dismissed Loral\'s application
    because Loral failed to respond sufficiently to that information
    request \-- not because its application was not \"substantially
    complete\" when filed.[^52] In contrast, EchoStar's application did
    not contain all of the information required by the Commission's
    rules and thus was not substantially complete when filed.

# CONCLUSION AND ORDERING clause

17. Therefore, we find that the Division properly dismissed EchoStar's
    amended application as incomplete and internally inconsistent, in
    accordance with Sections 25.114(c) and 25.112(a)(1) of the
    Commission's rules.[^53] Thus, we affirm the Division's decision in
    the *EchoStar Dismissal Letter.*

18. Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 301, 302,
    303(r), 308, 310, and 405 of the Communications Act, as amended, 47
    U.S.C. §§ 154(i), 301, 302, 303(r), 308, 309, 310, 405 and Sections
    1.106 of the Commission's rules, 47 C.F.R. §§ 1.106, that the
    petition for reconsideration filed by EchoStar Satellite L.L.C. on
    March 17, 2004 IS HEREBY DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    Donald Abelson

    Chief

    International Bureau

[^1]: Application of EchoStar Satellite Corporation for Authority to
    Construct, Launch, and Operate a Geostationary Satellite in the
    Fixed Satellite Service Using the Allotted Extended Ku-band
    Frequencies at the 101° W.L. Orbital Location, File No.
    SAT-LOA-20038027-00179, Call Sign S2492 (Application).

[^2]: Amendment to Application of EchoStar Satellite Corporation for
    Authority to Construct, Launch and Operate a Geostationary Satellite
    in the Fixed Satellite Service Using the Allotted Extended Ku-band
    Frequencies at the 101° W.L. Orbital Location, File No.
    SAT-AMD-2003111126-00343, Call Sign S2492 (November 26, 2003)
    (Amendment).

[^3]: *See* 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) (*EchoStar Dismissal Letter*). We note that, on February 9,
    2004, after the dismissal of EchoStar's Application and Amendment,
    another entity, Mobile Satellite Ventures (MSV), filed an amendment
    to its pending application for its next generation MSS system,
    requesting an additional 50 megahertz of spectrum in each direction
    for FSS feeder links to operate in the 10.70-10.75 GHz and
    13.15-13.20 GHz frequency bands. *See* Mobile Satellite Ventures
    Subsidiary LLC, Amendment to Application for Authority to Launch and
    Operate a Replacement L-band Mobile Satellite Service Satellite at
    101° W.L., File No. SAT-AMD-20040209-00014 (February 9, 2004) (MSV
    Amendment); Mobile Satellite Ventures Subsidiary LLC Amendment to
    Application for Authority to Launch and Operate a Replacement L-band
    Mobile Satellite Service Satellite at 101° W.L., *Order*, DA 04-2985
    (released Sept. 15, 2004) (*MSV Reinstatement Order*) (A detailed
    history of MSV's filings in this matter is provided in the *MSV
    Reinstatement Order*.)

[^4]: 47 C.F.R. § 25.114(c).

[^5]: 47 C.F.R. § 25.112(a)(1).

[^6]: We note that the *EchoStar Dismissal Letter* cites Section
    25.114(c)(5) as the subsection that contains the relevant
    informational requirements. This section of the Commission's rules
    was amended in 2003, and the relevant informational requirements are
    now contained in Section 25.114(c)(4)(iii). *See* Amendment of the
    Commission's Space Station Licensing Rules and Policies, *Third
    Report and Order and Second Further Notice of Proposed Rulemaking*,
    18 FCC Rcd 13486, 13522 (2003).

[^7]: Amendment, Attachment A, Section A.1, at 1.

[^8]: We note that EchoStar could have requested a waiver of the
    specific Section 25.114(c)(4) requirement and made an appropriate
    waiver showing. However, EchoStar failed to do so.

[^9]: Amendment at 3.

[^10]: *Id.*

[^11]: *See EchoStar Dismissal Letter*, 19 FCC Rcd at 2218.

[^12]: Amendment at 3.

[^13]: Amendment, Attachment A, Section A.24, at 26.

[^14]: *See EchoStar Dismissal Letter,* 19 FCC Rcd at 2218.

[^15]: Petition for Reconsideration, filed March 10, 2004 by EchoStar
    Satellite L.L.C. (EchoStar Petition).

[^16]: Opposition to Petition for Reconsideration, filed March 24, 2004
    by Mobile Satellite Ventures Subsidiary LLC (MSV Opposition).

[^17]: Reply to Opposition to Petition for Reconsideration, filed April
    5, 2004 by EchoStar Satellite L.L.C. (EchoStar Reply).

[^18]: EchoStar Petition at 2-4.

[^19]: *Id.* at 8, *citing* Salzer v. FCC, 778 F.2d 869, 872 n.7 (D.C.
    Cir. 1985).

[^20]: *Id.*

[^21]: *Id.* at 7.

[^22]: *Id.* at 2-5, *citing* Amendment of the Commission's Space
    Station Licensing Rules and Policies, *Notice of Proposed
    Rulemaking*, 17 FCC Rcd 3847, 3875-76 ¶ 84 (2002) (*Space Station
    Reform NPRM)*; 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, 10852 ¶ 244 (2003) (*First
    Space Station Reform Order)*; and Amendment of the Rules Concerning
    Cut-Off Procedures for FM and TV Broadcast Stations, *Report and
    Order,* MM Docket No. 84-750, FCC 85-125, 50 Fed. Reg. 19936 (May
    13, 1985).

[^23]: *See* MSV Amendment*.*

[^24]: MSV Opposition at 5.

[^25]: *Id.*

[^26]: *Id.* at 6, *citing* Applications of Mobile Phone of Texas, Inc.
    For Authority to Construct Additional Facilities in the Public Land
    Mobile Service on Frequency 152.09 MHz for Station KLF902 at Palo
    Pinto, Texas, and MCI Airsignal, Inc. For Authority to Construct
    Additional Facilities in the Public Land Mobile Service on Frequency
    152.15 MHz for Station KKG411 at Weatherford, Texas, *Memorandum
    Opinion Opinion and Order*, 5 FCC Rcd 3459, 3460 n. 14 (Com. Car.
    Bur. 1990) (*Mobile Phone Order*).

[^27]: MSV Opposition at 6.

[^28]: *Id.*

[^29]: *Id.* at 7-8, *citing* Applications of PanAmSat Licensee Corp.
    For Authority to Construct, Launch, and Operate a Hybrid Satellite
    System in its Separate International Communications Satellite
    System, *Order on Reconsideration*, 18 FCC Rcd 23916, 23917 ¶ 6
    (2003).

[^30]: *First Space Station Reform Order*, 18 FCC Rcd at 10852 ¶ 244,
    *citing* *Space Station Reform NPRM*, 17 FCC Rcd at 3875 ¶ 84.

[^31]: *First Space Station Reform Order*, 18 FCC Rcd at 10852 ¶ 244,
    *citing Space Station Reform NPRM*, 17 FCC Rcd at 3878 ¶ 93.

[^32]: *First Space Station Reform Order,* 18 FCC Rcd at 10765-66 ¶ 4.

[^33]: *Id.* at 10852 ¶ 244.

[^34]: *See id.* at 10805-06 ¶ 112.

[^35]: EchoStar Reply at 8-9.

[^36]: *Id.* at 9.

[^37]: 47 C.F.R. § 25.114(c)(4)(iii).

[^38]: *Salzer*, 778 F.2d at 877.

[^39]: *See First Space Station Reform Order,* 18 FCC Rcd at 10852 ¶ 244
    (requiring substantially complete is one of many necessary
    safeguards to help protect against speculative satellite
    applications).

[^40]: *See First Space Station Reform Order*, 18 FCC Rcd at 10792 ¶¶
    71-73.

[^41]: 47 C.F.R. § 25.112(a)(1).

[^42]: *See, e.g.,* Letter from Thomas S. Tycz, Chief, Satellite
    Division, Int'l. Bur., FCC to Mr. Vicente Rubio Carreton, Hispamar
    Satellites, S.A. (Feb. 24, 2004); Letter from Thomas S. Tycz, Chief,
    Satellite Division, Int'l. Bur., FCC to Mr. Lon C. Levin, Mobile
    Satellite Ventures Subsidiary LLC (April 23, 2004); Letter from
    Thomas S. Tycz, Chief, Satellite Division, Int'l. Bur., FCC to Mr.
    Koichiro Matsufuji, Space Communications Corporation (April 22,
    2004); Letter from Thomas S. Tycz, Chief, Satellite Division, Int'l.
    Bur., FCC to David K. Moskowitz, EchoStar Satellite Corp. (Dec. 8,
    2003); Letter from Thomas S. Tycz, Chief, Satellite Division, Int'l.
    Bur., FCC to Kalpak Gude, PanAmSat Licensee Corp. (Oct. 22, 2003).

[^43]: *See* International Bureau Satellite Division Information:
    Clarification of 47 C.F.R. § 25.140(b)(2) Space Station Application
    Interference Analysis, *Public Notice,* 19 FCC Rcd 10652 (2004);
    International Bureau Clarifies Direct Broadcast Satellite Space
    Station Application Processing Rules, *Public Notice,* 19 FCC Rcd
    1346 (2004) (*DBS Public Notice*); International Bureau Satellite
    Division Information: Clarification of 47 C.F.R. § 25.140(b)(2)
    Interference Analysis, *Public Notice,* 18 FCC Rcd 25099 (2003).

[^44]: In this regard, EchoStar's reliance on Salzer v. FCC, 778 F.2d
    869 (D.C. Cir. 1985), is inapposite. *Salzer* involved, in part,
    applications filed with the Commission to construct and operate a
    low power television station. The applications were rejected by the
    Commission, under the applicable "letter-perfect" standard, for not
    satisfying its specific acceptability criteria for such
    applications. 778 F.2d at 871-73. The court indicated that the
    Commission cannot reasonably expect applications to be
    letter-perfect when its instructions for those applications are
    ambiguous. *Id.* at 875. Since the Commission had failed to provide
    adequate notice as to how certain information should be filed with
    the agency, the *Salzer* court held that the Commission was not
    entitled to reject the applications on the ground that they failed
    to meet these informational requirements. *Id.* No such Public
    Notice infirmity exists in the instant case.

[^45]: EchoStar Reply at 5-6, *citing* Letter from Thomas S. Tycz,
    Chief, Satellite Division, Int'l. Bur., FCC to David K. Moskowitz,
    EchoStar Satellite Corp. (Feb. 12, 2004) (*February 12^th^ EchoStar
    Letter)*, and Letter from William Howden, Chief, Systems Analysis
    Branch, Satellite Division, Int'l. Bur., FCC to Mr. Stan Edinger,
    Manager-Government Relations, Loral Skynet Network Services, Inc.
    (Dec. 11, 2003) (*December 11^th^ Loral Letter*). In any event, if
    the Division failed to dismiss an incomplete application, it is a
    well-settled principle of administrative law that the fact that an
    agency made an error in one instance does not require the agency to
    repeat the error. *See* Southeast Telephone, Inc. v. FCC, No.
    99-1164, 1999 WL 1215855 (D.C. Cir. Nov. 24, 1999) (unpublished
    opinion) (stating that an agency need not repeat in a later case an
    error made in a prior case); *see also* Daniel R. Goodman, Receiver;
    Dr. Robert Chan, *Order,* 16 FCC Rcd 11153, 11154 ¶ 5 (2001); and
    Nathan Sherman Enterprises, Inc. et al., *Order*, 16 FCC Rcd 11150,
    11151-52 ¶ 6 (2001).

[^46]: *February 12^th^ EchoStar Letter.*

[^47]: *Id.*

[^48]: *See DBS Public Notice*.

[^49]: *See February 12^th^ EchoStar Letter.*

[^50]: *See* Letter from William Howden, Chief, Systems Analysis Branch,
    Satellite Division to Stan Edinger, Manager-Government Relations.
    Loral Skynet Network Services, Inc. (Oct. 16, 2004) (*October 16th
    Loral Letter*). Where an application is substantially complete, but
    the reviewing staff has questions regarding the information, they
    may ask the applicant to provide additional information. *See* 47
    C.F.R. § 25.111(a).

[^51]: Additionally, the application listed all of the ninety-plus
    emission designators for transmissions from the earth station.
    Division staff therefore requested Loral to provide only the
    emission designators for the least interfering carrier and for the
    most interfering carrier. Finally, Division staff requested that
    Loral provide additional information to support its assertion in the
    application that Tonga provides effective competitive opportunities
    for U.S. satellite operators to provide analogous services in Tonga,
    and to reformat certain information contained in the application for
    ease of staff review.

[^52]: *See* *December 11^th^ Loral Letter*. The *December 11 Letter*
    incorrectly referred to Loral\'s failure to supply \"missing\"
    information required by the Commission\'s *DISCO II Order*.
    Amendment of the Commission\'s Regulatory Policies to Allow Non-U.S.
    Licensed Satellites Providing Domestic and International Service in
    the United States, Report and Order, IB Docket No. 96-111, 12 FCC
    Rcd 24094 (1997) (*DISCO II*). In *DISCO II*, the Commission adopted
    a rule requiring U.S. earth station applicants seeking to access a
    foreign satellite to attach, in certain situations, an exhibit to
    their applications demonstrating that U.S. satellite operators have
    effective competitive opportunities to provide analogous services in
    the foreign satellite\'s home market (the \"ECO-Sat\" test). 47
    C.F.R. § 25.137(a). To this end, Loral attached an exhibit to its
    application stating that Tonga\'s satellite market is open to U.S.
    satellite operators. Because the Commission\'s rules do not require
    the applicant to provide specific documentation to affirm market
    access, this exhibit was sufficient for purposes of the
    Commission\'s information rules. Nevertheless, the staff requested
    additional information pursuant to 47 C.F.R. § 25.111(a) because it
    was not clear whether Loral had adequately shown that Tonga\'s
    satellite market is open to U.S. satellite operators.

[^53]: 47 C.F.R. §§ 25.114(c), 25.112(a)(1).