Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | File Nos.                    |
|                                  | * | SAT-MOD-19971230-00231;      |
| EchoStar Satellite Corporation   | ) |                              |
|                                  | * | SAT-MOD-19971230-00235;      |
| Application for Authority to     | * | DBS-88-01                    |
| Make Minor                       |   |                              |
|                                  | * | DBS-88-01                    |
| Modifications to Direct          | * |                              |
| Broadcast Satellite              | ) |                              |
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| Authorizations, Launch and       | * |                              |
| Operation Authority              |   |                              |
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| Request for Waiver of Section    | * |                              |
| 100.21 of the Commission's Rules | ) |                              |
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+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER**

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

Before the Chief, Satellite and Radiocommunication Division:

1\. By this order we grant EchoStar Satellite Corporation ("ESC")
authority to make minor modifications to its Direct Broadcast Service
("DBS") satellite constellation. We find that these modifications to
ESC's satellite configuration will allow ESC to provide improved service
to its customers. We also grant ESC's request for a waiver of Section
100.21 of our rules with respect to power limits. Finally, we deny the
petition for conditions filed by the State of Hawaii.

**I. BACKGROUND**

2\. ESC provides DBS services to customers throughout the United States
from various orbit locations including 119° W.L. At this orbit location,
ESC operates three satellites: EchoStar 1 at 119.2° W.L.; EchoStar 2 at
119.05°; and EchoStar 4 at 119.35°. In addition, ESC is authorized to
operate its satellite EchoStar 6 at the 110° W.L. orbital location.[^1]
However, in its application, ESC seeks authority to operate the recently
launched EchoStar 6 satellite at 119.05° W.L. ESC also seeks authority
to relocate EchoStar 4 to 118.9° W.L and EchoStar 2 to 119.35° W.L.[^2]
Further, in this application, ESC notifies the Commission of its intent
to move EchoStar 1 from 119° W.L. to 148° W.L., as previously
authorized.[^3] On August 10, 2000, the Commission granted ESC special
temporary authority ("STA") to operate EchoStar 6 at 119.05° W.L. and
relocate EchoStar 2 and 4, subject to conditions.[^4]

3\. In support of its application, ESC asserts that operating the new,
higher capacity EchoStar 6 at 119° W.L. will allow ESC to relocate
EchoStar 1 from 119° W.L. to 148° W.L. This move, ESC states, will allow
it to commence service at 148° W.L. in advance of its milestone
deadlines.[^5] In addition, the operation of EchoStar 6 at 119° W.L. in
conjunction with EchoStar 2 and EchoStar 4 will expand the total number
of channels available to serve Alaska and Hawaii. Further, EchoStar 6
will be capable of serving Alaska and Hawaii with "relatively small"
earth station receive antennas.[^6] It will also provide backup capacity
to compensate for EchoStar 4, which has experienced technical anomalies
and is expected to have a limited life. ESC claims that grant of this
modification request will increase the amount of in-orbit spare capacity
for its satellite constellation. According to ESC, because its
satellites are dispersed over various locations in the geostationary
satellite orbital arc, the availability of centrally located in-orbit
spare capacity is important to system reliability.[^7] Finally, ESC
states that its proposed modifications are minor and will not increase
the potential for interference or change proposed frequencies or orbital
locations to be used.[^8] ESC notes that DIRECTV, the only other
licensee at 119° W.L., has consented to the proposed modifications, and
that no other administrations are affected by the proposed
modifications.[^9]

4\. The State of Hawaii filed comments stating that it does not oppose
the application, but requests that the authorization be subject to four
specific conditions to improve ESC's service to Hawaii.[^10] First,
Hawaii requests assurances that EchoStar 6 will be technically capable
of serving customers in Hawaii from 119° W.L. Hawaii states that ESC's
application provides little technical information and indicates that the
power levels over Hawaii may be inadequate for consumers using small DBS
receive dishes.[^11] Second, Hawaii wants ESC to provide a programming
package that is comparable in content and price to the packages ESC
presently offers on the mainland.[^12] Third, Hawaii requests that ESC
be required to make available a programming package for its resident
consumers that uses a dual feed antenna to receive programming from
EchoStar 5 at 110° W.L. and ESC's satellites at 119° W.L., and that this
package be available within six-months of the release of this
order.[^13] Fourth, Hawaii takes issue with ESC's statement that it is
not obligated to serve Hawaii and Alaska from 119° W.L. because the
Commission previously authorized ESC to fulfill its geographic service
requirements for 148° W.L. from the 119° W.L. location and asks that ESC
acknowledge this obligation.[^14]

5\. Similarly, the State of Alaska filed comments asserting that ESC's
application notes that it "expects" to provide additional service to
Alaska and Hawaii but does not commit to doing so.[^15] Alaska also
comments that ESC's application fails to indicate what size earth
station antennas will be necessary to receive signals at an acceptable
quality of service.[^16] In sum, Alaska asks the Commission to require
ESC to submit additional information in support of ESC's claim that it
will lead to "expanded and improved" DBS service in Alaska and Hawaii.

6\. In replying to these comments, ESC states that its proposals benefit
both states because they allow ESC to shift more of its basic
programming from EchoStar 2, which cannot serve Alaska and Hawaii, to
EchoStar 6, which can serve these states.[^17] It also notes that the
Commission found that EchoStar 6 was technically capable of serving
Alaska and Hawaii when ESC's predecessor in interest to EchoStar 6, MCI,
sought authority to construct and launch two satellites, and again when
ESC acquired the satellites from MCI.[^18] Nonetheless, ESC filed
additional technical information with the Commission in support of its
statement that EchoStar 6 is capable of serving Alaska and Hawaii.[^19]
ESC also notes that the size of the earth station receive antennas for
service to Alaska will vary depending on the elevation angles and power
levels received from the satellite.[^20] As to Hawaii's proposed
conditions, ESC states that Hawaii's request for programming and prices
comparable to the mainland is an attempt to relitigate an issue already
decided by the Commission.[^21] In any event, ESC states that it is not
obligated to justify its rates. Further, ESC notes that although it is
working with a manufacturer to develop a dual feed earth station antenna
to receive signals from 110° and 119° W.L., the Commission's geographic
service rules do not require dual-feed earth station antennas.[^22]
Finally, in regard to Hawaii's request that ESC acknowledge its
obligation to provide service, ESC responds that the Commission's rules
only require new licensees to serve Alaska and Hawaii from any location
where technically feasible. Previously, ESC received a waiver of its
geographic service requirements for EchoStar 1 at 148° W.L.. ESC states
that the waiver was conditioned on EchoStar 4 providing service from
119° W.L., and did not require all satellites at 119° W.L. to provide
service to Alaska and Hawaii.[^23] Thus, the conditional waiver granted
in a prior order is satisfied with the provision of service to Alaska
and Hawaii from EchoStar 4 at 119° W.L. In any event, ESC claims the
issue is moot since EchoStar 6 is in fact capable of serving Alaska and
Hawaii and will therefore complement programming available to Hawaii
from other ESC satellites at 119° W.L. and 110° W.L.[^24]

7\. Senators Inouye and Stevens also filed a joint ex parte letter
expressing their concerns about DBS service to Hawaii and Alaska.[^25]
The letter has been included in the Part 100 Rulemaking record and will
be considered by the Commission at the Report and Order phase of that
proceeding.

**II. DISCUSSION**

8*. EchoStar's Modification Application*. We find that granting ESC's
proposed modifications will allow ESC to increase and improve its DBS
offerings to consumers throughout the continental United States, Alaska
and Hawaii. As noted in the STA granted last August, the application
raises two issues of concern. First, ESC's request to relocate EchoStar
2 at 119.35° W.L. will result in EchoStar 2 operating outside of the
119° W.L. "cluster" in which U.S. Broadcasting Satellite Services
("BSS") may operate under the International Telecommunication Union
("ITU") Region 2 BSS plan.[^26] Under this plan, an administration has
the right to locate a satellite at any orbital position within the
cluster to which it is assigned.[^27] ESC subsequently advised that it
will not operate EchoStar 2 at 119° W.L. but will use it only as an
in-orbit spare using the 119.35° W.L. as a storage orbit location.
Should ESC need to operate EchoStar 2, it will move the satellite to a
location within the cluster where either EchoStar 4 or EchoStar 6 will
be located, and it will move the replaced satellite to 119.35° W.L.[^28]
We condition our grant on this plan, further noting that ESC's in-orbit
spare may only use telemetry tracking & control functions while located
outside of the 119° cluster.[^29] In addition, ESC shall notify the
Commission in writing prior to moving any of its satellites to or from
119.35° W.L.

9\. Second, the operations of EchoStar 6 exceed the power levels allowed
in Section 100.21 of our rules.[^30] Section 100.21 requires that DBS
satellites be operated in accordance with Appendices S30 and S30A of the
ITU Radio Regulations. Appendices S30 and S30A provide the methodology
and criteria for determining whether a specific satellite system might
interfere with frequency assignments operated in accordance with the
Region 2 BSS Plan and its associated Feeder Link Plan, other satellite
systems or terrestrial services.[^31] ESC acknowledges that its
operational parameters are outside of the limits contained in Annex 1 to
Appendices S30 and S30A and asks for a waiver of Section 100.21.

10*.* The Commission may waive a rule for good cause shown.[^32] The
Commission may exercise its discretion to waive a rule where the
particular facts make strict compliance inconsistent with the public
interest.[^33] In addition, the Commission may take into account
considerations of hardship, equity or more effective implementation of
overall policy on an individual basis.[^34] In its waiver request, ESC
states that the EchoStar 6 power levels would be exceeded for only a
small number of BSS channel assignments in the plan and may occur in
limited geographic areas. ESC also states that while the overall
protection margin in the BSS Plan may not fall more than 0.25 dB below 0
dB, its proposed operation of EchoStar 6 at 119.05° W.L. may exceed this
protection margin limit by less than 0.50 dB.[^35] This level, according
to ESC, would have a *de minimis* impact on any other assignments if
they are brought into use. In addition, ESC states that it will
coordinate with any affected Administration to resolve any interference
issues.

11\. We find good cause to grant ESC's request to waive Section 100.21.
The proposed operation will exceed the power limitation by less that
0.50 dB, a minimal amount. Further ESC acknowledges that it must
coordinate with any affected Administration. Because the technical
parameters of EchoStar 6 will vary from those set forth in U.S. channel
assignments in the Region 2 BSS plan, the Commission must request
modification of the Region 2 BSS Plan and its associated Feeder Link
Plan. Until these plans are modified to include the technical parameters
of EchoStar 6 and its associated feeder links at 119° W.L., EchoStar 6
may not cause greater interference to other BSS or feeder link
assignments, or other services or satellite systems operating in
accordance with ITU Radio Regulations than that which would occur from
the current USA plan assignments at 119° W.L. Furthermore, we remind ESC
that no protection from interference caused by radio stations authorized
by other administrations is guaranteed unless and until Appendices S30
and S30A plan procedures are successfully and timely completed. ESC must
provide continuing documentation as necessary for the international
coordination of EchoStar 6.

12\. *Geographic Service Rules*. In the *DBS Service Rules Report and
Order*, the Commission imposed geographic service obligations which
require DBS licensees authorized after January 19, 1996 to provide
service to Alaska and Hawaii upon commencement of operations, where
technically feasible.[^36] The issues raised here, however, regarding
whether DBS providers' obligations to provide the same or comparable
programming, at comparable prices and equipment as offered in the
continental U.S., are the subject of a pending rulemaking to revise and
clarify rules and policies for the entire DBS service.[^37] Because the
Commission sought comment on these and other issues in the context of
revising its DBS service rules, and because these rules will be
applicable to all DBS providers, we find that this rulemaking is a more
appropriate vehicle to resolve these matters than this application
proceeding. Therefore, we decline to condition the authorization as
requested by Hawaii, but will carefully consider all geographic service
rules in the Part 100 Rulemaking and will continue to monitor compliance
with our rules. We remain committed to ensuring that residents of Alaska
and Hawaii have access to DBS service. If the outcome of the rulemaking
is favorable to the arguments raised by Alaska and Hawaii, EchoStar will
be required to revise its offerings in accordance with the outcome of
the pending rulemaking.

**III. CONCLUSION**

13\. Based on the foregoing, we conclude that locating EchoStar 6 at
119.05° W.L., and relocating EchoStar 4 to 118.9° W.L. and EchoStar 2 at
119.35° W.L. will serve the public interest. ESC's operations at 119°
W.L. will enhance competition by helping ESC to overcome technical
difficulties and improve its service. The operation of EchoStar 6 will
also allow ESC to relocate EchoStar 1 to 148° W.L., as previously
authorized, permitting EchoStar to commence service well before its
required start date at that location.

**IV. ORDERING CLAUSES**

14\. Accordingly, pursuant to 47 C.F.R. § 0.261, IT IS ORDERED, that the
Applications of EchoStar Satellite Corporation, File No.
SAT-MOD-199971230-00231 and SAT-MOD-19971230-00235, DBS 88-01 are
GRANTED, and EchoStar is authorized to operate its satellites, EchoStar
6 at 119.05° W.L., EchoStar 2 at 118.9° W.L. and EchoStar 2 at 119.35°
W.L, in accordance with the terms, representations and technical
specifications set forth in its applications. In addition, we note that
ESC will relocate EchoStar 1 from 119° W.L. to 148° W.L. as previously
authorized.[^38]

15\. IT IS FURTHER ORDERED, that the above referenced applications are
granted subject to the following conditions: (1) until the ITU Region 2
BSS Plan and its associated Feeder Link Plan are modified to include the
technical parameters of EchoStar 6 and its associated feeder links at
119° W.L., these satellite systems shall not cause greater interference
than that which would occur from the current USA plan assignments at
119° W.L. to other BSS or feeder link assignments, or other services or
satellite systems, operating in accordance with the ITU Radio
Regulations; and (2) no protection from interference caused by radio
stations authorized by other administrations is guaranteed to EchoStar 6
unless and until Appendices S30 and S30A Plan modification procedures
are successfully and timely completed.

16\. IT IS FURTHER ORDERED, that EchoStar Satellite Corporation will
operate EchoStar 2 as an in-orbit spare at 119.35° W.L. and may utilize
only telemetry tracking & control functions while located at the 119.35°
W.L. orbit location.

17\. IT IS FURTHER ORDERED, that EchoStar Satellite Corporation shall
notify the Commission in writing prior to moving any satellite to or
from the 119.35° W.L. orbital location.

18\. IT IS FURTHER ORDERED, that EchoStar Satellite Corporation will
coordinate the telemetry, tracking & control functions of EchoStar 6,
Echostar 4 and EchoStar 2 with potentially affected networks operating
on the same frequencies prior to redeployment and operation of any of
these satellites.

19\. IT IS FURTHER ORDERED, that during the relocation of EchoStar 1
from 119° W.L. to 148° W.L., EchoStar Satellite Corporation shall
coordinate C-band telemetry, tracking & control operations will all
potentially affected satellites.

20\. IT IS FURTHER ORDERED, that the Request of EchoStar Satellite
Corporation for a Waiver of Section 100.21 of the Commission's rules is
GRANTED.

21\. IT IS FURTHER ORDERED, that the request by the State of Hawaii that
we condition this authorization on various requirements regarding
service to Hawaii is DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Thomas S. Tycz

Chief

Satellite and Radiocommunication Division

[^1]: Application of MCI Telecommunications Corp. and EchoStar 110
    Corporation, Assignee, *Order and* *Authorization*, FCC 99-109 (rel.
    May 19, 1999). ESC also operates EchoStar 3 from the 61.5° W.L.
    orbit location and EchoStar 5 at the 110° W.L. orbit location.

[^2]: On July 14, 2000, EchoStar 6 was launched and ESC was granted
    special temporary authority to test all 32 transponders on EchoStar
    6 at the 148° W.L. orbit location. Upon the completion of testing,
    the Commission granted ESC special temporary authority to operate
    EchoStar 6 at 119.05° W.L. to begin providing immediate DBS service
    to consumers. It was also granted temporary authority to move
    EchoStar 2 and EchoStar 4 to different locations within the 119°
    W.L. cluster. *See* Letter to David K. Moskowitz, Senior Vice
    President and General Counsel of EchoStar Satellite Corporation from
    Chief, FCC Satellite and Radiocommunication Division, dated August
    10, 2000.

[^3]: EchoStar Satellite Corporation, Directsat Corporation, EchoStar
    DBS Corporation, Application for Authority to Make Minor
    Modifications to Direct Broadcast Satellite Authorizations, Launch
    and Operational Authority, *Memorandum Opinion and Order*, 13 FCC
    Rcd 8595 (1998).

[^4]: Letter to David K. Moskowitz, Senior Vice President and General
    Counsel of EchoStar Satellite Corporation from Chief, FCC Satellite
    and Radiocommunication Division, dated August 10, 2000.

[^5]: EchoStar Satellite Corporation, Application for Minor Modification
    of DBS Authorizations, Launch and Operation Authority ("*EchoStar
    Application*"), filed June 7, 2000, at 6. The operation milestone
    for EchoStar to commence operations at 148° W.L. is December 2002.
    EchoStar DBS Corporation, *Order*, 11 FCC Rcd 16291, 16295 (1996).

[^6]: *EchoStar Application*, at 7.

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

[^8]: *Id*. at 9.

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

[^10]: *Hawaii Petition to Deny*, at 3. *See also* Ex parte Letter filed
    November 9, 2000, where Hawaii urges the Commission to mandate
    "full" DBS service of comparable or equal value to that provided in
    the rest of the United States; Ex parte letter filed November 21,
    2000, asserting that sales of EchoStar service in Hawaii are poor
    because the programming package offered is not competitive with that
    offered by cable operators.

[^11]: Comments and Petition for Conditions of the State of Hawaii
    ("*Hawaii Comments*"), filed June 29, 2000, at 4.

[^12]: *Hawaii Comments*, at 4.

[^13]: *Id*. at 5.

[^14]: *Id*. at 6.

[^15]: Comments of the State of Alaska ("*Alaska Comments*"), filed June
    27, 2000, at 2.

[^16]: *Alaska Comments*, at 2.

[^17]: EchoStar Satellite Corporation, Reply to Comments and Petition
    filed by Hawaii ("*ESC Reply to Hawaii*"), filed July 2, 2000, at 2;
    and EchoStar Satellite Corporation, Reply to Comments of the State
    of Alaska ("*ESC Reply to* *Alaska*") filed July 5, 2000, at 2.

[^18]: *ESC Reply to Hawaii*, at 3.

[^19]: *ESC Reply to Hawaii*, Attachment A, and *ESC Reply to Alaska*,
    Attachment A.

[^20]: *ESC Reply to Alaska*, at 4-5. Technical information provided by
    EchoStar indicates that receive antennas of 1 meter will provide
    adequate service to Juneau, Alaska. *EchoStar Reply to Alaska*,
    Attachment A. EchoStar states that service to other areas of Alaska
    will require larger receive antennas. *EchoStar Reply to Alaska*, at
    5.

[^21]: *ESC Reply to Hawaii*, at 4. Citing EchoStar Satellite
    Corporation, Directsat Corporation, EchoStar DBS Corporation,
    Application for Authority to Make Minor Modifications to Direct
    Broadcast Satellite Authorizations, Launch and Operational
    Authority, *Memorandum Opinion and Order*, 13 FCC Rcd 8595 (1998).
    In this order, the Bureau granted a waiver, with conditions, of
    EchoStar's obligation to provide service to Alaska and Hawaii from
    148 W.L. The Bureau also stated it would not impose pricing
    conditions on EchoStar's service to Hawaii.

[^22]: *Id*. at 6.

[^23]: *See* EchoStar Satellite Corp., Directsat Corp., EchoStar DBS
    Corp., Application for Authority to make minor modifications to
    Direct Broadcast Satellite Authorizations, Launch and Operational
    Authority, *Memorandum Opinion and Order*, 13 FCC Rcd 8595 (1998).

[^24]: *ESC Reply to Hawaii* at 8.

[^25]: Letter from the Honorable Daniel K. Inouye and Honorable Ted
    Stevens to Honorable William E. Kennard, Chairman, Federal
    Communications Commission, dated September 21, 2000.

[^26]: ITU Radio Regulation Appendix S30.

[^27]: A cluster is defined as +/- 0.2° of the nominal orbit location,
    e.g., the cluster at 119° W.L. ranges from 118.8° to 119.2° W.L.

[^28]: Letter to Deputy Chief, Satellite Policy Branch, from James
    Talens, Counsel for EchoStar Satellite Corporation, dated August 7,
    2000.

[^29]: In January 2000, ESC was granted an STA to operate EchoStar 4 at
    119.35° W.L. In this authorization, the Bureau emphasized that the
    119.35° W.L. orbital position was outside of the 119° orbital
    cluster and that any permanent occupation at this location required
    ITU coordination and a Region 2 modification and update. See Letter
    from Chief, Satellite and Radiocommunication Division to David
    Moskowitz, Senior Vice President and General Counsel, EchoStar
    Satellite Corp., dated January 14, 2000.

[^30]: 47 C.F.R. § 100.21

[^31]: Region 2 includes North and South America.

[^32]: 47 C.F.R. § 1.3.

[^33]: *Wait Radio v. FCC*, 418 F.2d 1153, 1159 (D.C. Cir. 1969).

[^34]: *Id*.

[^35]: ITU Radio Regulations provide the following: With respect to §
    4.3.3.1 of Article 4, an administration in Region 2 shall be
    considered as being affected if the overall equivalent protection
    margin(footnote omitted) corresponding to a test point of its entry
    in the Region 2 Plan, including the cumulative effect of any
    previous modification to that Plan or any previous agreement, falls
    more than 0.25 dB below 0 dB, or, if already negative, more than
    0.25dB below the value resulting from: the Region 2 Plan as
    established by the 1983 Conference; or a modification of the
    assignment in accordance with this Appendix; or a new entry in the
    Region 2 Plan under Article 4; or any agreement reached in
    accordance with this Appendix. *See ITU Radio Regulations,* Appendix
    30, Annex 1, 488, Volume 2.

[^36]: Revision of Rules and Policies for the Direct Broadcast Satellite
    Service, *Report and Order*, 11 FCC Rcd 9712, 9762 (1995); 47 C.F.R.
    § 100.53.

[^37]: Policies and Rules for the Direct Broadcast Satellite Service,
    *Notice of Proposed Rulemaking*, 13 FCC Rcd 6907 (1998) ("Part 100
    Rulemaking").

[^38]: *See* note 3, *supra*.