**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No.                     |
|                                  | *) | SAT-MOD-20040514-00092;      |
| NETSAT 28 COMPANY, L.L.C.        | ** | SAT-MOD-20030829-00290;      |
|                                  |    | SAT-LOA-19950929-00150       |
| Application for Modification of  | *  |                              |
| Ka-Band                          | *) | Call Sign S2204              |
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| Space Station Authorization      |    |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted:** September 7, 2004 **Released:** September 9, 2004

By the Chief, International Bureau:

# introduction

1.  By this Order, we deny the application of NetSat 28 Company, L.L.C.
    (NetSat 28) to extend or waive its construction completion and
    launch milestones for its satellite system in the Ka-band.[^1]
    NetSat 28 has not met the milestone conditions of its authorization
    and has not justified an extension or waiver of these milestones.
    NetSat 28's failure to comply with the milestone conditions of its
    license renders its authorization null and void according to the
    terms of its license and the Commission's rules. Accordingly, the
    95° W.L. orbit location and associated Ka-band frequencies that had
    been assigned to NetSat 28 are available for reassignment.

# background

## Initial Authorization

2.  In May 1997, the International Bureau (Bureau) authorized NetSat 28
    to construct, launch, and operate a single geostationary-satellite
    orbit (GSO) satellite at the 95° W.L. orbit location to provide
    fixed-satellite service (FSS) in the United States in the 19.7-20.2
    GHz (downlink) and 28.35-28.6 GHz and 29.25-30.0 GHz (uplink)
    frequency bands.[^2] This authorization was granted as part of the
    first "processing round" of Ka-band systems, in which the Bureau
    authorized a total of thirteen Ka-band systems, including NetSat
    28's system.[^3] NetSat 28's authorization is conditioned on NetSat
    28 meeting the following explicit construction and launch
    commitments, or \"milestones\":

    [Construction Commenced]{.underline} [Construction
    Completed]{.underline} [Launch]{.underline}

    May 1998 April 2002 May 2002

    As clearly stated in the license and the Commission's rules, NetSat
    28's authorization automatically becomes null and void if these
    milestone requirements are not met, unless an extension is granted
    by the Commission.[^4]

## Transfer of Control / Cancellation of License

3.  In July 1999, NetSat 28 filed an application seeking authority to
    transfer control of its Ka-band license to EMS Technologies, Inc.
    (EMS).[^5] As part of its review of NetSat 28's transfer of control
    application, the Bureau requested that NetSat 28 provide a copy of
    its satellite construction contract in order to determine whether
    NetSat 28 had met its May 1998 construction commencement milestone
    by executing a non-contingent construction contract.[^6] In response
    to the Bureau's request, NetSat 28 supplied a contract that took
    effect on December 17, 1999 -- approximately eighteen months after
    the expiration of NetSat 28's construction commencement milestone.
    NetSat 28 had not requested an extension of its construction
    commencement milestone, and the record at that time did not provide
    any basis for extending or waiving that milestone. In June 2000, the
    Bureau determined that NetSat 28 had not met the milestone condition
    of its authorization and declared NetSat 28's Ka-band authorization
    null and void.[^7] The Bureau also dismissed NetSat 28's transfer of
    control application as moot.[^8]

## Reinstatement / Grant of Transfer

4.  In July 2000, NetSat 28 sought review of the Bureau's *Revocation
    Order*[^9] and also filed a petition for emergency stay of that
    order.[^10] While these matters were pending, NetSat 28 petitioned
    for waiver of the construction commencement milestone and for an
    extension of its other remaining milestones.[^11] NetSat 28 asserted
    that it had provided \"good cause\" for a waiver of the construction
    commencement milestone within the meaning of the Commission\'s
    rules.[^12]

5.  On May 25, 2001, the Bureau granted NetSat 28's request for waiver
    of the construction commencement milestone and reinstated NetSat
    28's Ka-band authorization.[^13] The Bureau found that there were
    special circumstances that constituted good cause to support both
    the grant of NetSat 28's construction commencement milestone waiver
    request and the reinstatement of NetSat 28's Ka-band
    authorization.[^14] The Bureau further dismissed NetSat 28's pending
    stay request as moot[^15] and determined that the transfer of
    control application filed by NetSat 28 could be considered in a
    separate decision.[^16] The Bureau also extended NetSat 28's
    remaining construction milestones and conditioned reinstatement of
    NetSat 28's authorization on NetSat 28 meeting the following
    milestones:[^17]

[Complete Construction]{.underline} [Launch]{.underline}

August 2003 September 2003

6.  Following the reinstatement of NetSat 28's authorization and
    extension of NetSat 28's milestone requirements, the Bureau
    separately considered NetSat 28's application to transfer control of
    its Ka-band authorization to EMS. On July 26, 2001, the Bureau
    approved the transfer of control of NetSat 28's Ka-band
    authorization to EMS.[^18]

## Application for Modification

7.  On August 29, 2003, NetSat 28 applied for a modification of its
    Ka-band space station authorization to add a second satellite to its
    existing 95° W.L. orbital location.[^19] As part of this
    modification application, NetSat 28 also sought to extend the
    construction completion and launch milestones of its existing
    Ka-band authorization at 95° W.L. until June 2005 and July 2006,
    respectively.[^20] The Bureau determined that the portion of the
    application to add a second satellite failed to provide the
    technical showing required under the Commission's rules and
    dismissed that portion of the application as defective.[^21] The
    Bureau found, however, that NetSat 28's milestone extension request
    could be addressed separately from the other aspects of the
    modification application, and placed the extension request on public
    notice.[^22] No comments were filed in response to the public
    notice.

# discussion

8.  It is longstanding Commission policy to impose milestones for
    satellite system implementation upon licensees.[^23] Milestone
    schedules are designed to ensure that licensees are proceeding with
    construction and will launch their satellites in a timely manner,
    and that the orbit spectrum resource is not being held by licensees
    unable or unwilling to proceed with their plans.[^24] Milestones
    ensure speedy delivery of service to the public and prevent
    warehousing of valuable orbit locations and spectrum, by requiring
    licensees to begin operation within a certain time.[^25] Warehousing
    could hinder the availability of services to the public at the
    earliest possible date by blocking entry by other entities willing
    and able to proceed immediately with the construction and launch of
    their satellite systems.[^26] Moreover, warehousing undercuts
    decisions by the Commission to allocate scarce spectrum resources to
    satellite services over other competing services.

## Request to Extend Milestones

9.  ![](media/image1.wmf){width="6.944444444444445e-4in"
    height="6.944444444444445e-4in"} NetSat 28 seeks to extend the
    construction milestones upon which its authorization is conditioned.
    The standard that licensees must meet to justify a milestone
    extension request is well-established. Generally, we grant milestone
    extensions to FSS licensees only when the delay in implementation is
    due to extraordinary circumstances beyond the control of the
    licensee,[^27] or when there are unique and overriding public
    interest concerns that justify an extension.[^28] NetSat 28 advances
    four reasons to justify its request for an extension of its
    construction completion and launch milestones. For the reasons
    discussed below, we find that none of NetSat 28's proposed reasons
    justifies an extension of NetSat 28's milestones.

### Modification of Satellite System

10. First, NetSat 28 asserts that an extension of its existing
    milestones is required to complete and implement technical changes
    to its system that are necessitated by NetSat 28's decision to add a
    second satellite to its system.[^29] The Commission has repeatedly
    held, however, that a decision to modify an authorization does not
    justify extension of a licensee's milestones.[^30] Decisions to
    incorporate additional technological capabilities into a satellite
    are business decisions within the control of the licensee, and
    therefore cannot justify a milestone extension.[^31] Extending
    milestones on this basis would allow licensees to extend
    indefinitely their nonperformance by repeated modification of their
    proposals, which could in turn facilitate warehousing of scarce
    orbital resources or, at a minimum, delay service to the
    public.[^32] Thus, NetSat 28's decision to modify its space station
    authorization to add a second satellite does not justify an
    extension of its existing milestones.

### Prior Revocation of Authorization

11. NetSat 28 also argues that the cancellation and reinstatement of its
    license by the Bureau, and the resulting delay in the grant of its
    application to transfer control of its license to a new investor,
    justifies a further extension of its existing milestones.[^33]
    NetSat 28 asserts that, prior to the revocation of its
    authorization, it was prepared to proceed with the construction of
    its satellite and that sufficient financial resources had been
    committed to begin actual construction of the satellite.[^34] NetSat
    28 claims that the revocation of its authorization resulted in its
    financing being put on hold and in the diversion of its management's
    efforts away from fundraising and program management to seeking
    reinstatement of its authorization.[^35] NetSat 28 claims that this
    set of circumstances was highly unusual and was beyond NetSat 28's
    ability to control.[^36]

12. NetSat 28's argument is without merit. When the Bureau reinstated
    NetSat 28's authorization in May 2001, it also extended NetSat 28's
    construction completion and launch milestones by 16 months in order
    to account for the approximately ten months that had passed since
    the Bureau cancelled NetSat 28's license, plus an additional two
    months to reassemble NetSat 28's construction team and an additional
    four months to account for the time that had passed since NetSat 28
    filed its petition to reinstate its authorization.[^37] This
    16-month extension was greater than the12-month extension NetSat 28
    itself stated was necessary to remedy the cancellation of its
    authorization.[^38] Thus, any delay or setback in the construction
    of its satellite that NetSat 28 might encounter as a result of the
    revocation of its authorization was addressed in the Bureau's
    *Waiver & Reinstatement Order.* NetSat 28 has provided no new
    information that would justify, once again, using the Bureau's 2000
    revocation and 2001 reinstatement actions as a basis for extending
    NetSat 28's August 2003 construction and September 2003 launch
    milestones.[^39]

### Unfavorable Market Conditions

13. NetSat 28 also argues that it was prevented from meeting its
    milestone conditions by the unfavorable market conditions that
    existed after the reinstatement of its authorization in 2001.[^40]
    NetSat 28 claims that these unfavorable market conditions resulted
    in its inability to raise the financing necessary to proceed with
    construction of its system, and that these conditions constitute an
    unforeseen circumstance that justifies an extension of its
    milestones.[^41]

14. It is a long-standing principle in Commission cases that a failure
    to attract investors or an unfavorable business climate does not
    warrant an extension of a licensee's milestones.[^42] As the Bureau
    has previously reminded NetSat 28, financing usually involves
    business decisions wholly within the control of the licensee, and
    the Commission does not grant waivers or extensions of milestones
    based on licensees' business decisions.[^43] Accordingly, the state
    of the financial markets after the reinstatement of NetSat 28's
    license does not justify an extension of NetSat 28's milestone
    obligations.

### Public Interest Considerations

15. NetSat 28 argues that public interest considerations justify an
    extension of its construction milestones, even if there are no
    circumstances beyond its control justifying an extension.
    Specifically, NetSat 28 claims that an extension will allow it to
    provide a "unique" package of broadband and multichannel video
    services to the public, including those residing in rural areas, and
    will permit NetSat 28 to provide new competition in the multichannel
    video and broadband markets. [^44]

16. Although we recognize that promoting broadband service to rural
    communities is a very important policy goal,[^45] we disagree with
    NetSat 28 that it justifies a waiver of a milestone condition. A
    licensee cannot justify a milestone extension by merely asserting
    that its proposed service is more beneficial than services that
    might be provided by another satellite operator.[^46] Choosing to
    provide a particular service is clearly within the licensee's
    control and cannot be used as a basis for a milestone
    extension.[^47] Furthermore, denial of NetSat 28's extension request
    will not harm competition in the multichannel video and broadband
    markets, since NetSat 28's spectrum and orbital resources will
    become available for reassignment to a qualified satellite license
    applicant that is willing and able to proceed immediately with the
    implementation of its system. As the Bureau has previously found,
    new entrants and the innovative services that they might provide are
    of little public value if the proposed satellite services are not
    predictably and promptly made available.[^48] In addition, if we
    were to accept NetSat 28's argument that a prospective increase in
    competition justifies an extension of a licensee's milestones, the
    result would vitiate our milestone policy entirely since every
    authorized system has the potential to increase competition in some
    market.

17. We also find that NetSat 28 misplaces it reliance on our decision in
    the 2000 *R/L DBS Order* to extend the milestones of a
    direct-broadcast satellite (DBS) licensee, R/L DBS Company LLC (R/L
    DBS).[^49] NetSat 28 argues that, like R/L DBS, it seeks to
    incorporate new technology into its system design. Nothing in the
    *R/L DBS Order*, however, stands for the proposition that
    incorporation of new technology alone justifies an extension of
    construction milestones. Indeed, such a proposition has already been
    clearly rejected by the Commission.[^50]

18. Moreover, in the *R/L DBS Order*, the Bureau applied the "totality
    of the circumstances" standard used for determining whether DBS
    permittees have proceeded with due diligence in constructing their
    systems. The "totality of the circumstances" standard is used
    exclusively for DBS permittees and is not applicable to FSS
    licensees, such as NetSat 28.[^51] Thus, while the incorporation of
    new technology may be a factor in whether to extend the milestones
    of a DBS permittee under the totality of the circumstances standard,
    it does not justify an extension of the strict milestone
    requirements upon which FSS authorizations are conditioned.

19. Even if the totality of the circumstances standard were applicable
    to NetSat 28's license, an extension of NetSat 28's license would
    still not be warranted in this case. In the *R/L DBS Order*, the
    Bureau observed that R/L DBS' construction permit allowed operations
    on only a limited number of channels at an orbital position that can
    serve only half of the contiguous United States.[^52] It found that
    R/L DBS' incorporation of new technology would allow it to overcome
    these spectral and geographic limitations and implement a viable
    service to the public, which it might otherwise be unable to
    do.[^53] By contrast, NetSat 28 is not seeking to implement new
    technology to overcome any geographic or spectral limitations
    imposed by its license; rather, it seeks to implement technological
    changes in support of a change in its business plan. Thus, NetSat
    28's position is not analogous to that of R/L DBS, and no extension
    of its milestones is justified.

## Request to Waive Milestones

20. As an alternative to its milestone extension request, NetSat 28
    urges us to waive the rules in this instance to allow NetSat 28
    additional time to complete its system.[^54] Section 1.3 of the
    Commission's rules authorizes the Commission to waive its rules for
    "good cause shown."[^55] Waiver is appropriate only 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.[^56] Circumstances justifying waiver
    include conditions of hardship, equity, or a more effective
    implementation of overall policy.[^57] Generally, the Commission may
    grant a waiver of its rules in a particular case only if the relief
    requested would not undermine the policy objective of the rule in
    question and would otherwise serve the public interest.[^58] NetSat
    28 bases its waiver request on four grounds, none of which justifies
    a waiver of the Commission's rules.

### Mobile Media Proceeding

21. First, NetSat 28 argues that a waiver of its milestones is warranted
    because of events arising from the Commission's 1997 investigation
    of MobileMedia Corporation and several of its subsidiaries
    (MobileMedia) for allegedly misrepresenting facts in several
    applications for Commission licenses, which raised a question as to
    MobileMedia's qualifications to be a Commission licensee.[^59]
    Because one of MobileMedia's principles was the owner of a company
    with ownership interests in NetSat 28, the Bureau reconsidered the
    authorization of NetSat 28 on its own motion and conditioned the
    NetSat 28 authorization on the outcome of the investigation in the
    MobileMedia proceeding.[^60] The Commission later clarified that the
    allegations of lack of candor should have been limited to only four
    MobileMedia officers, none of which were the holder of NetSat 28
    interests identified in the reconsideration of NetSat 28's
    authorization.[^61] The Bureau terminated the condition on NetSat
    28's authorization in April 1998.[^62] NetSat 28 claims that the
    MobileMedia investigation started a cascade of events, which
    resulted in the cloud on its authorization, the ensuing revocation
    of its license, and eventual reinstatement of its authorization in a
    new, unfavorable financial climate.[^63] It asserts that these
    events have severely hampered its program and constitute unique
    circumstances that have not been faced by any other licensee.[^64]

22. As discussed above, the Bureau has already granted NetSat 28 one
    waiver of its milestones based on the difficulties faced by NetSat
    28 as a result of the MobileMedia investigation.[^65] Given the
    passage of time and the action the Bureau already took to remedy any
    hardship from the MobileMedia investigation, we find that NetSat 28
    cannot rely yet again on the MobileMedia investigation for another
    waiver of its milestone obligations.

### Parity with Other Ka-band Licensees

23. NetSat 28 also claims that a waiver of its milestones is warranted
    in order to achieve parity with other Ka-band licensees.[^66] NetSat
    28 argues that some Ka-band first round licensees received launch
    milestones of 2005 because their initial proposals involved the use
    of inter-satellite links (ISLs).[^67] It observes that all these
    licensees have since abandoned plans to implement ISLs, and NetSat
    28 is the only one with a 2003 launch milestone.[^68] As a result,
    NetSat 28 argues that equity requires that NetSat 28 be provided the
    same milestones as other first-round Ka-band licensees.[^69]

24. We disagree that NetSat 28's position is inequitable compared to
    other first-round Ka-band licensees. Some of the Ka-band first round
    applicants proposed initially to operate ISLs among multiple
    satellites in a constellation.[^70] The Bureau, however, deferred
    assigning ISL frequencies at that time because there was no suitable
    spectrum allocated for ISL operations.[^71] Consequently, the Bureau
    issued licenses without construction milestones to those Ka-band
    first round applicants requesting ISLs due to the fact that the
    licensees would not be able to proceed beyond the initial phases of
    construction until the ISL issues were resolved.[^72] Although the
    Bureau did not impose specific milestones at the time of
    authorization, it stated that it would hold the licensees to a
    strict milestone schedule once its ISL frequencies were
    authorized.[^73] The Bureau assigned ISL frequencies in 2001 and
    imposed implementation milestones at that time.[^74]

25. The position of those licensees who were given until 2005 to
    complete construction of their systems is fundamentally different
    from that of NetSat 28. In the former instance, the Bureau deferred
    imposing milestones pending proceedings to allocate ISL frequencies.
    This delay prevented the licensees from immediately proceeding with
    construction of their systems and justified the later milestone
    deadlines. By contrast, NetSat 28 did not request ISLs as part of
    its system design and received all the authority it requested
    in 1997. This fact resulted in earlier milestones for NetSat 28 than
    for licensees requesting ISL frequencies to complete their systems.
    In both instances, however, once the licensees received all the
    authority necessary to build their systems, they received the same
    amount of time to construct their systems. Thus, there is no
    inequality in the milestone conditions of NetSat 28's authorization
    and those of Ka-band first-round licensees who requested the use of
    ISL frequencies.

### No Intent to Warehouse Spectrum

26. NetSat 28 asserts that it is working diligently towards completion
    of its system, and that this fact justifies a waiver of its
    construction milestones.[^75] NetSat 28 states that the public
    policy objective of the Commission's milestone policy would not be
    undermined, because it is not warehousing spectrum or orbital
    resources. In support of this contention, NetSat 28 states that it
    has successfully raised capital, enlisted investors, built strategic
    relationships, refined its business plan, and redesigned its
    satellite system.[^76]

27. Entirely absent from NetSat 28's modification application is any
    evidence of actual physical construction of a satellite during the
    seven years since NetSat 28's authorization was first granted and
    almost three years since the authorization was reinstated and its
    transfer of control application was granted. As the Commission has
    previously held, preliminary efforts involving design, engineering,
    and business development are not substitutes for the construction
    and implementation of a satellite system.[^77] NetSat 28 claims that
    its failure to implement its system is due to its inability to
    proceed because of the unfavorable state of the economy that existed
    when its authorization was reinstated. It is, however, precisely
    this type of inability, or unwillingness, to proceed that our
    milestone requirements are intended to address.[^78] Because our
    milestone requirements are designed to ensure that scarce spectrum
    resources are not held by licensees unable or unwilling to proceed
    with their plans,[^79] waiver of the NetSat 28's milestone
    conditions would undermine the policy objective of the Commission's
    milestone requirements and is thus inappropriate in this case.

### Public Policy Objectives

28. Finally, NetSat 28 argues that grant of its waiver request will
    further the public policy objective of the Commission of promoting
    the introduction of new competitive multichannel video and broadband
    services. For reasons discussed previously,[^80] the possibility of
    new competition in the multichannel video and broadband markets does
    not outweigh the public interest benefit in ensuring that licensees
    are building their systems in a timely manner and that the
    orbit-spectrum is not being held by licensees unable or unwilling to
    proceed with their plans. Thus, we conclude that waiver of NetSat
    28's milestones would undermine the policy objective of our
    milestone requirements and must therefore be denied.

# CONCLUSION

29. Based on the foregoing, we conclude that NetSat 28 has failed to
    meet its satellite construction and launch milestones as required by
    its authorization, and that neither an extension of time nor a
    waiver of the Commission's rules is justified in this instance.
    Accordingly, we find that NetSat 28's failure to meet these
    milestones renders its authorization null and void, and that the 95°
    W.L. orbit location and associated Ka-band frequencies that had been
    assigned to NetSat 28 are available for reassignment.[^81]

# ordering clauses

30. Accordingly, IT IS ORDERED that the request of NetSat 28 Company,
    L.L.C. to extend or waive its construction completion and launch
    milestones contained in its Application for Modification of Ka-band
    Space Station Authorization, File No. SAT-MOD-20030829-00290, is
    DENIED.

31. IT IS FURTHER ORDERED that the authorization held by NetSat 28
    Company, L.L.C. to launch and operate a geostationary-satellite
    orbit fixed-satellite service system in the Ka-band at the 95° W.L.
    orbital location, File No. SAT-LOA-19950929-00150 (Call Sign:
    S2204), is DECLARED NULL and VOID.

32. IT IS FURTHER ORDERED that the request of NetSat 28 Company, L.L.C.
    to modify its authorization to launch and operate a
    geostationary-satellite orbit fixed-satellite service system in the
    Ka-band at the 95° W.L. orbital location, File No.
    SAT-MOD-20040514-00092, is DISMISSED as moot.

33. IT IS FURTHER ORDERED that the orbital assignment at 95º W.L. and
    the frequencies at 19.7-20.2 GHz (downlink) and 28.35-28.6 GHz and
    29.25-30.0 GHz (uplink) granted to NetSat 28 Company, L.L.C. in 13
    FCC Rcd 1392 (Int'l Bur. 1997) are available for reassignment as of
    11:00 am EST on the date this Order is released.

34. This Order is issued pursuant to Section 0.261 of the Commission's
    rules on delegated authority, 47 C.F.R. § 0.261, and is effective
    upon release.

FEDERAL COMMUNICATIONS COMMISSION

Donald Abelson

Chief

International Bureau

[^1]: NetSat 28 Company, L.L.C., Application for Modification of Ka-band
    Space Station Authorization, File No. SAT-MOD-20030829-00290 (filed
    Aug. 29, 2003) (August 29 Modification Application). The term
    "Ka-band" generally refers 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. NetSat 28 was authorized to
    operate in a portion of these frequencies, as indicated herein.

[^2]: NetSat 28 Company, L.L.C.*,* *Order and Authorization*, 13 FCC Rcd
    1392 (Int'l Bur. 1997) (*Authorization Order*).

[^3]: *See* Assignment of Orbital Locations to Space Stations in the
    Ka-band, *Order*, 11 FCC Rcd 13737 (Int'l Bur. 1996).

[^4]: *Authorization Order*, 13 FCC Rcd at 1403 (para. 31); 47 C.F.R. §
    25.145(f).

[^5]: NetSat 28 Transfer of Control Application, File No.
    SAT-T/C-19990727-00080 (filed June 27, 1999) (Transfer Application).
    The Transfer Application was subsequently amended on October 7, 1999
    (October 7 Amendment). The October 7 Amendment was placed on notice
    for comment by the public. *See* Satellite Policy Branch
    Information, Public Notice, SAT-00030 (rel. Dec. 23, 1999).

[^6]: Letter from Thomas S. Tycz, Chief, Satellite and
    Radiocommunication Division, FCC, to Albert Shuldiner, Esq., Vinson
    & Elkins, L.L.P., Counsel for NetSat 28, dated Dec. 9, 1999 (File
    No. SAT-T/C-19990727-00080).

[^7]: NetSat 28 Company, L.L.C., *Memorandum Opinion and Order*, 15 FCC
    Rcd 11321, 11323 (para. 7) (Int'l Bur. 2000) (*Cancellation Order*).
    As a result, the Bureau stated that the orbital assignment granted
    to NetSat 28 was available for reassignment. *See id.* at 11324
    (para. 12).

[^8]: *Id.* at 11323 (para. 9).

[^9]: NetSat 28 Company, L.L.C., Application for Review, File Nos.
    SAT-LOA-19950429-00150 and SAT-T/C-19990727-0080 (filed July 26,
    2000).

[^10]: NetSat 28 Company, L.L.C., Emergency Motion for Stay, File Nos.
    SAT-LOA-19950429-00150 and SAT-T/C-19990727-0080 (filed Aug. 22,
    2000).

[^11]: NetSat 28 Company, L.L.C., Petition for Waiver, File No.
    SAT-LOA-19950429-00150 (filed December 15, 2000) (Waiver Petition).

[^12]: *See* *id.* at 2 (citing 47 C.F.R. § 1.3).

[^13]: NetSat 28 Company, L.L.C., *Memorandum Opinion and Order*, 16 FCC
    Rcd 11025 (Int'l Bur. 2001) (*Waiver & Reinstatement Order)*.

[^14]: As discussed below in paragraph 21, the Commission found that
    NetSat 28 faced difficulty in raising financing as a direct result
    of a Commission Order that the Commission later determined was
    overbroad. Because NetSat 28 faced hardship as a consequence of a
    Commission action, the Bureau found that equity considerations
    weighed in favor of granting NetSat 28 a waiver of its construction
    commencement milestone and reinstatement of its authorization. *See
    Waiver & Reinstatement Order*, 16 FCC Rcd at 11028-29 (para. 9).

[^15]: *Id.* at 11032 (para. 23).

[^16]: *Id.* at 11032 (para. 24).

[^17]: *Id.* at 11033 (para. 29).

[^18]: NetSat 28 Company, L.L.C.*, Memorandum Opinion and Order*, 16 FCC
    Rcd 14471 (Int'l Bur. 2001) (*Transfer of Control Order)*. For the
    sake of consistency, however, we will refer to the licensee as
    "NetSat 28" throughout this Order.

[^19]: *See* August 29 Modification Application.

[^20]: *See id.* at 45-57.

[^21]: Letter from Thomas S. Tycz, Chief, Satellite Division, FCC, to
    Robert A. Mazer, Counsel for NetSat 28 Company, L.L.C., DA 03-4043,
    dated Dec. 19, 2003 (File No. SAT-MOD-20030829-00290). On May 14,
    2004, NetSat 28 re-filed its modification application to provide the
    technical showing that the Bureau found lacking in its previous
    modification request. *See* NetSat 28 Company, L.L.C., Application
    for Modification of Ka-band Space Station Authorization, File No.
    SAT-MOD-2003040514-00092 (filed May 14, 2004) (May 14 Modification
    Application). Given that NetSat 28 has failed to meet the milestone
    conditions upon which its authorization was conditioned, and in
    light of the failure of NetSat 28 to justify either an extension or
    waiver of the milestone conditions of its authorization, we find
    that NetSat 28's authority to operate a Ka-band system at 95° W.L.
    is null and void. Accordingly, there is no authorization to modify,
    and we dismiss NetSat 28's May 14 Modification Application as moot.

[^22]: Satellite Policy Branch Information, *Public Notice*, Report No.
    SAT-00182 (rel. Dec. 23, 2003).

[^23]: *See, e.g.*, Inquiry into the Development of Regulatory Policy in
    Regard to Direct Broadcast Satellites, *Report and Order*, 90
    F.C.C.2d 676, 719 (para. 114) (1982) (adopting rule requiring DBS
    licensees to \"begin construction or complete contracting for
    construction\" of satellites within one year after receiving
    construction permits), and MCI Communications Corp., *Memorandum
    Opinion and Order*, 2 FCC Rcd 233, 233 (para. 5) (Com. Car. Bur.
    1987) (*MCI Order*) (noting that a milestone schedule is included in
    each domestic space station authorization issued by the Commission).
    *See also* Norris Satellite Communications, Inc., *Memorandum
    Opinion and Order*, 12 FCC Rcd 22299 (1997) (*Norris Review Order*);
    Morning Star Satellite Company, L.L.C., *Memorandum Opinion and
    Order*, 15 FCC Rcd 11350 (Int'l Bur. 2000), *aff'd*, 16 FCC Rcd
    11550 (2001) (*Morning Star Reconsideration Order*).

[^24]: *See, e.g.*, Advanced Communications Corporation, *Memorandum
    Opinion and Order*, 10 FCC Rcd 13337, 13338 (para. 4) (Int'l Bur.
    1995) (*Advanced Order*), *aff'd*, 11 FCC Rcd 3399 (1995) (*Advanced
    Review Order*), *aff'd*, *Advanced Communications Corporation v.
    FCC*, 84 F.3d 1452 (D.C. Cir. 1996) (unpublished order available at
    1996 WL 250460); National Exchange Satellite, Inc., *Memorandum
    Opinion and Order*, 7 FCC Rcd 1990 (Com. Car. Bur. 1992) (*Nexsat
    Order*); AMSC Subsidiary Corp., *Memorandum Opinion and Order*, 8
    FCC Rcd 4040, 4042 (para. 13) (1993) (*AMSC Order*); Motorola, Inc.
    and Teledesic LLC, *Memorandum Opinion and Order*, 17 FCC Rcd 16543
    (Int'l Bur. 2002) (*Motorola/Teledesic Order*).

[^25]: *See* The Establishment of Policies and Service Rules for the
    Mobile Satellite Service in the 2 GHz Band, *Report and Order*, IB
    Docket No. 99-81, 15 FCC Rcd 16127, 16177 (para. 106) (2000). *See
    also* Columbia Communications Corporation, *Memorandum Opinion and
    Order*, 15 FCC Rcd 15566, 15571 (para. 11) (Int'l Bur. 2000) (*First
    Columbia Milestone Order*).

[^26]: Amendment of the Commission\'s Space Station Licensing Rules and
    Policies, *First Report and Order*, IB Docket No. 02-34, 18 FCC Rcd
    10760, 10827 (para. 173) (2003) (*First Space Station Reform
    Order*), *citing PanAmSat Ka-Band License Revocation Review Order*,
    16 FCC Rcd at 11537-38 (para. 12), *citing Nexsat Order*, 7 FCC Rcd
    at 1991 (para. 8); *MCI Order*, 2 FCC Rcd at 233 (para. 5); *First
    Columbia Milestone Order*, 15 FCC Rcd at 15571 (para. 11).

[^27]: 47 C.F.R. § 25.117(c)(1). *See also* INTELSAT LLC, *Order and
    Authorization*, 17 FCC Rcd 2391, 2392 (para. 5) (Int'l Bur. 2002);
    Columbia Communications Corporation, *Memorandum Opinion and Order*,
    15 FCC Rcd 16496, 16497 (para. 5) (Int'l Bur. 2000) (*Second
    Columbia Milestone Order*); *Nexsat Order*, 7 FCC Rcd at 1991 (para.
    8); Hughes R and Galaxy A-R Domestic Fixed-Satellites, *Order and
    Authorization*, 5 FCC Rcd 3423, 3424 (para. 11) (Com. Car. Bur.
    1990); *MCI Order*, 2 FCC Rcd at 233 (para. 5).

[^28]: 47 C.F.R. § 25.117(c)(2).

[^29]: *See* August 29 Modification Application at 45, 50. As stated in
    Section II above, the Satellite Division has dismissed NetSat 28's
    application to add a second satellite as defective. *See* Letter
    from Thomas S. Tycz, Chief, Satellite Division, to Robert A. Mazer,
    Counsel to NetSat, File No. SAT-MOD-20030829-00290 (dated December
    19, 2003). Although NetSat 28 has subsequently refiled its
    application to add a second satellite, this fact does not change the
    reasoning in our decision today.

[^30]: *See, e.g.,* PanAmSat Licensee Corp., *Memorandum Opinion and
    Order*, 16 FCC Rcd 11534, 11538 (para. 13) (2001) (*PanAmSat
    Order*), citing American Telephone and Telegraph Company,
    *Memorandum Opinion and Order*, 2 FCC Rcd 4431, 4435 (paras. 30-31)
    (1987) (*AT&T Order*) and *Advanced Review Order*, 11 FCC Rcd at
    3412 (paras. 30-32).

[^31]: *See PanAmSat Order*, 16 FCC Rcd at 11543 (para. 25); *AT&T
    Order*, 2 FCC Rcd at 4435 (paras. 30-31); *EarthWatch Inc.*, Order
    and Authorization, 15 FCC Rcd 18725, 18728 (para. 9) (Sat. and
    Radiocomm. Div. 2000) (*EarthWatch Order)*.

[^32]: *See PanAmSat Order*, 16 FCC Rcd at 11543 (para. 25). *See also
    Advanced* *Order*, 10 FCC Rcd at 13341 (para. 14); Tempo
    Enterprises, Inc., *Memorandum Opinion and Order*, 1 FCC Rcd 20
    (1986) (*Tempo Order*); *First Columbia Milestone Order,* 15 FCC Rcd
    at 15571-72 (para. 12).

[^33]: August 29 Modification Application at 45-46.

[^34]: *Id.* at 47.

[^35]: August 29 Modification Application at 47.

[^36]: August 29 Modification Application at 48.

[^37]: *Waiver & Reinstatement Order*, 16 FCC Rcd at 11032 (para. 22).

[^38]: *See* Waiver Petition at 6 (requesting a 12-month extension of
    its construction completion and launch milestones to make up for
    delays in system development and to reassemble construction teams).

[^39]: NetSat 28's argument that its milestones should have been
    extended further to account for the delay between reinstating its
    authorization and granting its transfer of control application is
    likewise without merit. *See* August 29 Modification Application at
    54 n.26. We observe that only two months passed between the
    reinstatement of NetSat 28's authorization and the grant of its
    transfer of control application. This brief period of time in no way
    accounts for the additional two-year extension requested by NetSat
    28 for each of its remaining milestones. Furthermore, the filing
    deadline for reconsideration of the length of the milestone
    extension granted in the 2001 *Waiver & Reinstatement Order* has
    long passed, and NetSat 28 cannot seek reconsideration of that
    extension at this late date.

[^40]: *Id.* at 48.

[^41]: *Id.*

[^42]: *See* Constellation Communications Holdings, Inc., *Memorandum
    Opinion and Order*, 18 FCC Rcd 18822 (2003) (*Constellation Review
    Order*)*;* United States Satellite Broadcasting Co., *Memorandum
    Opinion and Order*, 3 FCC Rcd 6858, 6859 (para. 11) (1988) (*USSB
    Order*). *See also* E-SAT, Inc., *Memorandum Opinion and Order*, 18
    FCC Rcd 7662 (Int'l Bur. 2003); Constellation Communications Corp.*,
    Memorandum Opinion and Order*, 17 FCC Rcd 23489 (Int'l Bur. 2002)
    (*Constellation Order*); EchoStar Satellite Corp. *et al.*,
    *Memorandum Opinion and Order*, 17 FCC Rcd 8831 (Int'l Bur. 2002).

[^43]: *See Waiver & Reinstatement Order*, 16 FCC Rcd at 11028 (para.
    9), citing *Advanced Review Order*, 11 FCC Rcd at 3417 (para. 45);
    *MCI Order*, 2 FCC Rcd at 234 (para. 7); *AT&T Order*, 2 FCC Rcd at
    4433-34 (paras. 21-23); *Tempo Order*, 1 FCC Rcd 20.

[^44]: August 29 Modification Application at 51-52.

[^45]: *Waiver & Reinstatement Order*, 16 FCC Rcd at 11030 (para. 18).

[^46]: *See id.* at 11030 (para. 18).

[^47]: *See id.*

[^48]: *See* Final Analysis Communication Service, Inc., *Memorandum
    Opinion and Order*, 19 FCC Rcd 4768, 4784-85 (para. 42) (Int'l Bur.
    2004) (*Final Analysis Order*), *pet. for recon. pending*. *See
    also* *NexSat Order*, 7 FCC Rcd at 1992 (para. 11).

[^49]: R/L DBS Company, LLC, *Memorandum Opinion and Order*, 16 FCC Rcd
    9 (Int'l Bur. 2000) (*R/L DBS Order*). Although NetSat 28 cites to a
    2003 decision involving the same company, *R/L DBS Company LLC*, 18
    FCC Rcd 7694 (Int'l Bur. 2003), the text quoted in NetSat 28's
    application belongs to the 2000 decision and is not found within the
    2003 decision.

[^50]: *See PanAmSat Order*, 16 FCC Rcd at 11543 (para. 25); *AT&T
    Order*, 2 FCC Rcd at 4435 (paras. 30-31); *EarthWatch Order*, 15 FCC
    Rcd at 18728 (para. 9).

[^51]: *Compare* 47 C.F.R. § 25.148 *with* § 25.164. *See also* Policies
    and Rules for the Direct Broadcast Satellite Service, *Report and
    Order*, 17 FCC Rcd 11331, 11354 n.166 (2002) (noting the current
    distinction between the totality of the circumstances standard
    applicable to DBS permittees and the strict milestone requirements
    applicable to FSS licensees).

[^52]: *Id.*

[^53]: *Id.*

[^54]: August 29 Modification Application at 53.

[^55]: *See* Section 1.3 of the Commission's rules, 47 C.F.R. §1.3. *See
    also* *WAIT Radio v. FCC*, 418 F.2d 1153 (D.C. Cir. 1969) (*WAIT
    Radio*); *Northeast Cellular Tel. Co. v. FCC*, 897 F.2d 1166 (D.C.
    Cir. 1990) (*Northeast Cellular*).

[^56]: *Northeast Cellular*, 897 F.2d at 1166.

[^57]: *WAIT Radio*, 418 F.2d at 1159.

[^58]: *Id.* at 1157.

[^59]: August 29 Modification Application at 54. *See also* MobileMedia
    Corp., *Order to Show, Cause, Hearing Designation Order, and Notice
    of Opportunity for Hearing for Forfeiture*, WT Docket No. 97-115, 12
    FCC Rcd 14898 (1997).

[^60]: NetSat 28 Company, L.L.C., *Order on Reconsideration*, 12 FCC Rcd
    7727 (Int'l Bur. 1997).

[^61]: MobileMedia Corporation, *Order*, WT Docket No. 97-115, 12 FCC
    Rcd 11861 (1997).

[^62]: NetSat 28 Company, L.L.C*.*, *Order*, 13 FCC Rcd 16434 (Int'l
    Bur. 1998).

[^63]: August 29 Modification Application at 54.

[^64]: *Id.* at 54-55.

[^65]: *Waiver & Reinstatement Order*, 16 FCC Rcd at 11033 (para. 29)
    (ordering the extension of NetSat 28's construction completion
    milestone from April 2002 to August 2003, and NetSat 28's launch
    milestone from May 2002 to September 2003).

[^66]: August 29 Modification Application at 55.

[^67]: *Id.* Inter-satellite links permit satellites to communicate
    directly with each other.

[^68]: *Id.*

[^69]: *Id.*

[^70]: *See* Rulemaking to Amend Parts 1, 2, 21, and 25 of the
    Commission's Rules to Redesignate the 27.5-29.5 GHz Frequency Band,
    to Reallocate the 29.5-30.0 GHz Frequency Band, to Establish Rules
    and Policies for Local Multipoint Distribution Service and for Fixed
    Satellite Services, *Third Report and Order*, 12 FCC Rcd, 22310,
    22330 (para. 51) (1997) (*Ka-band Third Report and Order*).

[^71]: *See id.* at 22332 (para. 55).

[^72]: *See, e.g.,* EchoStar Satellite Corp., *Order and Authorization*,
    13 FCC Rcd 5664, 5672 (Int'l Bur. 1997).

[^73]: *See Ka-band Third Report and Order,* 12 FCC Rcd at 22332 (para.
    55).

[^74]: *See, e.g.,* EchoStar Satellite Corp., *Order and Authorization*,
    16 FCC Rcd 2453 (Int'l But. 2001).

[^75]: August 29 Modification Application at 55.

[^76]: *Id.*

[^77]: *See Advanced Review Order*, 11 FCC Rcd at 3412 (para. 31). *See
    also Constellation Order*, 17 FCC Rcd at 22589 (para. 11), *aff'd
    Constellation Review Order*, 18 FCC Rcd at 18831 (para. 18).

[^78]: *See Constellation Review Order*, 18 FCC Rcd at 18831 (para. 18).

[^79]: *See, e.g., MCI Order*, 2 FCC Rcd at 233 (para. 5).

[^80]: *See supra*, Section III.A.4.

[^81]: Because there is no underlying authorization to modify as a
    result of this failure, we dismiss NetSat 28's May 14 Modification
    Application as moot.