DA 06-2438

November 29, 2006

Ms. Nancy J. Eskenazi, Esq.

SES AMERICOM, Inc.

4 Research Way

Princeton, NJ 08540

> Re: SES AMERICOM, Inc. Petition for Declaratory Ruling To Serve the
> U.S. Market Using BSS Spectrum from the 105.5° W.L. Orbital Location,
> File Nos. SAT-PDR-20020425-00071, SAT-AMD-20051116-00219,
> SAT-AMD-20060120-00006 Call Sign: S2619.

Dear Ms. Eskenazi:

On April 25, 2002, you filed with the Commission, on behalf of SES
AMERICOM, Inc., ("SES AMERICOM") the above-captioned Petition for
Declaratory Ruling ("Petition"). This Petition requests that the
Commission determine that it is in the public interest for SES AMERICOM
to offer satellite capacity to provide direct-to-home services to
consumers in the United States from its AMC-14 (USAT-S1) space station,
planned for operation at the 105.5° W.L. orbital location, with service
links in the 12.2-12.7 GHz Direct Broadcast Satellite Service ("DBS")
band, and feeder links in the 17.3-17.8 GHz fixed-satellite service
("FSS") band. On December 21, 2005, the Satellite Division sent you a
letter pointing out information required by Section 25.114 of the
Commission's rules[^1] and missing from the Petition, and requesting you
to supply the missing information.[^2] On January 20, 2006, SES AMERICOM
filed the above-captioned amendment to its Petition. In its amendment,
SES AMERICOM indicates that it would use the AMC-14 space station to
provide DBS service to the U.S. from the 105.5° W.L. orbital
location.[^3] For the reasons discussed below, we dismiss the Petition,
as amended, without prejudice to re-filing.

Section 25.114(c) of the Commission\'s rules requires all space station
applicants to submit all applicable items of information listed in its
subsections.[^4] In the *First Space Station Reform Order*,[^5] the
Commission affirmed the policies embodied in this rule by continuing to
require applications to be substantially complete when filed.[^6] As the
Commission noted, the procedures and rules it adopted will enable the
Commission to establish satellite licensees\' operating rights clearly
and quickly, and as a result, allow licensees to provide service to the
public much sooner than might be possible under our previous licensing
procedures.[^7] Finding defective applications acceptable for filing is
not consistent with the rules and policies adopted by the Commission in
the *First Space Station Reform Order* and only serves to create
uncertainty and inefficiencies in the licensing process.

AMC-14 will operate in the Direct Broadcast Satellite service.[^8] SES
AMERICOM states in its amendment that it intends to use the 17.3-17.8
GHz frequency band as the feeder-link band for AMC-14.[^9] The
feeder-link frequencies for AMC-14 are in a band allocated on a primary
basis to the fixed-satellite service in ITU Regions 1, 2, and 3 in the
Earth-to-space direction, and to no other satellite service in this
direction.[^10] The definition of "fixed-satellite service" in Section
25.201 of the Commission's rules includes "feeder links of other space
radiocommunication services." [^11]

In Schedule S of its amendment, SES AMERICOM states that it plans to
launch and operate AMC-14 with 27 dB of cross-polarization isolation on
its feeder-link antenna beams,[^12] which are listed in Schedule S of
SES AMERICOM's amendment as Beam ID NG1RR and NG1RL. Section 25.210(i)
of the Commission's rules requires fixed-satellite service space station
antennas to be designed to provide a cross-polarization isolation of 30
dB.[^13] Thus, SES AMERICOM's proposed feeder links do not comply with
the Commission\'s rules. Moreover, SES AMERICOM has not requested a
waiver of Section 25.210(i). Sections 25.112(a)(2) and (b)(1) of the
Commission\'s rules state that an application that does not
substantially comply with the Commission\'s rules will be returned to
the applicant as unacceptable for filing, unless the application is
accompanied by a waiver request with reasons supporting the waiver.[^14]

Therefore, pursuant to the Commission's rules on delegated authority, 47
C.F.R. § 0.261(a)(4), we find that the Petition as amended,
SAT-PDR-20020425-00071, SAT-AMD-20051116-00219, and
SAT-AMD-20060120-00006, is defective[^15] and dismiss the Petition
without prejudice to re-filing.

At the same time, we *sua sponte* waive the *DBS Freeze PN*,[^16] to the
extent necessary, to allow SES AMERICOM to refile its petition[^17] to
correct the deficiency noted above within 30 days of the date of this
letter. In re-filing its petition, consistent with the *DBS Freeze PN*,
SES AMERICOM would be precluded from requesting orbit locations or
frequency bands not contained in IBFS File Nos. SAT-PDR-20020425-00071,
SAT-AMD-20051116-00219, and SAT-AMD-20060120-00006. The Commission
stated that a freeze on *new* DBS petitions and applications for use of
the 12.2-12.7 GHz band and associated feeder links in the 17.3-17.8 GHz
band was necessary "pending Commission consideration of the appropriate
processing rules for applications to provide DBS in the United
States."[^18] In adopting the freeze, the Commission did not determine
to dismiss pending DBS filings and specifically permitted the filing of
certain limited amendments to pending DBS filings. SES AMERICOM's
Petition was pending at the time the *DBS Freeze PN* was adopted. SES
AMERICOM's amendment did not change the underlying authority requested
by SES AMERICOM and was in fact filed in response to a letter sent by
the Division to SES AMERICOM shortly before the *DBS Freeze PN* was
instituted.[^19] Granting this limited waiver of the *DBS freeze PN*
would preserve the status quo at the time the freeze was adopted and
would therefore be consistent with its purpose. Further, strict
enforcement of the freeze in this instance would not serve the public
interest.

> Sincerely,

Robert G. Nelson

Chief

Satellite Division

cc: Ms. Karis A. Hastings

*Counsel to SES AMERICOM, Inc.*

Hogan & Hartson L.L.P.

555 Thirteenth Street, NW

Washington, DC 20004-1109

[^1]: 47 C.F.R. § 25.114.

[^2]: *See* Letter from Fern J. Jarmulnek, Deputy Chief, Satellite
    Division, International Bureau, to Nancy J. Eskenazi, SES AMERICOM,
    Inc., dated December 21, 2005.

[^3]: Amendment to Petition for Declaratory Ruling, File No.
    SAT-PDR-20020425-00071, IBFS File No. SAT-AMD-20060120-00006 (filed
    January 20, 2006) at Schedule S, page 1 ("SES Americom
    Amendment*"*).

[^4]: 47 C.F.R. § 25.114(c).

[^5]: Amendment of the Commission\'s Space Station Licensing Rules and
    Policies, *First Report and Order and Further Notice of Proposed
    Rulemaking*, IB Docket No. 02-34, 18 FCC Rcd 10760, 10852 (para.
    244) (2003) (*First Space Station Reform Order*); International
    Bureau To Streamline Satellite And Earth Station Processing, *Public
    Notice*, Report No. SPB-140, October 28, 1998 (emphasizing the
    obligation to comply with 47 C.F.R. § 24.114(c) and stating that
    applications that did not comply would be dismissed).

[^6]: ^?^ *First Space Station Reform Order*, 18 FCC Rcd at 10852 (para.
    244), *citing* Amendment of the Commission\'s Space Station
    Licensing Rules and Policies, *Notice of Proposed Rulemaking,* 17
    FCC Rcd at 3875 (para. 84) (2002).

[^7]: *First Space Station Reform Order*, 18 FCC Rcd at 10765-66 (para.
    4).

[^8]: SES Americom Amendment at Form 312, Item 20.

[^9]: *Id.* at Schedule S, Item S2.

[^10]: *See* 47 C.F.R. § 2.106 at p. 58.

[^11]: 47 C.F.R. § 25.201.

[^12]: SES Americom Amendment at Schedule S, Item S7(g).

[^13]: 47 C.F.R. § 25.210 (i).

[^14]: 47 C.F.R. §§ 25.112(a)(2) and 25.112(b)(1).

[^15]: 47 C.F.R. §§ 25.112(a)(2) and 25.112(b)(1). The Satellite
    Division has dismissed other applications because of similar
    defects. *See, e.g.,* Letter from Thomas S. Tycz, Chief, Satellite
    Division, to Brian Park, AfriSpace, Inc., DA 04-1719 (June 16,
    2004).

[^16]: Direct Broadcast Satellite (DBS) Service Auction Nullified;
    Commission Sets Forth Refund Procedures for Auction No. 52 Winning
    Bidders and Adopts a Freeze on All New DBS Applications, FCC No.
    05-213, *Public Notice* (rel. Dec. 21, 2005) (*DBS Freeze PN*).

[^17]: *DBS Freeze PN* (explaining that the freeze does not apply to
    amendments to pending DBS filings unless the amendment would add
    frequencies or orbital locations that were not in the original
    license application).

[^18]: *DBS Freeze PN* (noting that in *Northpoint Technology, Ltd. v.
    FCC*, No. 04-1052 (D.C. Cir. June 21, 2005). In its decision, the
    appellate court vacated and remanded the section of the *DBS Auction
    Order* that concluded that DBS is not subject to the auction
    prohibition of the Open-Market Reorganization for the Betterment of
    International Telecommunications Act, Pub. L. No. 106‑180, 114 Stat.
    48 § 647 (enacted Mar. 12, 2000), codified at 47 U.S.C. § 765f
    (ORBIT Act)).

[^19]: *See* Letter from Fern J. Jarmulnek, Deputy Chief, Satellite
    Division, International Bureau, to Nancy J. Eskenazi, SES AMERICOM,
    Inc., dated December 21, 2005.