**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+---------------------------------+---+----------------------------------+
| In the Matter of                | ) | File Nos. SAT-T/C-20020718-00114 |
|                                 |   |                                  |
| Joint Application for Review of | ) | SAT-T/C-20020719-00104           |
|                                 |   |                                  |
| Constellation Communications    | ) | SAT-MOD-20020719-00103           |
| Holdings, Inc., Mobile          |   |                                  |
| Communications Holdings, Inc.   | ) | SAT-MOD-20020719-00105           |
| and                             |   |                                  |
|                                 | ) | Call Signs S2318, S2319          |
| ICO Global Communications       |   |                                  |
| (Holdings) Limited              | ) |                                  |
|                                 |   |                                  |
|                                 | ) |                                  |
|                                 |   |                                  |
|                                 | ) |                                  |
+---------------------------------+---+----------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted:** June 9, 2004 **Released:** June 24, 2004

By the Commission: Commissioner Martin approving in part, concurring in
part, and issuing a statement; Commissioner Copps dissenting and issuing
a statement.

**I. INTRODUCTION**

1 In this Order, we deny the joint application for review filed by
Constellation Communications Holdings, Inc. (Constellation), Mobile
Communications Holdings, Inc. (MCHI), and ICO Global Communications
(Holdings) Limited (ICO).[^1] These parties request that we overturn the
International Bureau (Bureau) Order that found Constellation\'s and
MCHI\'s 2 GHz Mobile-Satellite Service (MSS) authorizations to be null
and void for failure to satisfy the first implementation milestone.[^2]
The first milestone requires a 2 GHz MSS system licensee to enter into a
non-contingent satellite manufacturing contract within one year of
authorization.[^3] Milestone requirements promote efficient use of
limited spectrum resources and are an especially important mechanism by
which we can assure that satellite licensees utilize their spectrum
assignments.[^4] As discussed in detail below, the Bureau properly
enforced our milestone requirements, and therefore, we affirm the
Bureau's decision.

**II. BACKGROUND**

**A. The Commission\'s Milestone Policy**

**1. Purpose**

2 It is longstanding Commission policy to impose milestones for
satellite system implementation upon licensees.[^5] 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.[^6] 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.[^7] 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.[^8] Moreover,
warehousing undercuts decisions by the Commission to allocate scarce
spectrum resources to satellite services over other competing services.
Consequently, to ensure that unused spectrum is reassigned as quickly as
possible, the Commission has strictly enforced the construction
commencement milestone.[^9]

**2. Milestone Framework**

3 The Commission has required satellite licensees to adhere to milestone
schedules for over two decades. For most of that time, the Commission
has imposed three milestones for each space station or satellite system
it has licensed. These milestones require that, within specified time
periods, licensees must (1) begin construction -- which the Commission
has defined as entering into a non-contingent construction
contract;[^10] (2) complete construction; and (3) launch. As early as
1983, the Commission stated that including specified dates for each
milestone as a condition of each license will \"discourage warehousing\"
and noted that \"delays in the commencement and completion of
construction and launch activities beyond the specified dates will
render the orbital assignment null and void.\"[^11] The Commission
noted, at that time, that the milestone dates it imposed were generally
based upon the implementation schedule proposed in the license
application for a particular satellite.[^12] In 1985, the Commission
stated, however, that given the inherent uncertainty in long-term
traffic projections and rapidly changing satellite technology, it would
deny applications proposing to launch satellites more than five years
after grant. [^13]

4 In the last decade, the Commission has often imposed uniform schedules
for each of the three milestones in each license granted in a processing
round. For example, in granting the first licenses for constellations of
non-geostationary satellite orbit (NGSO) satellites in 1991 for \"Little
LEO\" systems, the Commission required all licensees to begin
construction of the first two satellites in the constellation within one
year of license grant, to begin construction of the remaining satellites
within three years of grant, to complete construction of the first two
satellites within four years of grant, and to have the entire system
launched and in operation within six years of grant.[^14] In other
services, such as the Ka-band service, the Commission has based
milestone dates on other considerations, such as the date by which the
satellites must be \"brought into use\" under international Radio
Regulations in order to protect their international filing priority
status.[^15]

5 In the *2 GHz Order* adopted in 2000, the Commission adopted two new
milestones for 2 GHz mobile-satellite service systems.[^16] It did so
because of its concern that the often three-year gap between the
commencing construction and completing construction milestones did not
provide adequate assurance that licensees are taking sufficient steps
toward system implementation.[^17] Consequently, the Commission imposed
two new milestones on 2 GHz licensees -- Critical Design Review (CDR)
and Commencement of Physical Construction -- that would occur between
the beginning construction and completing construction milestones.[^18]
For both 2 GHz geostationary- satellite orbit (GSO) and
non-geostationary-satellite orbit (NGSO) licensees 2 GHz licensees, CDR
must be completed within two years of grant.[^19] Further, NGSO
licensees must commence physical construction of the first two
satellites in their systems within two-and-a-half years of licensing,
while GSO licensees must commence physical construction within three
years of licensing.[^20]

6 In the *2003 First Space Station Reform Order*, the Commission
extended the CDR and Commencement of Physical Construction milestones
from 2 GHz licensees to all satellite licensees (except for Direct
Broadcast Satellite systems and Digital Audio Radio Service systems) on
a going-forward basis.[^21] It also codified uniform milestone dates for
these satellites, requiring all licensees to enter into a binding
non-contingent contract for the satellite or satellite system within one
year of grant and to complete CDR within two years of grant.[^22] GSO
operators must begin physical construction of the satellite within three
years of grant and must launch and operate the satellite within five
years of grant.[^23] NGSO operators must begin physical construction of
the first satellite in the system within two and one-half years of
grant, launch and operate the first satellite within three and one-half
years of grant, and bring all the satellites in the licensed system into
operation within six years of grant.[^24]

> **3. \"Beginning Construction\" Milestone**

7 The Commission has viewed the first milestone condition -- the
\"beginning construction\" or \"contract\" milestone -- as especially
important because it provides an early objective indication of whether a
licensee is committed to proceeding with implementation of its
proposal.[^25] The Commission established the criteria for meeting this
first milestone requirement in the *Tempo Order*. First, licensees must
enter into a binding, non-contingent contract with a spacecraft
manufacturer to construct the licensed satellite system.[^26] Second,
satellite construction contracts must describe the licensee\'s payment
terms and schedule sufficiently to demonstrate the parties' investment
and commitment to completion of the system.[^27] In other words, the
Commission established two general principles for milestone review in
the *Tempo Order*: (1) the contract must be binding and non-contingent,
and (2) the contract must demonstrate that the licensee is committed to
completing the construction of the satellite system within the time
frame specified in the license.[^28]

8 Since the *Tempo Order*, the Bureau has correctly clarified that the
first prong of this analysis, the \"binding, non-contingent contract\"
requirement, requires that the contract identify specific satellites and
their design characteristics, and specify dates for the start and
completion of construction.[^29] The Bureau also correctly found that
there must be neither significant delays between the execution of the
construction contract and the actual commencement of construction nor
conditions precedent to construction.[^30]

9 In order to meet the second prong of this analysis, the construction
contract must set forth a specific construction schedule that is
consistent with the licensee\'s milestones.[^31] In particular, the
contract must require the licensee to make significant initial payments
and the majority of payments well before the end of the construction
period.[^32]

10 Under the two prong analysis for the first milestone, there is
substantial FCC precedent that provides guidance to the Commission and
licensees in making a determination as to whether a licensee[^33] has
met its first milestone. Specifically, in determining whether a
satellite system construction contract demonstrates the requisite
investment and commitment to meet the standards of the two-prong
analysis, the Commission has generally considered several factors,
including but not limited to the following: 1) it sets forth a specific
construction schedule that is consistent with the licensee's milestone
schedule and that does not unduly postpone commencement of construction
work; 2) the licensee is required to make significant initial payments;
3) most of the consideration to be paid by the licensee under the
contract will be due well before the end of the construction period; 4)
the contract identifies specific satellites and their design
characteristics, consistent with the license, in appropriate detail; and
5) obligations under the contract are not contingent upon future
performance of an elective action by the licensee. During the milestone
review process, if the individual case analysis does not demonstrate
that the licensee has met these or other factors, the Commission, in the
absence of some countervailing factor,[^34] will find that the licensee
has not met its first milestone commitment.

11 Bureau decisions have correctly followed this two-prong analysis in
determining whether a licensee has met the first milestone. For example,
in nullifying a license held by Norris Satellite Communications, Inc. in
1994 for failure to meet the first milestone, the International Bureau
noted that while Norris had, in fact, \"signed a construction contract
with Harris Corporation, it failed to make the \$3 million down payment
necessary to render that contract non-contingent.\"[^35] Thus, Norris\'s
contract was not binding and non-contingent. Similarly, on several
occasions, the Commission has found that satellite construction
contracts that do not provide for completion of the satellite system
within the milestone schedule in the license are not sufficient to meet
the second prong of the standard set forth in the *Tempo Order*, that
the licensee is committed to completing the construction of the
satellite system within the time frame specified in the license.[^36]
Also, the Bureau has stated that contracts that unduly delay the
commencement of satellite construction do not show that the licensee has
sufficient commitment to proceed with construction of the
satellite.[^37] Moreover, the Commission has determined that a contract
to use capacity on another satellite does not show that the licensee is
committed to construct and operate a licensee\'s own satellite, and so
cannot meet the *Tempo Order* standard.[^38] Last, the Bureau held that
a licensee had met its first milestone when its commonly-controlled
sister corporation had entered into a non-contingent construction
contract with a spacecraft manufacturer, where the contract provided for
construction of a satellite with design characteristics fully consistent
with those specified in the license.[^39]

12 The Commission is not required to prescribe all-inclusive, specific,
and detailed terms for contractual arrangements that meet the
requirements of the contract execution milestone.[^40] Such an intrusion
into a licensee\'s business decisions is not necessary to determine
whether it is sufficiently committed to constructing and launching a
satellite system. In addition, we have never found it to be desirable or
possible to try to anticipate and articulate every possible scenario
that we might be asked to rule on in deciding compliance with our
milestone requirements. Instead of adopting such detailed rules
requiring or prohibiting certain contract provisions or types of
arrangements, the Commission has adopted general standards. Under those
standards, (1) the contract must be binding and non-contingent, and (2)
the contract must demonstrate that the licensee is committed to
completing the construction of the satellite system.[^41] As a result,
licensees have more flexibility to consider different construction and
related financing arrangements, as long as they meet the general
standards developed in the Commission\'s precedents.[^42]

**B. 2 GHz MSS Milestones**

13 As noted above, the Commission adopted the milestone requirements for
2 GHz MSS licensees as part of the rulemaking proceeding to establish
service rules governing operation of 2 GHz MSS systems.[^43] After
notice and an opportunity for comment, the Commission adopted the 2 GHz
MSS milestone requirements proposed in the *2 GHz Notice*, including a
binding, non-contingent contract within one year of the date the license
is issued.[^44] No party sought reconsideration or clarification of the
milestones, or their definitions. The Commission also indicated in the
*2 GHz MSS Report and Order* that, after the passage of each milestone,
it would evaluate what to do with any \"abandoned\" spectrum, including
spectrum that the Commission reclaims as a result of the licensee
missing milestones.[^45] We sought comment on how to redistribute
abandoned spectrum in the *AWS Further Notice*,[^46] wherein we once
again underscored that achievement of milestones is a condition of the 2
GHz MSS authorization.[^47]

**C. 2 GHz MSS Authorizations**

14 On July 17, 2001, the Bureau (along with the Office of Engineering
and Technology) granted the 2 GHz MSS system license applications of
several parties, including Constellation, ICO,[^48] and MCHI. Each
authorization incorporated the construction milestones adopted in the *2
GHz Report and Order* as conditions, and stated that the authorization
would become null and void with no further action required on the
Commission's part in the event the space station(s) are not constructed,
launched and placed into operation in accordance with the technical
parameters and terms and conditions of the authorization by the
milestones dates.[^49] The first milestone requirement for each system
was to enter into a non-contingent satellite-manufacturing contract by
July 17, 2002.

**D. 2 GHz Milestone Review**

15 On July 17-18, 2002, Constellation, MCHI, and ICO filed a set of
applications proposing to: (1) transfer control of Constellation's and
MCHI's MSS licenses to ICO (the \"Transfer of Control
Applications\");[^50] and (2) modify the technical specifications of
Constellation's and MCHI's 2 GHz MSS systems to conform with the
technical specifications of ICO's 2 GHz MSS system (the
\"Constellation/MCHI Modification Applications\").[^51] These
applications stated that, if the proposed system modifications were
granted, Constellation and MCHI would implement their 2 GHz MSS systems
by sharing satellite infrastructure with ICO pursuant to a Satellite
System Sharing Agreement (the \"Sharing Agreements\"),[^52] pending
approval of the Transfer of Control Applications. Should the Commission
deny the Transfer of Control Applications, Constellation and MCHI stated
they would continue to operate their respective systems off of ICO's
platform pursuant to the Sharing Agreement. In other words, MCHI and
Constellation argued that, since ICO had met its milestone, the
execution of the Sharing Agreements with ICO satisfied their initial
construction milestone as well. The Constellation/MCHI Modification
Applications requested that, if the Commission determined the Sharing
Agreements did not satisfy the first milestone, the Commission should
waive or extend each of Constellation's and MCHI's system milestones for
one year.

16 The Bureau declared Constellation's and MCHI's authorizations null
and void in the *Constellation/MCHI Milestone Order*.[^53] First, the
Bureau found that Constellation and MCHI did not enter into satellite
manufacturing agreements, despite the clear terms of their
authorizations.[^54] Specifically, the Bureau stated: \"Rather than
providing for satellite construction, the Sharing Agreements are merely
contracts for purchase of satellite capacity *if and when* the
satellites in question have been constructed, launched, and made ready
for operation, pursuant to a separate contract to which MCHI and
Constellation are not parties.\"[^55] In addition, the Bureau dismissed
as moot applications to modify Constellation's and MCHI's systems and
transfer control of their authorizations to ICO.[^56]

17 In a Joint Application for Review, ICO, Constellation, and MCHI
(collectively, \"ICO *et al.*\") challenge the Bureau's conclusions that
the Sharing Agreements were not satellite manufacturing contracts for
milestone purposes,[^57] and did not demonstrate sufficient commitment
to proceed with system implementation.[^58] ICO *et al.* also challenge
the Bureau's denial of Constellation's and MCHI's alternative requests
for waiver or extension of their milestones.[^59] Therefore, ICO *et
al.* request that we reinstate Constellation and MCHI's licenses, grant
the Constellation/MCHI Modification Applications, and grant the
requested transfers of those licenses to ICO.[^60] AT&T Wireless
Services, Inc., Verizon Wireless and Cingular Wireless LLC
(collectively, \"Wireless Carriers\") opposed ICO *et al.*'s Application
for Review, to which ICO *et al.* replied.[^61]

18 For the reasons discussed below, we find that MCHI and Constellation
have not met the *Tempo Order* standards for determining whether a
licensee\'s satellite construction contract is adequate. In particular,
neither MCHI nor Constellation submitted a binding, non-contingent
contract to build either of their satellite systems. Nor did either MCHI
or Constellation demonstrate an intent to construct their licensed
satellite systems within the time frame specified in their licenses.
Accordingly, we deny the ICO *et al*. application for review.

**III. DISCUSSION**

**A. Construing Sharing Agreements as Construction Contracts**

19 ICO *et al.* assert that their sharing agreement should be
interpreted as a construction contract for purposes of our milestone
review.[^62] As an initial matter, we find that the Bureau correctly
concluded that the Sharing Agreements that Constellation and MCHI
submitted are not satellite manufacturing contracts. The Sharing
Agreements contain none of the terms, conditions, and specifications
typically included in a satellite manufacturing contract. In particular,
the Sharing Agreement did not commit either Constellation or MCHI to
implement the proposed satellite system they were licensed to
operate.[^63] Furthermore, for reasons explained further below, we
disagree with ICO *et al*. to the extent that they argue that our
precedents compel us to treat the Sharing Agreements as tantamount to
satellite manufacturing contracts for the purposes of assessing
compliance with the first milestone. Accordingly, we find that neither
Constellation nor MCHI submitted a binding, non-contingent satellite
construction contract, as required by the *Tempo Order*. We also
conclude that neither Constellation nor MCHI demonstrated the commitment
discussed in the *Tempo Order* to completing the construction of their
satellite systems within the time frame specified in their licenses.

**B. Consistency with Precedent**

**1. Overview**

20 *Background.* In the *MCHI/Constellation Milestone Order*, the Bureau
concluded that Constellation and MCHI did not satisfy their first
milestone because the arrangements they entered into with ICO did not
show sufficient commitment and investment on Constellation\'s and
MCHI\'s part to implement their respective 2 GHz MSS systems.[^64] ICO
*et al*. assert that the Bureau\'s Order is arbitrary and capricious
because it was inconsistent with several Orders holding that sharing
arrangements are sufficient to meet milestone requirements.[^65]

21 The Bureau also found that MCHI\'s and Constellation\'s Sharing
Agreements were comparable to the agreement in the *Advanced Review
Order*, in which the Commission found that the sharing arrangement did
not satisfy a milestone requirement. ICO *et al.* argue that their
Sharing Agreements are distinguishable from that rejected in the
*Advanced Review Order*.[^66]

22 *Discussion*. ICO *et al.* claim that \"the Bureau ignored or
misstated relevant Commission precedent\" in rejecting their alternative
arrangements to satisfying the first construction milestone.[^67] We
disagree. As we noted above, the test for determining whether a licensee
has met its first milestone is (1) has the licensee entered into a
binding, non-contingent satellite construction contract, and (2) has the
licensee demonstrated an adequate investment and commitment to construct
its licensed satellite system within the time frame set forth in its
license. The Bureau correctly concluded that Constellation and MCHI did
not meet the two-prong test for the first milestone by submitting the
specific Sharing Agreements that they submitted. ICO *et al.* have added
nothing new to the record to change this result. In summary, neither
Constellation nor MCHI submitted a contract to built *its own* satellite
system, nor did they show a commitment to completing construction of
*their own* satellite systems within the time frame specified in their
licenses. Instead, Constellation and MCHI planned merely to use capacity
in ICO\'s satellite system.

23 ICO *et al.* rely primarily on the *USSB* and *VITA* decisions,[^68]
claiming that these Orders provide \"ample precedent approving other
similar satellite sharing agreements for milestone purposes.\"[^69] As
the Bureau pointed out, however, the question of allowing a satellite
sharing agreement to substitute for the licensee meeting its milestones
was presented to us in both of these cases after the Commission
determined that the relevant licensee had already met its first
(contract) milestone.[^70] ICO *et al*. assert that the distinction
between the construction commencement milestone and later milestones was
not relevant, because the Commission's approval of those sharing
arrangements was not wholly premised on the licensee's previously
meeting its construction contract milestones.[^71] Constellation and
MCHI are mistaken. The first milestone is especially important because
it provides an early indication as to whether a licensee is committed to
proceeding with implementation of its proposal.[^72] If a licensee does
not even begin construction of its satellite by the date specified in
its license, it raises substantial doubts as to whether the licensee
intends to or is able to proceed with its business plan.[^73]

24 A comparison of the MCHI/Constellation case, on one hand, and *USSB*
and *VITA*, on the other, illustrates that the Sharing Agreement was not
adequate for meeting either MCHI\'s or Constellation\'s milestone
requirements. In *USSB*, the licensee had started construction of its
three authorized satellites, and had arranged for launch of one of those
satellites to its authorized orbit location, 101° W.L.[^74] In spite of
this, USSB asked the Commission to allow it to purchase a payload of
five transponders on a Hughes satellite, also to be located at 101°
W.L., to modify the technical specifications of its license, and to
extend the time within which to initiate service at 101° W.L. to match
those of the Hughes satellite.[^75] USSB maintained its contractual
commitments to construct its other two satellites.[^76] The payload
purchase agreement between USSB and Hughes did not contain any
unresolved contingencies that could preclude construction of the
satellite, but it included a schedule of payments from USSB to Hughes
that coincided with contractual construction milestones.[^77] Moreover,
at that time, USSB was not seeking to merge with Hughes, but planned its
own stand-alone service on the satellite.[^78] The Video Services
Division of the Mass Media Bureau found that the payload purchase
agreement complied with the construction contract due diligence
requirement. Specifically, the Division found that USSB had made a real
commitment to establish its own DBS system, and that its agreement with
Hughes was not an indication of a weakening of that commitment.[^79]

25 In the *VITA* case, VITA had already completed construction and
attempted launch of its first satellite in compliance with its
license.[^80] When the launch failed, VITA asked to implement its
communications payload on another licensee's experimental satellite
pursuant to an agreement whereby that licensee would construct and
launch a satellite containing both VITA's licensed payload and its
experimental payload.[^81] The Bureau permitted this sharing arrangement
as VITA's inability to meet its milestones was caused by circumstances
beyond its control (launch failure) and consistent with the Commission's
policy to approve replacement satellites following launch failure.[^82]

26 In light of this precedent, we conclude that the Bureau correctly
found that the alternative arrangements presented by ICO *et al.* do not
demonstrate sufficient commitment on Constellation's and MCHI's parts to
proceed with system implementation. Neither Constellation nor MCHI have
shown progress in launching their systems other than that purportedly
made through the negotiation and execution of the various agreements
with ICO, and doing so within mere days of the approaching milestone
deadline.[^83] Constellation and MCHI are purchasing nothing more than
\"title\" to channels on ICO's satellites, and that is only if the
merger the parties contemplate is not approved. Neither Constellation
nor MCHI would own any satellites, or pay for any of the construction of
the satellites prior to the date of the agreement, which is
significantly less than the entire system's cost since the bulk of
satellite construction has already occurred. Upon signing the Sharing
Agreements, Constellation and MCHI each paid ICO less than one-half of
one percent of the total contractual price.[^84] Unlike *USSB*, there
appears to be no capability or commitment on Constellation's or MCHI's
part to launch their own services. Unlike *VITA*, their inability to
satisfy their milestone obligations is not caused by circumstances
beyond their control.

27 Moreover, we also affirm the Bureau\'s conclusion that ICO *et
al.*\'s sharing agreement is comparable to that in the *Advanced Review
Order*. In that Order, the Commission disapproved a spectrum sharing
arrangement because of Advanced's lack of commitment to establish its
DBS system. After progressing no further than executing a construction
contract, Advanced filed applications for consent to assign its DBS
construction permit to TCI's Tempo subsidiary, and to modify its
construction permit to allow it to substitute satellites that TCI was
constructing for Tempo (the practical effect being that the satellites
Advanced had contracted for -- and were the basis of Advanced's initial
due diligence showing -- would not be built). As an alternative to the
construction permit assignment, Advanced and TCI entered into a Capacity
Purchase Agreement (CPA) by which TCI would provide Advanced with access
to the Tempo satellites, TCI stock and other monetary incentives; in
return, Advanced would irrevocably sell TCI all of its rights to the
transponder capacity on those satellites. Advanced submitted the CPA to
satisfy its previously-extended construction and launch milestones,
characterizing the CPA as a binding contract for the launch, deployment,
and operation of its own satellites, and asking the Commission to give
it credit for Tempo's construction efforts. Under the CPA, Advanced
would not own any satellites or pay for the construction, launch, or
operation of any satellites. Rather, TCI was responsible for virtually
every aspect of the transaction and subsequent operation of the DBS
systems. Finally, the CPA provided for the complete liquidation of
Advanced upon consummation of the sale of transponder capacity to TCI,
leading the Bureau to conclude: \"it appears that Advanced wants to
abandon its business to Tempo DBS.\"[^85] In these circumstances, the
full Commission held that the CPA cannot be characterized as
demonstrating Advanced's due diligence, and upheld the Bureau's actions
nullifying Advanced's license and dismissing Advanced's requests to
assign and modify its permit as moot.[^86] The Commission distinguished
*USSB* by noting that USSB was found to be in compliance with its due
diligence obligations, showing the requisite capability and commitment
to its own DBS service.[^87]

28 ICO *et al*. contend that this precedent is not relevant because MCHI
and Constellation would retain ownership of \"channels\" on ICO\'s
satellite, while Advanced would not retain ownership of anything under
its agreement. As noted above, MCHI and Constellation paid less than one
percent of the costs of constructing the satellite system. The balance
for title to the channels was not due until 30 days after \"the ICO
System Channels become available for commercial services *as reasonably
determined by ICO*\" (emphasis added).[^88] In other words, ICO has
complete control over when this agreement takes effect, and thus, were
the Commission to approve the merger, ICO would consummate the merger
prior to reasonably determining that its channels are available for
commercial service. Indeed, it appears that, like *Advanced*, there is
little independent business purpose of the Sharing Agreements other than
an attempt at milestone compliance while waiting for action on a merger
-- in this case, a merger that would combine the spectrum of three
systems under ICO's common control. In these circumstances, particularly
where, based on all the information before us, the Sharing Agreements
would be superceded by consummation of the simultaneously-executed Stock
Purchase Agreements, and thus, Constellation and MCHI would disappear
upon merger consummation,[^89] the Sharing Agreements cannot fairly be
characterized as an arrangement by Constellation and MCHI for the
construction, launch, deployment, and operation of their own satellite
systems. In sum, under our precedent, the Sharing Agreements are not
tantamount to a non-contingent satellite construction contract.

**2. Recent Precedent**

29 In an *ex parte* statement, ICO claims that the recent *KaStarCom
Milestone Order* compels us to grant the ICO *et al* Joint Application
for Review.[^90] The *KaStarCom Milestone Order* did not revise in any
way the Commission\'s standard for determining compliance with the first
milestone. Furthermore, these two cases are readily distinguishable. In
the *KaStarCom Milestone Order*, KaStarCom, a second round Ka-band
licensee, submitted the following for its first milestone requirement
showing: (1) a satellite sharing agreement with WB Holdings 1 LLC (WB
Holdings), a first round Ka-band licensee that was authorized for
different Ka-Band frequencies at the same orbit location as KaStarCom,
and (2) a satellite manufacturing contract between a WB Holdings'
subsidiary and Loral. KaStarCom and WB Holdings had formulated and
clearly disclosed their plans to construct and own a single satellite
prior to the Bureau's licensing of KaStarCom, and thus, well prior to
the first milestone.[^91] The Bureau found that the WB Holdings contract
satisfied KaStarCom's first milestone because KaStarCom and WB Holdings
became commonly controlled during the pendency of the milestone review.
The Bureau specifically did not address whether the earlier arrangements
involving the satellite sharing agreement satisfied the first milestone
requirement.[^92] Thus, the *KaStarCom Milestone Order* does not provide
any guidance regarding the use of sharing agreements to satisfy
milestone requirements.

30 In contrast, Constellation and MCHI were issued licenses to construct
their own satellite systems.[^93] They submitted their requests to share
ICO's satellite platform and transfer control of their 2 GHz MSS
licenses to ICO within mere days of the approaching milestone
deadline.[^94] Thus, unlike KaStarCom and WB Holdings, who planned to
build and obtained a license for only one satellite system, ICO, MCHI,
and Constellation were licensed to build three satellite systems, and
tried to use the construction progress for one of those systems to
satisfy all three. Furthermore, this distinction is of particular
significance in the 2 GHz MSS context because, unlike the Ka-band, the
amount of spectrum awarded each 2 GHz MSS system proponent was based
specifically on the fact that the system proponent was constructing its
own system. Had ICO *et al.*'s plan been formulated and disclosed prior
to authorization, the 2 GHz MSS band arrangement may well have been
structured differently.[^95]

31 In summary, starting with the 1986 *Tempo Order*, the Commission and
the Bureau have held that, to meet the contract milestone, a licensee
must (1) provide a binding, non-contingent satellite construction
contract, and (2) the contract must demonstrate that the licensee is
committed to completing the construction of the satellite system within
the time frame specified in the license.[^96] To determine whether a
licensee has met these two standards, we look at, among other things,
whether the contract requires the licensee to make significant initial
payments, and to make the majority of payments well before the end of
the construction period.[^97] We also see whether there will be
significant delays between the execution of the construction contract
and the actual commencement of construction, or conditions precedent to
construction.[^98] For determining whether a sharing agreement can be
used to meet the contract milestone, we examine whether the licensee has
demonstrated the same financial investment and commitment in the shared
project as if it were constructing the satellite system it was licensed
to operate.[^99]

**C. Sufficient Notice of Legal Standard**

32 *Background*. ICO *et al.* claim that the Commission\'s precedents
were not sufficient to inform licensees adequately whether or to what
extent Sharing Agreements could be used to meet milestone
requirements.[^100]

33 *Discussion*. We disagree with ICO *et al.* The Court set forth the
standard for determining whether regulated parties have adequate notice
of the requirements placed on them in the *Lakeshore* and *Trinity*
cases.[^101] In *Lakeshore*, the Court found that, while parties need
\"full and explicit notice of all prerequisites,\"[^102] the Commission
need not have \"made the clearest possible articulation.\" \"\[I\]t is
enough if, based on a \'fair reading\' of the rule, applicants knew or
should have known what the Commission expected of them.\"[^103]
Similarly, in *Trinity*, the Court explained that \"\[w\]e thus ask
whether \'by reviewing the regulations *and other public statements by
the agency*, a regulated party acting in good faith would be able to
identify, with ascertainable certainty, the standards with which the
agency expects parties to conform\...\'\"[^104]

34 ICO *et al.* assert that the Commission\'s precedents do not meet
this \"ascertainable certainty\" standard.[^105] Again, ICO *et al*.
misinterpret those precedents. As we discussed above, the *Tempo Order*
explains that a licensee needs to enter into a binding, non-contingent
contract to meet the construction commencement milestone.[^106] The
*Tempo Order* and its progeny further explain that a \"binding,
non-contingent contract\" must have several characteristics, including
significant initial payments, and a demonstration of a commitment to
complete construction of the satellite system.[^107] Furthermore, the
Commission explained in *USSB* and *Advanced* that a sharing agreement
cannot satisfy the requirements of the construction commencement
milestone unless the licensee has made substantial progress constructing
the satellite system it was licensed to operate.[^108]

35 The Commission set forth its standard even more clearly in
*Directsat*.[^109] In that case, Directsat sought authority to merge
with EchoStar, place its capacity on EchoStar's satellite, and extend
time to launch and operate its DBS system. However, unlike ICO *et al*.,
Directsat had made substantial progress (*e.g.*, first satellite 2/3
complete; launch scheduled and all launch payments made; export license
secured by satellite contractor) prior to its transfer of control
request. The Bureau determined that Directsat had shown \"a continuing
capability and commitment to implement its DBS system.\"[^110] In
granting Directsat's requests, the Bureau noted that, had Directsat
sought a milestone extension to merge with EchoStar (relying solely on
EchoStar's satellite to meet its due diligence requirements) and had it
not begun construction on its own satellites, the *Advanced* decision
would govern and Directsat's requests would have been denied.[^111]

36 Thus, it is clear that, to meet the construction commencement
milestone, licensees must enter into a contract that requires the
licensee to make significant initial payments, and to make a real
commitment to completing construction of the satellite system it was
licensed to launch and operate.[^112] MCHI and Constellation clearly did
not meet either of these standards. They did not make significant
initial payments, because they paid less than one percent of the costs
of constructing the satellite system.[^113] They did not make a
commitment to construct their licensed satellite systems, because they
instead contracted to operate channels on ICO\'s satellite, and ICO
would have retained discretion to decide whether to provide any capacity
at all to MCHI or Constellation.[^114]

**D. Permissible Sharing Agreements**

37 ICO *et al.* contend that the Bureau's decision generally would
prohibit satellite capacity purchase agreements as a method to meet the
first milestone.[^115] We disagree. A review of the relevant precedent
discussed above shows that the Commission does not prohibit sharing
agreements. Rather, as we also discussed above, we require that (1) a
licensee\'s satellite construction contract must be binding and
non-contingent, and (2) the contract must demonstrate that the licensee
is committed to completing the construction of the satellite system
within the time frame specified in the license.[^116] We further
explained above that such a contract must require the licensee to make
significant initial payments, and must make the majority of payments due
well before the end of the construction period.[^117] Moreover, we
pointed out in this Order that a sharing agreement might satisfy the
requirements of the construction commencement milestone set forth in the
*Tempo Order* if the licensee seeking to share demonstrates substantial
progress in its own right, *e.g.*, that it has the same financial
investment and commitment in the shared project as if it were
constructing the satellite system it was licensed to operate.[^118] The
Commission simply does not allow licensees simply to \"piggy-back\" on
another licensee\'s satellite construction for their own for purposes of
meeting the contract execution milestone. The ICO *et al.* sharing
agreements are efforts by MCHI and Constellation to piggy-back on ICO\'s
construction, and so neither MCHI nor Constellation can rely on those
sharing agreements to meet their milestones.

**E. Waiver Request**

38 *Background*. As an alternative to their argument that their Sharing
Agreements satisfy their construction commencement milestone, ICO *et
al*. requested a waiver of the construction commencement milestone for
one year.[^119] The Bureau denied this request, finding that granting
such a waiver would establish a precedent that would undercut efforts to
limit warehousing of scarce orbit and spectrum resources.[^120]

39 ICO *et al.* contend that the Bureau \"misconstrued\" Constellation's
and MCHI's waiver requests as a request for waiver of all milestone
deadlines, rather than \"a waiver of the milestones, to the extent that
they are interpreted to require construction of duplicative
facilities.\"[^121] We have reviewed the original waiver requests as
filed in the Constellation/MCHI Modification Applications.[^122] We
believe the Bureau properly assessed the scope of Constellation's and
MCHI's waiver requests and thoroughly articulated a number of reasons
why it was inappropriate to grant their waiver requests in the context
of 2 GHz MSS systems.[^123] Moreover, ICO *et. al.* have not provided
good cause for the more limited waiver they claim they requested
originally, in either their waiver request or their application for
review.[^124]

**F. Extension Request**

40 *Background*. ICO *et al.* also request extension of Constellation's
and MCHI's milestones, asserting that they need additional time to
comply with the Bureau's so-called \"newly announced\" milestone
requirements.[^125]

41 *Discussion*. ICO *et al*. have not supplied any basis for us to
extend any of Constellation's or MCHI's milestones. As discussed at
length above, the Bureau's decision is wholly supported by Commission
precedent and thus, does not contain \"newly announced requirements.\"
In any case, on the basis of the record before us, we agree with the
Bureau that Constellation and MCHI have not demonstrated that additional
time is required due to unforeseeable circumstances beyond their
control, or that unique and overriding public interest concerns justify
an extension.[^126] Constellation and MCHI asked for the extension only
in case their modification requests were denied. Filing applications to
modify their licenses and merge with ICO are strictly business decisions
within their control, and the Commission has held unequivocally that
such business decisions do not warrant an extension of milestones.[^127]

**G. Hearing Requirement**

42 ICO *et al.* argue that the Bureau violated Section 312(c) of the
Communications Act by depriving them of an opportunity for a hearing
prior to finding the authorizations null and void.[^128] Section 312(c)
provides that \"\[b\]efore revoking a \[station\] license or
\[construction\] permit pursuant to subsection (a), ... the Commission
shall serve upon the licensee, permittee, or person involved an order to
show cause why an order of revocation . . . should not be
issued.\"[^129] Failure to timely construct facilities is not one of the
enumerated reasons for which the Commission may revoke a license or
permit pursuant to Section 312(a).[^130] Thus, Section 312(c) is not
triggered by the Bureau's actions. Moreover, Constellation and MCHI
accepted their authorizations as conditioned,[^131] and were therefore
on notice that failure to meet those conditions would result in
nullification of the authorization.[^132]

**IV. CONCLUSION AND ORDERING CLAUSES**

43 The Commission has been reviewing satellite licensees\' milestone
demonstrations for almost 20 years. During that time, we have developed
a significant body of law regarding the requirements for meeting the
construction commencement milestone. Most relevant for this Order,
licensees must show that they have entered into a binding,
non-contingent contract for the construction of the satellite system
that they were licensed to operate. Such contracts include significant
initial payments, require the majority of payments well before the end
of the construction period, and demonstrate an intent to complete the
satellite system construction. Moreover, licensees attempting to comply
with the construction commencement milestone through executing a sharing
agreement with another licensee must demonstrate the same investment and
commitment to completing the satellite system construction as if it were
constructing the satellite system it was licensed to operate. We find
that the Bureau's decisions were correct and consistent with applicable
precedent, and we therefore deny ICO *et al.*'s Joint Application for
Review.

44 Accordingly, IT IS ORDERED that the Joint Application for Review
filed on March 3, 2003 by Constellation Communications Holdings, Inc.,
Mobile Communications Holdings, Inc., and ICO Global Communications
(Holdings) Limited, File Nos. SAT T/C 20020718-00114,
SAT-T/C-20020719-00104, SAT-MOD-20020719-00103, SAT-MOD-20020719-00105
IS DENIED.

45 This *Memorandum Opinion and Order* is issued pursuant to Sections
4(i) and 5(c)(5) of the Communications Act of 1934, as amended, 47
U.S.C. §§ 154(i), 155(c)(5) and Section 1.115 of the Commission's rules,
47 C.F.R. § 1.115.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**DISSENTING STATEMENT OF\
COMMISSIONER MICHAEL J. COPPS**

*Re: Joint Application for Review of Constellation Communications
Holdings, Inc., Mobile Communications, Inc. and ICO Global
Communications* (*Holdings*) *Limited*, Memorandum Opinion and Order.

Today's decision was an exceptionally difficult one. It was difficult
because it pitted two important Commission responsibilities against one
another. On one hand the Commission has a statutory responsibility to
protect the people's spectrum. That means protecting against the
warehousing of spectrum and working to maximize output for each band.
Because the Commission does not auction satellite spectrum, it devised a
series of milestones that allow it to measure commitment to achieve a
fully operational satellite system according to a specified schedule.
Each milestone provides a way to assess whether a licensee is on the
path to delivering service to consumers or is underutilizing the
spectrum resource that has been entrusted to it.

On the other hand the Commission has an ongoing responsibility to be
clear about licensees' responsibilities and to give adequate notice of
its policies. Regulatory transparency and predictability are critical.
They encourage more investment because companies making large
investments can do so with the knowledge that they understand the rules
of the game and that those rules will not be changed without adequate
notice. Transparency and predictability are also core legal requirements
for regulatory agencies under the Administrative Procedures Act.

In a perfect world we would be able to meet both of these
responsibilities to everyone's satisfaction. But in this case I fear
that we cannot. In the relatively new world of satellite milestones, and
in the very new world of "strict enforcement" of those milestones, our
licensees' precise responsibilities are not adequately clear in all
circumstances. In this case a milestone designed to further our goal of
fighting warehousing and maximizing output was not clear enough. Despite
that lack of clarity, today the Commission rescinds authorizations held
by Constellation and MCHI -- the equivalent of the death penalty for a
satellite company.

I am not comfortable with this extreme remedy, given the confusion over
the exact requirements of our milestone. In the related Globalstar
milestone order the company's non-contingent contract would not have
allowed it to launch a satellite system that met its deadlines. For this
reason the Commission correctly found that the company did not
demonstrate a commitment to complete the construction of the system
within the time frame specified in the license.

Here, by contrast, Constellation and MCHI's contract did provide
evidence of a commitment to complete their satellite system. The wrinkle
was that the companies intended to do so using ICO satellites. While I
would prefer licensees to build their own systems so that more satellite
infrastructure becomes available, I am not convinced that our rules
clearly prohibited this arrangement. For this reason, I am pleased that
the Commission is using this opportunity to explain our standard more
clearly so that licensees have better notice of what types of
non-traditional contractual arrangements satisfy the milestone, but I
believe that given the circumstances of this case, granting a waiver as
we did in the related TMI case, would have been more appropriate than
the extreme act of rescinding authorizations.

**CONSOLIDATED SEPARATE STATEMENT OF\
COMMISSIONER KEVIN J . MARTIN, CONCURRING IN PART**

*Re: Joint Application for Review of Constellation Communications
Holdings, Inc., Mobile Communications, Inc. and ICO Global
Communications* (*Holdings*) *Limited*, Memorandum Opinion and Order,
File Nos. SAT-T/C-20020718-00114 et al.;

*Emergency Application for Stay of Globalstar, L.P.*, Memorandum Opinion
and Order, File Nos. SAT-LOA-19970926-00151/52/53/54/56 et al.;

While I do not take issue with these Orders' interpretation of the
"non-contingent satellite manufacturing contract" milestone, I question
the usefulness of our approach. With respect to Globalstar, we take away
its license because Globalstar's manufacturing contract would not have
provided for completion of construction of Globalstar's originally
proposed system within Globalstar's original construction milestones.
But Globalstar sought modification of its system and extension of the
construction milestones. Globalstar specifically sought an opportunity
to cure its satellite manufacturing contract to conform to the original
requirements should its modification and extension requests be denied.
In light of these facts, I think Globalstar could rather easily have
entered into the requisite contract in order to meet the first milestone
and preserve its license. Whether Globalstar could have ultimately lived
with such a contract is a harder question, but Globalstar would have
bought itself time to try. It thus seems to me that Globalstar is here
being penalized for taking a more honest approach.

With respect to Constellation and MCHI, we take away their licenses
because we conclude that their agreements to share satellite
infrastructure with ICO do not constitute satellite manufacturing
contracts. As with Globalstar, we rely in large part on the fact that
these agreements do not commit Constellation and MCHI to implement the
systems they were originally licensed to operate. While it is unclear
whether Constellation and MCHI could have entered into the kind of
contracts we deem are required in order to preserve their licenses, it
does seem clear that they could have provided a viable service through
their sharing agreements. I am not sure that the penalty of taking away
their licenses is a fair match to the perceived transgressions.

In the end, I think the strict enforcement of the "non-contingent
satellite manufacturing contract" milestone may be too blunt an
instrument to address these questions. Going forward, I would prefer a
more nuanced approach.

[^1]: ^?^ Joint Application for Review of Constellation Communications
    Holdings, Inc., Mobile Communications Holdings, Inc., and ICO Global
    Communications (Holdings) Limited, File Nos. SAT‑T/C‑20020718-00114,
    SAT-T/C-20020719-00104, SAT-MOD-20020719-00103,
    SAT-MOD-20020719-00105 (March 3, 2003) (ICO *et al.* Joint
    Application for Review).

[^2]: *Applications of Mobile Communications Holdings, Inc. and ICO
    Global Communications (Holdings) Limited for Transfer of Control,
    Constellation Communications Holdings, Inc. and ICO Global
    Communications (Holdings) Limited for Transfer of Control, Mobile
    Communications Holdings, Inc. for Modification of 2 GHz License,
    Constellation Communications Holdings, Inc. for Modification of 2
    GHz License*, Memorandum Opinion and Order, 18 FCC Rcd 1094 (Int\'l
    Bur. 2003) (*Constellation/MCHI Milestone Order*).

[^3]: ^?^ *The Establishment of Policies and Service Rules for the
    Mobile Satellite Service in the 2 GHz Band*, IB Docket No. 99-81,
    Report and Order, 15 FCC Rcd 16127, 16177 ¶ 106 (2000) (*2 GHz MSS
    Report and Order*). In this *Order*, we sometimes use the term
    \"authorization\" to refer to both MSS systems licensed by the
    Commission to serve the United States, as well as non-U.S.-licensed
    satellite systems for which the Commission reserved spectrum to
    serve the United States. Specifically, ICO is a United
    Kingdom-authorized system operator seeking access to the U.S.
    market. Section 25.137 of the Commission's rules permits a non-U.S.
    licensed space station to participate in a space station processing
    round by submitting a Letter of Intent (LOI). 47 C.F.R. § 25.137
    (2002). The grant of an LOI in a space station processing round
    reserves spectrum for eventual use in the United States by earth
    stations to be licensed at a later date to communicate with the
    non-U.S. licensed space station.

[^4]: ^?^ In promulgating the licensing and service rules for 2 GHz MSS,
    we stated that \"milestone requirements are especially important
    because we are declining to adopt financial qualifications as an
    entry criterion for 2 GHz MSS systems.\" *2 GHz MSS Report and
    Order*, 15 FCC Rcd at 16177 ¶ 106. More recently, we reiterated that
    \"\[m\]ilestones remain an important tool to prevent warehousing of
    scarce orbit and spectrum resources\" and \"strict enforcement of
    milestones will help safeguard against speculative satellite
    applications.\" *Amendment of the Commission\'s Space Station
    Licensing Rules and Policies*, IB Docket No. 02-34, First Report and
    Order and Further Notice of Proposed Rulemaking, 18 FCC Rcd 10760,
    10828 ¶ 175 (2003) (*First Space Station Reform Order*).

[^5]: *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 ¶ 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 ¶ 5 (Com. Car. Bur. 1987)
    (*MCI*) (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*, Memorandum Opinion and
    Order, 16 FCC Rcd 11550 (2001) (*Morning Star Reconsideration
    Order*).

[^6]: ^?^ *See, e.g.*, *Advanced Communications Corporation*, Memorandum
    Opinion and Order, 10 FCC Rcd 13337, 13338 ¶ 4 (Int'l Bur. 1995)
    (*Advanced*), *aff'd*, Memorandum Opinion and Order, 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); *AMSC Subsidiary Corp.*, Memorandum Opinion and Order, 8 FCC
    Rcd 4040, 4042 ¶ 13 (1993) (*AMSC Order*); *Motorola, Inc. and
    Teledesic LLC*, Memorandum Opinion and Order, 17 FCC Rcd 16543
    (Int'l Bur. 2002) (*Motorola/Teledesic*).

[^7]: *2 GHz MSS Order*, 15 FCC Rcd at 16177 ¶ 106. *See also* Columbia
    Communications Corporation, *Memorandum Opinion and Order*, 15 FCC
    Rcd 15566, 15571, ¶ 11 (Int'l Bur. 2000) (*First Columbia Milestone
    Order*).

[^8]: 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 ¶ 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).

[^9]: ^?^ *See Columbia Communications Corporation, Application for
    Amendment to Pending Application to Extend Milestones*, Memorandum
    Opinion and Order, 15 FCC Rcd 16496, 16502 ¶ 16 (Int\'l Bur., 2000)
    (Second Columbia Milestone Order); AMSC Order, 8 FCC Rcd at 4042
    (para. 13); Norris Review Order, 12 FCC Rcd at 22306 (para. 17).

[^10]: *See* Section II.A.3., *infra*.

[^11]: *Licensing of Space Stations in the Domestic Fixed-Satellite
    Service*, Report and Order, CC Docket No. 81-704, 48 Fed. Reg. 40233
    (1983) at para. 82.

[^12]: *Id.*

[^13]: *Licensing Space Stations in the Domestic Fixed-Satellite
    Service*, Report and Order, CC Docket No. 85-135, 50 Fed. Reg 36071
    (1985) at para. 28 and n. 43.

[^14]: *Amendment of the Commission's Rules to Establish Rules and
    Policies Pertaining to a Non-Voice, Non-Geostationary
    Mobile-Satellite Service,* Report and Order, CC Docket No. 92-76, 8
    FCC Rcd 8450, 8455 ¶ 18 (1993) (*Little LEO Order*).

[^15]: *See, e.g., VisionStar, Inc*., Order and Authorization, 13 FCC
    Rcd 1428 (Int'l Bur. 1997).

[^16]: For a detailed discussion of these new milestone requirements*,
    see 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, 16177-78 ¶ 106 (2000) (*2 GHz MSS
    Order*).

[^17]: *2 GHz MSS Order*, 15 FCC Rcd at 16178-79 ¶ 108.

[^18]: *2 GHz MSS Order*, 15 FCC Rcd at 16177-78 ¶ 106.

[^19]: *2 GHz MSS Order*, 15 FCC Rcd at 16177-78 ¶ 106.

[^20]: *2 GHz MSS Order*, 15 FCC Rcd at 16177-78 ¶ 106.

[^21]: *See First Space Station Reform Order*, 18 FCC Rcd at 10827-28 ¶
    174.

[^22]: 47 C.F.R. § 25.164.

[^23]: 47 C.F.R. § 25.164.

[^24]: 47 C.F.R. § 25.164.

[^25]: *See, e.g.,* *Motorola/Teledesic*, 17 FCC Rcd at 16547 ¶ 11.

[^26]: *Tempo Enterprises, Inc., et al.,* Memorandum Opinion and Order,
    1 FCC Rcd 20, 21 ¶ 7 (1986) (*Tempo Order*). *See also MCI Order*, 2
    FCC Rcd at 234 ¶ 10, *Nexsat Order,* 7 FCC Rcd at 1990 ¶¶ 3-4. *See
    also* Letter from Chief, Domestic Facilities Division, Common
    Carrier Bureau to Counsel, Hughes Communications Galaxy, Inc. (June
    7, 1990) stating that \"\[r\]equiring a non-contingent construction
    contract provides a uniform standard for all licensees and tangible
    evidence that implementation is proceeding.\"

[^27]: *Tempo Order*, 1 FCC Rcd at 21 ¶ 7.

[^28]: ^?^ *Tempo Order*, 1 FCC Rcd at 21 ¶ 7.

[^29]: *Tempo Order*, 1 FCC Rcd at 21 ¶ 7.

[^30]: ^?^ *Norris Satellite Communications, Inc*., Memorandum Opinion
    and Order, 12 FCC Rcd 22299, 22303-04 ¶ 9 (1997) (*Norris Review
    Order*), *PanAmSat Licensee Corp*., Memorandum Opinion and Order, 15
    FCC Rcd 18720 (Int'l Bur. 2000), *PanAmSat Licensee Corp.
    Application for Authority to Construct, Launch, and Operate a
    Ka-Band Communications Satellite System in the Fixed-Satellite
    Service at Orbital Locations 58° W.L. and 125° W.L.*, Memorandum
    Opinion and Order, 16 FCC Rcd 11534, 11539 (para. 16) (2001);
    *Mobile Communications Holdings, Inc.*, Memorandum Opinion and
    Order, 17 FCC Rcd 11898 (Int'l Bur. 2002), aff'd 18 FCC Rcd 11650
    (2003).

[^31]: *See* *Morning Star Satellite Company, LLC*, Memorandum Opinion
    and Order, 15 FCC Rcd 11350, 11352 ¶ 6 (Int\'l Bur., 2000), *aff\'d
    in Morning Star Satellite Company, LLC*, Memorandum Opinion and
    Order, 16 FCC Rcd 11550 (Int\'l Bur., 2001).

[^32]: *Tempo Order*, 1 FCC Rcd at 21 ¶ 7.

[^33]: ^?^ In this Order, the term \"license\" is used to refer both to 
    licenses issued pursuant to Section 301 of the Communications Act,
    47 USC § 301, and to a spectrum reservation adopted pursuant to the
    Commission\'s procedures for considering letter of intent filings. 
    See 47 CFR § 25.137; *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, 24173-74 ¶ 185 (1997)
    (*DISCO II*).

[^34]: One example of a countervailing factor is a case in which the
    licensee committed to build its own satellite system rather than
    hiring an outside satellite manufacturer. In that case, the licensee
    submitted an \"Inter-organizational Work Order\" committing a
    subsidiary to build the satellite system, and allocating \$3 million
    to the project. The licensee also demonstrated that it had
    sufficient facilities to build a satellite system. *See The Boeing
    Company*, Order and Authorization, 18 FCC Rcd 12317, 12328-29 ¶¶
    30-31 (Int\'l Bur. and OET, 2003) (listing factors that the
    Commission may consider in reviewing \"in-house\" satellite
    manufacturing arrangements).

[^35]: *Norris Satellite Communications, Inc*., Order, 11 FCC Rcd 5402,
    5402 ¶ 4 (Int. Bur. 1996), *aff'd* 12 FCC Rcd 22299 (1997).

[^36]: *See Direct Broadcasting Satellite Corp.*, Memorandum Opinion and
    Order, 8 FCC Rcd 7959, 7960 ¶6 (Mass Media Bur., Video Services Div.
    1993) (a non-contingent contract must specify a construction
    timetable with "regular, specific" progress deadlines), quoting
    *United States Satellite Broadcasting Co., Inc. and Dominion Video
    Satellite, Inc.*, Memorandum Opinion and Order, 3 FCC Rcd 6858, 6861
    ¶ 20 (1988) (*USSB/Dominion Order*); *Morning Star Satellite Co.,
    LLC*, Memorandum Opinion and Order, 15 FCC Rcd 11350, 11352 ¶ 8
    (Int\'l Bur. 2001), *aff\'d.* 16 FCC Rcd 11550 (2001) (contract
    found contingent in part because it did not specify a construction
    schedule), *EchoStar Satellite Corp.*, Memorandum Opinion and Order,
    17 FCC Rcd 12780, 12783 ¶7 (Int\'l Bur. 2002).

[^37]: *EchoStar Satellite Corporation*, Memorandum Opinion and Order,
    17 FCC Rcd 12780, 12783 ¶ 7 (Int\'l Bur., 2002).

[^38]: *Advanced Review Order*, 11 FCC Rcd at 3414 ¶ 39.

[^39]: *KaStarCom World Satellite, LLC*, Order and Authorization, 18 FCC
    Rcd 22337, 22339 n.16 (Int\'l. Bur. 2003) (*KaStarCom Order*).

[^40]: Lakeshore Broadcasting, Inc., v. FCC, 199 F.3d 468 (D.C. Cir.,
    1999) (*Lakeshore*), Trinity Broadcasting of Florida v. FCC, 211
    F.3d 618 (D.C. Cir. 2000) (*Trinity*).

[^41]: ^?^ *Tempo Order*, 1 FCC Rcd at 21 ¶ 7.

[^42]: It is well established that administrative agencies may develop
    policy in either rulemaking or adjudicatory proceedings. SEC v.
    Chenery Corp., 332 U.S. 194 (1947), *cited in* Winter Park
    Communications, Inc. v. FCC, 873 F.2d 347, 351 n.4 (D.C. Cir. 1989);
    SBC Communications, Inc. v. FCC, 138 F.2d 410, 421 (D.C. Cir. 1998)
    (Commission is allowed to proceed in adjudications so that it can
    develop policy in small steps).

[^43]: ^?^ *The Establishment of Policies and Service Rules for the
    Mobile Satellite Service in the 2 GHz Band*, IB Docket No. 99-81,
    Notice of Proposed Rulemaking, 14 FCC Rcd 4843, 4881-83 ¶¶ 83-90
    (1999) (*2 GHz MSS Notice*).

[^44]: ^?^ In the *2 GHz Report and Order*, the Commission also adopted
    milestone requirements after the contact execution milestone,
    including critical design review, and commencement of physical
    construction. For a complete discussion of 2 GHz MSS milestone
    requirements, see *2 GHz MSS Report and Order*, 15 FCC Rcd at
    16177-78 ¶ 106.

[^45]: ^?^ *Id.* at 16139 ¶ 18.

[^46]: ^?^ *See Amendment of Part 2 of the Commission's Rules to
    Allocate Spectrum Below 3 GHz for Mobile and Fixed Services to
    Support the Introduction of New Advanced Wireless Services,
    including Third Generation Wireless Systems*, ET Docket No. 00-258,
    Memorandum Opinion and Order and Further Notice of Proposed
    Rulemaking, 16 FCC Rcd 16043, 16056 ¶ 28 (2001) (*AWS Further
    Notice*).

[^47]: ^?^ *AWS Further Notice*, 16 FCC Rcd at 16051 ¶ 16 (citing 47
    C.F.R. § 25.143(e)(3)).

[^48]: ^?^ In this document, the term \"ICO\" refers to either ICO
    Services Limited or its parent, ICO Global Communications (Holding)
    Limited, depending on context.

[^49]: ^?^ *See Constellation Communications Holdings, Inc.*, Order and
    Authorization, 16 FCC Rcd 13724, 13731 ¶ 15 (Int'l Bur./OET 2001)
    (*Constellation 2 GHz MSS Order*); *Mobile Communications Holdings,
    Inc.*, Order and Authorization, 16 FCC Rcd 13794, 13800 ¶ 16 (Int'l
    Bur./OET 2001) (*MCHI 2 GHz MSS Order*).

[^50]: ^?^ FCC Form 312 Application of Constellation Communications
    Holdings, Inc. and ICO Global Communications (Holdings) Limited,
    File No. SAT-T/C-20020718-00114 (July 18, 2002) and FCC Form 312
    Application of Mobile Communications Holdings, Inc. and ICO Global
    Communications (Holdings) Limited, File No. SAT-T/C-20020719-00104
    (July 18, 2002). These transfers of control were to take place
    pursuant to agreements for the sale of the outstanding capital stock
    of Constellation and ESBH, Inc., a wholly-owned subsidiary of MCHI,
    respectively (the \"Stock Purchase Agreements\"). The Bureau granted
    consent to the *pro forma* assignment of MCHI's license to ESBH,
    Inc. by Letter from Jennifer Gilsenan, Chief, Policy Branch,
    Satellite Division, International Bureau, FCC to Tom Davidson,
    Counsel to Mobile Communications Holdings, Inc., File No.
    SAT-ASG-20020719-00106 (September 11, 2002).

[^51]: ^?^ Application for Minor Modification of Authorization of
    Constellation Communications Holdings, Inc., File No.
    SAT-MOD-20020719-00103 (July 17, 2002) and Application for Minor
    Modification of Authorization of Mobile Communications Holdings,
    Inc., File No. SAT-MOD-20020719-00105 (July 18, 2002). *See* Public
    Notice, Report No. SAT-00116 (August 5, 2002).

[^52]: ^?^ Satellite System Sharing Agreement By and Between ICO Global
    Communications (Operations) Limited and Constellation Communications
    Holdings, Inc. (July 16, 2002) (redacted version submitted by Letter
    of Robert A. Mazer, Counsel to Constellation Communications
    Holdings, Inc. to Marlene H. Dortch, Secretary, FCC (July 29, 2002)
    (Constellation-ICO Sharing Agreement); Satellite System Sharing
    Agreement By and Between ICO Global Communications (Operations)
    Limited and Mobile Communications Holdings, Inc. (July 12, 2002)
    (redacted version submitted by Letter of Tom W. Davidson, Counsel to
    Mobile Communications Holdings, Inc. to Marlene H. Dortch,
    Secretary, FCC (July 29, 2002) (MCHI-ICO Sharing Agreement).

[^53]: ^?^ *Constellation/MCHI Milestone Order*, 18 FCC Rcd 1094.

[^54]: ^?^ *Constellation/MCHI Milestone Order*, 18 FCC Rcd at 1100 ¶
    16.

[^55]: ^?^ *Constellation/MCHI Milestone Order*, 18 FCC Rcd at 1100 ¶ 16
    (emphasis in original) (footnotes omitted).

[^56]: ^?^ *Constellation/MCHI Milestone Order*, 18 FCC Rcd at 1102-03 ¶
    20-23.

[^57]: ^?^ *See, e.g.*, ICO *et al.* Joint Application for Review at 8
    (\"The Bureau based its revocation of the \[Constellation\] and MCHI
    licenses on the erroneous findings that that Sharing Agreements are
    not satellite manufacturing contracts\").

[^58]: ^?^ ICO *et al.* Joint Application for Review at 6, 8-18.

[^59]: ^?^ ICO *et al.* Joint Application for Review at 7, 21-24.

[^60]: ^?^ ICO *et al.* Joint Application for Review at 25.

[^61]: ^?^ *See* Opposition to ICO *et al.* Joint Application for Review
    of AT&T Wireless Services, Inc., Verizon Wireless and Cingular
    Wireless LLC (March 18, 2003); Joint Reply of ICO *et al.* (March
    28, 2003) (ICO *et al.* Joint Reply). Also on file are several *ex
    parte* letters cited in this Order below.

[^62]: ^?^ *See, e.g.*, ICO *et al.* Joint Application for Review at 8
    (\"The Bureau wrongly concluded that the Sharing Agreements are not
    manufacturing contracts . . . .\").

[^63]: *MCHI/Constellation Milestone Order*, 18 FCC Rcd at 1099-1100
    (paras. 15-16).

[^64]: ^?^ *MCHI/Constellation Milestone Order*, 18 FCC Rcd at 1101.

[^65]: ^?^ ICO *et al.* Joint Application for Review at 8-18. *See also*
    Letter from Suzanne Hutchings, Counsel for ICO, to Marlene H.
    Dortch, Secretary, FCC (dated Oct. 28, 2003); Letter from Cheryl A.
    Tritt, Counsel for ICO, to Marlene H. Dortch, Secretary, FCC (dated
    Dec. 18, 2003).

[^66]: ^?^ ICO *et al.* Joint Application for Review at 17-18.

[^67]: ^?^ *See, e.g.*, ICO *et al.* Joint Application for Review at 2.

[^68]: *United States Satellite Broadcasting Company, Inc.*, Memorandum
    Opinion and Order, 7 FCC Rcd 7247 (Vid. Serv. Div., Mass Med. Bur.
    1992) (*USSB*), *Volunteers in Technical Assistance*, Order, 12 FCC
    Rcd 3094 (Int'l Bur. 1997) (*VITA*), *aff'd*, Memorandum Opinion and
    Order, 12 FCC Rcd 13995 (1997).

[^69]: ^?^ ICO *et al.* Joint Reply at 2.

[^70]: ^?^ *Constellation/MCHI Milestone Order*, 18 FCC Rcd at 1101 ¶
    19, *citing* *USSB*, 7 FCC Rcd at 7249 ¶ 11, 7250 ¶ 17; *VITA*, 12
    FCC Rcd at 3094.

[^71]: ^?^ ICO *et al.* Joint Application for Review at 10.

[^72]: ^?^ *Constellation/MCHI Milestone Order*, 18 FCC Rcd at 1099 ¶
    15, *citing* *Motorola/Teledesic*, 17 FCC Rcd at 16547 ¶ 11.

[^73]: *Constellation/MCHI Milestone Order*, 18 FCC Rcd at 1101 ¶ 18.
    *See also Second Columbia Milestone Order*, 15 FCC Rcd at 16502 ¶
    16, *citing AMSC Order*, 8 FCC Rcd at 4042 ¶ 13 (failing to begin
    construction raises questions regarding the licensee\'s intention to
    proceed); *Norris Review Order*, 12 FCC Rcd at 22306 ¶ 17 (by
    failing to commence construction or request extension within the
    milestone deadline, licensee in that Order did not demonstrate a
    commitment to proceed with its proposed system).

[^74]: *USSB*, 7 FCC Rcd at 7250 ¶ 17.

[^75]: ^?^ *USSB*, 7 FCC Rcd at 7249 ¶ 11.

[^76]: ^?^ *USSB*, 7 FCC Rcd at 7250 n.6.

[^77]: ^?^ *USSB*, 7 FCC Rcd at 7250 ¶¶ 20-21.

[^78]: ^?^ USSB subsequently transferred control of its DBS
    authorization to Hughes' DirecTV, never deploying its own
    satellites. *See United States Satellite Broadcasting Co., Inc. and
    DIRECTV Enterprises Inc.*, Order and Authorization, 14 FCC Rcd 4585
    (Int'l Bur. 1999).

[^79]: ^?^ *USSB*, 7 FCC Rcd at 7250 ¶ 17.

[^80]: ^?^ *VITA*, 12 FCC Rcd 3094. VITA's first satellite was built
    under an agreement with CTA Commercial Systems that provided CTA
    would construct, launch, and provide certain operational services in
    return for commercial use of 50% of the satellite's capacity. CTA
    was not a Commission licensee, and thus, the fact that the
    Commission eventually approved of that agreement to allow the launch
    is inapposite to the analysis of whether a licensee can meet its
    milestones by sharing satellites with another licensee.

[^81]: ^?^ *VITA*, 12 FCC Rcd at 3097 ¶ 7. Ultimately, this satellite
    failed to function properly.

[^82]: ^?^ *VITA*, 12 FCC Rcd at 3108 ¶ 42 and 3110 ¶ 51.

[^83]: ^?^ The Constellation-ICO Sharing Agreement was signed July 16,
    2002 and the MCHI-ICO Sharing Agreement was signed July 12, 2002.
    The milestone date was July 17, 2002.

[^84]: ^?^ *Constellation/MCHI Milestone Order*, 18 FCC Rcd at 1100 ¶
    17.

[^85]: ^?^ *Advanced*, 10 FCC Rcd at 13342 ¶ 15.

[^86]: ^?^ *Advanced Review Order*, 11 FCC Rcd at 3414-15 ¶¶ 38-41,
    *aff'g*, *Advanced*, 10 FCC Rcd 13337.

[^87]: ^?^ *Advanced Review Order*, 11 FCC Rcd at 3416 ¶ 42.

[^88]: ^?^ Constellation-ICO Sharing Agreement (redacted version) at
    Section 2.3.2 (the remainder of the Purchase Price to be paid at the
    Closing); *id.* at Section 2.4 (Closing shall occur on the date that
    is 30 days following the Commencement Date); *id.* at Section 1
    (Commencement Date means the date on which the ICO System Channels
    become available for commercial services as reasonably determined by
    ICO). MCHI-ICO Sharing Agreement (redacted version) at Section 2.3.2
    (the remainder of the Purchase Price to be paid on the date that is
    30 days following the Commencement Date); *id.* at Section 1
    (Commencement Date means the date on which the ICO System Channels
    become available for commercial services as reasonably determined by
    ICO).

[^89]: ^?^ *See Constellation/MCHI Milestone Order*, 18 FCC Rcd at 1096
    ¶¶ 5-6 (noting that Constellation and MCHI represented that they
    would provide service independently only in the event that the
    Commission permitted them to share ICO's facilities but barred
    consummation of the Stock Purchase Agreements).

[^90]: *See*, *e.g.*, Letter from Cheryl A. Tritt, Counsel for ICO, to
    Marlene H. Dortch, Secretary, FCC (dated Oct. 31, 2003) (*ICO Oct.
    31 Ex Parte Statement*), *citing KaStarCom. World Satellite, LLC*,
    Memorandum Opinion and Order, 18 FCC Rcd 22337 (Int'l Bur., 2003)
    (*KaStarCom Milestone Order*).

[^91]: ^?^ *See KaStarCom. World Satellite, LLC*, Order and
    Authorization, 16 FCC Rcd 20133, 20134 ¶ 3 (Int'l Bur. 2001).

[^92]: ^?^ *See KaStarCom Milestone Order*, 18 FCC Rcd at 22339 ¶ 6 &
    n.16.

[^93]: ^?^ *See Constellation 2 GHz MSS Order*, 16 FCC Rcd at 13724-25 ¶
    2 (describing Constellation's proposal to construct its own 2 GHz
    MSS system); *MCHI 2 GHz MSS Order*, 16 FCC Rcd 13794-95 ¶ 2
    (describing MCHI's proposal to construct its own 2 GHz MSS system).

[^94]: ^?^ The Constellation-ICO Sharing Agreement was signed July 16,
    2002 and the MCHI-ICO Sharing Agreement was signed July 12, 2002.
    The milestone date was July 17, 2002.

[^95]: ^?^ As the Bureau stated in the *Constellation/MCHI Milestone
    Order*:

    \[A concern with speculative filings by applicants with no
    reasonable prospect or intention of constructing a system\] is
    particularly relevant in the context of 2 GHz MSS systems, given the
    2 GHz MSS licensing plan. As the Commission has indicated, the 2 GHz
    licensing plan was premised on the award of spectrum for the purpose
    of constructing satellite systems. One year after accepting a
    license, the award of which was premised on the construction of a
    satellite system, Constellation and MCHI seek to significantly alter
    their plans, in a manner which in effect would authorize the use by
    one system of the spectrum awarded to support three systems. While
    there may be benefits from operation of fewer systems, such as
    lesser interference potential, reduction of potential orbital
    debris, and simplification of coordination, these benefits could
    have been identified and addressed through agreements prior to
    licensing. (The same alleged benefits will be achieved by the result
    we reach here; *i.e.*, cancellation of the 2 GHz MSS licenses that
    were issued to MCHI and Constellation.) In any event, approval of
    the type of arrangement before us would create substantial
    incentives for applicants to pursue authorizations to construct
    satellite systems, even if they do not intend to construct and
    operate the system, and would create an unacceptably high risk of
    gaming of the licensing process.

    *Constellation/MCHI Milestone Order*, 18 FCC Rcd at 1102 ¶¶ 21
    (citing *AWS Further Notice*, 16 FCC Rcd at 16058 ¶ 35 and *2 GHz
    MSS Report and Order*, 15 FCC Rcd at 16138 ¶ 16).

[^96]: ^?^ *Tempo Order*, 1 FCC Rcd at 21 ¶ 7.

[^97]: *Tempo Order*, 1 FCC Rcd at 21 ¶ 7.

[^98]: *Norris Satellite Communications, Inc*., Memorandum Opinion and
    Order, 12 FCC Rcd 22299, 22303-04 ¶ 9 (1997) (*Norris Review
    Order*), *PanAmSat Licensee Corp*., Memorandum Opinion and Order, 15
    FCC Rcd 18720 (Int'l Bur. 2000), *PanAmSat Licensee Corp.
    Application for Authority to Construct, Launch, and Operate a
    Ka-Band Communications Satellite System in the Fixed-Satellite
    Service at Orbital Locations 58° W.L. and 125° W.L.*, Memorandum
    Opinion and Order, 16 FCC Rcd 11534, 11539 (para. 16) (2001).

[^99]: *Compare USSB*, 7 FCC Rcd at 7250 ¶ 19 *with* *Advanced Review
    Order*, 11 FCC Rcd at 3415 ¶ 41.

[^100]: ICO *et al.* Joint Application for Review at 18-20.

[^101]: *Lakeshore*, 199 F.3d 468, *Trinity*, 211 F.3d 618.

[^102]: *Lakeshore*, 199 F.3d at 475, *citing* Salzer v. FCC, 778 F.2d
    869, 871-72 (D.C. Cir. 1985); McElroy Electronics Corp. v. FCC, 990
    F.2d 1351, 1358 (D.C. Cir. 1993) (*McElroy*).

[^103]: *Lakeshore*, 199 F.3d at 475, *citing* *McElroy*, 990 F.2d at
    1358.

[^104]: *Trinity*, 211 F.3d at 628, *quoting* GE v. EPA, 53 F.3d 1324,
    1329 (D.C. Cir. 1995) (*emphasis added*).

[^105]: ICO *et al.* Joint Application for Review at 18-20. *See also*
    Letter from Suzanne Hutchings, Counsel for ICO, to Marlene H.
    Dortch, Secretary, FCC (dated Jan. 8, 2004); Letter from Suzanne
    Hutchings, Counsel for ICO, to Marlene H. Dortch, Secretary, FCC
    (dated Feb. 26, 2004).

[^106]: *Tempo Order*, 1 FCC Rcd at 21 ¶ 7.

[^107]: *Tempo Order*, 1 FCC Rcd at 21 ¶ 7. *See also USSB*, 7 FCC Rcd
    at 7250 ¶ 19, *Norris Review Order*, 12 FCC Rcd at 22303-04 ¶ 9;
    *Second Columbia Milestone Order*, 15 FCC Rcd at 16500-01 ¶ 12;
    *PanAmSat Ka-band License Cancellation Review Order*, 16 FCC Rcd at
    11539 ¶ 16.

[^108]: *USSB*, 7 FCC Rcd at 7250 ¶ 19, *Advanced Review Order*, 11 FCC
    Rcd at 3415 ¶ 41.

[^109]: ^?^ *Directsat Corporation*, Order, 11 FCC Rcd 1775 (Int'l Bur.
    1996) (*Directsat*).

[^110]: ^?^ *Directsat*, 11 FCC Rcd at 1776 ¶ 12.

[^111]: ^?^ *Directsat*, 11 FCC Rcd at 1777 ¶ 16.

[^112]: *Tempo Order*, 1 FCC Rcd at 21 ¶ 7; *USSB*, 7 FCC Rcd at 7250 ¶
    19, *Advanced Review Order*, 11 FCC Rcd at 3415 ¶ 41; *Directsat*,
    11 FCC Rcd at 1777 ¶ 16; *Review Order*, 18 FCC Rcd at 11656 ¶ 19.

[^113]: *MCHI/Constellation Milestone Order*, 18 FCC Rcd at 1100 ¶ 17.

[^114]: *Constellation/MCHI Milestone Order*, 18 FCC Rcd at 1100 n.28.

[^115]: ^?^ ICO *et al.* Joint Application for Review at 8.

[^116]: ^?^ *Tempo Order*, 1 FCC Rcd at 21 ¶ 7.

[^117]: ^?^ *Tempo Order*, 1 FCC Rcd at 21 ¶ 7.

[^118]: *Compare USSB*, 7 FCC Rcd at 7250 ¶ 19 *with* *Advanced Review
    Order*, 11 FCC Rcd at 3415 ¶ 41.

[^119]: ICO *et. al*. Modification Application at 17.

[^120]: *Constellation/MCHI Milestone Order*, 18 FCC Rcd at 1103 ¶
    20-22.

[^121]: ^?^ ICO *et al.* Joint Application for Review at 21.

[^122]: ^?^ Constellation/MCHI Modification Applications at 17-19.

[^123]: ^?^ To grant such relief here would establish a precedent that
    would make it possible for parties with marginal prospects and
    uncertain intentions to delay for as long as a year after receiving
    licenses before arranging for disposition of their license interests
    and then continue to hold the licenses past the one-year deadline
    for as long as it would take to resolve any issues presented by
    their last-minute assignment or transfer-of-control applications.
    Such a precedent would also tend to encourage speculative filings by
    applicants with no reasonable prospect or intention of constructing
    a system.

    *Constellation/MCHI Milestone Order*, 18 FCC Rcd at 1102 ¶ 20.

[^124]: Section 1.3 of the Commission's rules provides that waiver of a
    rule may be granted upon \"good cause shown.\" 47 C.F.R. § 1.3.
    However, as noted by the Court of Appeals for the D.C. Circuit,
    agency rules are presumed valid, and \"an applicant for waiver faces
    a high hurdle even at the starting gate.\" *WAIT Radio v. FCC*, 418
    F.2d 1153, 1157 (D.C. Cir. 1969), *cert. denied*, 409 U.S. 1027
    (1972). The Commission may exercise its discretion to waive a rule,
    where the particular facts make strict compliance inconsistent with
    the public interest. *Northeast Cellular Telephone Co. v. FCC*, 897
    F.2d 1164, 1166 (D.C. Cir. 1990). Further, if it grants a waiver,
    the Commission must articulate a rational justification for the
    exception that establishes a predictable, workable standard for
    non-discriminatory resolution of future cases. *WAIT Radio*, 418
    F.2d at 1159; *Northeast Cellular*, 897 F.2d at 1166.

[^125]: ^?^ ICO *et al.* Joint Application for Review at 24.

[^126]: ^?^ *Constellation/MCHI Milestone Order*, 18 FCC Rcd at 1103 ¶
    23 & n.44 (citing milestone extension precedent).

[^127]: ^?^ *See, e.g.*, *MCI*, 2 FCC Rcd at 234 ¶ 7 (mergers do not
    justify extension of milestones); *see also Columbia Communications
    Corporation*, Memorandum Opinion and Order, 15 FCC Rcd 15566, 15571
    ¶ 12 (Int'l Bur. 2000) (*Columbia First Milestone Order*); *Columbia
    Communications Corporation*, Memorandum Opinion and Order, , 15 FCC
    Rcd 16496, 16497-98 ¶ 5 (Int'l Bur. 2000) (*Columbia Second
    Milestone Order*); *Advanced*, 10 FCC Rcd at 13341 ¶ 14.

[^128]: ^?^ ICO *et al.* Joint Application for Review at 20, ICO *et.al*
    Reply at 4.

[^129]: ^?^ 47 U.S.C. § 312(c).

[^130]: ^?^ *Compare* 47 U.S.C. § 312(a) (listing seven bases for
    license or permit revocation) *with* 47 U.S.C. § 319(b) (\"permits
    for construction shall show specifically the earliest and latest
    dates between which the actual operation of such station is expected
    to begin, and shall provide that said permit will be automatically
    forfeited if the station is not ready for operation within the time
    specified\"). For more on the Commission's policy incorporating
    space station construction permit authority into the launch and
    operation authority, see *Streamlining the Commission\'s Rules and
    Regulations for Satellite Application and Licensing Procedures,* IB
    Docket No. 95-117, Report and Order, 11 FCC Rcd 21581, 21584-85 ¶ 8
    (1996) (waiving construction permit requirement for space stations
    will accelerate the provision of satellite-delivered services, and
    eliminate administrative burdens and potential delays). *See also*
    *2 GHz MSS Report and Order*, 15 FCC Rcd at 16179-80 ¶ 111 (applying
    this policy to 2 GHz MSS).

[^131]: ^?^ The authorizations included an ordering clause stating the
    licensee \"may decline this authorization as conditioned within 30
    days of the date of the release of this *Order and Authorization*.
    Failure to respond within this period will constitute formal
    acceptance of the authorization as conditioned.\" *See*
    *Constellation 2 GHz MSS Order*, 16 FCC Rcd at 13736 ¶ 34; *MCHI 2
    GHz MSS Order*, 16 FCC Rcd at 13805 ¶ 33.

[^132]: ^?^ *See, e.g.*, *P&R Temmer v. FCC*, 743 F.2d at 928 (\"An FCC
    licensee takes its license subject to the conditions imposed on its
    use. . . . Acceptance of a license constitutes accession to all such
    conditions. A licensee may not accept only the benefits of the
    license while rejecting the corresponding obligations.\"); *Capital
    Telephone Co. v. FCC*, 498 F.2d 734, 740 (D.C.Cir.1974) (\"When an
    applicant accepts a government permit which is subject to certain
    conditions, he cannot later assert alleged rights which the permit
    required him to surrender in order to receive it.\").