**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

**In the Matter of** )

)

EchoStar Satellite Corporation ) File No. SAT-MOD-20011025-00090

) Call Sign S2231

Application for Authority to Make )

Minor modification of Direct )

Broadcast Satellite )

)

Application for Renewal of Special )

Temporary Authority to Operate a ) File No. SAT-STA-20020123-00014

Direct Broadcast Satellite over the ) File No. SAT-STA-20020716-00115

Even-numbered Channels at the ) File No. SAT-STA-20030115-00002

148º W.L. Orbital Location )

# **ORDER AND AUTHORIZATION**

Adopted: April 24, 2003 Released: April 25, 2003

By the Chief, Satellite Division:

## INTRODUCTION

1.  By this Order, we modify EchoStar Satellite Corporation's
    ("EchoStar") EchoStar 2 satellite license to permit it to relocate
    EchoStar 2 from its assigned 119º W.L. orbit location to the 148º
    W.L. orbit location and operate it over the eight even-numbered
    channels assigned to EchoStar at that location. We also grant
    EchoStar's request to renew its special temporary authority ("STA")
    to operate over eight unassigned channels at the 148° W.L. orbit
    location. Granting this application will promote efficient use of
    the available radio spectrum and will enhance service to EchoStar's
    customers.

**II. BACKGROUND**

2.  EchoStar operates a Direct Broadcast Satellite ("DBS") system
    consisting of eight DBS satellites located at the 61.5º W.L., 110º
    W.L., 119º W.L. and 148º W.L. orbit locations.[^1] At the time
    EchoStar filed this application, it operated three satellites at the
    nominal 119º W.L. orbit location: EchoStar 4 at 118.9º W.L.,
    EchoStar 6 at 119.05º W.L. and EchoStar 2 at 119.35º W.L. When the
    EchoStar 4 and 6 satellites were placed in operation at this nominal
    orbit location, EchoStar ceased its operation of EchoStar 2 and
    designated that satellite as an in-orbit spare.[^2] Deployment of
    the EchoStar 4 and 6 satellites also allowed EchoStar to move its
    EchoStar 1 satellite from 119º W.L. to 148º W.L., where EchoStar
    acquired 24 DBS channels in a Commission auction in January
    1996.[^3] EchoStar operates 16 of the 24 channels assigned to it at
    148º W.L., using EchoStar 1's sixteen transponders.[^4] The
    remaining eight channels at the 148º W.L. orbit location are
    unassigned.[^5]

3.  In the application, before us, EchoStar proposes to relocate the
    EchoStar 2 satellite to 148º W.L. to operate on the eight channels
    licensed to EchoStar not used by its EchoStar 1 satellite at that
    location. In addition, EchoStar requested special temporary
    authority to operate on the eight unassigned channels. Pegasus
    Development Corporation ("Pegasus") filed a petition to deny the
    application to use the eight unassigned channels and EchoStar filed
    an opposition to Pegasus's petition to deny.

4.  EchoStar also requests a waiver of the Commission's geographic
    service rules for EchoStar 2.[^6] The Commission's geographic
    service rules state that licensees acquiring DBS authorizations
    after January 19, 1996 must provide DBS service to Alaska and Hawaii
    where such service is technically feasible from the acquired orbit
    location. The States of Hawaii and Alaska filed comments addressing
    this aspect of the modification request.

**III. DISCUSSION**

A.  **Assigned Channels**

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5.  At the time the modification application was filed, EchoStar 2 was
    used as an in-orbit spare at 119ºW.L. EchoStar proposes to relocate
    EchoStar 2 to 148º W.L. and operate it on the eight channels
    licensed to EchoStar and not used by its EchoStar 1 satellite at
    that location.[^7] EchoStar states that the proposed relocation of
    EchoStar 2 is part of a broader effort to comply with the
    "carry-one-carry-all" requirements of the Satellite Home Viewer
    Improvement Act ("SHVIA") that became effective on January 1,
    2002.[^8] Pursuant to this requirement, if a satellite carrier
    decides to provide one local station in a particular city, it must
    carry all qualified stations in that market.[^9] According to
    EchoStar, moving its EchoStar 2 satellite to 148º W.L. would help it
    meet its obligations until additional capacity could be made
    available with the launch of its new EchoStar 7 and 8
    satellites.[^10]

6.  According to EchoStar, there is little potential for harmful
    interference to any authorized user of the spectrum because it is
    the only entity with authority to conduct DBS operations from the
    148º W.L. orbit location.[^11] Moreover, EchoStar states that
    EchoStar 2 and EchoStar 1 are technically identical DBS satellites,
    and the Commission has already found that EchoStar 1 will not cause
    harmful interference from the 148º W.L. orbit location.[^12]
    EchoStar maintains that the move would, if anything, alleviate any
    risk of interference since it would place the satellite in a less
    congested part of the geostationary satellite orbit arc. EchoStar
    states that it will discontinue any operation upon notification of
    harmful interference caused to any authorized user of the
    spectrum.[^13]

7.  We find that grant of the requested modification of EchoStar's
    license for its EchoStar 2 satellite is justified and will serve the
    public interest. Granting EchoStar's application will permit it to
    use a satellite that was used as an in-orbit spare to provide DBS
    service on eight otherwise assigned but unused channels. Thus,
    permitting EchoStar to relocate and operate its EchoStar 2 satellite
    at 148º W.L. will result in more efficient use of available spectrum
    capacity and allow EchoStar to provide service that might not
    otherwise be available from the 148º W.L. orbit location.[^14]

**B. Unassigned Channels**

8.  We also note that the underlying application included a request for
    STA to operate on the unassigned channels at the 148° W.L. orbit
    location. This request was granted, subject to conditions, in
    December 2001.[^15] EchoStar has filed timely requests to extend
    this STA.[^16]

9.  The Division initially granted EchoStar\'s STA request to enable it
    to meet the requirements of SHVIA prior to the launch of the
    EchoStar 7 satellite.[^17] Although EchoStar 7 has since been
    launched, we nevertheless find that it would further the public
    interest, convenience, and necessity to allow EchoStar to continue
    operating these eight unassigned channels until such time that the
    channels are assigned, and an authorized licensee begins operating
    on those channels on a permanent basis.[^18] Consequently, we grant
    EchoStar's request for renewal of the STA to operate on the
    unassigned channels at the 148° W.L. orbit location subject to the
    conditions set forth in the December 28 Letter and the Ordering
    Clauses below.

**C. Waiver of the Geographic Service Rules**

10. EchoStar requests a waiver of the geographic service rules for
    EchoStar 2. EchoStar is required to provide service to Alaska and
    Hawaii from any satellite it moves to the 148° W.L. orbit location
    as a condition of a geographic service rules waiver the Bureau
    granted to EchoStar in 1998.[^19] At the time EchoStar filed its
    modification application, Section 100.53 of the Commission's rules
    required DBS licensees authorized after January 19, 1996, to provide
    service to Alaska and Hawaii from the acquired orbital location
    whenever it is \"technically feasible.\"[^20] During the pendency of
    this application, the Commission eliminated Part 100 and made DBS
    service subject to the same regulations as other satellite services
    in Part 25.[^21] The DBS geographic service rules were amended and
    moved to Section 25.148(c). In pertinent part, the Commission in its
    order adopting the change emphasized that it is \"technically
    feasible\" to provide service to Alaska and Hawaii from the 148°
    W.L. orbital location.[^22] The Commission stated it will consider
    relaxing this requirement only upon provision of technical analyses
    demonstrating that such service is not feasible as a technical
    matter, or that while technically feasible such services would
    require so many compromises in satellite design and operation as to
    make it economically unreasonable.[^23] The Commission also
    emphasized that applicants and/or licensees bear the burden of
    providing those technical analyses.[^24]

11. EchoStar asserts that good cause exists for a waiver of the
    geographic service rules with respect to operation of EchoStar 2 at
    148º W.L. for the same reasons it was granted a conditional waiver
    of these rules for EchoStar 1 at 148º W.L.[^25] According to
    EchoStar, the EchoStar 1 waiver was granted because EchoStar was
    capable of serving, and undertook to serve, Alaska and Hawaii from
    the 119º W.L. orbit location instead of the 148º W.L. location.
    EchoStar states that this resulted in enhanced service to Alaskan
    and Hawaiian consumers by making available broader program offerings
    than would have been available from the 148º W.L. orbit
    location.[^26] EchoStar asserts that there will be no degradation of
    service to Alaska and Hawaii if the waiver is granted. In addition,
    EchoStar claims that EchoStar 2 is covered by the Commission's
    geographic "grandfathering" provision and does not have to, and is
    not equipped to, serve Hawaii or Alaska from the 119º W.L. orbit
    location.

12. The State of Hawaii does not oppose granting EchoStar's request to
    relocate EchoStar 2 to 148º W.L. or EchoStar's request for a waiver
    of the geographic service requirements.[^27] The State of Hawaii
    generally endorses EchoStar's provision of service to Hawaii, noting
    that EchoStar provides core backbone programming to Hawaii at about
    the same price it charges to customers in the continental United
    States.[^28] The State of Hawaii does request, however, that we
    impose the same conditions on EchoStar 2 as we imposed in granting a
    waiver of the geographic service requirements for EchoStar 1 at 148º
    W.L.[^29] The State of Alaska supports the State of Hawaii's
    comments.[^30]

13. The Commission may waive a rule for good cause shown[^31][^32]
    Waiver is appropriate if special circumstances warrant a deviation
    from the general rule and such deviation would better serve the
    public interest than would strict adherence to the general
    rule[^33][^34] Generally, the Commission may grant a waiver of its
    rules in a particular case if the relief requested would not
    undermine the policy objective of the rule in question and would
    otherwise serve the public interest[^35][^36]

14. Although the Commission\'s geographic service rules have always
    embodied an important policy, it has on occasion granted waivers of
    those requirements. In granting a waiver of these rules for EchoStar
    1 to operate at 148º W.L. the Commission found that the public
    interest would be served because EchoStar 1 could better provide its
    backbone programming to subscribers in Hawaii from its 119º W.L.
    orbit location. As further evidence of the waiver being in the
    public interest, the Commission noted that the State of Hawaii
    supported the waiver for EchoStar 1.[^37]

15. We find that granting EchoStar's request for a waiver of the
    geographic service requirements for EchoStar 2 is in the public
    interest for the same reasons that justified a waiver of the
    geographic service rules for EchoStar 1. In the *EchoStar 1 Waiver
    Order* we found that EchoStar could provide service to the entire
    CONUS, Alaska and Hawaii from the EchoStar 4 satellite at the 119º
    W.L. orbit location.[^38] In that Order, the Commission also noted
    that the State of Hawaii supported the waiver request.[^39] Since
    grant of the EchoStar 1 waiver, EchoStar has provided service to
    Hawaii and Alaska consistent with the conditions imposed. Granting a
    similar waiver of the geographic service requirements, and imposing
    the same conditions for EchoStar 2, will not result in any
    degradation of service currently provided to Hawaii or Alaska. These
    conditions are designed to ensure EchoStar's continuing obligation
    as a DBS licensee to provide service to Hawaii and Alaska despite a
    waiver of the geographic service requirements for a particular
    satellite. Accordingly, we will require that: (1) any satellite
    replacing the EchoStar 2 satellite at 148º W.L. would be immediately
    subject to the geographic service rules; and (2) EchoStar's
    geographic service obligation remains intact for EchoStar and its
    affiliates on all other satellites.

**D. Technical Issues**

16. EchoStar proposes to use "extended C-band frequencies" for its
    Tracking, Telemetry and Command (TT&C) operations for EchoStar 2 at
    148º W.L. Specifically, EchoStar proposes to operate its command
    functions on 5923.5 MHz and 6426.5 MHz frequencies and its telemetry
    on the 3698.5 MHz and 3699.5 MHz frequency bands. We note that
    EchoStar was authorized to use these frequencies for its EchoStar 2
    TT&C operations on a non-conforming use basis limited to a term
    expiring on January 1, 1999 in order to permit review of the
    suitability of these frequency bands for TT&C operations.[^40]
    EchoStar's TT&C operations in the 3650-3700 MHz extended C-band have
    since been grandfathered without regard to the satellite's orbital
    location under the rules adopted by the Commission reallocating that
    spectrum to terrestrial services.[^41] With respect to the other
    TT&C frequencies, we note that EchoStar has operated on these
    frequencies since 1996 without any evidence of unacceptable
    interference. On our own motion, we waive Section 25.202(g) to the
    extent necessary to enable EchoStar to continue performing TT&C
    functions for EchoStar 2 outside the allocated band as it has in the
    past.

17. Although EchoStar states that there is little potential for harmful
    interference to any authorized user, we will continue to require
    that EchoStar's operations over these frequencies not cause harmful
    interference to authorized users. In addition, its use of the 6426.5
    MHz, 3698.5 and 3699.5 frequencies makes it subject to certain
    conditions and other requirements set forth in various footnotes to
    the Table of Frequency Allocations.[^42] Specifically, EchoStar's
    use of the 6426.5 MHz extended C-band frequency is subject to
    coordination with other licensees. The frequency range 6425-6525 MHz
    is shared in the United States on a primary basis with the mobile
    service, including auxiliary broadcast, cable TV, domestic public
    fixed and private operational fixed microwave applications. The
    5923-5924 MHz band is also allocated to amateur operations on a
    secondary basis. Radiolocation and amateur operations may cause
    interference to, and thereby affect the reliability of EchoStar's
    TT&C operations.[^43] Accordingly, we will require as a condition of
    this authorization that EchoStar comply with the above footnotes to
    the Table of Frequency Allocations.

### ORDERING CLAUSES

18. Accordingly, pursuant to Section 0.261 of the Commission\'s rules on
    delegated authority, 47 C.F.R. § 0.261, EchoStar's application for
    modification of the EchoStar 2 license IS GRANTED and EchoStar is
    authorized to relocate its EchoStar 2 satellite from its present
    orbit location of 119 W.L. to 148 W.L., and operate it over the 8
    even-numbered channels at that location that have been assigned to
    EchoStar.

19. IT IS FURTHER ORDERED that EchoStar is authorized to operate the
    eight unassigned even numbered channels at 148 W.L. on a temporary
    basis until such time as the channels are assigned and the
    authorized licensee notifies EchoStar of its plans to place the
    channels into service.

20. IT IS FURTHER ORDERED that this authorization does not confer any
    permanent authority for EchoStar to use the eight unassigned
    channels at the 148º W.L. orbit location. EchoStar must terminate
    service within 30 days of being notified that a DBS provider
    assigned to operate over the unassigned channels plans to place
    those channels into service.

21. IT IS FURTHER ORDERED that EchoStar's operation of its EchoStar 2
    satellite at 148º W.L. shall not cause harmful interference to any
    other lawfully operated radio station and EchoStar shall cease
    operations immediately upon notification of such interference.

22. IT IS FURTHER ORDERED that EchoStar shall not claim protection from
    interference from any other lawfully operated radio station with
    respect to its operations on the eight unassigned channels.

23. IT IS FURTHER ORDERED that EchoStar's operation over the eight
    unassigned channels at 148º W.L. is at its own risk and EchoStar
    must notify its customers in writing that service over these
    channels is provided on a temporary basis and that service may be
    diminished or discontinued at any time.

24. IT IS FURTHER ORDERED that EchoStar's command operations in the
    5923.5 MHz and 6426.5 MHz frequencies may not cause interference to
    any other lawfully operated radio station with co-primary allocation
    status in those frequencies and EchoStar shall cease operations
    immediately upon notification of such interference.

25. IT IS FURTHER ORDERED that EchoStar shall not claim protection from
    interference from any other lawfully operated radio station with
    co-primary allocation status in the 5923.5 MHz and 6426.5 MHz
    frequencies.

26. IT IS FURTHER ORDERED that EchoStar's telemetry operations in the
    3698.5 MHz and 3699.5 MHz frequencies must comply with the terms and
    conditions set forth in footnotes US348, US349 and NG169 to the
    Table of Frequency Allocation

27. IT IS FURTHER ORDERED that the authorization granted in this Order
    is subject to the following conditions: (1) until the International
    Telecommunication Union (ITU) Region 2 Broadcasting Satellite
    Service (BSS) Plan and its associated Feeder Link Plan are modified
    to include the technical parameters of EchoStar 2 and its associated
    feeder links, this satellite system shall not cause greater
    interference than that which would occur from the current U.S.
    assignments in the Region 2 BSS Plan at 148° W.L. to other BSS or
    other services or satellite systems operating in accordance with the
    ITU Radio Regulations; and (2) no protection from interference
    caused by radio stations authorized by other administrations is
    guaranteed to EchoStar 2 unless and until Appendices 30 and 30A plan
    modification procedures are successfully and timely completed.

28. IT IS FURTHER ORDERED pursuant to Section 1.3 of the Commission's
    rules, 47 C.F.R. §1.3, that EchoStar is granted a waiver of Section
    25.148(c) of the Commission's rules regarding DBS geographic
    service, 47 C.F.R. §25.148(c), and Section 25.202(g) of the
    Commission's rules, 47 C.F.R. §25.202(g), conditioned as set forth
    in this Order above.

29. IT IS FURTHER ORDERED that the application for Special Temporary
    Authority filed by EchoStar Satellite Corporation on January 15,
    2003 (File No. SAT-STA-20030115-00002 is GRANTED. The applications
    filed January 23, 2002 (File No. SAT-STA-20020123-00014) and July
    16, 2002 (File No. SAT-STA-20020716-00115) are DISMISSED AS MOOT.

30. IT IS FURTHER ORDERED that the petition to deny filed by Pegasus is
    DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Thomas S. Tycz

Chief

Satellite Division

[^1]: EchoStar Application at 2.

[^2]: EchoStar Satellite Corporation, Application for Authority to Make
    Minor Modifications to Direct Broadcast Satellite Authorizations,
    Launch and Operation Authority, *Memorandum Opinion and Order*, 15
    FCC Rcd 23636, 23640 (para. 8) (Int\'l Bur., Sat. and Rad. Div.,
    2000).

[^3]: *See* EchoStar DBS Corporation Wins 24 DBS Channels at the 148
    Degree Orbit Location with a High Bid of \$52,295,999, FCC Press
    Release (Jan. 26, 1996). EchoStar Application at 4.

[^4]: EchoStar Application at 4.

[^5]: In May 2002, the International Bureau found that EchoStar had
    satisfied its due diligence obligations for an outstanding western
    DBS permit. This permit authorizes EchoStar to operate 11 western
    DBS channels. EchoStar Satellite Corporation, Memorandum Opinion and
    Order, 17 FCC Rcd 827 (Int'l Bur. 2001). EchoStar has indicated that
    the assignment of these channels could be satisfied with the eight
    channels at 148° W.L. and three channels at 157° W.L. *See* Letter
    to Marlene H. Dortch, Secretary, Federal Communications Commission,
    from David R. Goodfriend, Director, Legal and Business Affairs,
    EchoStar Satellite Corporation (Feb. 11, 2003).

[^6]: ^?^ 47 C.F.R. § 25.148(c). As discussed in Section III.C. *infra,*
    the geographic service rules previously found in Section 100.53 of
    the Commission's rules have been amended and moved to Section
    25.148(c) of the Commission's rules.

[^7]: On November 16, 2001, the Satellite and Radiocommunication
    Division granted a verbal STA to EchoStar, permitting it to begin to
    move EchoStar 2 from 119º W.L. to 148º W.L. On December 21, 2001,
    the Satellite and Radiocommunication Division granted EchoStar
    another verbal STA to operate EchoStar 2 using the eight
    even-numbered channels assigned to it at 148º W.L. for 30 days. On
    December 28, 2001, the Division granted EchoStar written special
    temporary authority confirming the two verbal grants and authorizing
    it to operate EchoStar 2 using the eight unassigned channels at 148
    W.L. for 30 days. Letter from Thomas Tycz, Chief, Satellite and
    Radiocommunication Divison, Federal Communications Commission, to
    David K. Moskowitz, Esq., EchoStar Satellite Corporation (December
    28, 2001) (*December 28 Letter)*.

[^8]: SHVIA was enacted as Title I of the Intellectual Property and
    Communications Omnibus Reform Act of 1999 ("IPACORA") (relating to
    copyright and licensing and carriage of broadcast signals by
    satellite carriers, codified in scattered sections of 17 and 47
    U.S.C.), P.L. 106-113, 113 Stat. 1501, Appendix 1 (1999).

[^9]: 47 C.F.R. § 76.66.

[^10]: During the pendency of this application, EchoStar has
    successfully launched and placed into service its EchoStar 7
    satellite at 119º W.L. and EchoStar 8 satellite at 110º W.L. On
    January 16, 2002, the Satellite and Radiocommunication Division
    authorized EchoStar to launch and operate its EchoStar 7 satellite,
    a new "spot beam" satellite, at the 119º W.L. orbit location.
    *EchoStar Satellite Corporation*, Order and Authorization, 17 FCC
    Rcd 894 (Int'l Bur., Sat. Div., 2000). EchoStar 7 was successfully
    launched on February 21, 2002. On June 20, 2002, we authorized
    EchoStar to launch and operate its EchoStar 8 satellite at the 110º
    W.L. orbit location. *EchoStar Satellite Corp.*, Order and
    Authorization, 17 FCC Rcd 11326 (Int'l. Bur., Sat. Div. 2002).
    EchoStar 8 was successfully launched on August 22, 2002.

[^11]: EchoStar Application at 7.

[^12]: *Id.* at 8.

[^13]: *Id.*

[^14]: EchoStar notes that the DBS frequencies at 148º W.L. will also be
    used to support backhaul capacity, which allows the transfer of
    programming streams between EchoStar's Gilbert, Arizona and
    Cheyenne, Wyoming uplink facilities.

[^15]: On December 28, 2001, the Satellite Division authorized EchoStar
    to operate EchoStar 2 using the eight unassigned channels at 148
    W.L. for a period of 30 days without prejudice to EchoStar's pending
    modification application. *December 28 Letter*.

[^16]: EchoStar Satellite Corporation, Application for Renewal of
    Special Temporary Authority to Operate a Direct Broadcast Satellite
    over the Even-Numbered Channels at the 148° W.L. Orbital Location,
    File No. SAT-STA-20020123-00014 (EchoStar January 23 STA Request);
    EchoStar Satellite Corporation, Application for Renewal of Special
    Temporary Authority to Operate a Direct Broadcast Satellite over the
    Even-Numbered Channels at the 148° W.L. Orbital Location, File No.
    SAT-STA-20020716-00115 (EchoStar July 16 STA Request); and EchoStar
    Satellite Corporation, Application for Renewal of Special Temporary
    Authority to Operate a Direct Broadcast Satellite over the
    Even-Numbered Channels at the 148° W.L. Orbital Location, File No.
    SAT-STA-20030115-00002 (EchoStar January 15 STA Request).

[^17]: December 28 Letter.

[^18]: Pegasus Development Corporation (Pegasus) filed an opposition to
    EchoStar's initial STA request. (cite) Pegasus claimed, *inter
    alia*, that grant of a STA would constitute a *de facto* license.
    Grant of the STA, however, was on a temporary, non-interference
    basis. Pegasus also asserted that a grant of additional spectrum to
    EchoStar would raise DBS spectrum concentration issues in a then
    pending merger between EchoStar and Hughes Electronices Corporation.
    The merger proceeding has been terminated. EchoStar Communications
    Corporation, General Motors Corporation and Hughes Electronics
    Corporation, *Order*, CS Docket No. 01-348, FCC 03-01 (rel. January
    13, 2003).

[^19]: EchoStar Satellite Corporation, Directsat Corporation, Echostar
    DBS Corporation, Memorandum *Opinion and Order*, 13 FCC Rcd 8595,
    8599 (para. 8) (1998) (\"EchoStar 1 Waiver Order\"). The Commission
    granted a waiver for EchoStar 1 to operate at 148° W.L. without
    serving Hawaii or Alaska based on EchoStar's provision of its
    "backbone" programming to subscribers in Hawaii and Alaska from the
    119° W.L. orbit location.

[^20]: 47 C.F.R. § 100.53(b) (2001).

[^21]: Policies and Rules for the Direct Broadcast Satellite Service,
    *Report and* Order, 17 FCC Rcd 11331 (2002) ("Part 100 Order").

[^22]: *Part 100 Order*, 17 FCC Rcd at 11358 (para. 54), *citing DBS
    Auctions Order,* 11 FCC Rcd at 9762 (para. 128).

[^23]: 47 C.F.R. § 25.148(c).

[^24]: *Part 100 Order*, 17 FCC Rcd at 11364 (para. 63).

[^25]: EchoStar Application at 10, *citing EchoStar 1Waiver Order*, 13
    FCC Rcd 8595.

[^26]: EchoStar notes that it currently offers its "America's Top 100"
    package in Hawaii for the same price it offers the package in the
    continental U.S. In Alaska, EchoStar notes that it offers its
    "America's Top 70 package." EchoStar Application at 10.

[^27]: The State of Hawaii's argument is based on the geographic service
    rules in effect prior to the *Part 100 Order*. Those rules were set
    forth in 47 C.F.R. § 100.53 (the geographic service rules only apply
    to "those acquiring DBS authorizations after January 19, 1996" and
    only where service to Alaska and Hawaii "is technically feasible
    from the acquired orbit location").

[^28]: State of Hawaii comments at 2.

[^29]: State of Hawaii comments at 2.

[^30]: State of Alaska comments at 3. The State of Alaska also requests
    that general policy issues related to the geographic service rules
    be resolved in the context of a rulemaking proceeding and not in the
    context of specific applications. The Commission addressed these
    issues in the *Part 100 Order*, 17 FCC Rcd at 11355-67 (paras.
    50-72).

[^31]: ^.^

[^32]: 47 C.F.R. § 1.3.

[^33]: ^.^

[^34]: Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1166 (D.C. Cir.
    1990).

[^35]: ^.^

[^36]: *WAIT Radio v. FCC*, 418 F.2d 1153 (D.C. Cir. 1969); *Dominion
    Video Satellite, Inc.*, Order and Authorization, 14 FCC Rcd 8182
    (Int'l Bur. 1999).

[^37]: *EchoStar 1 Waiver Order*, 13 FCC Rcd at 8598-99 (paras. 6-8).

[^38]: *Id.* at 8598 (paras. 6-7).

[^39]: *Id.* at 8599 (para. 8).

[^40]: *DirectSat Corporation*, Order, 11 FCC Rcd 22375 (Int'l Bur. and
    OET, 1996).

[^41]: *Amendment of the Commission's Rules With Regard to the 3650-3700
    MHz Government Transfer Band*, First Report and Order and Second
    Notice of Proposed Rulemaking, ET Docket No. 98-237, 15 FCC Rcd
    20488, 20502 (2000)(*Extended C-band Order*).

[^42]: At the time EchoStar was granted authority to conduct its TT&C
    operations in the 3698.5 MHz and 3699.5 MHz frequencies, the bands
    were shared on a co-primary basis with government radars. These
    bands have since been reallocated and are now subject to footnotes
    US348, US349, and NG169 to the Table of Frequency Allocations.
    Footnote US348 states that the band 3650-3700 MHz is also allocated
    to the Government radiolocation service on a primary basis at the
    following sites: St. Inigoes, MD (38° 10\' N, 76° 23\' W);
    Pascagoula, MS (30° 22\' N, 88° 29\' W); and Pensacola, FL (30° 21\'
    28\'\' N, 87° 16\' 26\'\' W). All fixed and fixed satellite
    operations within 80 kilometers of these sites shall be coordinated
    through the Frequency Assignment Subcommittee of the
    Interdepartmental Radio Advisory Committee on a case-by-case basis.
    Footnote US349 states that the 3650-3700 MHz frequency band is also
    allocated to the Government radiolocation service on a
    non-interference basis for use by ship stations located at least 44
    nautical miles in off-shore ocean areas on the condition that
    harmful interference is not caused to non-Government operations.
    Footnote NG169 provides that after December 1, 2000, operations on a
    primary basis by the fixed-satellite service (space-to-Earth) in the
    band 3650-3700 MHz shall be limited to grandfathered earth stations.
    All other fixed-satellite service earth station operations in the
    band 3650-3700 MHz shall be on a secondary basis. Grandfathered
    earth stations are those authorized prior to December 1, 2000, or
    granted as a result of an application filed prior to December 1,
    2000, and constructed within 12 months of initial authorization.
    License applications for primary operations for new earth stations,
    major amendments to pending earth station applications, or
    applications for major modifications to earth station facilities
    filed on or after December 18, 1998, and prior to December 1, 2000,
    shall not be accepted unless the proposed facilities are in the
    vicinity (*i.e.*, within 10 miles) of an authorized primary earth
    station operating in the band 3650-3700 MHz. License applications
    for primary operations by new earth stations, major amendments to
    pending earth station applications, and applications for major
    modifications to earth station facilities, filed after December 1,
    2000, shall not be accepted, except for changes in polarization,
    antenna orientation or ownership of a grandfathered earth station.

[^43]: *See Extended C-band Order,* 15 FCC Rcd at 20505 (para. 38).