Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | IBFS Nos.                    |
|                                  | *) | SAT-MOD-20000222-00061       |
| EchoStar Satellite Corporation   | ** |                              |
|                                  |    | SAT MOD-20000222-00062       |
| Modification of Ka-Band          | *  |                              |
| Authorization                    | *) | Call Signs S2178; S2179      |
|                                  | ** |                              |
| Celsat America, Inc.             |    | IBFS Nos.                    |
|                                  | *  | SAT-AMD-19970925-00124       |
| Modification of License to       | *) |                              |
| Authorize                        | ** | SAT-AMD-19980123-00009       |
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| Geosationary Satellite Orbit     | *  | SAT-AMD-20011103-00153       |
| Mobile Satellite                 | *) |                              |
|                                  | ** | Call Signs S 2139            |
| Service Feeder Link Operations   |    |                              |
| in the Ka-Band                   | *  |                              |
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| Petition for Reconsideration     | ** |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: May 7, 2002 Released: May 7, 2002**

By the Chief, International Bureau:

# Introduction

1.  By this Order we deny EchoStar Satellite Corporation's (EchoStar)
    petition for reconsideration of the International Bureau's Order
    denying EchoStar's application to modify its Ka-Band
    authorization.[^1] We conclude that EchoStar has failed to offer any
    new facts or evidence that was not before the Bureau at the time we
    denied its application. Nor does EchoStar demonstrate a material
    error or omission in the order. We also deny EchoStar's request to
    reconsider the Bureau's order assigning Celsat America, Inc. Ka-band
    spectrum.[^2] Accordingly, as set forth below, we deny the petition
    and reaffirm the initial orders.

# BackGround

2.  In May 1997, as part of the Commission's first Ka-band space station
    processing round (first round), the International Bureau authorized
    EchoStar to launch and operate a geostationary satellite orbit (GSO)
    satellite system to provide fixed satellite service in the
    Ka-band.[^3] EchoStar's authorization permits it to use 500
    megahertz of spectrum in the 29.5-30.0 GHz band (uplink) and 500
    megahertz of spectrum in the 19.7-20.2 GHz band (downlink) at the
    83° W.L. and 121° W.L. orbital locations. EchoStar was authorized to
    use the total amount of spectrum requested in its application.
    EchoStar did not decline or seek reconsideration of its
    authorization.

3.  In October 1997, the Bureau initiated a second Ka-band satellite
    space station processing round (second round) inviting interested
    parties to file applications for consideration in that round. The
    deadline or cut-off date was December 22, 1997. In response, 12
    applicants filed for GSO systems. One applicant requested the 500
    megahertz of uplink and 500 megahertz of downlink available at the
    83° W.L. and 121° W.L. orbital locations. EchoStar did not file an
    application for consideration in the second round. Instead, in
    February 2000, over two years after the cut-off date for filing in
    the second round, EchoStar filed an application to modify its
    Ka-band authorization to add additional spectrum at the 83° W.L. and
    121° W.L. orbit locations. Specifically, in its application,
    EchoStar requested authority to add 500 megahertz of spectrum
    (28.35-28.6 GHz and 29.25-29.5 GHz) for its uplink operations, and
    500 megahertz of spectrum (18.3-18.8 GHz) for its downlink
    operations. EchoStar claimed its application was a minor
    modification and should be treated as part of the first processing
    round. Alternatively, if the Commission should determine the
    application was a major modification, EchoStar requested a waiver of
    the processing round rules. EchoStar asserted it could use the
    spectrum more efficiently and in a faster time frame than any of the
    second round applicants. Several first round licensees and second
    round applicants opposed EchoStar's application.

4.  In August 2001, in conjunction with the second processing round, the
    Bureau denied EchoStar's application to modify its Ka-band system.
    The Bureau found that EchoStar's application, filed four years after
    the cut-off date for the first round, was grossly untimely.[^4] The
    Bureau explained that processing round procedures, including cut-off
    deadlines, ensure orderliness, expedition and finality in the
    licensing process. In addition, the Bureau rejected EchoStar's
    assertion that the application was a minor modification and thus
    could be granted outside of the processing round. To the contrary,
    the Bureau stated that EchoStar's application increases the
    potential for interference and changes its proposed frequencies and
    thus if considered, would have to be treated as a major
    modification.[^5] Applications proposing major modifications lose
    their status in the processing group. The Bureau also found that
    EchoStar failed to support a waiver of the processing round rules.
    The Bureau stated it could not rely on EchoStar's unsupported claim
    that it would make "first use of the spectrum."[^6] Finally, the
    Bureau concluded that granting EchoStar's application would
    undermine the Commission's processing round rules and policies, and
    that reopening the first processing round would not serve the public
    interest. Because spectrum not assigned in the first round was made
    available in the second round, and two applicants expressed interest
    in the same spectrum, then granting EchoStar's application would
    disrupt the second processing round as well.[^7]

5.  On August 3, 2001, as part of the second round, Bureau assigned the
    500 megahertz of spectrum at each of the 83° W.L. and 121° W.L.
    orbital locations to a qualified entity that filed a timely
    application in the second processing round, Celsat America, Inc.
    (Celsat).[^8] EchoStar filed a request for reconsideration of the
    order denying its application as well as the order granting the
    spectrum to Celsat.

6.  In its petition, EchoStar contests only the Bureau's finding that a
    waiver of the processing round rules would not serve the public
    interest. EchoStar claims that it is ready to use "most of" the
    spectrum at 121° W.L. as early as 2002.[^9] EchoStar states that, in
    light of what it claims is a lack of success with Mobile Satellite
    Service (MSS) such as that proposed by Celsat, the Bureau
    "inappropriately favored the uncertainty" of Celsat's use of the
    spectrum over EchoStar's system.[^10] Alternatively, EchoStar
    requests that the Bureau keep the proceedings open and grant
    EchoStar's application in the event Celsat's license becomes
    invalid.

7.  Celsat responds that EchoStar's petition presents arguments already
    considered by the Bureau and thus the petition should be dismissed
    as repetitious.[^11] Celsat states that it filed a timely
    application for consideration in the second processing round and was
    an active participant in industry led meetings to design an orbital
    assignment plan for second round applicants. Celsat asserts that
    EchoStar's claim that it will "make first use" of the spectrum is
    mere speculation.[^12] Celsat also states that while EchoStar claims
    it is prepared to use 800 megahertz of spectrum at the 121° W.L.
    orbital location, if the Commission were to grant EchoStar's
    application, then the remaining 200 megahertz of spectrum at this
    location and the 500 megahertz of spectrum at 83° W.L. would lay
    "fallow indefinitely" thereby undermining EchoStar's claim of
    efficient use of the spectrum.[^13] EchoStar replies that Celsat's
    response did not address EchoStar's request that the Commission hold
    the reconsideration proceeding open and license the spectrum to
    EchoStar in the event Celsat's authorization should lapse.

# DISCUSSION

8.  We find nothing in EchoStar's petition that leads us to change our
    decision in the *August Order* denying its application. As noted in
    the *August Order*, the Commission's processing round rules and
    policies would be seriously undermined if the Commission accepted
    applications any time an untimely applicant asserted it could put
    spectrum to use in a more efficient manner. Processing rounds often
    involve new, innovative and commercially unproven satellite services
    in frequency bands not previously used to provide satellite service.
    They afford an opportunity for qualified system proponents to
    compete in the marketplace and allow consumer choice to determine
    the success of individual offerings, technologies and competitors.
    Thus, we reject EchoStar's assertion that the Bureau should have
    considered the likelihood of Celsat's proposed system in its
    decision. As always, we believe outcomes should be dictated by the
    service market and not by regulatory decision.

9.  Even if the Bureau were to consider EchoStar's claim that it would
    make first use of the spectrum, EchoStar has not made a compelling
    argument. EchoStar states that it "stands ready to use most" of the
    additional spectrum it requests at the 121° W.L. orbital location.
    Specifically, EchoStar claims that in 2002 it will be able to use
    300 megahertz of this spectrum at 121° W.L. It does not state,
    however, when it will use the remaining 200 megahertz at this
    location, or any of the additional 500 megahertz of spectrum it
    requests at the 83° W.L. orbital location. As a result, we find no
    reason to revoke Celsat's authorization. Like all Ka-band licensees,
    Celsat must bring its authorized spectrum at 121° W.L. and 83° W.L.
    into use before a date certain or lose its authorization. Celsat has
    a critical interest in working to put the spectrum at 121° W.L. and
    83° W.L. into use in a timely manner.

10. Finally, we deny EchoStar's request to keep the proceeding open and
    grant EchoStar's waiver and authorization in the event Celsat's
    authorization becomes invalid. Consequently, we also deny EchoStar's
    request for reconsideration of the Celsat order and authorization.
    EchoStar has cited no rule or policy that entitles it to priority to
    the spectrum at 121° W.L. and 83° W.L. and we find no reason to give
    EchoStar precedence over other interested entities in the event this
    spectrum should become available. If spectrum should become
    available at these locations, we will consider entry opportunities
    at that time.

# CONCLUSION and ORDERING CLAUSES

11. Based on the foregoing, we deny EchoStar's request to reconsider the
    Bureau's Memorandum Opinion and Order, 16 FCC Rcd 14300 (Int'l
    Bur. 2001) in the above captioned proceeding. We also deny
    EchoStar's request to reconsider the Order and Authorization of
    Celsat America, Inc., 16 FCC Rcd 14278 (Int'l Bur. 2001).

12. Accordingly, IT IS ORDERED, that the Petition for Reconsideration
    filed by EchoStar Satellite Corporation on September 4, 2001 is
    DENIED.

    13\. This Order is effective upon release.

    FEDERAL COMMUNICATIONS COMMISSION

    Donald Abelson

    Chief, International Bureau

[^1]: EchoStar Satellite Corporation, Application For Modification of
    Ka-Band Authorization, *Memorandum Opinion and Order,*16 FCC Rcd
    14300 (Int'l Bur. 2001) ("*August Order*").

[^2]: Celsat America, Inc., Modification of License to Authorize
    Geostationary-Satellite Orbit Mobile Satellite Service Feeder Link
    Operations in the Ka-band, *Order and Authorization*, 16 FCC Rcd
    14278 (Int'l Bur. 2001).

[^3]: EchoStar Satellite Corporation, Application for Authority to
    Construct, Launch, and Operate a Ka-Band Satellite System in the
    Fixed-Satellite Service, *Order and Authorization*, 13 FCC Rcd 5664
    (1997) ("*EchoStar Authorization*"). The terms "Ka-band" or "28 GHz
    band" refer to the space-to-Earth (downlink) frequencies at
    17.7-20.2 GHz and the corresponding Earth-to-space (uplink)
    frequencies at 27.5-30.0 GHz.

[^4]: *August Order*, 16 FCC Rcd at 14302.

[^5]: *Id*. at 14304.

[^6]: *Id*.

[^7]: *Id.* at 14305.

[^8]: Second Round Assignment of Geostationary Satellite Orbit Locations
    to Fixed Satellite Service Space Stations in the Ka-Band, *Order*,
    16 FCC Rcd 14389 (Int'l Bur. 2001).

[^9]: EchoStar Satellite Corporation's Petition for Reconsideration,
    filed September 4, 2001, at 2 ("*EchoStar Petition"*).

[^10]: *EchoStar Petition* at 4.

[^11]: Celsat's Opposition to Petition for Reconsideration of EchoStar
    Satellite Corporation, filed September 19, 2001 at 2 ("*Celsat
    Opposition"*).

[^12]: *Celsat Opposition* at 6.

[^13]: *Id.*