# Before the

# Federal Communications Commission

# Washington, D.C. 20554

)

)

In the Matter of )

)

American Distance Education Consortium ) File No. SAT-PDR-19990803-00077

Request for an Expedited Declaratory Ruling )

and Informal Complaint )

)

)

)

# DECLARATORY RULING AND ORDER

**Adopted: November 23, 1999 Released: November 24, 1999**

By the Commission:

I. INTRODUCTION

1\. This Order responds to the American Distance Education Consortium's
("ADEC") Request for an Expedited Declaratory Ruling and Informal
Complaint against EchoStar Communications Corporation ("EchoStar").[^1]
ADEC requests a ruling that EchoStar's plans to implement its direct
broadcast satellite ("DBS") public interest obligations do not comply
with applicable statutory requirements or the Commission's rules.[^2] As
set forth below we find, first, that EchoStar's proposal to place all of
its qualified public interest programming on its satellite located at
61.5° W.L. does not meet its statutory or regulatory obligations.[^3]
Instead, we find that EchoStar must, at a minimum, reserve four percent
of the channels at each of its full-CONUS (continental U.S.) orbit
locations exclusively for public interest programming. EchoStar may
place the remaining number of its requisite set-aside channels on
satellites at either its full-CONUS or non full-CONUS orbit locations.
Second, we find that the record is insufficient to determine if
EchoStar's proposed monthly access fee complies with our rules.
Therefore, we believe it would be in the public interest to release
EchoStar's cost information to ADEC for review and comment subject to
the Commission's standard protective order. Third, we conclude that
EchoStar may use a third-party agent to select qualified public interest
programmers.

II\. BACKGROUND

> 2\. In 1992, Congress enacted the Cable Television Consumer Protection
> and

Competition Act of 1992 ("1992 Cable Act"). This enactment added a new
Section 335 of the Communications Act of 1934, which directed the
Commission to adopt rules imposing public interest programming and other
requirements on DBS providers.[^4] Pursuant to this statutory mandate,
the Commission implemented public interest programming rules.[^5] These
rules require DBS providers to set aside four percent of their DBS
system's total channel capacity exclusively for programming of an
educational or informational nature.[^6] In addition, the statute
provides that DBS providers may not charge rates that exceed 50 percent
of costs directly related to making the capacity available to qualified
programmers.[^7] Further, pursuant to the *DBS Public Interest
Obligations Order*, DBS providers are permitted to use a "clearinghouse
of educators and public interest specialists to choose among qualifying
programs that would be aired on the set-aside capacity."[^8] The
programming covered by these rules must be in place by December 15,
1999.[^9]

3\. ADEC is a consortium of 58 state and land grant colleges and
universities that pool resources to develop distance education programs
for the K-12 level, as well as credit and non-credit college and
graduate level courses.[^10] ADEC seeks access to EchoStar's public
interest set-aside channels. EchoStar is a DBS provider with over 3
million subscribers.[^11] EchoStar is authorized to operate at five
orbital locations.[^12] It presently is providing 350 broadcast channels
from two satellites at 119° W.L., a full-CONUS orbit location.[^13]
EchoStar also offers specialty and niche programming from its satellite
at 61.5° W.L., which is not a full-CONUS orbit location and therefore
does not reach subscribers in all 48 continental states and Alaska and
Hawaii.

4\. EchoStar intends to place all of its DBS public interest programming
on its satellite,

EchoStar III, at the 61.5° W.L. orbit location.[^14] ADEC asserts that
because EchoStar III does not provide coverage to western portions of
the United States, EchoStar's proposal violates the *DBS Public
Interest* *Obligations Order* requirement that such programs be made
available to "all subscribers."[^15] On August 3, 1999, ADEC filed its
Request, asking the Commission to rule that the DBS public interest
obligations require EchoStar to provide channel space on a satellite
with full coverage of the United States and which can be received by
subscribers without having to purchase additional equipment or incur
additional expenses.[^16] ADEC also asks the Commission to limit the
monthly access fee EchoStar may charge ADEC to \$1,970 until EchoStar
justifies a higher rate, and that ADEC be permitted to negotiate
directly with EchoStar and not its third party agent, Educating
Everyone.

5\. EchoStar filed an opposition to this request and ADEC replied. In
addition, twenty-three organizations, including other public interest
programmers, filed letters and comments in this proceeding.[^17] All of
the comments support ADEC's request and urge the Commission to require
EchoStar to provide public interest programming on a nationwide basis.
In sum, the commenters state that access to all subscribers is critical,
and express concerns that educational programming will not reach target
populations located throughout the United States. In addition, the
commenters agree with ADEC that EchoStar's proposed monthly access fee
is excessive and cost prohibitive. Several commenters also noted that
ADEC should be permitted to deal directly with EchoStar for access and
not through an agent.

6\. In a letter dated September 23, 1999, the International Bureau
requested additional information from EchoStar relating to ADEC's
Request. Specifically, the Bureau asked for information regarding: 1)
the number of subscribers receiving service from EchoStar III; 2) an
itemized justification of its proposed monthly access fee for public
interest programmers; and 3) information regarding

whether its agent, Educating Everyone, would be charging programmers a
fee for its services, and if so,

what amount. EchoStar submitted this information on October 7,
1999.[^18]

III\. DISCUSSION

7\. *DBS Public Interest Coverage Requirements.* ADEC states that
Section 335(b)(3) of the Communications Act requires EchoStar to
allocate transponder space for its public interest programming on a
satellite available to "all \[\] subscribers without additional
charge."[^19] In claiming that EchoStar is violating this directive,
ADEC asserts that EchoStar III does not provide coverage to substantial
parts of the western United States and, consequently, EchoStar
subscribers in the western portions of the United States would not
receive any public interest programming.[^20] Second, because all of
EchoStar's subscribers receive their core programming from satellites at
119° W.L., subscribers within the coverage area of EchoStar III would be
required to purchase a second receiving antenna in order to receive
public interest programming. ADEC asserts that such a purchase
requirement would violate the *DBS Public Interest Obligations Order*
which states that programming must be provided to subscribers at no
additional charge.[^21] In addition, ADEC states that some of its
members would not be able to receive the programming, and even if
members with main campuses are able to receive programming, it would be
impossible to deliver the programming to their remote learning and
extension centers and home-based students in an affordable manner.[^22]

8\. In its opposition, EchoStar acknowledges that EchoStar III is
technically not a full-CONUS satellite, but asserts that it can be
accessed by a "vast majority" of EchoStar's subscribers.[^23]
Nonetheless, EchoStar continues that there is nothing in the Cable Act
suggesting that the Commission may dictate "which" capacity a DBS
provider must set aside. Further, EchoStar argues, nothing in the
rulemaking, the *DBS Public Interest Obligations Order*, or the
Commission's rules suggests that the Commission considered imposing
restrictions on the ability of DBS providers to decide which satellites
to use to fulfill their public interest obligations.[^24] EchoStar
states that had the Commission raised this possibility it would have
submitted comments addressing the technical and economic implications,
as well as the statutory basis of such a requirement. According to
EchoStar, to now require DBS providers to reserve programming on
particular satellites would violate the Administrative Procedure Act
("APA").[^25] Rather, EchoStar asserts that the *DBS Public Interest
Obligations Order* states that DBS providers must set aside four percent
of the "total" number of programming channels on all of its satellites,
and intended to give DBS licensees "considerable flexibility" in
deciding which part of their satellite constellation to deploy toward
meeting the requirement.[^26] EchoStar maintains that the statement in
the *DBS Public Interest Obligations Order* that public interest
programming "must be made available to all of a DBS provider's
subscribers without additional charge" is "ambiguous at best."[^27]
Further, to comply with ADEC's request, EchoStar states that it would
have to set aside duplicative capacity on more than one satellite,
exceeding the four percent set-aside because no one satellite is capable
of providing service to all subscribers. EchoStar states such a result
would disrupt business decisions and adversely affect a DBS provider's
flexibility to allocate transponder capacity in a manner that optimizes
the use of its satellites.[^28]

9\. EchoStar also states that ADEC ignores the distinction between "cost
of equipment" and "cost of service" in asserting that "no additional
charges" means subscribers should not have to purchase equipment or
incur additional costs.[^29] While there would be no additional charge
to receive the public interest programming, subscribers would still have
to purchase the equipment necessary to receive the service from EchoStar
III. EchoStar claims that equipment would have to be purchased
regardless of the programming package provided to the subscriber,
whether it be from 119° W.L. or 61.5° W.L. According to EchoStar, under
ADEC's reasoning a subscriber could elect to receive programming only
from EchoStar III and not be required to purchase any equipment because
it would be an "additional charge" for access to the public interest
programming.[^30]

10\. We find that EchoStar's proposal to place all of its public
interest programming on EchoStar III at 61.5° W.L. does not comply with
the requirements of the Commission's DBS public interest rules. In the
1992 Cable Act, Congress directed the Commission to require DBS
providers to reserve a portion of their channel capacity to be made
available to national educational program suppliers for noncommercial
programming of an educational or informational nature.[^31] In
implementing these obligations, the Commission made clear that "the
public interest programming provided for in this order must be made
available to *all* of a DBS provider's subscribers without additional
charge."[^32] The Commission also stated that "public interest
obligations are designed to expand programming choices for consumers in
*all* areas of the United States," and set forth its expectation that
public interest programming "will contribute to enhanced viewing
opportunities for consumers throughout the United

States."[^33] Indeed, in establishing DBS in 1982, the Commission stated
that the service offers "unique public benefits on a national scope ...
and that the primary coverage area for DBS is national."[^34]

11\. EchoStar III does not have the technical capability to reach all of
EchoStar's subscribers. Although EchoStar claims in this proceeding that
the EchoStar III footprint covers the entire U.S. as well as Puerto Rico
and the U.S. Virgin Islands, elsewhere it represents that the satellite
coverage is from Denver to the east coast.[^35] Furthermore, in previous
proceedings before the Commission, EchoStar opposed designating 61.5°
W.L. as a full-CONUS location.[^36] EchoStar's own subscriber
information fails to support its claim that a "significant number of
subscribers" in the Pacific Northwest receive service from its satellite
at 61.5° W.L.[^37]

12\. Finally, allowing EchoStar to fulfill its public interest
obligations from EchoStar III would require the substantial majority of
its subscribers within the reception range to purchase a second
receiving antenna to receive this programming. The supplemental
information submitted by EchoStar indicates that the number of
subscribers receiving service from EchoStar III, either alone or in
conjunction with service from 119° W.L., is *de minimis* in relation to
its total subscriber base.[^38] While we do not reach the issue of
whether the purchase of a second dish constitutes an additional charge,
we find that it would be contrary to the Commission's purpose in
implementing public interest programming obligations to allow a DBS
provider to allocate this programming exclusively to a satellite
received by a small percentage of its total subscribers. EchoStar is
correct that the Commission intended to provide DBS operators the
flexibility to implement their public interest obligations, but this
flexibility does not allow EchoStar to exclude subscribers in western
portions of the United States or in Alaska or Hawaii where EchoStar has
the capability to provide public interest programming to these
subscribers from other satellites.

13\. Although we find that EchoStar's proposal does not satisfy its
public interest obligations, we note that directing EchoStar to put all
of its public interest programming on one particular satellite would be
contrary to our intent to give DBS providers the flexibility to
implement this obligation. Although the vast majority of EchoStar
subscribers receive service from EchoStar's 119° W.L. orbit location,
EchoStar represents that certain of its subscribers receive service only
from 61.5° W.L.[^39] In order to balance the technical capabilities of
EchoStar's DBS system with the requirement that programming be provided
to all subscribers, we find that EchoStar must, at a minimum, reserve
four percent of the total number of channels available at each of its
full-CONUS orbit locations for public interest programming. Because our
rules require a DBS provider to reserve four percent of its *system's*
total channel capacity for qualified public interest programmers, the
total number of set-aside channels may exceed four percent of the
full-CONUS channels.[^40] Thus, EchoStar may place these remaining
channels (i.e., public interest channels in excess of four percent of
its full-CONUS channels) on satellites at either its full-CONUS or non
full-CONUS locations, whichever it deems the most efficient and cost
effective.[^41] As set forth in the *DBS Public* *Interest Obligations*
*Order*, if the four percent calculation creates any fraction of a
channel, DBS providers must round the calculation upward.[^42] Any
channels resulting from this calculation must be placed at a full-CONUS
location. We find this result provides the greatest benefit to the vast
majority of EchoStar's subscribers who will be able to receive public
interest programming without purchasing additional equipment.

14\. We recognize, however, that if EchoStar elects to place some of the
public interest programming on a satellite that is not at a full-CONUS
location, those channels at full-CONUS locations will be more desirable
for certain public interest programmers. Therefore, we require EchoStar
to provide space for qualified public interest programmers at the
location of their choice, if space is available. Consequently, if a
public interest programmer requests space on a full-CONUS satellite,
EchoStar cannot place the programming on its satellite at 61.5° W.L. if
four percent of the full-CONUS channels are not being used for public
interest programming.

15\. This decision does not raise APA concerns because we are not, as
EchoStar asserts, placing new restrictions on the manner in which DBS
providers must fulfill their set-aside obligations. Rather, we are
simply interpreting the rules adopted in the *DBS Public Interest
Obligations Order* and providing further guidance concerning the scope
of EchoStar's clear obligation under those rules to provide public
interest programming to *all* of its subscribers. Nor does the record
support EchoStar's claim that the parties were not adequately apprised
of the issues being considered by the Commission. The parties were on
notice that the Commission was considering all relevant issues related
to how best to implement the Congressional directive to adopt public
interest rules for DBS. In fact, EchoStar specifically commented on the
issue it now claims we did not raise in the DBS public interest
obligation proceeding.[^43]

16\. *Monthly Access Fee.* EchoStar has proposed charging ADEC a monthly
access fee of \$10,000 per month.[^44] ADEC states that EchoStar refused
to provide a justification of its proposed fee, but that its own
analysis indicates that a monthly fee of \$1,970 is more accurate and
reasonable. In response to the Bureau's request, EchoStar submitted an
itemized list detailing the costs of its proposed monthly fee subject to
the Commission's rules on confidentiality.[^45]

17\. Section 335 of the Communications Act requires that DBS providers
make their public interest channel capacity available to national
educational programming suppliers upon reasonable prices, terms and
conditions.[^46] It also states that such costs shall not exceed 50
percent of the total direct costs of making such channel available.[^47]
In determining reasonable prices, Congress directed the Commission to
take into account the non-profit character of the public interest
programmers.[^48] In implementing Section 335, the Commission concluded
that costs must be directly related to making the capacity available for
noncommercial programmers and may include certain incremental costs for
equipment and labor. Specifically, the Commission stated that such costs
may include incremental labor required for traffic management at the
uplink facility, incremental compression equipment, incremental labor
required to authorize viewers to receive particular programming and any
backhaul costs actually incurred by the DBS provider in order to
transmit the noncommercial or educational programming.[^49]

18\. At this time, we do not have enough information in the record to
determine the reasonableness of EchoStar's proposed fees. At a minimum,
as a party to this proceeding, we find that ADEC is entitled to review
and respond to EchoStar's cost statement. Therefore, we will release the
information EchoStar has submitted thus far to ADEC, subject to our
standard protective order, Attachment B hereto, unless EchoStar files an
application for review of this determination within 5 business days of
the release of this Order.[^50] We direct ADEC to file any response
within 14 days of receiving access to EchoStar's data. EchoStar may file
a reply within 10 days thereafter, and ADEC may have 5 days to address
EchoStar's reply. We further instruct EchoStar to share with ADEC any
additional confidential information it files subject to the same
protective order. We strongly encourage the parties to work together to
resolve their dispute. Finally, given the possibility that the rate
issue may not be resolved by December 15, 1999, the date the programming
must be in place, we are placing an accounting order into effect so that
ADEC will be entitled to a refund of any amount it pays that we later
determine to be unreasonable. Accordingly, until this issue is resolved,
EchoStar must keep records of all funds it receives from ADEC as well as
all expenses it incurs in carrying ADEC's programming.

19\. *Use of a Third Party Agent.* EchoStar proposes to use a third
party, Educating Everyone, to act as its agent in fulfilling its public
interest obligations. ADEC complains that it should not be required to
negotiate with Educating Everyone because this will add an additional
layer of costs. Further, because Educating Everyone is acting as both a
programmer and a middleman it has, according to ADEC, an inherent
conflict of interest. EchoStar responds that Educating Everyone will not
charge qualified programmers any type of fee or markup for the service
its provides. EchoStar also states that while it is directly responsible
for fulfilling its public interest obligations, the *DBS Public
Interest* *Obligations Order* explicitly authorizes DBS providers to
delegate the administration of this obligation. In its reply, ADEC
submitted evidence that the issue of costs for Educating Everyone's
services has not been resolved.[^51] In response to the Bureau's
request, EchoStar states that Educating Everyone will be prohibited from
charging qualified noncommercial programmers any type of mark-up, fee or
commission for its services.[^52]

20\. The *DBS Public Interest Obligations Order* establishes the
responsibility of DBS providers to ensure that the obligations imposed
by the statue are fulfilled.[^53] However, it also permits DBS operators
to use a consortium or clearinghouse of "educators and public interest
specialists to choose among qualifying programs that would be aired on
the set-aside capacity."[^54] Educating Everyone is a non-profit
consortium of public interest specialists. Contrary to ADEC's concerns
about conflict of interests, we stated that such a clearinghouse would
have the "greatest benefit to the public if it is composed of diverse
members including educators \[and\] nonprofit programmers."[^55]
Furthermore, EchoStar represents that Educating Everyone will not charge
public interest programmers a fee for its services, resolving ADEC's
concern regarding increased costs. As long as Educating Everyone selects
qualified educational and informational programming as set forth in our
rules we find no reason to preclude EchoStar from using its services. We
reiterate, however, that EchoStar retains the ultimate responsibility
for complying with the statute; that responsibility cannot be delegated
away.

IV\. CONCLUSION

21\. Based on the foregoing, we find it is in the public interest to
grant, in part, the American Distance Education Consortium's Request for
an Expedited Declaratory Ruling and Informal Complaint.

V. ORDERING CLAUSES

22\. Accordingly, IT IS ORDERED, pursuant to Section 1.2 of the
Commission's rules, 47 C.F.R. § 1.2, that the Request for an Expedited
Declaratory Ruling and Informal Complaint, filed by the American
Distance Education Consortium, File No. SAT-PDR-19990803-00077, IS
GRANTED, IN PART, and that EchoStar must, at a minimum, reserve four
percent of the total number of channels available at its full-CONUS
orbit locations for public interest programming. EchoStar may place the
remaining number of public interest channels on satellites at either its
full-CONUS or non full-CONUS locations. EchoStar shall provide space for
public interest programmers at the orbit location of their choice
subject to availability.

23\. IT IS FURTHER ORDERED**,** that the American Distance Education
Consortium's request that EchoStar's monthly access fee be limited to
\$1,970 until EchoStar justifies a higher cost IS DENIED. EchoStar shall
provide its itemized cost information to the American Distance Education
Consortium for review and comment subject to the attached protective
order. EchoStar has 5 days to seek a review of this decision. 47 C.F.R.
§ 0.459. The American Distance Education Consortium shall have 14 days
from date it receives the information to submit a response for our
review, EchoStar shall have 10 days to submit a reply and ADEC shall
have 5 days to address EchoStar's reply.

24\. IT IS FURTHER ORDERED, that the attached Protective Order IS
ADOPTED.

25\. IT IS FURTHER ORDERED, that EchoStar shall keep an accurate account
of all costs incurred in providing the American Distance Education
Consortium's public interest programming.

26\. IT IS FURTHER ORDERED, that the American Distance Education
Consortium's request that EchoStar be ordered to negotiate directly with
the American Distance Education Consortium

on matters concerning potential access to EchoStar's satellite IS
DENIED. EchoStar is permitted to use

a third party agent or clearinghouse to select among qualified programs
to be aired on the set-aside capacity.

27\. IT IS FURTHER ORDERED, that the International Bureau shall promptly
telefax a copy of this Order to the American Distance Education
Consortium and to EchoStar Satellite Corporation.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Magalie Roman Salas
>
> Secretary

**ATTACHMENT A**

Commenters:

Iowa State University, North Central Regional Center for Rural
Development

Colorado State University, Office of the Provost and Academic Vice
President, and

Dean, College of Agricultural Sciences

University of Georgia, College of Agricultural and Environmental
Sciences

University of Illinois at Urbana-Champaign, College of Agricultural,
Consumer and

Environmental Sciences

North Carolina Agricultural and Technical State University

University of Maryland, College of Agriculture and Natural Resources

Tuskegee University, College of Agriculture, Environmental and Natural
Sciences

University of Kentucky, College of Agriculture

University of Arizona, College of Agriculture

Purdue University, Dean of Agriculture

The Ohio State University, College of Food, Agriculture and
Environmental Sciences

University of Wisconsin -- Extension

University of Florida, Institute of Food and Agricultural Sciences

Utah State University, Office of the President

Oregon State University, College of Agricultural Sciences

National 4-H Council

Alliance for Community Media

Los Angeles County Office of Education

Independent Television Service

University of Nebraska Lincoln, Institute of Agriculture and Natural
Resources

Diné College, Office of the President

Clemson University, Public Service and Agriculture

University of California, Director, Agriculture and Natural Resources
and

Communication Services

**ATTACHMENT B**

# Before the

# Federal Communications Commission

# Washington, D.C. 20554

In the Matter of )

)

American Distance Education Consortium ) File No. SAT-PDR-19990803-00077

Request for an Expedited Declaratory Ruling )

And Informal Complaint )

)

# PROTECTIVE ORDER

**Adopted: November 23, 1999 Released: November 24, 1999**

This Protective Order is intended to facilitate and expedite the review
of documents containing trade secrets and commercial or financial
information obtained from EchoStar Satellite Corporation ("EchoStar")
and which is privileged or confidential.[^56] It reflects the manner in
which \"Confidential Information,\" as that term is defined herein, is
to be treated. This Order is not intended to constitute a resolution of
the merits concerning whether any Confidential Information would be
released publicly by the Commission upon a proper request under the
Freedom of Information Act or other applicable law or regulation,
including 47 C.F.R. § 0.442.

1\. [Definitions.]{.underline}

a\. [Authorized Representative]{.underline}. \"Authorized
Representative\" shall have the meaning set forth in Paragraph seven.

b\. [Commission]{.underline}. \"Commission\" means the Federal
Communications Commission or any arm of the Commission acting pursuant
to delegated authority.

c\. [Confidential Information]{.underline}. \"Confidential Information\"
means (i) information submitted to the Commission by the Submitting
Party that has been so designated by the Submitting Party and which the
Submitting Party has determined in good faith constitutes trade secrets
or commercial or financial information which is privileged or
confidential within the meaning of Exemption 4 of the Freedom of
Information Act, 5 U.S.C. § 552(b)(4); (ii) information submitted to the
Commission by the Submitting Party that has been so designated by the
Submitting Party and which the Submitting Party has determined in good
faith falls within the terms of Commission orders designating the items
for treatment as Confidential Information; and (iii) information that
the Commission has allowed to be examined off‑site and that otherwise
complies with the requirements of this paragraph. Confidential
Information includes additional copies of and information derived from
Confidential Information.

d\. [Declaration]{.underline}. \"Declaration\" means Appendix A to this
Protective Order.

e\. [Reviewing Party]{.underline}. \"Reviewing Party\" means the
American Distance Education Consortium ("ADEC").

f\. [Submitting Party]{.underline}. \"Submitting Party\" means EchoStar.

2\. [Claim of Confidentiality]{.underline}. The Submitting Party may
designate information as \"Confidential Information\" consistent with
the definition of that term in Paragraph 1 of this Protective Order. The
Commission may, *sua sponte* or upon petition, pursuant to 47 C.F.R §§
0.459 & 0.461, determine that all or part of the information claimed as
\"Confidential Information\" is not entitled to such treatment.

3\. [Procedures for Claiming Information is Confidential]{.underline}.
Confidential Information submitted to the Commission shall be filed
under seal and shall bear on the front page in bold print, \"CONTAINS
PRIVILEGED AND CONFIDENTIAL INFORMATION - DO NOT RELEASE.\" Confidential
Information shall be segregated by EchoStar from all non-confidential
information submitted to the Commission. To the extent a document
contains both Confidential Information and non-confidential information,
EchoStar shall designate the specific portions of the document claimed
to contain Confidential Information and shall, where feasible, also
submit a redacted version not containing Confidential Information.

4\. [Storage of Confidential Information at the Commission]{.underline}.
The Secretary of the Commission or other Commission staff to whom
Confidential Information is submitted shall place the Confidential
Information in a non-public file. Confidential Information shall be
segregated in the files of the Commission, and shall be withheld from
inspection by any person not bound by the terms of this Protective
Order, unless such Confidential Information is released from the
restrictions of this Order either through agreement of the parties, or
pursuant to the order of the Commission or a court having jurisdiction.

5\. [Access to Confidential Information]{.underline}. Confidential
Information shall only be made available to Commission staff, Commission
consultants and to counsel to the Reviewing Party, ADEC, or if ADEC has
no counsel, to a person designated by ADEC. Before counsel to ADEC or
such other designated person designated by ADEC may obtain access to
Confidential Information, counsel or such other designated person must
execute the attached Declaration. Consultants under contract to the
Commission may obtain access to the Confidential Information only if
they have signed, as part of their employment contract, a non-disclosure
agreement or if they execute the attached Declaration.

6\. Counsel to ADEC or such other person designated pursuant to
Paragraph 5 may disclose Confidential Information to other Authorized
Representatives to whom disclosure is permitted under the terms of
paragraph 7 of this Protective Order only after advising such Authorized
Representatives of the terms and obligations of the Order. In addition,
before Authorized Representatives may obtain access to Confidential
Information, each Authorized Representative must execute the attached
Declaration.

7\. Authorized Representatives shall be limited to:

a.  Counsel for the Reviewing Parties to this proceeding, including
    in-house

> counsel actively engaged in the conduct of this proceeding, and their
> associated attorneys, paralegals, clerical staff and other employees,
> to the extent reasonably necessary to render professional services in
> this proceeding;

b\. Specified persons, including members of ADEC, requested by counsel
to furnish technical or other expert advice or service, or otherwise
engaged to prepare material for the express purpose of formulating
filings in this proceeding; or

c\. Any person designated by the Commission in the public interest, upon
such terms as the Commission may deem proper.

8\. [Inspection of Confidential Information]{.underline}. Confidential
Information shall be maintained by EchoStar for inspection at two or
more locations, at least one of which shall be in Washington, D.C.
Inspection shall be carried out by Authorized Representatives upon
reasonable notice (generally not to exceed one business day) during
normal business hours.

9\. [Copies of Confidential Information]{.underline}. EchoStar shall
provide a copy of the Confidential Material to Authorized
Representatives upon request and may charge a reasonable copying fee not
to exceed twenty-five cents per page. Authorized Representatives may
make additional copies of Confidential Information but only to the
extent required and solely for the preparation and use in this
proceeding. Authorized Representatives must maintain a written record of
any additional copies made and provide this record to EchoStar upon
reasonable request. The original copy and all other copies of the
Confidential Information shall remain in the care and control of
Authorized Representatives at all times. Authorized Representatives
having custody of any Confidential Information shall keep the documents
properly secured at all times.

10\. [Filing of Declaration]{.underline}. Counsel for ADEC shall provide
to EchoStar and the Commission with a copy of the attached Declaration
for each Authorized Representative within five (5) business days after
the attached Declaration is executed.

11\. [Use of Confidential Information]{.underline}. Confidential
Information shall not be used by any person granted access under this
Protective Order for any purpose other than for use in this proceeding
(including any subsequent administrative or judicial review) unless
otherwise ordered by the Commission or a court of competent
jurisdiction, shall not be used for competitive business purposes, and
shall not be used or disclosed except in accordance with this Order.
This shall not preclude the use of any material or information that is
in the public domain or has been developed independently by any other
person who has not had access to the Confidential Information nor
otherwise learned of its contents.

12\. [Pleadings Using Confidential Information]{.underline}. EchoStar
and ADEC may, in any pleadings that they file in this proceeding,
reference the Confidential Information, but only if they comply with the
following procedures:

a\. Any portions of the pleadings that contain or disclose Confidential
Information must be physically segregated from the remainder of the
pleadings and filed under seal;

> b\. The portions containing or disclosing Confidential Information
> must be covered by a separate letter referencing this Protective
> Order;

c\. Each page of any Party\'s filing that contains or discloses
Confidential Information subject to this Order must be clearly marked:
\"Confidential Information included pursuant to Protective Order,
American Distance Education Consortium Request for an Expedited
Declaratory Ruling and Informal Complaint, File No.
SAT-PDR-19990803-00077;\" and

d\. The confidential portion(s) of the pleading, to the extent they are
required to be served, shall be served upon the Secretary of the
Commission, EchoStar, and those ADEC representatives that have signed
the attached Declaration. Such confidential portions shall be served
under seal. They shall not be placed in the Commission\'s Public File
unless the Commission directs otherwise (with notice to EchoStar and an
opportunity to comment on such proposed disclosure). If EchoStar or ADEC
file a pleading containing Confidential Information, they shall also
file a redacted copy of the pleading containing no Confidential
Information, which copy shall be placed in the Commission\'s public
files. EchoStar or ADEC may provide courtesy copies of pleadings
containing Confidential Information to Commission staff so long as the
notation required by subsection c of this paragraph is not removed.

13\. [Violations of Protective Order]{.underline}. Should ADEC, after it
has properly obtained access to Confidential Information under this
Protective Order, violate any of its terms, it shall immediately convey
that fact to the Commission and to EchoStar. Further, should such
violation consist of improper disclosure or use of Confidential
Information, ADEC shall take all necessary steps to remedy the improper
disclosure or use. ADEC shall also immediately notify the Commission and
EchoStar, in writing, of the identity of each party known or reasonably
suspected to have obtained the Confidential Information through any such
disclosure. The Commission retains its full authority to fashion
appropriate sanctions for violations of this Protective Order, including
but not limited to suspension or disbarment of attorneys from practice
before the Commission, forfeitures, cease and desist orders, and denial
of further access to Confidential Information in this or any other
Commission proceeding. Nothing in this Protective Order shall limit any
other rights and remedies available to EchoStar at law or equity against
any party using Confidential Information in a manner not authorized by
this Protective Order.

14\. [Termination of Proceeding]{.underline}. Unless otherwise ordered
by the Commission or a court of competent jurisdiction, within two weeks
after final resolution of this proceeding (which includes any
administrative or judicial appeals), Authorized Representatives of ADEC
shall destroy or return to EchoStar all Confidential Information as well
as all copies and derivative materials made. Authorized Representatives
shall certify in a writing served on the Commission and EchoStar that no
material whatsoever derived from such Confidential Information has been
retained by any person having access thereto, except that counsel to
ADEC may retain two copies of pleadings submitted on behalf of ADEC and
other attorney work product. Any confidential information contained in
any copies of pleadings retained by counsel to ADEC or in materials that
have been destroyed pursuant to this paragraph shall be protected from
disclosure or use indefinitely in accordance with paragraphs 9 and 11 of
this Protective Order unless such Confidential Information is released
from the restrictions of this Order either through agreement of the
parties, or pursuant to the order of the Commission or a court having
jurisdiction.

15\. [No Waiver of Confidentiality]{.underline}. Disclosure of
Confidential Information as provided herein shall not be deemed a waiver
by EchoStar of any privilege or entitlement to confidential treatment of
such Confidential Information. ADEC, by viewing these materials: (a)
agrees not to assert any such waiver; (b) agrees not to use information
derived from any confidential materials to seek disclosure in any other
proceeding; and (c) agrees that accidental disclosure of Confidential
Information shall not be deemed a waiver of any privilege.

16\. [Additional Rights Preserved]{.underline}. The entry of this
Protective Order is without prejudice to the rights of EchoStar to apply
for additional or different protection where it is deemed necessary or
to the rights of ADEC to request further or renewed disclosure of
Confidential Information.

17\. [Effect of Protective Order]{.underline}. This Protective Order
constitutes an Order of the Commission and an agreement between the
Reviewing Party, American Distance Education Consortium executing the
attached Declaration, and the Submitting Party, EchoStar Communications
Corporation.

18\. [Authority]{.underline}. This Protective Order is issued pursuant
to Sections 4(i) and 4(j) of the Communications Act as amended, 47
U.S.C. §§ 154(i), (j) and 47 C.F.R. § 0.457(d).

**APPENDIX A**

DECLARATION

In the Matter of )

)

American Distance Education Consortium ) File No. SAT-PDR-19990803-00077

Request for an Expedited Declaratory )

Ruling and Informal Complaint )

)

I, \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, hereby
declare under penalty of perjury that I have read the Protective Order
in the above referenced proceeding, and that I agree to be bound by its
terms pertaining to the treatment of Confidential Information submitted
by parties to this proceeding. I understand that the Confidential
Information shall not be disclosed to anyone except in accordance with
the terms of the Protective Order and shall be used only for purposes of
the proceedings in this matter. I acknowledge that a violation of the
Protective Order is a violation of an order of the Federal
Communications Commission. I acknowledge that this Protective Order is
also a binding agreement with EchoStar Satellite Corporation, the
Submitting Party.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Signed) (Date)

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Printed name)

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Representing)

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Title)

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Employer)

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Address)

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
(Phone)

[^1]: A response was filed by EchoStar Satellite Corporation, a wholly
    owned subsidiary of EchoStar Communications Corporation and referred
    to jointly herein as "EchoStar."

[^2]: 47 U.S.C. § 335 and 47 C.F.R. § 100.5.

[^3]: *Id*.

[^4]: 47 U.S.C. § 335.

[^5]: Implementation of Section 25 of the Cable Television Consumer
    Protection and Competition Act of 1992, Direct Broadcast Satellite
    Public Interest Obligations, *Report and Order*, 13 FCC Rcd 23254
    (1998) ("*DBS Public* *Interest Obligations Order*").

[^6]: 47 C.F.R. § 100.5(c).

[^7]: 47 U.S.C. § 335(b)(4), *see also* 47 C.F.R. § 100.5(c)(5)(B).

[^8]: *DBS Public Interest Obligations Order*, 13 FCC Rcd at 23300.

[^9]: 47 C.F.R. § 100.5(c)(7).

[^10]: American Distance Education Consortium Request for an Expedited
    Declaratory Ruling and Informal Complaint, at 2, File No.
    SAT-PDR-19990803-00077 ("*ADEC Request*").

[^11]: *See* EchoStar Press Release dated October 7, 1999 at
    www.dishnetwork.com/profile/press/press/press245.htm.

[^12]: EchoStar is authorized to operate on channels at 110° W.L., 119°
    W.L., 148° W.L., and 61.5° W.L. EchoStar also has a channel
    assignment to operate 22 channels at the 175° W.L. orbit location
    but is not providing service at the present time. EchoStar recently
    launched EchoStar V, which will operate at 110° W.L. and provide 150
    broadcast channels with full-CONUS coverage. *See* EchoStar Press
    Release dated October 6, 1999 at
    www.dishnetwork.com/profile/press/press/press244.htm.

[^13]: *See* EchoStar Press Release dated July 19, 1999 at
    www.dishnetwork.com/profile/press/press/press212.htm.

[^14]: *See* *ADEC Request* at 4*,* and Opposition of EchoStar Satellite
    Corporation, Filed August 27, 1999, at 2 ("*EchoStar Opposition*").

[^15]: *DBS Public Interest Obligations Order*, 13 FCC Rcd at 23285
    (1998) ("\[T\]he public interest programming provided for in this
    order must be made available to all of a DBS provider's subscribers
    without additional charge.").

[^16]: *ADEC Request* at 9. Section 1.41 of our rules allows for
    informal requests for agency action where the form for requesting
    relief is not otherwise provided in the rules. 47 C.F.R. § 1.41.

[^17]: List of Commenters attached as Appendix A.

[^18]: *See* Response of EchoStar Satellite Corporation to Request for
    Information, filed October 7, 1999 ("*EchoStar* *Response*").
    EchoStar submitted this information subject to a request for
    confidentiality under 47 C.F.R. §§ 0.457 and 0.459.

[^19]: *ADEC Request* at 3, citing *DBS Public Interest Obligations
    Order*, 13 FCC Rcd at 23285.

[^20]: *ADEC Request* at 5.

[^21]: *Id.,* citing *DBS Public Interest Obligations Order,* 13 FCC Rcd
    at 23285.

[^22]: *Id*.

[^23]: *EchoStar Opposition* at 3.

[^24]: *Id*. at 4-5.

[^25]: *Id*. at 7-8.

[^26]: *Id.* at 5.

[^27]: *Id*. at 7.

[^28]: *Id*. at 10-11.

[^29]: *Id.* at 11.

[^30]: *Id*. at 12.

[^31]: 47 U.S.C. § 335 (b).

[^32]: *Report and Order*, 13 FCC Rcd at 23285 (emphasis added).

[^33]: *Id*. at 23356 (emphasis added).

[^34]: *Id*. at 23278 (citation omitted). *See also*, Fifth Annual
    Report, Assessment of the Status of Competition in the Markets for
    the Delivery of Video Programming, 14 Comm. Reg. (P&F) 0923 (1998)
    (with the enactment of DBS public interest obligations, the
    Commission anticipates that a variety of programming will soon be
    available, including major university projects shared nationwide and
    health applications developed for rural America).

[^35]: *See* EchoStar website at www.dishnetwork.com/profile/sat.htm.

[^36]: ^?^ The Commission found, as EchoStar asserted, that 61.5° W.L
    did not qualify as a full-CONUS orbit location. Revision of Rules
    and Policies for the Direct Broadcast Satellite Service, *Report and
    Order*, 11 FCC Rcd 9712, 9727, 9742 (1995). *See* Joint Comments of
    EchoStar Satellite Corporation and DirectSat Corporation, IB Docket
    No. 95-168, PP Docket No. 93-253 at 47, filed November 20, 1995
    ("\[The 61.5° W.L.\] orbital location does not qualify as a
    full-CONUS DBS slot either from an engineering or marketing
    standpoint.... As a result of the low look angles and the
    concomitant increase in rain attenuation, a significant portion of
    the population in \[a substantial part of the western United
    States\] will be incapable of receiving DBS service from 61.5° W.L.
    This will in turn clearly inhibit the marketing of service from this
    location.")

[^37]: *EchoStar Response*, Appendix B.

[^38]: *Id.*

[^39]: *Id*. We note that these subscribers have elected to receive this
    specialized programming only. These subscribers may receive service
    from EchoStar's satellites at the 119° W.L. orbit location with the
    purchase of a second receiving antenna.

[^40]: 47 C.F.R. § 100.5(c)(1).

[^41]: Thus, for example, if EchoStar's DBS system has 400 total
    channels, it must set aside 16 channels for public interest
    programming. If it has 300 channels at full-CONUS locations, it must
    set aside 12 of these channels for public interest programming. The
    remaining 4 channels may be placed on satellites at either
    full-CONUS or non full-CONUS locations.

[^42]: *DBS Public Interest Obligations Order*, 13 FCC Rcd at 23285.

[^43]: *See* Reply Comments of EchoStar Communications Corporation in MM
    Docket 93-25, Filed May 30, 1997, at 3 ("Each DBS provider should be
    allowed to satisfy the set-aside requirement through any combination
    of spectrum and/or orbital resources. Section 25 does not require,
    for example, that capacity be reserved at a 'full-CONUS'
    location.").

[^44]: *ADEC Request* at 6.

[^45]: *See* note 18, supra.

[^46]: 47 U.S.C. § 335(b)(3).

[^47]: 47 U.S.C. § 335(b)(4)(B).

[^48]: 47 U.S.C. § 335(b)(4)(A).

[^49]: *DBS Public Interest Obligations* *Order*, 13 FCC Rcd at 23308.
    *See also*, H.R. Rep. No. 102-628, 102d Cong., 2d Sess. 294, 295
    (1992).

[^50]: 47 C.F.R. § 0.459.

[^51]: ^?^ Response to Comments from American Distance Education
    Consortium, Declaration of Cheryl A. Leanza, Attached.

[^52]: *EchoStar Response*, Attachment C, Declaration of David K.
    Moskowitz.

[^53]: *DBS Public Interest Obligations Order*, 13 FCC Rcd at 23300.

[^54]: *Id.*

[^55]: *Id.*

[^56]: ^?^ EchoStar Satellite Corporation is a subsidiary of EchoStar
    Communications Corporation. These entities are referred to
    collectively as "EchoStar."