Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | File Nos. 25-SAT-P/LA-95     |
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| FINAL ANALYSIS                   | ** | 76-SAT-AMEND-95              |
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| COMMUNICATIONS SERVICES, INC.    | *  | 79-SAT-AMEND-96              |
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| For Authorization to Construct,  | ** | 151-SAT-AMEND-96             |
| Launch                           |    |                              |
|                                  | *  | 7-SAT-AMEND-98               |
| and Operate a Non-Voice,         | *) |                              |
|                                  | ** | Call Sign S 2150             |
| Non-Geostationary Mobile         |    |                              |
| Satellite                        | *  |                              |
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| System in the 148-150.05 MHz,    | ** |                              |
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| 400.15-401 MHz, and 137-138 MHz  | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: November 20, 2001 Released: December 3, 2001**

By the Commission:

# Introduction

1.  With this Order, we consider the Application for Clarification and
    Review filed by Final Analysis Communication Services, Inc. ("Final
    Analysis"), and the Application for Review filed by Leo One USA
    Corporation ("Leo One"), both of which ask us to review the
    International Bureau Order licensing the Final Analysis satellite
    system.[^1] As part of the second processing round for applicants
    seeking authority to launch and operate non-voice, non-geostationary
    mobile satellite service systems in low Earth orbit ("NVNG MSS" or
    "Little LEO" systems), the Bureau authorized Final Analysis to
    construct, launch and operate a 26-satellite Little LEO system. The
    Bureau denied, however, a number of amendments that Final Analysis
    sought to make to its application. We affirm the Bureau's decision
    that many of Final Analysis's amendments were not necessary to
    conform to the Commission's rules for second processing round Little
    LEO systems. We also affirm the Bureau's decision that most of Final
    Analysis's non-conforming amendments were major amendments and as
    such, they could not be considered in the processing round. We grant
    two portions of Final Analysis's Application for Clarification and
    Review, reversing the Bureau's denial of the request to increase the
    number of on-orbit spare satellites, and the request to increase
    downlink power in the 137-138 MHz band. We dismiss as moot the Leo
    One Application for Review.

# BACKGROUND

## Second Little LEO Processing Round

2.  In October 1993, Leo One filed an application for a Little LEO
    system. At the time it filed its application, the Commission was
    considering Little LEO applications previously filed and being
    considered concurrently in the first Little LEO processing round.
    The Commission placed Leo One's application on public notice in
    September 1994. In the Public Notice, the Commission established a
    cut-off date by which other applicants would have to file in order
    to be considered concurrently with Leo One's application.[^2] This
    Public Notice commenced the second Little LEO processing round (the
    "Second Round"). On the specified cut-off date, Final Analysis
    submitted an application requesting authority to construct and
    operate a global Little LEO system consisting of 26 satellites
    operating in the 148-150 MHz frequency band for Earth-to-space
    transmissions, and the 137-138 MHz frequency band for space-to-Earth
    transmissions.[^3]

3.  The second processing round included eight applicants. In addition
    to Leo One and Final Analysis, the Second Round applicants were CTA
    Commercial Systems, Inc. ("CTA"), E-SAT, Inc. ("E-SAT"), and GE
    American Communications, Inc. ("GE Americom"). Orbital
    Communications Corporation ("Orbcomm") and Volunteers In Technical
    Assistance, Inc. ("VITA"), both first Little LEO processing round
    ("First Round") applicants, also filed applications in the Second
    Round to modify their First Round systems. Additionally, Starsys
    Global Positioning, Inc. had previously filed a major amendment to
    its First Round application, which the Bureau deferred for
    consideration in the Second Round.[^4]

4.  The Second Round applicants proposed to operate in spectrum
    allocated to the NVNG MSS in the 137-138 MHz, 148-150.05 MHz, and
    400.15-401 MHz frequency bands.[^5] All of these frequency bands are
    shared with other Little LEO systems, and government systems in the
    United States, and with terrestrial systems. Further, the NVNG MSS
    allocation in portions of the 137-138 MHz band is on a secondary
    basis only with respect to non-Little LEO satellite services.[^6]

5.  Unlike the First Round, in which sufficient spectrum existed to
    accommodate the three applicants, there was not enough spectrum
    available to accommodate all eight systems proposed by the Second
    Round applicants. Portions of the available uplink and downlink
    spectrum had already been licensed to First Round applicants
    Orbcomm, Starsys and VITA. Available downlink frequency bands were
    also shared on a primary or secondary basis with two government
    users, the National Oceanic and Atmospheric Administration ("NOAA")
    and the Department of Defense ("DOD"). Our notice of proposed
    rulemaking for the Second Round took into account all of these
    constraints on available spectrum.[^7]

6.  The *Second Round Notice* proposed to: (a) exclude First Round
    licensees from participating in the Second Round, in order to
    increase competition among Little LEO providers; (b) license up to
    three new Little LEO systems; (c) establish procedures that would
    require Second Round Little LEO Systems to protect the NOAA and DOD
    government satellite systems; and (d) use auctions to resolve mutual
    exclusivity among Second Round applicants. Subsequently, Starsys and
    GE Americom withdrew their applications, and Orbital Sciences
    Corporation, Orbcomm's parent, acquired the satellite operations of
    CTA.[^8]

7.  After the Commission issued the *Second Round Notice*, the remaining
    Second Round applicants reached a spectrum sharing plan that could
    accommodate them all in the available spectrum, using certain
    transmission techniques, system coordination, and time-sharing of
    certain frequencies.[^9] The parties asked the Commission to adopt
    this Joint Proposal and to award each applicant a license.
    Specifically, the parties asked the Commission to authorize three
    new Little LEO systems, assigning new System 1 to Leo One in the
    148-150.05 MHz (uplink) band and the 137-137.025 MHz, 400.15-400.505
    MHz and 400.645-401 MHz (downlink) bands, using Frequency Division
    Multiple Access ("FDMA") and Time Division Multiple Access ("TDMA")
    transmission techniques. System 2 would be assigned to Final
    Analysis in the 148-150.05 MHz (uplink) and the 400.15-401 MHz and
    137-138 (downlink) bands using FDMA/TDMA transmission techniques.
    System 3 would be assigned to E-SAT in the 148-148.905 MHz (uplink)
    and the 137.0725---137.9275 MHz (downlink) bands using Code Division
    Multiple Access ("CDMA") transmission techniques. The Joint Proposal
    further provided that Orbcomm and VITA would continue to operate
    their modified systems using FDMA and TDMA transmission techniques.
    As is explained in the discussion of sharing techniques below, this
    difference in transmission techniques for System 3 allows E-SAT to
    share certain frequencies with an FDMA/TDMA system when two
    FDMA/TDMA systems could not simultaneously operate in that spectrum.

8.  The Joint Proposal also required the applicants to share the Little
    LEO spectrum with NOAA and DOD, with terrestrial U.S. users of the
    band, and with certain foreign-licensed satellite systems, including
    a proposed French satellite system (S80-1), the Russian
    radionavigation satellite service system, and the proposed Russian
    METEOR satellite system. The Joint Proposal also provided that the
    Little LEO applicants would share portions of the Little LEO
    spectrum among themselves, including that Final Analysis, Leo One,
    Orbcomm and E-SAT would share the 148-150 MHz uplink band
    frequencies.

9.  In order for the Commission to implement the proposed sharing plan,
    the applicants agreed to amend their pending Little LEO applications
    in a manner consistent with the Joint Proposal and with Commission
    rules.[^10] The applicants also agreed to withdraw their pending
    petitions or objections against each other's applications, and
    waived their right to appeal our order implementing rules for the
    Second Round so long as it was consistent with the Joint Proposal.
    In filing the Joint Proposal with the Commission, the Second Round
    applicants represented to the Commission that the spectrum sharing
    approach described in the Joint Proposal would provide a manageable
    spectrum environment.[^11] Our *Report and Order* and the Bureau's
    five licensing orders accepted that representation and essentially
    adopted the applicants' Joint Proposal.

10. The Commission issued the *Report and Order* on October 15, 1997,
    based on those representations, concluding that with certain
    transmission techniques, system coordination, and time-sharing of
    frequencies contemplated in the Joint Proposal, there was sufficient
    spectrum available to accommodate the five Second Round
    applicants.[^12] Because the ability to accommodate the three new
    and two modified Little LEO systems was, in large measure, based
    upon the specific system parameters to which the applicants agreed
    in the Joint Proposal, the Commission provided the applicants an
    opportunity to amend their applications to bring them into
    conformance with the Joint Proposal and the rules and policies
    adopted in the *Report and Order*. The Commission indicated in that
    order that only amendments necessary to bring an application into
    conformance with the Joint Proposal and the policies adopted in the
    *Report and Order* would be accepted unconditionally.[^13] The
    Commission emphasized that all other amendments would be considered
    under the Commission's rule governing amendments for satellite
    systems. Specifically, Section 25.116(c) of the Commission's rules
    provides that any application will be deemed a newly filed
    application to be considered in a later processing group if it is
    amended by a "major amendment."[^14] A "major amendment" is an
    amendment that increases the potential for interference.[^15] None
    of the applicants, including Final Analysis, appealed this decision.

## Final Analysis Amendment

11. Final Analysis filed an amendment to its pending Application on the
    deadline set by the *Report and Order*.[^16] As agreed in the
    applicants' Joint Proposal, Final Analysis's Amendment proposed
    operation on the frequency bands assigned to System 2 in the *Report
    and Order*. Those frequencies are the 148-150.05 MHz uplink and
    137.0-138.0 MHz and 400.15-401.0 MHz downlink bands. The Bureau
    analyzed Final Analysis's proposed operations in those uplink and
    downlink frequency bands, and found that the Amendment proposal to
    operate in System 2 spectrum conformed to the Joint Proposal.[^17]

12. The Amendment, however, also proposed to modify various technical
    aspects of Final Analysis' proposed system. These included: an
    increase in the number of operational satellites from 26 to 32; an
    increase in the number of non-operational in-orbit spare satellites,
    from four to six; a shift in the inclination of the satellites'
    orbital planes from 66° to 51°; an increase in the number of orbital
    planes from four to six planes; a decrease in the number of
    operational satellites in each orbital plane, from six to five; an
    increase in the uplink power from 10W to 20W; and an increase in the
    downlink power from 12.8 dBW to 17.8 dBW. The Amendment also
    appeared to request authority to operate at higher data rates, to
    operate its uplink transmissions by a message terminal polling
    method, and to increase its feeder and subscriber uplinks and
    downlinks. In support of its Amendment, Final Analysis argued that
    the system amendments it requested were, as a whole, "demonstrably
    necessitated" by the time-sharing requirements in the *Report and
    Order* and by its need to maximize the availability of its
    system.[^18] Leo One filed a petition to deny and Orbcomm filed
    comments opposing Final Analysis' Amendment.[^19] In its petition to
    deny, Leo One argued that Final Analysis' Amendment as a whole
    constituted a major amendment filed after the cut-off date,
    requiring us to defer consideration of Final Analysis' entire
    application until another processing round.[^20]

13. The Bureau found that most of Final Analysis's proposed changes were
    not necessary to conform to the *Report and Order*. The Bureau
    analyzed the non-conforming changes under the Commission's major
    amendments rule. It found that Final Analysis's proposed changes to
    its constellation design, and increases in both uplink and downlink
    power increased the potential for interference with other Little LEO
    applicants and with government users sharing the same frequency
    bands.[^21] The Bureau also rejected Final Analysis's claim that the
    Commission should grant the amended application because it was
    necessitated by the requirements adopted in the *Report and
    Order*.[^22] Final Analysis argued that the time-sharing constraints
    imposed in the *Report and Order* would preclude it from
    implementing a competitive system offering near real-time service.
    The Bureau found, however, that nothing in the *Report and Order*
    allowed Final Analysis to modify its constellation design in a
    manner that would affect the other Little LEO systems.

14. Thus, the Bureau granted a license to Final Analysis that authorized
    those portions of its Application and its Amendment that conformed
    to the *Report and Order* and to the parties' Joint Proposal, rather
    than defer Final Analysis's application to a future processing
    round.[^23]

## Application for Review

15. In its Application for Review, Final Analysis asks the Commission to
    reverse the Bureau's *License Order* by granting the Amendment in
    its entirety. The Application for Review contends that the *License
    Order* contains errors of fact and errors of law that lead to
    unreasonable and unsupported determinations on the major amendment
    status of its proposals.[^24] Final Analysis also contends that
    without authorization of all its proposed amendments, it will be
    compelled to decline the license as authorized in the *License
    Order*, an action it claims will result in the invalidation of the
    applicants' Joint Proposal and will undermine the entire Little LEO
    industry.[^25] Both Orbcomm and Leo One filed comments opposing the
    Application for Review.[^26]

16. In this Order, we first review the International Bureau's decision
    that the amendments at issue here were not necessary to conform to
    the *Report and Order*. If we affirm that decision, we will then
    review the Bureau's determinations as to whether each proposed
    change results in an increased potential for interference, and thus
    constitutes a major amendment that cannot be considered in the
    Second Round.

# DISCUSSION

## Conforming Amendments

17. The first argument that Final Analysis makes in support of its
    Application for Review is that the International Bureau erred in
    concluding that the proposals in its Amendment were not required to
    conform to the *Report and Order*. Whenever the Commission develops
    satellite service rules concurrently with consideration of pending
    applications for that service, as it did in the second Little LEO
    processing round, we always allow applicants an opportunity to amend
    their pending applications to bring them into conformance with the
    rules that we adopt for the particular service.[^27] Because most
    service rules are based upon service-specific technical requirements
    designed to accommodate as many satellite systems as possible in the
    available spectrum, technical changes beyond those required by the
    rules could impact the operations of other proposed systems.
    Consequently, the Commission has always limited conforming
    amendments to changes made necessary by the newly adopted service
    rules.[^28] The *Report and Order* describes acceptable conforming
    amendments. In fact, an example described in the *Report and Order*
    is one type of change proposed by Final Analysis, i.e., a change in
    the feeder or service link spectrum to meet requirements imposed by
    the spectrum sharing plan that we adopted in the *Report and
    Order.*[^29] Further, the *Report and Order* provided an example of
    an unacceptable amendment, a "change from a CDMA to a FDMA/TDMA
    transmission technique."[^30]

18. The Amendment that Final Analysis filed proposed changes far beyond
    anything necessary to conform to service rules. We agree with the
    Bureau's finding that these proposed changes to Final Analysis's
    constellation design and proposed increases in both uplink and
    downlink power were not necessary to bring its proposed system into
    compliance with the rules. We disagree with Final Analysis that the
    *Report and Order* merely adopted a frequency plan, leaving all
    other implementing details to the applicants. We find that the Joint
    Proposal is not simply a frequency plan, but an agreement to operate
    in the assigned spectrum that is based upon the applicants' system
    designs as they existed at that time. Final Analysis claims that
    factors of timesharing, altered frequency assignments, and
    anticipation of future spectrum assignment made the system design
    changes in its Amendment necessary.[^31] None of these factors
    supports the proposed changes as necessary to conform to the *Report
    and Order*. Timesharing of frequencies was a concept central to
    system implementation from the inception of the Second Round. Final
    Analysis's frequency assignments were made, in significant part, due
    to its designation as System 2 under the Joint Proposal. Similarly,
    any expectation of future spectrum allocations for the Little LEO
    service was designated for System 2 only in the *Report and Order*
    and the Joint Proposal. This use of future spectrum was restricted
    to a System 2 priority to apply for and use a limited amount of
    downlink spectrum, should such spectrum become available in the
    future.[^32] To this extent, the System 2 license authorized to
    Final Analysis recognizes this use of future spectrum. We affirm the
    Bureau's finding that many changes proposed by Final Analysis were
    not conforming amendments. Consequently, we analyze each
    non-conforming change in turn to determine whether it constitutes a
    major amendment under our rules.

19. Final Analysis also argues that it was compelled to accept
    unforeseen and severely limiting design constraints to its system,
    an argument that appears to undermine the validity of the Joint
    Proposal.[^33] As with any agreement among competing parties, we
    expect that tradeoffs are made in the spirit of compromise. In other
    words, each party gained something and gave up something. The
    Commission implemented the final agreement among the parties, as it
    did when it licensed the First Round applicants in 1994 and 1995. We
    use the conforming amendment process to allow applicants to come
    into compliance with system-wide changes imposed by service rules.
    The process is not intended to allow applicants to make themselves
    "whole" with a system that was not "on the table" when the
    applicants reached an agreement -- an agreement that accommodated
    them all and that permitted the Commission to license the Second
    Round Little LEO systems without having to adopt a selection
    mechanism to choose among mutually exclusive applications. We
    therefore reject Final Analysis's argument that the *License Order*
    imposed upon it was "an unworkable regulatory hybrid design."[^34]

## Major Amendments Analysis

20. Section 25.116 of the Commission's Rules permits applicants to amend
    pending satellite applications unless the change constitutes a
    "major" amendment made after a "cut-off" date.[^35] The rule
    specifies that amendments that increase the *potential* for
    interference are major amendments.[^36] The Bureau found that Final
    Analysis's proposed constellation changes and its proposed increase
    in power were major amendments. We uphold the Bureau's findings,
    except as noted herein.

### Constellation Design Changes

21. Final Analysis proposed to increase the number of operational
    satellites from 26 to 32, and to increase the number of inactive
    on-orbit spare satellites from four to six. Final Analysis also
    proposed to decrease the number of operational satellites in each
    orbital plane from six to five satellites, to increase the number of
    orbital planes from four to six evenly spaced orbital planes, and to
    decrease the orbital inclination from 66 to 51 degrees.[^37] Final
    Analysis argued that the changes are needed to compensate for the
    constraints on its operations resulting from time-sharing
    requirements with NOAA. The Bureau denied these changes because it
    found that they increased the potential for interference to other
    systems sharing the downlink bands.[^38]

22. We review the Bureau's decision on Final Analysis's proposed
    constellation design changes by analyzing the proposals' impact on
    both the downlink and uplink bands. While Final Analysis proposes a
    host of changes to its constellation, its most significant change
    involves an increase in the number of satellites without an
    offsetting proposal to diminish the capacity of the satellites. Our
    review, and the Bureau's analysis, therefore focuses on the impact
    of additional identical satellites on the shared downlink and uplink
    bands. We note, however, that Final Analysis's other proposed
    constellation design changes \-- to increase the number of orbital
    planes and to decrease their orbital inclination angle -- also
    result in increased coverage to certain areas on the Earth. Final
    Analysis acknowledges that there will be an increase in its coverage
    for areas below 50 degrees north latitude, which includes most of
    the continental United States.[^39] This increase in coverage, by
    itself, amounts to an increase in the potential for interference in
    these areas to other Little LEO systems.

#### Downlink Band Impact

23. Final Analysis's 137-138 MHz and 400.15-401.0 MHz downlink bands are
    principally time-shared with NOAA. E-SAT and Final Analysis also
    share several sub-segments in the 137-138 MHz band. VITA also shares
    downlinks with Final Analysis in two small segments of spectrum in
    the 400.15-401.0 MHz band.[^40] With respect to time-sharing the
    spectrum in the 137-138 MHz frequency band with NOAA, our rules
    require Final Analysis\'s satellites to cease transmitting before
    their satellite transmission beams (each also referred to as a
    \"footprint\") overlap the NOAA satellite\'s comparable beam on
    Earth (NOAA's \"protection area\").[^41] Interference, which in this
    instance is called a \"time-sharing violation,\" occurs when a Final
    Analysis satellite fails to cease co-frequency transmissions during
    the period in which Final Analysis's footprint and NOAA's protection
    area overlap. Time-sharing violations may be caused by numerous
    factors including an on-board failure, ground control errors, and
    other anomalies.

24. Final Analysis argues that the changes in its constellation design
    will not create greater potential for interference NOAA in the
    downlink bands.[^42] Final Analysis argues that two conditions must
    be present before the addition of satellites can create a greater
    potential for interference to NOAA: (i) a greater number of
    footprint overlaps are created between the Final Analysis and NOAA
    systems, and (ii) the overlapping satellites transmit at the same
    time on the same frequency.[^43] The probability of these two
    conditions occurring is very low, according to Final Analysis.

25. The Commission and NTIA share jurisdiction to administer the
    frequencies in which the Commission's commercial Little LEO
    licensees operate in the spectrum simultaneously occupied by
    government users. In fact, in portions of the 137-138 MHz downlink
    bands, the Little LEO service operates under a secondary allocation,
    which means that Little LEO services cannot cause interference to
    primary government operations in the band. The Commission formally
    requested NTIA (on behalf of NOAA, the affected government user) to
    provide final agency views on whether Final Analysis\'s proposed
    constellation design changes increase the potential for interference
    to government systems in the shared bands.[^44] NTIA concluded that
    in the 137-138 MHz band \"there is an increased potential for
    interference under failure conditions between the application
    granted by the International Bureau and that proposed in the
    modified design.\"[^45]

26. Given NTIA's concern about the potential for increased interference
    to primary government operations, we uphold the Bureau's findings
    that Final Analysis's proposed constellation changes were major
    amendments. We also find that Final Analysis's argument that the
    probability of interference is low is based upon its erroneous
    assumption that a major amendment is one that increases actual
    interference, rather than the *potential* for interference. Each
    Final Analysis satellite has the potential to cause a timesharing
    violation. Therefore, an increase in the number of Final Analysis
    satellites increases the potential number of such violations. Even
    if we accept Final Analysis's assertion that the proposed change
    will not increase the overall number of Final Analysis-NOAA
    footprint overlaps in operation, we cannot agree that a nearly 23%
    increase in the number of satellites (from 26 to 32) would not raise
    the overall potential of timesharing violations.[^46]

27. We also recognize NTIA's suggestion that the added potential for
    interference could be offset by measures that Final Analysis can
    take to monitor and control its satellites effectively.[^47] NTIA
    stated that it would not object to the Commission granting the
    proposed constellation design changes, provided that Final
    Analysis\'s license includes a requirement to correct time-sharing
    violation failures within four hours.[^48] Final Analysis vigorously
    opposes this suggestion for a monitoring condition on its
    license.[^49] We appreciate that NTIA made this proposal in the
    spirit of compromise, as a measure to offset the increase in
    potential for interference that would arise from Final Analysis's
    constellation design changes.[^50] Nevertheless, because Final
    Analysis has not agreed to a monitoring condition, we will not
    impose one. We consequently find that the Final Analysis
    constellation design changes will increase the potential for
    interference to NOAA in the downlink bands.

28. In addition, Final Analysis argues that the First Round decision
    allowing Orbcomm to increase the number of satellites in its system
    and to lower their orbital altitude, requires us to treat Final
    Analysis\'s proposed changes to its constellation design similarly
    to Orbcomm\'s application and amendment in the First Round. The
    Commission determined in that decision that an increase in the
    number of satellites can increase the total aggregate downlink power
    and increase potential intersystem interference.[^51] But Orbcomm's
    First Round request was authorized after it executed a settlement
    agreement with the only other Little LEO applicant sharing its
    downlink spectrum at that time.[^52] In accordance with that
    agreement, Orbcomm conceded to power down its transmission to
    minimize interference into the other system. There is no such
    sharing agreement in this round to allow Final Analysis's
    constellation design changes. Quite the contrary, there is a sharing
    agreement, the Joint Proposal, for the constellation design to which
    the Bureau restricted Final Analysis.

29. On the overall issue of the effect of constellation design changes
    on shared downlink bands, we affirm the Bureau\'s finding, based
    upon NTIA's conclusion, that Final Analysis's proposed constellation
    design changes increase the potential for interference to NOAA
    satellite systems in the 137-138 MHz band.[^53] This finding alone
    requires that the constellation design changes be denied as a major
    amendment.

#### Uplink Band Impact

30. Final Analysis is authorized to share the Little LEO uplink
    frequency band at 148-149.9 MHz with three other Little LEO systems
    -- E-SAT, Leo One, and Orbcomm -- as well as with terrestrial
    systems also operating in the band.[^54] Final Analysis is required
    to avoid causing harmful interference to both the Little LEO and
    terrestrial systems. To ensure interference-free operation in the
    uplink band, Final Analysis's Amendment proposed to implement a
    scanning activity receiver system ("STARS").[^55] STARS is an
    enhanced version of a dynamic channel activity assignment system
    ("DCAAS") technique Leo One and Orbcomm proposed to implement. DCAAS
    is based on a scanning on-board satellite receiver capable of
    periodically (every 5 seconds, for example) measuring the
    interference power across the entire band, in search for clear
    uplink channels (that is, those with the least amount of
    interference). Once these uplink channels are identified, the
    satellite directs the subscriber on the ground to transmit on the
    specified channel frequency. The advantage of DCAAS is that it
    simultaneously allows these FDMA/TDMA Little LEO systems to avoid
    causing harmful interference to the terrestrial systems while
    sharing the same uplink spectrum with other Little LEO systems.

31. The Bureau found that Final Analysis\'s proposal to increase the
    number of satellites in its constellation could result in increased
    demand for or use of the limited number of available DCAAS channels
    in the 148-149.9 MHz band, reducing the amount of spectrum available
    to provide channels for the other DCAAS systems, notably Leo One and
    Orbcomm. The Bureau found that this potential increase in demand for
    channels created an increased potential for interference to these
    other systems and was therefore a major amendment.[^56]

32. Final Analysis argues here that the Bureau was wrong because there
    is no correlation between the number of satellites in a Little LEO
    constellation and the level of demand on the uplink spectrum.[^57]
    Final Analysis maintains that downlink spectrum capacity naturally
    limits the amount of data that can be transferred by a system.[^58]
    Final Analysis claims that the Bureau acknowledged this limitation
    when it granted Orbcomm's amendment to increase the orbital altitude
    of its system by 50 kilometers. [^59] In doing so, the Bureau stated
    that the increased altitude would not increase the amount of data
    its system could transfer in the uplink band at a given time because
    the system was limited by the downlink spectrum.

33. Final Analysis also argues that regardless of downlink constraints,
    uplink usage must be measured by total system throughput.[^60] Final
    Analysis contends that its original constellation had 26 satellites,
    each with 14 Very High Frequency ("VHF") receivers, operating up to
    19.2 kilobits per second ("kbps"). It claims that its total
    potential system uplink data throughput was 6,989 kbps. Final
    Analysis claims that its amended constellation design (32
    satellites, each with 14 VHF receivers operating at 9.6 kbps) would
    result in a total system uplink throughput of only 4,301 kbps. Final
    Analysis claims that the potential increase in uplink spectrum usage
    caused by the proposed constellation design changes will be offset
    by a reduction in its uplink data throughput. Final Analysis further
    notes that in the First Round, the Bureau permitted Orbcomm to
    increase the number of its satellites from 20 to 36 without
    considering the impact on the use of the uplink spectrum.[^61]

34. In a subsequent *ex parte* pleading, Final Analysis asserts that
    there is no generally established measure to gauge the potential
    interference for operations of dynamic channel activity assignment
    systems, as there is, for example with the use of effective
    isotropically radiated power ("EIRP") or power flux-density ("PFD")
    for downlink power usage.[^62] Final Analysis offers to certify that
    the constellation proposed in its Amendment would not make any
    greater utilization of uplink channels in the 148-149.9 MHz band
    than would have been possible if it implemented the 26-satellite
    constellation it originally proposed.[^63] Final Analysis also notes
    that the Bureau approved E-SAT\'s amendment to increase its
    simultaneous uplink users from 12 to 81.[^64]

35. As Final Analysis correctly notes, there is no agreed-upon method to
    measure potential interference among the DCAAS Little LEO systems.
    We are not in a position to dictate such a measure, which is
    necessarily based upon a set of subjective assumptions about
    worst-case scenarios. Consequently, we look to the Joint Proposal
    among the Second Round Little LEO applicants as the baseline for the
    shared uplink band. We find that due to the limited amount of uplink
    spectrum, the scarcity of usable uplink channels and the fact that
    three Little LEO DCAAS-like systems share this spectrum, it is
    likely that any additional demand for usable DCAAS channels will
    exceed their limited supply.[^65] Thus, any increase in one of the
    Little LEO DCAAS-like system\'s uplink spectrum usage would likely
    come at the expense of another Little LEO system, barring its access
    to the uplink spectrum and increasing the probability of channel
    collision, where two Little LEO DCAAS-systems attempt to transmit on
    the same uplink DCAAS channel at the same time. We would reconsider
    Final Analysis\'s proposal if all Little LEO licensees agree on a
    transparent measure that mitigates increases in uplink interference
    potential. Likewise, we would consider modification applications
    that are based upon mutual agreements, among all affected licensees,
    to revise the Joint Proposal.

36. We do not accept Final Analysis's assertion that uplink usage
    determined on the basis of a system\'s total data throughput can be
    used as the parameter to assess the impact of Final Analysis\'s
    proposed constellation modifications on the Little LEO uplink
    sharing environment. Because the level of Little LEO user activity
    is not uniform throughout the day, the effect of Final Analysis\'s
    system design modifications cannot be assessed in terms of the
    average daily data throughput. An increase in the system\'s demand
    for uplink DCAAS channels during a peak user traffic period, for
    example, may bar access to uplink spectrum for other DCAAS-like
    Little LEO systems during that time.

37. While we recognize Final Analysis\'s argument that unavailability of
    downlink spectrum to accommodate increased uplink data flow may
    curtail Final Analysis\'s system\'s requirements for additional
    uplink channels, we do not accept this as an effective limit on
    Final Analysis' usage of uplink channels, because it does not
    address peak usage times. Unavailability of downlink spectrum is
    also not an effective limit on uplink channels usage when space
    stations incorporate computers with message store and forward
    capability.

38. We find Final Analysis\'s reliance on the Second Round Orbcomm
    license unpersuasive.[^66] When the Bureau evaluated Orbcomm's
    request to increase orbital altitude from 775 km to 825 km, the
    Bureau found that the change resulted in an increase of geographical
    coverage but did not increase user traffic intensity because the
    system\'s downlink capacity remained unchanged.[^67] The Bureau
    correctly concluded that Orbcomm's proposed modification would not
    increase its ability to accommodate additional users -- as measured
    by increased demand for DCAAS channels -- nor would it negatively
    impact other Little LEO systems operating with DCAAS.

39. We also find unpersuasive Final Analysis's argument that the First
    Round decision allowing Orbcomm to increase the number of satellites
    in its system supports Final Analysis's request to operate
    additional satellites.[^68] The Bureau did not have uplink spectrum
    sharing concerns with Orbcomm's First Round request to increase the
    number of satellites because at the time Orbcomm did not share its
    uplink spectrum with any other DCAAS-like Little LEO systems and
    thus did not affect any other operators.[^69] Orbcomm was authorized
    to operate throughout the entire uplink spectrum until the STARSYS
    system was operational, at which point the First Round applicants'
    sharing agreement provided that Orbcomm would operate throughout the
    upper portion of the uplink band. The Commission emphasized that the
    First Round applicants had merely negotiated a manner of
    coordinating their systems before licensing, but that nothing in
    their licenses granted either First Round applicant exclusive use of
    the uplink frequency bands.[^70] Both First Round applicants assured
    the Commission that their modulation schemes allowed for sharing
    with future systems. In this case, however, Final Analysis must
    share its uplink frequencies with Orbcomm and Leo One, but it did
    not negotiate a means of coordinating that sharing.

40. Similarly misplaced is Final Analysis\'s reliance on the Bureau\'s
    approval of E-SAT\'s proposed increase in the number of simultaneous
    uplink subscribers.[^71] E-SAT's CDMA system, and interference
    decisions involving it, are not readily comparable to Final Analysis
    and the other two FDMA/TDMA systems. The Bureau allowed E-SAT to
    modify its system, but only within an interference envelope defined
    by a measurable and independently verifiable limit parameter, which
    is aggregate uplink effective isotropic radiated power.[^72] To the
    contrary, Final Analysis proposes daily data throughput as the
    limiting factor for its uplink utilization, a measure that is
    unacceptable for uplink limitation at peak usage times. We know of
    no other practical means to monitor and enforce a limitation on
    uplink usage.

41. Finally, with respect to future proposals for constellation design
    changes, we acknowledge Final Analysis\'s offer to certify that its
    proposed constellation will limit its use of the uplink spectrum to
    that proposed in its original 26-satellite constellation, by
    adjusting uplink data rates, channel bandwidth, and the number of
    on-board receivers.[^73] Unfortunately, however, Final Analysis does
    not substantiate its proposal with the necessary technical details.
    Instead, Final Analysis argues that these details can be worked out
    in consultation with other licensees during post-licensing
    coordination.[^74] Given that Final Analysis\'s proposal is based on
    an unverifiable formula for measuring uplink requirements, that it
    includes no implementation specifics, and that the Little LEO
    licensees sharing this band co-frequency with Final Analysis do not
    concur, we will not overturn the Bureau's finding that Final
    Analysis's proposed constellation changes are major amendments.

42. Consequently, we affirm the Bureau\'s finding that the constellation
    modifications proposed to operational satellites in Final Analysis's
    Amendment constitute major amendments because they increase the
    potential for interference to other systems operating in shared
    uplink and downlink frequency bands. We reverse the Bureau decision
    to deny authority for launch of additional non-operational, on-orbit
    spare satellites. Non-operating spare satellites do not create any
    potential for interference.

### Downlink Power Increase

43. In the *License Order*, the Bureau denied Final Analysis\'s request
    to increase its downlink EIRP from 12.8 dBW to 17.8 dBW, finding
    that the change increased the potential for interference to other
    Little LEO licensees.[^75] The Bureau reasoned that any increase in
    Final Analysis\'s satellite transmit power level would degrade the
    link margins of other satellite systems, particularly E-SAT's
    system, which shares downlink spectrum with Final Analysis.[^76] In
    its Application for Review, Final Analysis argues that there are
    inconsistencies in the *License Order* on this issue.[^77] Final
    Analysis asserts that the Bureau erred in determining that
    increasing the maximum downlink transmit power level constituted a
    major amendment.[^78] Subsequent to the Bureau's findings, Final
    Analysis filed a number of documents further describing its downlink
    power proposal. Final Analysis explained that while its Application
    proposed three VHF transmitters per satellite, each with an EIRP of
    12.8 dBW, its Amendment proposed just one VHF transmitter per
    satellite operating at an EIRP of 17.8 dBW.[^79] Final Analysis
    claims that the overall impact, considering the reduction in the
    number of transmitters per satellite as well the increase in power,
    is a negligible change in total EIRP from 17.6 dBW to 17.8 dBW.[^80]

44. Final Analysis subsequently provided information to clarify the
    impact of its increased downlink power on the overall spectrum
    sharing environment. [^81] We agree that, as clarified, Final
    Analysis's proposal to increase transmit power includes an
    accompanying reduction in the number of transmitters per satellite.
    The net result is a negligible change in total EIRP with respect to
    E-SAT's CDMA system. We also acknowledge the statement of NTIA\'s
    position with regard to Final Analysis' proposed increase in EIRP in
    the 400.15-401.00 MHz band, which notes that while "there is some
    potential for increased out-of-band interference... this should not
    pose an insurmountable problem to the \[government\] systems."[^82]

45. Because Final Analysis\'s proposal to increase downlink transmit
    power while reducing the number of transmitters per satellite does
    not increase the potential for interference, it is not a major
    amendment. Consequently, it may be granted under our rules.[^83] In
    light of Final Analysis's clarification, we reverse the Bureau's
    finding, and grant Final Analysis authority to operate its Little
    LEO satellite system at an increased downlink EIRP of 17.8 dBW
    provided that it operates only one VHF transmitter per satellite.

### Uplink Power Increase

46. The Bureau found that Final Analysis\'s proposed change to increase
    uplink subscriber transmit power from 10W to 20W increased the
    potential for interference.[^84] Specifically, the Bureau found that
    any increase in Final Analysis\'s user terminal transmit power would
    result in a corresponding increase in inter-system noise level for
    all Little LEO systems sharing uplink spectrum in the 148-149.9 MHz
    band.[^85] The Bureau therefore denied this request.

47. While Final Analysis, in its Application for Review, asked us to
    review the Bureau's denial of its proposed increase in uplink power,
    it later rescinded that request.[^86] Final Analysis now accepts the
    10W limit requested in its Application and authorized by the
    *License Order*.

### Increased Number of Uplink Receivers

48. The Bureau found that Final Analysis\'s proposal to increase the
    number of uplink channels from 12 to 40 per satellite would reduce
    the availability of DCAAS channels in the 148-149.9 MHz band to the
    three other Little LEO systems operating in this band -- Leo One,
    Orbcomm and E-SAT.[^87] The Bureau therefore denied Final Analysis's
    proposed increase in the number of uplink receivers as a major
    amendment.

49. In its Application for Review, Final Analysis notes that its
    original system design was based on 14 VHF uplink receivers.[^88]
    Final Analysis contends that it must build a total of 40 uplink
    receivers to enhance the reliability, flexibility and efficiency of
    its satellites.[^89] Final Analysis also believes that the
    Commission has not limited the number of uplink receivers in past
    cases.[^90] In any case, Final Analysis notes that the Bureau
    mistakenly limited the number of receivers to 12, rather than the 14
    it requested in its original Application.

50. Leo One claims that, if implemented, the Final Analysis's proposal
    to increase the number of receivers would virtually preclude Leo
    One's uplink operations.[^91] Orbcomm also argues that the proposed
    modification raises the potential for interference in the 148-149.9
    MHz band.[^92] In reply, Final Analysis indicates that although it
    plans to build 40 uplink receivers, it is not requesting authority
    to use all 40 receivers now. Final Analysis therefore argues that
    there is no potential for increased interference in the 148-149.9
    MHz uplink band.[^93]

51. We find that Final Analysis has not clearly indicated how many space
    station receivers it intends to operate.[^94] Final Analysis says
    only \"it is not applying for authority to operate at the built-in
    level.\"[^95] We recognize that in more recent filings Final
    Analysis has clarified its intention to limit the number of active
    VHF receivers to 14.[^96] We modify the *License Order* to correct
    the number of active receivers per satellite in the 148.0-149.9 MHz
    band to 14, in accordance with its Application, System 2 in the
    Joint Proposal, and the *Report and Order*. Because we have
    eliminated the construction permit requirement for space stations,
    Final Analysis may incorporate as many receivers in its satellites
    as it wishes, at its own risk.[^97] Pursuant to Commission rules,
    Final Analysis must notify the Commission in writing that it plans
    to begin construction at its own risk.[^98] If Final Analysis wishes
    to increase the number of receivers that it operates, it must file a
    modification application seeking authority to do so. We will
    consider such an application, together with any comments or
    oppositions to the application, without regard to the number of
    receivers with which the satellites are equipped.

### Data Rate Increase

52. In its Amendment, Final Analysis specified that it intended to
    construct its satellites with the capacity to accommodate different
    data rates: one set of data rates that conforms to System 2
    parameters and another set that describes the range of system\'s
    capability.[^99] The Bureau authorized Final Analysis to operate
    only at the data rates that conform to System 2 capabilities.[^100]
    In its Application for Review, Final Analysis argues that it should
    be allowed to construct its satellites with capacity for higher data
    rates as well, to take advantage of future spectrum that may be
    assigned to it. Final Analysis claims that denying it authority to
    design such capability into its satellites \"completely vitiates the
    priority for future spectrum upon which the ultimate success of
    System 2 will rely.\"[^101]

53. In the *Report and Order*, we granted System 2 --- the Final
    Analysis system --- first priority to apply for a limited amount of
    spectrum that may be available in the future.[^102] Final Analysis
    has since clarified that the higher data rates it seeks are for
    future capability, and that it is not now seeking authorization for
    data rates beyond the parameters of System 2. Since the *License
    Order* authorized data rates consistent with the capacity of System
    2, we find that Final Analysis's request is permissible. We find
    that the Bureau\'s authorization of Final Analysis\'s system is
    consistent with the *Report and Order* in this regard, and we affirm
    it.[^103] With this and several other technical parameter requests,
    Final Analysis appears to be seeking Commission pre-approval of
    future capability. Like every other satellite licensee, Final
    Analysis does not need Commission authority to construct any
    satellite it desires.[^104] Nevertheless, construction is at Final
    Analysis's own risk and will have no bearing on the Commission
    action on any modification application Final Analysis may file to
    operate at these higher data rates.[^105]

### Link Changes -- Downlink Subscriber and Feeder Links; Uplink Feeder Links

54. The Bureau denied Final Analysis\'s proposal to increase the number
    of subscriber downlinks from 9 to 12, increase the number of feeder
    downlinks from 3 to 4, and increase the number of feeder uplinks
    from 1 to 4. The Bureau found that these increases were not
    necessary to conform to the *Report and Order* and they increased
    the potential for interference.[^106]

55. In its Application for Review, Final Analysis says that its
    Amendment described an optimal system configuration.[^107] Final
    Analysis argues that it did not propose an increase in the number of
    subscriber downlinks, feeder downlinks, or feeder uplinks. We
    acknowledge this clarification, which leaves Final Analysis's
    authorized parameters unchanged with regard to subscriber downlinks,
    feeder downlinks, and feeder uplinks.

## Other Arguments

56. In its Application for Review, Final Analysis argues that the
    *License Order* reflects procedural anomalies that have denied Final
    Analysis due process.[^108] Final Analysis makes two arguments in
    this regard. First, Final Analysis argues that the Bureau relied on
    \"informal\" e-mails and a letter from NOAA and NTIA that were never
    served on Final Analysis or placed in the public record.[^109] Final
    Analysis further contends that because neither of the analyses
    provided by NTIA/NOAA recommended that the Bureau deny Final
    Analysis's proposal to increase the number of satellites in its
    constellation, the Bureau should not have relied upon them. Second,
    Final Analysis argues that the *License Order* imposes a new
    substantive rule on Final Analysis, requiring it to shut down its
    system immediately upon detection of a time-sharing failure with
    NOAA. Final Analysis argues that this requirement is not contained
    in the Commission's rules, and violates the prohibition on agency
    rulemaking without notice or opportunity for comment.[^110] We find
    neither of these arguments persuasive.

57. As to the Bureau's reliance on the NTIA/NOAA letters, these were not
    the only source of data on which the Bureau based its denial of
    Final Analysis\'s request to increase the number of authorized
    satellites. The comments filed by other Little LEO applicants and
    the Bureau\'s own engineering analysis \-- which independently
    concluded that there was potential for increased interference \--
    contained substantially similar data. Final Analysis had a full
    opportunity to respond to these other sources.

58. Furthermore, the Bureau's actions complied with the Commission's *ex
    parte* rules. The rules state that presentations to or from an
    agency or branch of the Federal Government or its staff involving
    matters of shared jurisdiction are deemed exempt under the rules and
    are therefore permissible.[^111] The rule further states that if the
    presentation is not submitted for the record, it is to be disclosed
    no later than at the time of release of the Commission\'s decision.
    At the time of the Bureau\'s decision, all letters were placed in
    the public record.

59. More significantly, our review of the record reveals that Final
    Analysis had a full opportunity to review and respond to the
    communication that is the root of its claim. The Application for
    Review concedes that "the substance of Mr. Eng's message was relayed
    to Final Analysis on January 23, 1998 by letter from Mr. Vorhies of
    NTIA to Mr. Grimes of Final Analysis."[^112] More than simply
    relaying the substance, Mr. Vorhies's letter to Final Analysis
    repeats, *verbatim*, the entire relevant paragraph in Mr. Eng's
    December 4, 1997 e-mail discussing the increased potential for
    interference from Final Analysis's proposed constellation design
    changes. Final Analysis responded, stating its contradictory view on
    the increased potential for interference.[^113] Thus, Final Analysis
    had notice of, and commented on, the NTIA/NOAA interference analyses
    before the Bureau acted on its license application.

60. After the license was issued, and in response to NTIA's statement
    that the Vorhies Letter and Mr. Eng's e-mails were preliminary staff
    communications, the Commission asked NTIA to provide its final
    agency view on whether Final Analysis's proposed constellation
    design changes increase the potential for interference to government
    systems in the share bands.[^114] Final Analysis responded to the
    subsequent NTIA letter, and later filed a series of *ex parte*
    letters with the Commission, in which it stated its views on the
    issue.[^115] We have considered those views here.[^116]

61. Final Analysis also argues that despite NTIA's concerns, NTIA did
    not recommend denying its proposed changes. This argument
    misconstrues the respective administrative responsibilities. The
    Commission looks to the expertise of the NTIA to determine when
    government radio frequency users are affected by commercial radio
    frequency use that is licensed by the Commission. In this case, the
    Commission then applied the information provided by NTIA to decide
    whether, under the Commission's rules, Final Analysis's amendments
    could be considered. NTIA and NOAA were not asked \-- and have no
    responsibility to decide or recommend \-- how this Commission should
    act on an application made under its rules.

62. We also do not accept Final Analysis's second argument, that the
    *License Order* imposes a new substantive rule upon it. The rules
    adopted in the *Report and Order* require NVNG licensees to cease
    transmissions when their satellite footprints enter a NOAA
    protection area. Section 25.259(a) of the Commission's rules states
    that "a non-voice, non-geostationary mobile-satellite service system
    licensee, time-sharing spectrum in the 137-138 MHz frequency band
    shall not transmit signals into the protection areas of NOAA
    satellite systems... a NVNG licensee will cease its transmissions
    prior to the NVNG licensee's satellite overlapping the NOAA
    protection area...."[^117] In adopting this rule after full comment
    on the record, the Commission explained that "if System 2 \[Final
    Analysis\] is causing unacceptable interference to the NOAA system,
    the Commission will require that System 2 *immediately* terminate
    its interfering operations, wherever located."[^118] Neither Final
    Analysis nor any other party filed a petition for reconsideration of
    the *Report and Order* or this particular rule. We will not
    entertain Final Analysis's request to revisit the shutdown
    requirement, several years after its adoption. We therefore reject
    Final Analysis\'s arguments that the Bureau denied it due process.

## Leo One Application for Review

63. Leo One filed an Application for Review of the Final Analysis
    *License Order* that is both contingent upon our decision on Final
    Analysis's Application for Review, and may be -- as Final Analysis
    argues in response -- procedurally defective and premature.[^119]
    The substance of Leo One's argument is that if the decision on Final
    Analysis's Application for Review allows an expansion of its system,
    the Joint Proposal for spectrum sharing will be destroyed. If that
    happens, the Commission should go back to review the financial
    qualifications of Final Analysis. Because we affirm the Bureau's
    *License Order*, the issues raised by Leo One are rendered moot.

# ORDERING CLAUSES

64. Accordingly, IT IS ORDERED, that the Application for Clarification
    and Review filed by Final Analysis Communications Services IS
    GRANTED, in part, and IS DENIED, in part;

65. IT IS FURTHER ORDERED that we affirm the Bureau\'s decision to deny
    the following constellation design changes: 1) increasing the number
    of satellites from 26 to 32; 2) increasing the number of orbital
    planes from four to six; and 3) decreasing the orbital inclination
    from 66 to 51 degrees;

66. IT IS FURTHER ORDERED that Final Analysis Communication Services,
    Inc. IS AUTHORIZED to launch six spare on-orbit satellites;

67. IT IS FURTHER ORDERED that Final Analysis\'s request to increase
    downlink EIRP from 12.8 dBW to 17.8 dBW IS GRANTED, and its license
    modified accordingly;

68. IT IS FURTHER ORDERED that Final Analysis's license is corrected to
    specify that it is authorized to operate 14 active receivers per
    satellite in the 148.0-149.9 MHz band;

69. IT IS FURTHER ORDERED that the Application for Review filed by Leo
    One USA Corporation IS DISMISSED;

70. IT IS FURTHER ORDERED that the Petition for Reconsideration filed by
    Final Analysis Communication Services, Inc. on May 14, 1998 IS
    DISMISSED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: Final Analysis Communications Services, Inc., Application for
    Clarification and Review (filed May 1, 1998) ("Application for
    Review"); Leo One USA Corporation, Application for Review (filed May
    1, 1998); *Final Analysis Communication Services, Inc.*, Order and
    Authorization, DA 98-616, 13 FCC Rcd. 6618 (Int'l Bur. 1998)
    ("*License Order"*).

[^2]: *Satellite Application Acceptable for Filing; Cut-Off Established
    For Additional Applications*, Public Notice Report No. DS-1459, 9
    FCC Rcd 5261 (1994).

[^3]: Final Analysis Communication Services, Inc., Application to
    Construct, Launch and Operate the Final Analysis Low-Earth Orbit
    Satellite System (filed Nov. 16, 1994). The complete application
    consists of that original application and amendments filed on
    February 24, 1995, February 23, 1996, August 19, 1996 and October
    30, 1997 (all, collectively, the "Application").

[^4]: *See* *Application of Starsys for Authority to Construct, Launch,
    and Operate a Non-Voice, Non‑Geostationary Mobile Satellite System*,
    Order and Authorization, 11 FCC Rcd 1237, ¶¶ 19 and 21 (1995).

[^5]: *See* 47 C.F.R. § 2.106. Although the Final Analysis Application
    did not initially propose operation in the 400.15-401 MHz frequency
    band, the Application was later amended to reflect the frequency
    bands designated for the Final Analysis system in the joint
    agreement among the applicants.

[^6]: *See* *Amendment of Part 25 of the Commission's Rules to Establish
    Rules and Policies Pertaining to the Second Processing Round of the
    Non-Voice, Non-Geostationary Mobile Satellite Service*, Report and
    Order, FCC 97-370, 13 FCC Rcd 9111, 9140 n.112 (1997) ("*Report and
    Order"*). A service designated as secondary may operate in a
    particular band only to the extent that it does not cause harmful
    interference to any primary or co-primary designated service. *See*
    47 C.F.R. § 2.105(c)(3). *See also* International Telecommunication
    Union Radio Regulations, Edition of 1998, Article S5, Section II \--
    Categories of services and allocations, S5.28 through S5.31
    (\"Stations of a secondary service: a) shall not cause harmful
    interference to stations of primary services to which frequencies
    are already assigned or to which frequencies may be assigned at a
    later date; b) cannot claim protection from harmful interference
    from stations of a primary service to which frequencies are already
    assigned or may be assigned at a later date; c) can claim
    protection, however, from harmful interference from stations of the
    same or other secondary service(s) to which frequencies may be
    assigned at a later date\").

[^7]: *Amendment of Part 25 of the Commission's Rules to Establish Rules
    and Policies Pertaining to the Second Processing Round of the
    Non-Voice, Non-Geostationary Mobile Satellite Service*, Notice of
    Proposed Rulemaking, 11 FCC Rcd. 19841 (1996) (the "*Second Round*
    *Notice"*).

[^8]: *See* *Report and Order*, 13 FCC Rcd at 9116 ¶ 10.

[^9]: Joint Proposal of E-SAT, Inc., Final Analysis Communication
    Services, Inc., Leo One USA Corporation, Orbital Communications
    Corporation, and Volunteers in Technical Assistance (filed Sept. 22,
    1997) ("Joint Proposal").

[^10]: Joint Proposal at 9.

[^11]: Joint Proposal at 2.

[^12]: *Report and Order*, 13 FCC Rcd. at 9122 ¶ 25.

[^13]: *Report and Order*, 13 FCC Rcd. at 9161 ¶ 131.

[^14]: 47 C.F.R. § 25.116(c).

[^15]: 47 C.F.R. § 25.116(b)(1). The rule specifies other causes for a
    change to be deemed a "major amendment," but those causes do not
    apply in this case.

[^16]: Amendment to Application of Final Analysis Communication
    Services, Inc. for Authority to Construct, Launch and Operate a Low
    Earth Orbit Satellite System, File No. 25-SAT-P/LA-95 (filed October
    30, 1997) ("Amendment").

[^17]: *License Order*, 13 FCC Rcd. at 6625-35.

[^18]: Amendment at 3-6 (citing 47 C.F.R. § 25.116(c)(4)).

[^19]: Leo One Petition to Deny the Amendment (filed Dec. 4, 1997);
    Comments of Orbcomm on the Amendment (filed Dec. 4, 1997).

[^20]: Leo One Petition to Deny at 3, citing 47 C.F.R. § 25.116(c).

[^21]: *License Order*, 13 FCC Rcd. at 6635-6642.

[^22]: *Id.* at 6636.

[^23]: *License Order*, 13 FCC Rcd. at 6647 ¶ 82.

[^24]: Application for Review at 2-3.

[^25]: *Id.* at 3. A little over a month after Final Analysis was issued
    a Little LEO license, the Bureau issued an Order denying Final
    Analysis's request to toll or stay a condition in its license
    requiring it to certify that it would accept the license and proceed
    to construct the system as licensed. Final Analysis maintained that
    this certification requirement foreclosed its ability to seek
    administrative and judicial review of the *License Order*. The
    request was opposed by Leo One. The International Bureau explained
    that the certification requirement was necessary to allow all five
    licensed systems to proceed with technical coordination based upon
    the technical parameters of the Second Round licenses, and that
    coordination among the Little LEO licensees would be significantly
    hampered, delaying implementation of other Little LEO systems and
    service to the public. *Certification Order*, 13 FCC Rcd. 12329,
    12331 (Int'l Bur., 1998). On May 15, 1998, the deadline set forth in
    the *Certification Order*, Final Analysis filed a letter certifying
    its intent to build the Little LEO system as authorized in its
    license. Final Analysis also filed a Petition for Reconsideration of
    the certification requirement on May 14, 1998. We find that the
    substance of Final Analysis's argument in that Petition for
    Reconsideration is also raised in its Application for Review and is
    decided in this Order. We therefore dismiss the Petition for
    Reconsideration as moot.

[^26]: Opposition of Leo One USA Corporation (filed May. 18, 1998);
    Comments of Orbcomm on the Application for Review (filed May 18,
    1998).

[^27]: *See Amendment of the Commission's Rules to Establish Rules and
    Policies Pertaining to a Non-Voice, Non-Geostationary
    Mobile-Satellite Service*, Report and Order, 8 FCC Rcd. 8450, 8457
    ("*First Round Little LEO Order*"); *see also Amendment of the
    Commission's Rules to Establish Rules and Policies Pertaining to a
    Mobile Satellite Service in the 1610-1626.5/2483.5-2500 MHz
    Frequency Bands*, Report and Order, 9 FCC Rcd. 5936, 5961 (1994)
    ("*Big LEO Order*").

[^28]: In the *First Round Little LEO Order*, for example, we stated
    that conforming amendments would be accepted to the extent that they
    were made necessary by requirements the Commission imposed after the
    First Round cut-off date. *First Round Little LEO Order,* 8 FCC Rcd
    at 8457, ¶ 26. Similarly, in the *Big LEO Order*, we stated that a
    conforming amendment proposing a change not made necessary to bring
    an application into conformance with our rules, and which would
    increase frequency conflicts, would render the application a newly
    filed application to be considered in a future processing group.
    *Big LEO Order*, 9 FCC Rcd. at 5961 ¶ 59.

[^29]: *Report and Order*, 13 FCC Rcd. at 9161 ¶131.

[^30]: *Report and Order*, 13 FCC Rcd. at 9161.

[^31]: Application for Review at 8.

[^32]: *Report and Order*, 13 FCC Rcd. at 9126 ¶ 26.

[^33]: Application for Review at 3.

[^34]: Application for Review at 5.

[^35]: 47 C.F.R. § 25.116.

[^36]: 47 C.F.R. § 25.116(c)(1).

[^37]: Final Analysis Amendment at 8-11.

[^38]: *License Order*, 13 FCC Rcd. at 6636 ¶¶ 49-50.

[^39]: *See* Final Analysis Communication Services, Inc., Opposition To
    Petition To Deny, File Nos. 7-SAT-AMEND-98; 25-SAT-P/LA-95 at 12
    (filed December 15, 1997).

[^40]: Neither E-SAT nor VITA commented upon Final Analysis's proposed
    constellation changes. Although we might assume from their silence
    that Final Analysis' proposed changes do not increase potential
    interference to their Little LEO systems in shared downlink bands,
    our analysis of the changes' effect on NOAA alone drives our
    decision to deny them.

[^41]: 47 C.F.R. § 25.259(a).

[^42]: Application for Review at 9.

[^43]: Application for Review at 9.

[^44]: Letter from Thomas S. Tycz, Chief, Satellite and
    Radiocommunication Division, FCC, to William T. Hatch, Acting
    Associate Administrator, NTIA (Oct. 27, 1998). The specific
    questions posed to NTIA were: "1. Do Final Analysis's proposed
    changes to its constellation design increase the potential for
    interference to government systems in the 137-138 MHz band, in the
    148-150.05 MHz band, and/or in the 400.15-401 MHz band? 2. Does the
    proposed change in downlink equivalent isotropically radiated power
    (EIRP) or the proposed change in uplink EIRP increase the potential
    for interference with government systems? 3. Taking into account the
    responses to the above questions, would the Final Analysis system,
    as modified by the conforming amendment, necessitate any additional
    operational parameters?"

[^45]: Letter from William T. Hatch, Acting Associate Administrator,
    NTIA, to Thomas S. Tycz, Chief, FCC Satellite Radiocommunication
    Division (Dec. 11, 1998) ("NTIA Letter"). NTIA also concluded, in
    response to the second question, that there is some potential for
    increased out-of-band interference to government users in the
    400.155-401.00 MHz band, but it should not be an insurmountable
    problem.

[^46]: An increase in time sharing violations is tantamount to an
    increase in the potential for interference.

[^47]: NTIA Letter at 3-4.

[^48]: *Id*.

[^49]: Letter from Aileen A. Pisciotta, Counsel to Final Analysis
    Communication Services, Inc, to Regina Keeney, Chief, FCC
    International Bureau (Dec. 24, 1998); Letter from Aileen A.
    Pisciotta, Counsel to Final Analysis Communication Services, Inc, to
    Roderick K. Porter, Acting Chief, FCC International Bureau (June 15,
    1999); Letter from Aileen A. Pisciotta, Counsel to Final Analysis
    Communication Services, Inc, to Donald Abelson, Chief, FCC
    International Bureau (Nov. 16, 1999).

[^50]: NTIA Letter at 4 (Dec. 11 1998).

[^51]: *Orbital Communications Corporation*, Order and Authorization*,*
    9 FCC Rcd. 6476, 6480 ¶ 19 (1994) (*"Orbcomm First Round
    Authorization Order"*).

[^52]: *Id.* at 6478, 6480.

[^53]: *License Order*, 13 FCC Rcd. at 6636 ¶ 50.

[^54]: *License Order* 13 FCC Rcd. at 6626 ¶¶ 18-19; *Report and Order*
    13 FCC Rcd at 9132 ¶ 55.

[^55]: Amendment at 52.

[^56]: *License Order*, 13 FCC Rcd. at 6636 ¶ 50.

[^57]: Application for Review at 13. Final Analysis proposes to increase
    the number satellites from 26 to 32, and to change the inclination
    and increase the number of planes.

[^58]: Application for Review at 13.

[^59]: Application for Review at 13 (citing *Orbital Communications
    Corp.,* Order and Authorization, 13 FCC Rcd. 10828 at ¶ 24 (Int\'l
    Bur., 1998) (\"*Orbcomm Second Round Authorization Order*\")).

[^60]: Final Analysis Reply Comments to Leo One at 6.

[^61]: Application for Review at 13. Leo One also points out that
    Orbcomm increased the number of satellites in its constellation in
    the context of a First Round settlement agreement, where it also
    agreed to minimize interference by powering down when one of its
    satellites was in the main beam of the only other system\'s downlink
    antenna. Not only is there is no comparable agreement in this case,
    but Leo One contends in the course of negotiating the Joint
    Proposal, Final Analysis never disclosed to the other applicants its
    intention to make changes to its constellation design. Leo One
    Opposition at 18.

[^62]: Letter from Aileen A. Pisciotta, Counsel to Final Analysis, to
    Regina Keeney, Chief, FCC, International Bureau at 7 (Nov. 5, 1998).

[^63]: *Id.*

[^64]: *Id.* at 9.

[^65]: *License Order,* 13 FCC Rcd. at 6636 ¶ 50; Letter from Stephen L.
    Goodman, Counsel for Orbcomm, to Regina Keeney, Chief, FCC,
    International Bureau at 2 (Oct. 21, 1998); Letter from Robert A.
    Mazer and Albert Shuldiner, Counsel for Leo One, to Regina Keeney,
    Chief, FCC, International Bureau at 2 (Nov. 18, 1998).

[^66]: Application for Review at 13.

[^67]: *Orbcomm Second Round Authorization Order*, 13 FCC Rcd. at 10838
    ¶ 24.

[^68]: Application for Review at 11.

[^69]: *Orbcomm First Round Authorization Order*, 9 FCC Rcd. at 6480.

[^70]: *Id.* at n.32.

[^71]: Letter from Aileen A. Pisciotta, Counsel to Final Analysis, to
    Regina Keeney, Chief, FCC, International Bureau at 9 (Nov. 5, 1998).

[^72]: *E-SAT, Inc.*, Order and Authorization, 13 FCC Rcd. 10859, 10871
    at ¶ 29 (Int'l Bur. 1998).

[^73]: Letter from Aileen A. Pisciotta, Counsel to Final Analysis, to
    Regina Keeney, Chief, FCC International Bureau at 3 and 10 (Nov. 5,
    1998).

[^74]: *Id*.

[^75]: *License Order* 13 FCC Rcd at 6642 ¶¶ 66-67.

[^76]: *Id.*

[^77]: Application for Review at 14.

[^78]: *Id*.

[^79]: Letter from Aileen A. Pisciotta and Todd D. Daubert, Counsel to
    Final Analysis, to Regina Keeney, Chief, International Bureau, FCC,
    Attachment A at 6 (Sept. 28, 1998).

[^80]: The overall impact is the aggregate EIRP from the three
    transmitters, each with an EIRP of 12.8 dBW. The calculation of the
    aggregate is therefore (10 Log 3) + (12.8 dBW) = 17.6 dBW.

[^81]: Letter from Aileen A. Pisciotta and Todd D. Daubert, Counsel to
    Final Analysis, to Regina Keeney, Chief, International Bureau, FCC,
    Attachment A at 6 (Sept. 28, 1998).

[^82]: Letter from William T. Hatch, Acting Associate Administrator,
    Spectrum Management, NTIA, to Thomas S. Tycz, Chief, FCC Satellite
    Radiocommunication Division, at 3 (Dec. 11, 1998).

[^83]: 47 C.F.R. § 25.116(b).

[^84]: *License Order* 13 FCC Rcd at 6641 ¶¶ 63-65.

[^85]: *Id*. at 6641 ¶ 64.

[^86]: Letter from Aileen A. Pisciotta, Counsel to Final Analysis, to
    Regina Keeney, Chief, FCC, International Bureau at 3 (Nov. 5, 1998).

[^87]: *License Order* 13 FCC Rcd. at 6639 ¶ 58.

[^88]: Application for Review at 17. Although the Bureau mistakenly
    described the original design as containing 12 receivers rather than
    14, that mistake has no bearing on the decision to deny Final
    Analysis's proposal to increase the number of receivers to 40.

[^89]: Application for Review at 17.

[^90]: Application for Review at 17 (citing *First Round Little LEO
    Report and Order*, 8 FCC Rcd 8450, 8455, n.38 (1993)).

[^91]: Opposition of Leo One at 21.

[^92]: Comments of Orbcomm at 5.

[^93]: Reply to Orbcomm at 3.

[^94]: Amendment at 23, Figure II-5b.

[^95]: Amendment at 25, fn.28.

[^96]: Reply to Orbcomm at 3.

[^97]: *Streamlining The Commission\'s Rules And Regulations For
    Satellite Application And Licensing Procedures,* Report and Order,
    11 FCC Rcd. 21581 (1996).

[^98]: 47 C.F.R. § 25.113(f).

[^99]: Amendment at 31.

[^100]: *License Order*, 13 FCC Rcd. at 6638 ¶ 54

[^101]: Application for Review at 21.

[^102]: *See Report and Order*, 13 FCC Rcd at 9127 n 69.

[^103]: *License Order*, 13 FCC Rcd. at 6639, 6642 ¶¶ 56, 68.

[^104]: *See* *Streamlining the Commission's Rules and Regulations for
    Satellite Application and Licensing Procedures*, Report and Order,
    11 FCC Rcd. 21581, 21583-85 (1996).

[^105]: *See* *id.* at 21585 ¶ 9.

[^106]: *License Order*, 13 FCC Rcd. at 6639 ¶ 56.

[^107]: Application for Review at 21.

[^108]: Final Analysis Application for Clarification and Review at 23.

[^109]: Final Analysis Application for Review at 24. *See* Letter from
    Jim Vorhies, NTIA, to Harry Ng, International Bureau, FCC (Dec. 29,
    1997) ("Vorhies Letter"); e-mail from Frank Eng, NOAA, to David
    McGinnis, NTIA (Dec. 4. 1997) (attached to Vorhies Letter); e-mail
    from Frank Eng, NOAA, to David McGinnis, NTIA (Dec. 15. 1997)
    (attached to Vorhies Letter).

[^110]: Application for Review at 24.

[^111]: 47 C.F.R. § 1.1204(a)(5). *See* *Amendment of Subpart H, Part 1
    of the Commission's Rules and Regulations Concerning Ex Parte
    Communications and Presentations in Commission Proceedings*, 2 FCC
    Rcd. 3011, 3018 (1987); *Amendment of 47 C.F.R. § 1.1200
    [et]{.underline} [seq.]{.underline} Concerning Ex Parte
    Presentations in Commission Proceedings*, 12 FCC Rcd. 7348, 7367
    (1997).

[^112]: Application for Review at 23-24.

[^113]: *See* Application for Review at 24 (citing February 26, 1998
    letter from David Grimes of Final Analysis to Jim Vorhies, NTIA).

[^114]: *See* Letter from William T. Hatch, Acting Associate
    Administrator, NTIA, to William E. Kennard, Chairman, FCC (June 11,
    1998); Letter from Kathy D. Smith, Acting Chief Counsel, NTIA, to
    Magalie Roman Salas, Secretary FCC (June 11, 1998) (parties to the
    proceeding served with June 11, 1998 Hatch letter to Kennard); *see
    also*, discussion at ¶¶ 25-26*, supra*.

[^115]: Letter from Aileen A. Pisciotta, Counsel to Final Analysis
    Communication Services, Inc, to Regina Keeney, Chief, FCC
    International Bureau (Dec. 24, 1998); Letter from Aileen A.
    Pisciotta, Counsel to Final Analysis Communication Services, Inc, to
    Regina Keeney, Chief, FCC International Bureau (Jan. 21, 1999);
    Letter from Aileen A. Pisciotta, Counsel to Final Analysis
    Communication Services, Inc, to Roderick K. Porter, Acting Chief,
    FCC International Bureau (May 24, 1999); Letter from Nader Modanlo,
    Chairman and President, Final Analysis Communications Services,
    Inc., to William T. Hatch, Acting Associate Administrator, NTIA (May
    20, 1999); Letter from Aileen A. Pisciotta, Counsel to Final
    Analysis Communication Services, Inc, to Roderick K. Porter, Acting
    Chief, FCC International Bureau (June 15, 1999); Letter from Nader
    Modanlo, Chairman and President, Final Analysis Communications
    Services, Inc., to William T. Hatch, Acting Associate Administrator,
    NTIA (July 19, 1999); Letter from Aileen A. Pisciotta, Counsel to
    Final Analysis Communication Services, Inc, to Donald Abelson,
    Chief, FCC International Bureau (Nov. 16, 1999). *See* *Application
    for Consent to the Transfer of Control of Licenses and Section 214
    Authorizations from MediaOne Group, Inc., Transferor to AT&T Corp.,
    Transferee*, 16 FCC Rcd. 5610, 5612 (2001).

[^116]: *See* discussion at ¶¶ 23-29, *supra*

[^117]: 47 C.F.R. § 25.259(a); *Report and Order*, Subpart C --
    Technical Standards, 13 FCC Rcd. at 9167.

[^118]: *Report and Order*, 13 FCC Rcd at 9144 (emphasis added).

[^119]: Leo One USA Corporation, Application for Review (filed May 1,
    1998).