Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | SAT-LOA-20000505-00086       |
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| DIRECTV Enterprises, Inc.        | ) |                              |
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| For Authority to Launch and      | * |                              |
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| A Direct Broadcast Satellite     | * |                              |
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**ORDER AND AUTHORIZATION**

**Adopted:** November 24, 2000 **Released:** November 27, 2000

By the Chief, Satellite and Radiocommunication Division:

1\. By this order, we grant DIRECTV Enterprises, Inc. ("DIRECTV")
authority to launch and operate a direct broadcast satellite ("DBS"),
DIRECTV 5, at the 119°W.L. orbital location, subject to the conditions
set forth below. We also deny the State of Hawaii's petition to deny the
application, and deny the State of Alaska's request to condition
DIRECTV's authorization. This authorization will allow DIRECTV to use
its frequencies at 119° W.L. more efficiently and expand its programming
options, thereby serving the public interest.

**I. BACKGROUND**

2\. DIRECTV provides DBS service to U.S consumers from the 101°, 110°,
and 119° W.L. orbital locations. DIRECTV acquired 11 DBS channels at
119°W.L. from Tempo Satellite in May 1999.[^1] At that time, Tempo had
already launched a satellite into 119° W.L., USABSS-7, but was not
providing commercial service due to technical difficulties. After
acquiring Tempo's authorization, DIRECTV was able to provide limited
commercial service by offering its Spanish language programming package
and high definition programs from USABSS-7. DIRECTV now seeks to launch
and operate its new satellite, DIRECTV 5, and collocate it with USABSS-7
at the 119° W.L. orbital location.[^2] Following the successful launch
and operation of DIRECTV 5, USABSS-7 will be used as an in-orbit spare.
DIRECTV states that DIRECTV 5 is designed to use its eleven frequencies
at 119° W.L. more efficiently than USABSS-7 and will provide additional
capacity, allowing DIRECTV to expand programming choices to its
subscribers. In addition, DIRECTV asserts that the operation of DIRECTV
5 will facilitate greater DBS competition to incumbent cable television
providers by allowing DIRECTV to provide additional local channels to
its subscribers.

3\. The State of Alaska filed comments asserting that DIRECTV has to
provide service to Alaska and Hawaii from its satellite at 119° W.L.,
but that DIRECTV's application is unclear as to whether it plans to do
so. It also asks that the Commission require DIRECTV to provide service
to Alaska that is comparable to service provided elsewhere, and that the
size of the receiving antennas be limited to one meter or less.

4\. The State of Hawaii filed a petition to deny DIRECTV's application.
Hawaii asserts that DIRECTV is in violation of the Commission's
geographic service rules and should be required to provide programming
to Alaska and Hawaii from each of its orbital locations. Hawaii asserts
that the launch of DIRECTV 5 will only compound the service problem
because it will provide only niche programming, and not the full-service
programming Hawaii argues is required. Hawaii asks that the application
be denied and that DIRECTV be required to submit a new application
acknowledging its geographic service obligations and detailing how it
intends to achieve compliance. The National Rural Telecommunications
Cooperative ("NRTC") filed comments in support of Hawaii's petition.

**II. DISCUSSION**

5\. We find that granting DIRECTV's application will allow DIRECTV to
increase and improve its service offerings to consumers. In addition,
the increased efficiency and additional capacity will allow DIRECTV to
offer additional programming, including local-into-local channels,
providing greater competition to incumbent cable television providers.

6\. With respect to the geographic service rule issues raised by Alaska
and Hawaii, we find that these are more appropriately addressed in our
pending DBS rulemaking proceeding.[^3] However, previously, in the *DBS
Service Rules Report and Order*, the Commission adopted geographic
service obligations which require DBS licensees licensed after January
19, 1996 to provide service to Alaska and Hawaii upon commencement of
operations, where technically feasible.[^4] DIRECTV commenced service to
Hawaii in mid-September by offering "Hawaii Choice," a basic package of
52 channels including sports, news, children's and educational
programming, and public interest programs from its satellite, DBS-1R, at
the 101°W.L. orbit location.[^5] DIRECTV also offers 20 additional
a-la-carte and premium programs and pay-per-view channels.[^6] In
addition, DIRECTV will offer Hawaiian subscribers Spanish language and
high definition programs from DIRECTV 5 at 119° W.L. DIRECTV states that
it serves residential and commercial customers in Alaska, 90% of who
receive the full complement of DIRECTV programming.[^7] DIRECTV also
states it only has three frequencies at the 110° W.L. orbital location,
presently used to provide local broadcast channels in North and South
Carolina.[^8]

7\. Hawaii objects to the launch of DIRECTV 5 based on DIRECTV's alleged
failure to comply with the Commission's geographic service rules. Hawaii
argues that under Section 100.53, DIRECTV must serve Hawaii and Alaska
from its newly acquired channel assignments at each of its three orbital
locations.[^9] Hawaii claims that DIRECTV's proposed offering of Hawaii
Choice from 101° W.L. is inadequate because it does not include
programming that is comparable to services available in the continental
United States ("CONUS"), and falls short of programming offered by cable
systems in Hawaii.[^10] In addition, Hawaii maintains that the "Hawaii
Choice" package is insufficient because it lacks some of the most
popular and informative programming.[^11] Hawaii refutes DIRECTV's claim
that it is constrained from offering certain programs due to pending
litigation with a distributor, the National Rural Telecommunications
Cooperative ("NRTC"), involving programming packaging agreements.[^12]
Hawaii also claims that the niche programming offered by DIRECTV 5 fails
to satisfy DIRECTV's obligation to provide "full service" to Alaska and
Hawaii.[^13] While DIRECTV need not offer Hawaii programming identical
to that provided on the mainland, Hawaii claims that the program
offering must be of equal value and equivalent price.[^14] Hawaii
further asserts that DIRECTV has configured its DBS system to circumvent
the Commission's geographic service rules since it is using channel
assignments or satellites incapable of serving all 50 states for its
core programming, while its newer satellites and orbital assignments
offer local and niche services only.[^15]

8\. Similarly, Alaska comments that DIRECTV is required to provide
service to the state from 119° W.L. as set forth in the Commission's
geographic service rules.[^16] Alaska also claims that the authorization
DIRECTV acquired from Tempo was conditioned on the provision of service
to Alaska and Hawaii. Alaska suggests that the application at issue is
unclear as to whether DIRECTV intends to provide such service.[^17] In
any event, Alaska states that grant of the application should be
conditioned on the provision of service that is comparable to the
service provided elsewhere.[^18] In addition, Alaska asks the Commission
to require that the earth station receive antennas used to receive
DIRECTV's programming be no larger than one meter in size.[^19]

9\. DIRECTV responds that it is not obligated to serve Hawaii and Alaska
from each of its orbit locations and that it is in full compliance with
the Commission's geographic service rules.[^20] DIRECTV states that
Section 100.53 is location specific -- that whatever services are
offered from a particular location must be made available to Alaska and
Hawaii, if technically feasible.[^21] With respect to authorizations
acquired after January 1996, DIRECTV says it provides service within the
technical constraints of its satellites and their orbital assignments,
noting that 90% of subscribers in Alaska receive the full complement of
DIRECTV programming.[^22] DIRECTV explains that from 110° W.L. and 119°
W.L. it is offering programming that serves underserved constituencies
that help DIRECTV compete with cable, an important congressional
objective.[^23] To facilitate service to Hawaii, it introduced Hawaii
Choice.[^24] Under Hawaii's proposal, DIRECTV states that it would have
to reconfigure its entire DBS system regardless of location in order to
provide service to Hawaii that is comparable to that received by CONUS
subscribers.[^25] This plan should be rejected, DIRECTV claims, because
it would result in a lack of capacity and "duplicative waste of
spectrum" to provide the same programming to Hawaii and CONUS
subscribers, leading to the demise of DBS service altogether.[^26]
Nonetheless, DIRECTV subsequently clarified that DIRECTV 5 will indeed
cover both Alaska and Hawaii.[^27] DIRECTV notes that the size of the
receive antennas may be larger for certain subscribers in Alaska due to
poor elevation angles relative to DIRECTV's satellites at 101° W.L.
However, it states that the service to Alaskan subscribers is reasonably
comparable to that offered CONUS subscribers.[^28]

10\. Senators Inouye and Stevens also filed a joint ex parte letter
expressing their concerns about DBS service to Hawaii and Alaska.[^29]
The letter has been included in the Part 100 Rulemaking record and will
be considered by the Commission at the Report and Order phase of that
proceeding.

11\. The issues raised by Hawaii and Alaska, as to whether the
geographic service rules require service to Alaska and Hawaii to be
equal or comparable to that in the contiguous U.S. in terms of
equipment, program offerings, and price equality, are also raised in the
context of the pending Part 100 rulemaking. Because the Commission has
sought comment on these issues in revising its DBS service rules, we
find that the forthcoming Part 100 rulemaking is the proper venue to
resolve these matters. Hawaii's and Alaska's comments in this
application proceeding will be considered as part of the rulemaking.
Consequently, we find it would not be in the public interest to delay
the scheduled launch of a satellite that will increase DIRECTV's
programming capacity based on Alaska's and Hawaii's concerns.
Rescheduling a launch would impose a serious financial burden, which
would ultimately be passed on to subscribers. Further, we note that
DIRECTV has initiated service to Hawaii. Although Hawaiian subscribers
will not be offered the same programming package as CONUS subscribers,
DIRECTV's initial offering includes a choice of over 110 programming
choices, which DIRECTV expects to expand.[^30] In addition, the vast
majority of Alaskan subscribers receive the full complement of DIRECTV
programming.[^31] Although we grant DIRECTV's application, we will
continue to monitor compliance with geographic service rules and remain
committed to ensuring that residents of Hawaii and Alaska have access to
DBS service. If the outcome of the rulemaking is favorable to the
arguments raised by Alaska and Hawaii, DIRECTV will be required to
revise its offerings in accordance with the outcome of the pending
rulemaking.

**III. CONCLUSION**

12\. Based on the foregoing, we find that the petition to deny filed by
the State of Hawaii does not raise issues warranting a denial of
DIRECTV's application to launch and operate its

DIRECTV 5 satellite at the 119° W.L. orbital location. Nor do we find it
appropriate to condition DIRECTV's authorization as requested by the
State of Alaska. Rather these issues will be addressed in the Part 100
Rulemaking revising DBS policies and rules. In the meantime, we find
that the launch and operation of DIRECTV 5 will enable DIRECTV to
increase the efficient use of its frequencies at 119° W.L. and improve
its services, thereby benefiting the public interest.

**IV. ORDERING CLAUSES**

13\. Accordingly, IT IS ORDERED, that the application of DIRECTV
Enterprises, Inc., File No. SAT-LOA-20000505-00086, is GRANTED and
DIRECTV is authorized to launch and operate its satellite, DIRECTV 5, at
the 119° W.L. orbital location in accordance with the terms,
representations, and technical specifications set forth in its
application.

14\. IT IS FURTHER ORDERED, that the Petition to Deny of the State of
Hawaii filed on July 6, 2000 is DENIED.

15\. IT IS FURTHER ORDERED, that the request of the State of Alaska to
condition DIRECTV's authorization filed on July 6, 2000 is DENIED.

16\. IT IS FURTHER ORDERED, that DIRECTV's authorization is subject to
the following modified conditions: (1) until the International
Telecommunication Union ("ITU") Region 2 BSS Plan and its associated
Feeder Link Plan are modified to include the technical parameters of
DIRECTV 5 and its associated feeder links, this satellite system shall
not cause greater interference than that which would occur from the
current USA Plan assignments at 119° W.L. to other BSS or feeder link
assignments or other services or satellite systems, operating in
accordance with the ITU Radio Regulations; and (2) no protection from
interference caused by radio stations authorized by other
administrations is guaranteed to DIRECTV 5 unless and until Appendices
S30 and S30A plan modification procedures are successfully and timely
completed.

17\. IT IS FURTHER ORDERED, that DIRECTV shall coordinate all transfer
orbit Telemetry, Tracking and Control ("TT&C") operations with other
potentially affected in orbit DBS operators.

> FEDERAL COMMUNICATIONS COMMISSION

Thomas S. Tycz

Chief

Satellite and Radiocommunication Division

[^1]: Tempo Satellite, Assignor, and DIRECTV Enterprises, Inc.,
    Assignee, *Order and Authorization*, 14 FCC Rcd 7946 (IB 1999).

[^2]: DIRECTV proposes to operate DIRECTV 5 from the 119.000° W.L. orbit
    location.

[^3]: Policies and Rules for the Direct Broadcast Satellite Service,
    *Notice of Proposed Rulemaking*, 13 FCC Rcd 6907 (1998) ("*Part 100
    Rulemaking*")

[^4]: Revision of Rules and Policies for the Direct Broadcast Satellite
    Service, *Report and Order*, 11 FCC Rcd 9712, 9762 (1995).

[^5]: *But see* Ex parte letter filed by Hawaii on November 21, 2000,
    asserting that retailers are not actually marketing DIRECTV to
    Hawaiian subscribers.

[^6]: Attachment to Further *Ex Parte* Response of DIRECTV, Inc., filed
    September 20, 2000.

[^7]: Opposition and Reply Comments of DIRECTV Enterprises, Inc.,
    ("*DIRECTV Opposition and Reply*"), filed July 17, 2000, at 4.

[^8]: *DIRECTV Reply and Opposition*, at 4-5.

[^9]: Petition to Deny of the State of Hawaii ("*Hawaii Petition to
    Deny*"), filed July 6, 2000, at 8.

[^10]: *Hawaii Petition to Deny*, at 3. *See also* Ex parte Letter filed
    November 9, 2000, where Hawaii urges the Commission to mandate
    "full" DBS service of comparable or equal value to that provided in
    the rest of the United States.

[^11]: *Id*. at 9.

[^12]: The NRTC filed comments in support of Hawaii's petition. The NRTC
    asserts that DIRECTV is using the pending litigation as a means to
    avoid providing full service to Hawaii. Comments of NRTC, filed
    September 7, 2000.

[^13]: *Id.* at 6.

[^14]: *Id.* at 7.

[^15]: Reply of the State of Hawaii ("*Hawaii Reply*") filed July 24,
    2000.

[^16]: Comments of the State of Alaska ("*Alaska Comments*") filed July
    6, 2000 at 2.

[^17]: *Alaska Comments*, at 7.

[^18]: *Id*. at 8.

[^19]: *Id*. at 9.

[^20]: *DIRECTV Opposition and Reply* at 3, 6.

[^21]: *DIRECTV Opposition and Reply,* at 6: *Ex Parte* Response of
    DIRECTV, Inc. ("*DIRECTV Ex Parte*") filed August 3, 2000, at 4.

[^22]: *DIRECTV Opposition and Reply*, at 2.

[^23]: *DIRECTV Opposition and Reply* at 5.

[^24]: In response to NRTC's comments regarding the pending litigation
    over programming distribution agreements, DIRECTV notes that NRTC
    has no contractual right to distribute DIRECTV's programming to
    Hawaii and should not be permitted to obscure the benefits and
    services DIRECTV is providing to Hawaii. DIRECTV states that it has
    gone to considerable effort and expense to offer attractive
    programming to Hawaii subscribers. Further *Ex Parte* Response of
    DIRECTV, Inc., Filed September 20, 2000 ("*DIRECTV Further Ex
    Parte*").

[^25]: *DIRECTV Opposition and Reply*, at 7.

[^26]: *DIRECTV Opposition and Reply*, at 7.

[^27]: In July 2000, Representatives of DIRECTV, Alaska and Hawaii met
    with Commission Staff to discuss issues relating to DIRECTV's
    existing and planned service to subscribers in Alaska and Hawaii. In
    response, DIRECTV supplemented its application to demonstrate that
    DIRECTV 5 covers Alaska and Hawaii from 119° W.L. *See* Letter to
    Magalie Roman Salas, FCC Secretary, from James H. Barker, Counsel
    for DIRECTV Enterprises, Inc., dated June 30, 2000.

[^28]: *DIRECTV Opposition and Reply*, at 9-10.

[^29]: Letter from the Honorable Daniel K. Inouye and Honorable Ted
    Stevens to Honorable William E. Kennard, Chairman, Federal
    Communications Commission, dated September 21, 2000.

[^30]: *DIRECTV Ex Parte*, at 3; and *Further Ex Parte*, Attachment.

[^31]: *DIRECTV Opposition and Reply*, at 4. DIRECTV notes that certain
    subscribers receive a more limited offering due to technical
    constraints but nonetheless receive a variety of more than 60 basic
    services. *Id*. at ft note 7.