**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In the Matter of the Applications of )

)

TELQUEST VENTURES, L.L.C. ) File Nos. 758-DSE-P/L-96

) 759-DSE-P/L-96

For a License for a Fixed-Satellite Transmit/ )

Receive Earth Station to Communicate with a )

Canadian DBS Satellite to be located at )

91 Degrees W.L. and for Blanket License )

Authority to Construct and Operate One )

Million Receive-Only Earth Stations for use )

with a Canadian DBS Satellite to be )

Located at 91 Degrees W.L. )

)

and )

)

WESTERN TELECOMMUNICATIONS, INC. ) File No. 844-DSE-P/L-96

)

For a License for a Fixed-Satellite Transmit/ )

Receive Earth Station to Communicate with )

Transponders of a Canadian DBS Satellite )

to be Located at 82 Degrees W.L. )

**MEMORANDUM OPINION AND ORDER**

> Adopted: July 25, 2001 Released: August 1, 2001

By the Commission:

**I. INTRODUCTION**

1 In this Order, we deny applications for review filed by TelQuest
Ventures, L.L.C. (TelQuest) and Western Tele-Communications, Inc.
(WTCI). By this action, we affirm that the International Bureau\'s
(Bureau\'s) practice to refrain from granting premature earth station
applications is reasonable.

**II. BACKGROUND**

2 In 1996, TelQuest and WTCI filed applications for authority to
construct and operate earth stations in the United States to communicate
with Canadian satellites to be operated by Telesat Canada (Telesat) and
provide Direct Broadcast Satellite (DBS) service.[^1] At the time
TelQuest and WTCI filed their earth station applications, Canada had not
issued licenses for the satellites they proposed to use.[^2] The Bureau
denied these applications without prejudice.[^3] The Bureau explained
that it generally did not act on earth station applications unless the
space station with which the earth station intends to operate has been
licensed. According to the Bureau, this practice avoids the need to
expend administrative resources reviewing premature earth station
applications pending the outcome of uncertain licensing decisions.[^4]
The Bureau also did not wish to encourage entities to file earth station
applications in the United States in the hope of influencing space
station licensing decisions in foreign administrations.[^5] Because the
Bureau dismissed the earth station applications on procedural grounds,
without prejudice, it did not reach any of the several substantive
issues raised by these applications.[^6]

3 TelQuest and WTCI filed petitions for reconsideration of the
*Dismissal Order*.[^7] In support of their petitions, TelQuest and WTCI
submitted a copy of a letter from the Canadian Minister of Industry to
Telesat stating conditional \"support in principle\" for Telesat\'s
space station applications. Telesat, however, was required to meet ten
conditions before Industry Canada would grant it satellite licenses.[^8]
The Bureau concluded that many of the conditions listed in the *1996
Conditional Support in Principle* could preclude Telesat from receiving
the space station authorizations it had requested.[^9] Accordingly, the
Bureau found that the *1996 Conditional Support in Principle* could not
be treated as a license, and denied TelQuest\'s and WTCI\'s petitions
for reconsideration.[^10]

4 TelQuest and WTCI filed applications for review of the
*Reconsideration Order*. Five parties, listed in Appendix A, filed
oppositions. No party supported the applications. TelQuest and WTCI
filed replies.

**III. DISCUSSION**

5 TelQuest and WTCI raise a variety of issues in their applications for
review. For example, they claim that dismissal of their earth station
applications was an unjustified departure from established precedent.
They also contend that the Bureau should have concluded that Canada had
granted satellite licenses to Telesat and therefore their earth station
applications were ripe for grant. Finally, they maintain that the
*Dismissal Order* violates a number of statutory and Constitutional
requirements. We find that none of these arguments warrants reversing
the Bureau\'s decision in this case.

**A. Dismissal of Earth Station Applications**

**1. Consistency with Precedent**

6 WTCI cites several Orders in which it claims that the Commission
granted earth station operators authority to communicate with satellites
before the satellites were licensed.[^11] WTCI contends, therefore, that
the Bureau\'s dismissal of its earth station application was a departure
from precedent. Parties opposing the applications for review argue that
the Orders cited by WTCI are distinguishable from the *Dismissal
Order*.[^12]

7 We agree with EchoStar and MCI/NewsCorp. that the *Dismissal Order* is
consistent and in fact is in accord with the precedents cited by WTCI.
In the *Hughes Order* and *Century III Order*, earth station applicants
sought authorizations to communicate with satellites that already had
been licensed.[^13]

8 The *GTE Order* provides another example of our practice to refrain
from considering earth station applications to communicate with
unlicensed satellites. At the time of the Commission's approval of GTE's
application, Telesat had been granted authority to launch Canadian FSS
satellites and actually had a scheduled launch date a few months later
for the ANIK-C satellite on which GTE was to take service.[^14]
MCI/NewsCorp. and EchoStar also argue that the *GTE Order* is
distinguishable because it fell under an exception created by a 1972
exchange of letters, and this exception was limited to FSS, and so
excluded DBS.[^15] WTCI and TelQuest reply that there is nothing in the
*Dismissal Order* to limit the policy to DBS or FSS, and so the
exception in the *GTE Order* should apply to DBS service.[^16] We find
that the exception created by the 1972 exchange of letters is not
relevant to this proceeding because ANIK-C was authorized before we
granted licenses to any earth stations. Furthermore, if this exception
were relevant, we would conclude that we could not apply it to WTCI\'s
and TelQuest\'s 1996 earth station applications because the exception
was a temporary measure that expired on December 31, 1984.[^17]

9 In the *Intelconsult Order*, the space station was licensed
conditioned on consultation with INTELSAT under Article XIV(d).[^18]
WTCI is mistaken in asserting that the condition to consult with
INTELSAT under Article XIV(d) is comparable to the conditions in
Canada\'s *1996 Conditional Support in Principle*.[^19] INTELSAT Article
XIV(d) consultation was a treaty-mandated negotiation and coordination
process, designed to avoid interference or economic harm to the INTELSAT
satellite system. Thus, in the INTELSAT Article XIV(d) consultation
process, the question is not whether the satellite will be licensed, but
how the satellite will be operated. Alternatively, the conditions in the
*1996 Conditional Support in Principle* raised serious doubts as to
whether Telesat\'s satellites would ever be launched.[^20]

**2. Form 493**

10 WTCI claims that the Commission\'s practice is to require earth
station applicants simply to identify the satellite with which it plans
to operate, not that the satellite be in operation.[^21] In support of
this contention, WTCI notes that Form 493, the earth station application
form in use at the time, did not state that the earth station applicant
must identify a satellite in operation, and so failure to do so cannot
justify a denial of an earth station application.[^22]

11 WTCI implicitly assumes that it is not required to comply with any
requirement unless it is set forth in the application form. WTCI
provides no basis for us to conclude that such an assumption is
reasonable. Earth station application forms are necessarily limited to
specifying information requirements for earth station license
applications.[^23] Earth stations applicants cannot assume that other
requirements, such as the rules governing the operation of earth
stations, or policies regarding the timing of the submission of
applications, are all contained in the basic application form.[^24]
Accordingly, we reject WTCI\'s contention that the Bureau could not
dismiss WTCI\'s earth station license application without prejudice
unless its practice to require the associated space station to be
licensed was set forth in Form 493.

**3. Policy Rationale**

12 WTCI asserts that the public interest goal of expediting DBS service
outweighs the Bureau\'s administrative resource concerns and, therefore,
that the Bureau did not provide an adequate rationale for dismissing
WTCI\'s earth station application.[^25] We emphasize that the Bureau
dismissed WTCI\'s and TelQuest\'s applications *without prejudice*.[^26]
The Bureau did not deny either application on its merits. Therefore,
contrary to WTCI\'s assertion, the competing policy goals weighed in the
*Dismissal Order* were not a balancing of the conservation of Bureau
resources against the expedition of the provision of DBS service. The
*Dismissal Order* identified the policy rationale that supported
dismissing WTCI\'s and TelQuest\'s premature earth station applications
as both conservation of administrative resources and the desire to avoid
influencing space station licensing decisions in foreign
administrations.[^27] On the other hand, neither WTCI nor TelQuest
explain how they could provide DBS service before the satellite with
which they plan to communicate is in operation.[^28] As a result,
neither WTCI nor TelQuest show that attempting to consider the merits of
premature earth station applications would expedite provision of DBS
service. Nor do they identify any other public interest goal that
considering premature earth station applications would promote. In the
absence of any countervailing public interest goal, we find that the two
policy rationales set forth in the *Dismissal Order* are more than
sufficient to justify the Bureau\'s actions in that Order.

**4. Notice and Opportunity for Comment**

13 TelQuest contends that the practice of requiring earth station
applications to identify a licensed satellite is a rule adopted without
notice and opportunity for comment, in violation of the Administrative
Procedure Act (APA).[^29] We find TelQuest\'s contention unpersuasive.
The Bureau\'s practice affects *when* earth station applications should
be filed, not *whether* any particular application will be granted or
denied when considered on its merits.[^30] Accordingly, this is a
procedural requirement, not a substantive rule.[^31] The APA does not
require notice-and-comment rulemaking proceedings for procedural
requirements,[^32] and therefore the Bureau had authority to apply this
policy to the earth station applications in this case.

14 Furthermore, assuming for the sake of argument that the Bureau\'s
practice is a substantive rule, the Bureau has authority to establish
this practice in the context of an adjudication. The Supreme Court has
recognized that administrative agencies are confronted with cases of
first impression from time to time, and must be free to address those
issues in the absence of a general rule.[^33] \"\[T\]he choice made
between proceeding by general rule or by individual, ad hoc litigation
is one that lies primarily in the informed discretion of the
administrative agency.\"[^34] Furthermore, EchoStar is correct that
requiring a notice-and-comment rulemaking proceeding to resolve every
question regarding filing requirements could cause extensive delay and
all but paralyze this agency.[^35] The Bureau correctly relied on
adequate policy rationales in dismissing these earth station
applications.

**5. Reliance on Unpublished Documents**

15 In the *Dismissal Order*, the Bureau cited two letters as examples of
earth station applications it had returned because the applicants sought
authority to communicate with unlicensed satellites.[^36] TelQuest
maintains that Section 0.445(e) precludes the Commission from relying on
unpublished letters as precedent.[^37]

16 We find that the Bureau did not cite the two letters as binding
precedent, but instead cited the letters as examples of its general
practice.[^38] This finding, however, does not require us to reverse the
*Dismissal Order* or the *Reconsideration Order*. The Bureau\'s
rationale in dismissing the earth station applications was based on
sound policy other than these unpublished letters, and therefore its
decision was adequately supported.[^39] As explained in the *Dismissal
Order*, we adopted this practice to avoid the need to expend
administrative resources to maintain premature earth station
applications pending the outcome of uncertain licensing decisions.[^40]
In addition, this practice avoids encouraging earth station applications
filed in the United States in the hope of influencing space station
licensing decisions in foreign administrations.[^41]

**6. Waiver**

17 Alternatively, TelQuest argues that we should have waived the
receive-only earth station licensing requirement in its case because its
service would further the public interest.[^42] TelQuest did not request
such a waiver in either its earth station application or its petition
for reconsideration. Furthermore, the standard for waivers is well
established,[^43] and the vague assertions regarding the public interest
in TelQuest\'s application for review are not sufficient to meet that
standard.

**B. Industry Canada\'s Conditional Support in Principle**

**1. Background**

18 With their Petitions for Reconsideration, and in support of their
argument that the satellites were licensed, TelQuest and WTCI submitted
a copy of a letter from the Minister of Industry Canada, John Manley, to
Telesat. This letter stated \"I support in principle your proposal to
utilize the 82° W. and the 91° W. orbit positions and associated
spectrum for a DBS service.\"[^44] The *1996 Conditional Support in
Principle* was subject to ten requirements. Five of these requirements
related specifically to Telesat\'s deployment of service, were it to be
licensed.[^45] The other five factors related to broad regulatory and
trade policy issues concerning the Canadian and global satellite market:

> \(1\) the outcome of the GATS/NGBT[^46] talks expected at the end of
> April 1996;

\(2\) any required negotiations with the U.S. administration and with
any other involved country;

\(3\) achieving any required modifications of the government\'s DBS/DTH
satellite policy;

\(4\) obtaining concurrence of affected countries through the ITU
coordination process; and,

\(5\) establishment of the appropriate fees for each of the orbital
positions.[^47]

In conclusion, Minister Manley stated, \"\[o\]nce all the requirements
and premises outlined above have been met to my satisfaction, I would be
prepared to issue a radio authorization to utilize the Canadian orbital
positions and associated spectrum as outlined in your request.\"[^48]

19 In the *Reconsideration Order*, the Bureau noted that several of the
conditions in the *1996 Conditional Support in Principle* had not been
met, and that Industry Canada would not issue any license to Telesat
until all the conditions in Minster Manley\'s letter were met to his
satisfaction.[^49] Accordingly, the Bureau concluded that the *1996
Conditional Support in Principle* did not constitute a license.[^50]

20 Shortly after the release of the *Reconsideration Order*, Industry
Canada sent a letter to Telesat withdrawing its *1996 Conditional
Support in Principle*.[^51] Industry Canada announced plans to invite
\"applications to develop Canadian DBS facilities using Canadian orbital
and spectrum resources.\"[^52] In 1997, Industry Canada granted Telesat
a license to operate a satellite at the 91° W.L. orbital location to
provide DBS services to Canada.[^53]

**2. Discussion**

21 WTCI contends that the Bureau should have construed Industry
Canada\'s conditional support in principle as a license, and so should
have construed its earth station application as identifying a licensed
satellite. WTCI argues that Industry Canada supported Telesat\'s
application, and stated that \"\[u\]ncertainty concerning your access to
the orbital positions should not be an impediment to FCC consideration
of the applications on their merits.\"[^54] WTCI claims that the Bureau
unduly interceded in the licensing procedures of another administration
by noting that the conditions may preclude Telesat from receiving the
authority it has requested.[^55] Finally, WTCI observes that Industry
Canada withdrew its letter of support after the *Reconsideration Order*
was released.[^56] According to many parties opposing the applications
for review, this withdrawal shows that the Bureau was correct in
concluding that a statement of support in principle, especially as
conditioned, is not a license.[^57]

22 None of WTCI\'s contentions convince us that the *1996 Conditional
Support in Principle* constituted a license. Rather, that letter listed
ten conditions that Telesat was required to meet before Industry Canada
would authorize it to operate DBS satellites at the orbital locations at
issue. In fact, in the language quoted by WTCI, Industry Canada notes
that there is uncertainty concerning Telesat\'s access to those orbital
positions. It would be at best inconsistent to call this letter an
authorization for Telesat to use those orbital positions when it
recognizes that there is uncertainty over whether Telesat would ever
gain access to orbital positions. Furthermore, given that Industry
Canada withdrew its conditional support in principle after the
*Reconsideration Order*, we find that the Bureau\'s conclusion that the
conditional support in principle was not a license was well founded.

23 WTCI is also mistaken in claiming that the Bureau unduly interceded
in Canada\'s licensing procedures. The Bureau merely noted that there
were several conditions which could preclude Telesat from obtaining
authorization for its space stations, and that, therefore, WTCI\'s earth
station application for authority to communicate with a space station
that might never be authorized was premature. Nothing in the *Dismissal
Order* recommends a particular outcome for Industry Canada\'s licensing
proceeding, or offers an opinion on what affect its decision might have
or should have on Industry Canada\'s licensing proceeding.

24 WTCI also observes that the Commission often places conditions on
licenses, and that does not cast doubt on the validity of the license
itself.[^58] The conditions listed in the *1996 Conditional Support in
Principle* were nothing like the conditions we impose on the operating
authority we grant. For example, we occasionally place conditions on
space station authorizations to limit operations in specific frequency
bands to specific services.[^59] We also condition some space station
authorizations to require operation on a non-harmful interference basis
pending international coordination.[^60] In addition, as discussed
above, we conditioned some licenses in the 1980s and early 1990s on
completion of INTELSAT Article XIV(d) consultation.[^61] In all these
cases, the conditions determined how the satellite would be operated,
not whether it will be allowed to operate at all. Conversely, the *1996
Conditional Support in Principle* did not grant Telesat operating
authority, but listed conditions that Telesat had to meet before it
would be granted operating authority.

25 The *1996 Conditional Support in Principle* is not a license issued
by Industry Canada. In contrast, for example, in April 1997, Industry
Canada authorized Telesat to launch a DBS satellite into the 91° W.L.
orbital location.[^62] That license stated unequivocally: \"It is with
great pleasure that I wish to inform you that you have been selected to
develop and operate a DBS facility in the 91 degree West longitude
orbital position in the 12.2-12.7 GHz and 17.3-17.8 GHz frequency bands.
*This letter constitutes a spectrum license granted to Telesat
Canada*.\"[^63] When Industry Canada issues a DBS satellite
authorization, it specifically states that it is granting a spectrum
license. In addition, the 1997 License Grant did not contain the broad
policy conditions present in the *1996 Conditional Support in Principle*
that, at the time, had the potential to preclude Telesat from obtaining
operating authority. Rather, the conditions accompanying the 1997
License Grant were typical licensing requirements related to the
specific deployment and operation of Telesat\'s service.

26 Finally, according to WTCI, Minister Manley sent a letter to Telesat
explaining that its conditional statement of support was a license, and
that the only thing remaining was U.S. approval of WTCI\'s earth station
application.[^64] We disagree with WTCI\'s interpretation of this
letter. While Minister Manley repeats his support in principle for
Telesat\'s proposal, he also emphasizes that Telesat has not met one of
the conditions in the *1996 Conditional Support in Principle*.[^65]
Minister Manley also states that, unless that condition was met by
October 31, 1996, three days after he sent the letter to Telesat, he
would withdraw his support in principle.[^66] There is no basis in the
*Industry Canada October 28 Letter* for concluding that Industry Canada
had issued a license to Telesat at the time of the Bureau\'s *Dismissal
Order*.

**C. Other Issues**

**1. ECO-Sat Test**

27 The \"Effective Competitive Opportunities for Satellites\" test
(ECO-Sat test) requires parties to demonstrate that U.S.-licensed
satellite systems have effective competitive opportunities in foreign
markets.[^67] TelQuest and WTCI incorrectly assume that their earth
station applications were denied on the basis of the ECO-Sat test, and
cite several Orders that they claim preclude us from applying the
ECO-Sat test in their case.[^68] As we explained above, the Bureau
dismissed their applications *without prejudice*, and so did not reach
this issue.[^69] Accordingly, Orders determining whether to apply the
ECO-Sat test are irrelevant to our consideration of TelQuest\'s and
WTCI\'s applications for review.

**2. Policy Goals of Communications Act**

28 TelQuest notes that Congress included a number of policy directives
in the Communications Act, and claims that these policy directives
require us to grant TelQuest\'s earth station application.[^70] We note
again, however, that the Bureau dismissed the TelQuest\'s earth station
application *without prejudice*.[^71] We see nothing in the statutory
provisions cited by TelQuest that requires us to consider the merits of
premature earth station applications. Thus, all of TelQuest\'s arguments
regarding interpretation of the Communications Act are irrelevant.

29 Furthermore, if we considered TelQuest\'s arguments, we would
conclude that it misinterprets the statutory provisions it cites. For
example, TelQuest argues that granting its earth station application
would increase the number of DBS providers in the market, and so
increase competition.[^72] TelQuest argues further that this increased
competition helps to \"make service available so far as possible, at
reasonable charges,\" and that, therefore, Section 1 of the Act requires
us to grant its application.[^73] Similarly, TelQuest maintains that
authorizing an additional DBS provider, by itself, would further the
public interest, convenience, and necessity, and so Section 309(a)
\"mandates\" us to grant its earth station application.[^74] Granting
any new earth station license, or any existing licensee authority to
operate an additional earth station, would increase the number of
licensees providing service, and so would \"increase competition.\"
Therefore, under TelQuest\'s interpretation, Sections 1 and 309(a) would
require us to grant every application filed, regardless of the potential
for interference to other operators. This would substantially negate the
remainder of Title III of the Communications Act.[^75]

30 TelQuest asserts that the service it planned to offer was an
additional DBS service option, and so was a \"new service or new
technology\" under Section 7.[^76] EchoStar replies that TelQuest
proposed a standard DBS service, not a new service or a new
technology.[^77] EchoStar is correct on this issue. TelQuest made no
representation that its proposed service would employ any new
technology. Thus, TelQuest\'s proposed service was outside the scope of
Section 7.[^78]

31 TelQuest also asserts that we should grant its earth station
application because Section 257 requires the Commission to eliminate
market entry barriers for small businesses.[^79] The Commission has
already determined that the practice of requiring earth station license
applications to propose communicating with licensed space stations does
not impose burdens uniquely or predominately on small businesses, and so
is not inconsistent with Section 257.[^80] TelQuest similarly argues
that Section 309(j) compels us to grant its earth station application to
promote economic opportunity for small businesses, and to promote
diversity.[^81] Section 309(j) directs the Commission to promote
economic opportunities for small businesses participating in auctions
for Commission licenses.[^82] Section 309(j) is not applicable here
because we do not issue earth station licenses pursuant to auctions.

**3. Constitutional Arguments**

32 TelQuest claims that dismissing its earth station application without
prejudice has the effect of restricting its First Amendment right to
free speech, and claims that the Bureau did not meet the Supreme
Court\'s standard for adopting a restriction on speech.[^83]
MCI/NewsCorp. responds that TelQuest\'s First Amendment rights were not
violated because it never had a space station facility to speak
through.[^84] EchoStar argues that First Amendment rights do not include
the right to use radio facilities without a license, or to receive a
license.[^85] EchoStar also reasons that adopting TelQuest\'s argument
would preclude the Commission from ever denying any Title III
application.[^86] We are not persuaded by TelQuest\'s claim. The Supreme
Court has considered and rejected arguments that the Communications
Act\'s licensing regime violates the First Amendment simply because some
license applications may be denied.[^87]

33 TelQuest further alleges that it is a violation of the equal
protection clauses of the Fifth and Fourteenth Amendments to require
receive-only earth stations to obtain licenses to communicate with
non-U.S.-licensed satellites, but not with domestic satellites.[^88]
EchoStar replies that this requirement is necessary for the Commission
to carry out its statutory obligation to regulate foreign
communications.[^89] EchoStar is correct. In *DISCO II*, we considered
and rejected arguments that the licensing requirement for receive-only
earth stations communicating with non-U.S.-licensed satellites was
inconsistent with the World Trade Organization (WTO) Basic Telecom
Agreement to treat U.S.-licensees and non-U.S.-licensees
equivalently.[^90] The earth station licensing requirement is the only
means to ensure that these receive-only operations do not cause harmful
interference to other properly authorized operations. Accordingly, we
conclude that our licensing requirement is rationally related to a
legitimate governmental purpose, and therefore does not violate the
equal protection provisions of the Constitution.[^91]

34 TelQuest\'s claims have the common premise that the Bureau should
have granted its earth station application because certain other
applicants had their applications granted for deployment of earth
stations to access already U.S.-licensed and/or U.S.-operating
satellites. That being the case, TelQuest believes that its application
to deploy earth stations to access a then unlicensed and non-operational
Canadian satellite should have been granted. Wholly aside from the
facial implausibility of this argument as discussed above, the argument
implies that TelQuest has an automatic right to a license grant. The
Supreme Court, however, has long upheld the Commission's right to
require a license before spectrum may be used.[^92] Therefore, we find
that TelQuest's arguments do not support the assertion that the
Commission\'s actions constitute a violation of the Constitution.

**4. Delegation of Authority**

35 While TelQuest\'s and WTCI\'s earth station applications were
pending, a number of Executive Agencies filed a joint letter opposing
those applications.[^93] The Bureau did not reach any of the issues
raised in the letter in the *Dismissal Order*, however, because it
dismissed the earth station applications on procedural grounds.[^94]
TelQuest claims that the Bureau did in fact rely on the Executive
Agencies Letter, and claims that this reliance amounts to an improper
delegation of authority.[^95] TelQuest also cites press reports which it
claims show that Commission employees were influenced by \"conflicting
pressures that were unrelated to the matter before the
Commission.\"[^96]

36 First, as EchoStar observes, the Bureau acted on procedural grounds,
and never reached any substantive issues raised in the *Executive Branch
Letter*.[^97] Second, if the Bureau had reached any substantive issues,
considering the arguments raised in that letter would not be a
delegation of authority to another agency. TelQuest and WTCI provide no
reason to exclude letters from other Government Agencies from the
record.[^98] Finally, we find that TelQuest incorrectly assumes that
anything published in any press report could possibly compel us to
change either of these conclusions.

**D. Substantive Issues**

37 Several parties advocate denial of TelQuest\'s and WTCI\'s earth
station applications in the event that we reverse the Bureau\'s
*Dismissal Order*.[^99] Because we affirm the Bureau\'s Order, we do not
need to reach these issues.

**IV. CONCLUSION**

38 In summary, the *Dismissal Order* dismissed two earth station
applications without prejudice. Given that the Bureau did not reach any
substantive issue, we cannot rely on any of TelQuest\'s and WTCI\'s
substantive arguments as a basis for reversing the *Dismissal Order*.
Furthermore, even if those arguments were relevant, they would not
provide a basis for reversal because they are unpersuasive.

**V. ORDERING CLAUSES**

39 Accordingly, pursuant to Section 1.115 of the Commission\'s rules, 47
C.F.R. § 1.115, IT IS ORDERED that Applications for Review filed by
TelQuest Ventures, L.L.C. and Western Tele-Communications, Inc. ARE
DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

> Secretary

**APPENDIX A**

[Applications for Review]{.underline}

-   TelQuest (filed Nov. 29, 1996)

-   WTCI (filed Nov. 27, 1996)

[Oppositions]{.underline}

-   DIRECTV, Inc. (DIRECTV) (opposing only TelQuest Application) (filed
    Dec. 12, 1996)

-   EchoStar Satellite Corporation and EchoStar DBS Corporation
    (EchoStar) (filed Dec. 16, 1996)

-   MCI Telecommunications Corporation and The News Corporation, Limited
    (MCI/NewsCorp.) (filed Dec. 12, 1996)

-   State of Hawaii (Hawaii) (filed Dec. 12, 1996)

-   United States Satellite Broadcasting Company, Inc. (USSB) (opposing
    only WTCI Application) (filed Dec. 12, 1996)

[Replies]{.underline}

-   TelQuest (filed Dec. 26, 1996)

-   WTCI (filed Dec. 24, 1996)

[^1]: TelQuest Ventures, L.L.C., Western Tele-Communications, Inc.,
    *Report and Order*, 11 FCC Rcd 8151 (Int\'l Bur., 1996) (*Dismissal
    Order*).

[^2]: TelQuest requested authority to communicate with a satellite it
    claimed would eventually be placed at 91° W.L., and WTCI requested
    authority for a proposed satellite to be placed at 82° W.L.
    *Dismissal Order*, 11 FCC Rcd at 8151-52 (paras. 1-2).

[^3]: *Dismissal Order*, 11 FCC Rcd at 8154 (para. 9).

[^4]: *Dismissal Order*, 11 FCC Rcd at 8154 (para. 10).

[^5]: *Dismissal Order*, 11 FCC Rcd at 8154 (para. 10).

[^6]: *Dismissal Order*, 11 FCC Rcd at 8155 (para. 12).

[^7]: TelQuest Ventures, L.L.C., Western Tele-Communications, Inc.,
    *Report and Order*, 11 FCC Rcd 13943 (Int\'l Bur., 1996)
    (*Reconsideration Order*).

[^8]: *See* *Reconsideration Order*, 11 FCC Rcd at 13947 (para. 11),
    *citing* Letter from Minister John Manley, Industry Canada, to Larry
    Boisvert, President and CEO, Telesat (dated Feb. 27, 1996) (attached
    to WTCI petition for reconsideration as Exhibit 1) (*1996
    Conditional Support in Principle*).

[^9]: *Reconsideration Order*, 11 FCC Rcd at 13949 (para. 15).

[^10]: *Reconsideration Order*, 11 FCC Rcd at 13949 (para. 15).

[^11]: WTCI Application at 5-6, *citing* Hughes Communications Galaxy
    Corporation, *Memorandum Opinion, Order, and Authorization*, 6 FCC
    Rcd 297 (1990) (*Hughes Order*); Century III Orlando, Florida, Inc.,
    *Memorandum Opinion, Order, and Authorization*, 5 FCC Rcd 3150
    (1990) (*Century III Order*); Intelconsult Corp., *Memorandum
    Opinion, Order, and Authorization*, 4 FCC Rcd 3607 (1989)
    (*Intelconsult Order*); GTE Satellite Corporation, *Memorandum
    Opinion, Order, and Authorization*, 90 FCC 2d 1009 (1983) (*GTE
    Order*); GTE Satellite Corporation, *Memorandum Opinion, Order, and
    Authorization*, 94 FCC 2d 1184 (1983) (*GTE Reconsideration Order*).

[^12]: EchoStar Opposition at 9-10; MCI/NewsCorp. Opposition at 4 n.8.

[^13]: *Hughes Order*, 6 FCC Rcd at 306-08 (Attachments 1 & 2);
    *Intelconsult Order*, 4 FCC Rcd at 3610-12 (Attachments 1 & 2);
    *Century III Order*, 5 FCC Rcd at 3157-60 (Attachments 1 & 2).

[^14]: The authorization was granted in August 1982. The ANIK-C
    satellite was to be launched in late 1982 and become operational in
    mid-January 1983. *GTE Reconsideration Order*, 94 FCC 2d at 1012-13
    n.34.

[^15]: MCI/NewsCorp. Opposition at 4 n.8; EchoStar Opposition at 10.

[^16]: WTCI Reply at 2 n.3; TelQuest Reply at 4 n.10.

[^17]: *See GTE Order*, 90 FCC 2d at 1012-13 (para. 7).

[^18]: *Intelconsult Order*, 4 FCC Rcd at 3609-10 (paras. 12-13). *See
    also* EchoStar Opposition at 9-10.

[^19]: WTCI Reply at 2 n.3.

[^20]: *Dismissal Order*, 11 FCC Rcd at 8154-55 (para. 11);
    *Reconsideration Order*, 11 FCC Rcd at 13946-48 (paras. 10-12).

[^21]: WTCI Application at 6-7; WTCI Reply at 2 n.3.

[^22]: WTCI Application at 6-7; WTCI Reply at 2-3. Form 493 has been
    replaced by Form 312.

[^23]: *See* 47 C.F.R. § 25.130(a) (1995).

[^24]: *See* Fleshman v. West, 138 F.3d 1429, 1432 (Fed. Cir. 1998)
    (filling out prescribed application form is a \"necessary
    condition\" for compliance with statute governing Veterans
    Administration benefits, but filling out application form is not the
    only requirement the statute imposes on applicants); United States
    v. Dawes, 951 F.2d 1189, 1192 n.3 (\"It would be nonsensical and
    extremely inefficient to require a tax return to contain all of the
    information found in the regulations and instructions.\")

[^25]: WTCI Application at 7; WTCI Reply at 3.

[^26]: *Dismissal Order*, 11 FCC Rcd at 8155 (para. 12).

[^27]: *Dismissal Order*, 11 FCC Rcd at 8154 (para. 10).

[^28]: TelQuest asserts without elaboration that the Commission could
    have granted its earth station application conditioned on Telesat
    meeting its conditions. TelQuest Reply at 2-3. TelQuest does not
    explain how this would be any different from dismissing its earth
    station application without prejudice so that it could reapply when
    Telesat had met its conditions. In either case, TelQuest would not
    be able to begin providing DBS service until Telesat brought its
    satellite into operation. Thus, we cannot read TelQuest\'s assertion
    as providing a basis for granting its earth station application.

[^29]: TelQuest Application at 5-6.

[^30]: *See Dismissal Order*, 11 FCC Rcd at 8155 (para. 12).

[^31]: Procedural rules \"do not by themselves alter the rights or
    interests of parties, although it may alter the manner in which the
    parties present themselves or their viewpoints to the agency.\"
    Neighborhood TV Co., Inc. v. FCC, 742 F.2d 629, 637 (D.C. Cir.
    1984). *See also* Batterton v. Marshall, 648 F.2d 694, 707 (D.C.
    Cir. 1980); National Association of Home Health Agencies v.
    Schweiker, 690 F.2d 932, 949 (D.C. Cir. 1982), *cert. denied*, 459
    U.S. 1205 (1983).

[^32]: 5 U.S.C. § 553(b)(3)(A).

[^33]: SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) (*Chenery*).

[^34]: *Chenery*, 332 U.S. at 203**,** *citing* Columbia Broadcasting
    System v. United States, 316 U.S. 407, 421 (1942).

[^35]: EchoStar Opposition at 11-13.

[^36]: *Dismissal Order*, 11 FCC Rcd at 8154 n.12, *citing* Letter from
    Chief, Domestic Facilities Division, to Robert D. Briskman, Geostar
    Positioning Corporation (dated Aug. 29, 1990) (returning earth
    station applications as premature when applicant failed to identify
    satellite); Letter from Chief, Domestic Facilities Division, to
    Satellite CD Radio, Inc. (dated Aug. 2, 1993) (returning earth
    station applications as premature when the satellite had not been
    authorized).

[^37]: TelQuest Application at 6-7; TelQuest Reply at 4, *citing* 47
    C.F.R. § 0.445(e).

[^38]: *Dismissal Order*, 11 FCC Rcd at 8154 (para. 10). *See* EchoStar
    Opposition at 8 n.10.

[^39]: Furthermore, the Commission has authority under the
    Communications Act and the Commission\'s rules to dismiss license
    applications that do not serve the public interest, convenience, and
    necessity. Sections 309(a), 4(i), and 4(j) of the Communications
    Act, 47 C.F.R. §§ 309(a), 154(i), 154(j); Section 25.156(a) of the
    Commission\'s rules, 47 C.F.R. § 25.156(a). For the reasons set
    forth in the *Dismissal Order* and the *Reconsideration Order* and
    summarized in this paragraph, the Bureau reasonably concluded that
    granting earth station applications filed before the associated
    space stations have been authorized would not serve the public
    interest, convenience, and necessity.

[^40]: *Dismissal Order*, 11 FCC Rcd at 8154 (para. 10).

[^41]: *Dismissal Order*, 11 FCC Rcd at 8154 (para. 10).

[^42]: TelQuest Reply at 3.

[^43]: ^?^ *See* Section 1.3 of the Commission\'s Rules, 47 C.F.R. §
    1.3. *See also* WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969)
    (*WAIT Radio*); Northeast Cellular Telephone Co. v. FCC, 897 F.2d
    1166 (D.C. Cir. 1990) (*Northeast Cellular*).

[^44]: *1996 Conditional Support in Principle* at 1.

[^45]: These five requirements are as follows: (1) The DBS licenses
    would be owned and operated by Telesat, as set out in its proposal,
    in its capacity as a Canadian carrier under the Telecommunications
    Act, and would require radio authorization under the
    Radiocommunication Act; (2) DBS facilities shall be available on a
    first-come, first-served basis for use by those licensed or seeking
    licenses under the Broadcasting Act to operate DBS broadcasting
    undertakings in Canada; (3) Provision of DBS satellite facilities in
    foreign countries would be subject to their approval under their
    domestic regulations and policies, and to the successful
    modifications to the ITU BSS Plan; (4) The authorization fees to be
    fixed under Industry Canada\'s authority for the DBS satellites
    would reflect fair market value of the spectrum and orbit resources;
    and (5) The support for this request is limited to the specific
    proposal by Telesat, and any change in the proposal which in
    Industry Canada\'s opinion is substantive, could lead to
    re-evaluation of its support. *1996 Conditional Support in
    Principle* at 2.

[^46]: This condition referred to the World Trade Organization\'s
    (WTO\'s) discussions regarding basic telecommunications services,
    related to the General Agreements on Trade and Services and the
    Negotiating Group for Basic Telecommunications. *See Reconsideration
    Order*, 11 FCC Rcd at 13947 n.11.

[^47]: *1996 Conditional Support in Principle* at 2-3.

[^48]: *1996 Conditional Support in Principle* at 3.

[^49]: *Reconsideration Order*, 11 FCC Rcd at 13947 (para. 12).

[^50]: *Reconsideration Order*, 11 FCC Rcd at 13949 (para. 15).

[^51]: Letter from Minister John Manley, Industry Canada, to Larry
    Boisvert, President and CEO, Telesat (dated Oct. 28, 1996) (attached
    to WTCI Reply) (*October 28 Letter*).

[^52]: *October 28 Letter* at 2.

[^53]: Letter from John Manley, Minister of Industry, Canada, to Mr.
    L.J. Boisvert, President and CEO, Telesat (dated April 7, 1997)
    (*1997 License Grant*), *attached to* Letter from James Troup,
    counsel for TelQuest, to William F. Caton, Acting Secretary, FCC
    (dated April 29, 1997).

[^54]: WTCI Application at 8-9.

[^55]: WTCI Application at 9 n.15.

[^56]: WTCI Application at 10 n.23, *citing* \"News Release, Industry
    Canada, dated November 7, 1996, at 3.\" *See also October 28
    Letter*.

[^57]: MCI/NewsCorp. Opposition at 4-6; USSB Opposition at 2; DIRECTV
    Opposition at 3, 5-6; EchoStar Opposition at 3-4, 9.

[^58]: WTCI Application at 9 n.15.

[^59]: *See* Assignment of Orbital Locations to Space Stations in the
    Domestic Fixed-Satellite Service, GE American Communications, Inc.,
    *Order and Authorization*, 15 FCC Rcd 3385, 3393 (para. 24) (Int\'l
    Bur., Sat and Rad. Div. 1999) (limiting licensee\'s operations in
    the 11.45-11.7 GHz band to international service).

[^60]: Loral CyberStar, Inc., Applications for Authority to Construct,
    Launch, and Operate a Ka-band Satellite System in the
    Fixed-Satellite Service, *Order and Authorization*, 15 FCC Rcd
    24602, 24610 (para. 24) (Int\'l Bur., 2001); Sirius Satellite Radio
    Inc., *Order and Authorization*, DA 01-639 (Int\'l Bur., released
    Mar. 9, 2001).

[^61]: *Intelconsult Order*, 4 FCC Rcd at 3609-10 (paras. 12-13).

[^62]: *1997 License Grant*.

[^63]: *1997 License Grant* at 1 (emphasis added).

[^64]: WTCI Reply at 3-4, *citing* Letter from John Manley, Minister of
    Industry, Industry Canada, to L.J. Boisvert, President and Chief
    Executive Officer, Telesat Canada (dated Oct. 28, 1996) (*Industry
    Canada October 28 Letter*) (attached to WTCI\'s reply).

[^65]: *Industry Canada October 28 Letter* at 2 (the Canadian and U.S.
    Administrations had not negotiated any modifications of the U.S.
    Administration\'s DBS/DTH satellite policy).

[^66]: *Industry Canada October 28 Letter* at 2.

[^67]: *DISCO II Order*, 12 FCC Rcd at 24112-13 (para. 40); 47 C.F.R. §
    25.137(a).

[^68]: TelQuest Application at 21-22, *citing* Shell Offshore Services
    Company, *Order and Authorization*, 11 FCC Rcd 10119 (Int\'l Bur.
    1996); TelQuest Reply at 3 n.6, *citing* Cable & Wireless, Inc.,
    *Order, Authorization, and Certificate*, 11 FCC Rcd 16486 (Int\'l
    Bur. 1996); Telstra, Inc., *Order and Authorization*, 11 FCC Rcd
    20428 (Int\'l Bur. 1996); WTCI Reply at 4-5, *citing* MCI
    Telecommunications Corp., *Order*, 11 FCC Rcd 16275, 16286 (para.
    27) (Int\'l Bur. 1996).

[^69]: *Dismissal Order*, 11 FCC Rcd at 8155 (para. 12).

[^70]: *See* TelQuest Application at 7-13, TelQuest Reply at 1-3, 5,
    *citing* 47 U.S.C. §§ 151, 157, 257, 309(a), 309(j).

[^71]: *Dismissal Order*, 11 FCC Rcd at 8155 (para. 12).

[^72]: TelQuest Application at 7.

[^73]: TelQuest Application at 7-8, *citing* 47 U.S.C. § 151.

[^74]: TelQuest Reply at 1-3, *citing* 47 U.S.C. § 309(a).

[^75]: Courts do not interpret clauses of statutes in a way that would
    make other clauses of the statute meaningless. *See*, *e.g.*, Toro
    Corp. v. White Consolidated Industries, Inc., 199 F.3d 1295, 1300
    (Fed. Cir. 1999); Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432
    (9th Cir. 1991); Hughes Air Corp. v. Public Utility Commission of
    Calif., 644 F.2d 1334, 1338 (9th Cir. 1981).

[^76]: TelQuest Application at 8-10, TelQuest Reply at 2, *citing* 47
    U.S.C. § 157.

[^77]: EchoStar Opposition at 14.

[^78]: *See* Amendment of Part 74, Subpart E of the Commission\'s Rules
    Pertaining to FM Radio Broadcast Translator Stations, Docket No.
    19918, *Memorandum Opinion and Order*, 98 FCC 2d 35, 44 (para. 30)
    (1984) (In this Order, the Commission denied a petition for
    rulemaking requesting a reduction in minimum signal strength for AM
    radio stations. The Commission found that its denial was consistent
    with Section 7 because the petitioner\'s proposed rule change
    \"would not be a \'new\' service within the meaning of the law.
    Rather, the service would be an extension of an existing service
    utilizing existing technology.\").

[^79]: TelQuest Application at 12-13, TelQuest Reply at 5, *citing* 47
    U.S.C. § 257.

[^80]: Section 257 Proceeding to Identify and Eliminate Market Entry
    Barriers for Small Businesses, GN Docket No. 96-113, *Report*, 12
    FCC Rcd 16802, 16909-10 (paras. 197-98) (1997).

[^81]: TelQuest Application at 11-12, TelQuest Reply at 5, *citing* 47
    U.S.C. § 309(j).

[^82]: *See* 47 U.S.C. § 309(j)(1).

[^83]: TelQuest Application at 13-17.

[^84]: MCI/NewsCorp. Opposition at 5.

[^85]: EchoStar Opposition at 13.

[^86]: EchoStar Opposition at 13.

[^87]: National Broadcasting Co., Inc. v. United States, 319 U.S. 190,
    226-27 (1943) (*NBC v. United States*).

[^88]: TelQuest Application at 17-21.

[^89]: EchoStar Opposition at 13-14.

[^90]: Amendment of the Commission\'s Regulatory Policies to Allow
    Non-U.S. Licensed Satellites Providing Domestic and International
    Service in the United States, *Report and Order*, IB Docket No.
    96-111, 12 FCC Rcd 24094, 24180 (para. 203) (1997) (*DISCO II*).

[^91]: *See* Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S.
    356, 121 S.Ct. 955, 963-64 (2001), *citing* Heller v. Doe, 509 U.S.
    312, 320 (1993), Nordlinger v. Hahn, 505 U.S. 1 (1992); New Orleans
    v. Dukes, 427 U.S. 297 (1976).

[^92]: *See NBC v. United States*, 319 U.S. at 227 ("The right of free
    speech does not include the right to use the facilities of radio
    without a license. The licensing system established by Congress in
    the Communications Act of 1934 was a proper exercise of its power
    over commerce.").

[^93]: *Dismissal Order*, 11 FCC Rcd at 8153 n.10, *citing* Letter from
    U.S. Dep\'t of State, Office of the U.S. Trade Representative, and
    the U.S. Dep\'t of Justice to Reed E. Hundt, Chairman, FCC (July 1,
    1996) (*Executive Branch Letter*).

[^94]: *Dismissal Order*, 11 FCC Rcd at 8155 (para. 12).

[^95]: TelQuest Application at 10-11, *citing* A.L.A. Schechter Poultry
    Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 846 (1935)
    (*Schechter Poultry*); Section 0.201(a)(1) of the Commission\'s
    rules, 47 C.F.R. § 0.201(a)(1) (general statement that the
    Commission can delegate authority to Bureau chiefs), TelQuest Reply
    at 1 n.1. TelQuest also cites Section 309(a) of the Communications
    Act, 47 U.S.C. § 309(a), which empowers the Commission to determine
    whether granting a license application would serve the public
    interest, convenience, and necessity, and, if so, to grant such
    applications. TelQuest does not explain how Section 309(a) supports
    its delegation argument.

[^96]: TelQuest Application at 11 and Exh. 4.

[^97]: EchoStar Opposition at 14-15.

[^98]: TelQuest misplaces its reliance on *Schechter Poultry*. That case
    addressed Congressional delegation of authority to administrative
    agencies, and how much guidance Congress must give an administrative
    agency in enabling statutes. It did not consider whether it is
    appropriate to include certain evidence in the record in an
    administrative proceeding.

[^99]: EchoStar Opposition at 15-16; MCI/NewsCorp. Opposition at 6-7;
    DIRECTV Opposition at 6-7; Hawaii Opposition at 1-4.