**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the matter of                 | *  | File No.                     |
|                                  | *) | SAT-STA-20030903-00300       |
| Application of DIRECTV, Inc.     | ** |                              |
|                                  |    | DBS8402                      |
| Request For Special Temporary    | *  |                              |
| Authority for the                | *) |                              |
|                                  | ** |                              |
| DIRECTV 3 Satellite              |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: June 23, 2004 Released: June 23, 2004**

By the Deputy Chief, Satellite Division, International Bureau:

# introduction

1.  By this Order, we grant DIRECTV Inc.'s ("DIRECTV") application for
    Special Temporary Authority ("STA") to relocate its DIRECTV 3
    satellite to the 82° W.L. orbital location pursuant to an agreement
    between DIRECTV and Telesat Canada ("Telesat").[^1] By this action,
    we support cooperation between U.S. and Canadian satellite operators
    in meeting capacity needs in order to ensure continuity of service
    and improved service to consumers.

# BACKGROUND

2.  DIRECTV 3 is a Boeing 601-model spacecraft that was originally
    clustered with several other DIRECTV satellites at the 101° W.L.
    orbital location. On May 4, 2002, one of the two spacecraft control
    processors ("SCP") on the DIRECTV 3 satellite failed. SCP's are the
    onboard computers used to control spacecraft. Following the May 4,
    2002, SCP failure, DIRECTV made a filing with the FCC,[^2] stating
    that because there was no longer SCP redundancy on the DIRECTV 3
    spacecraft, DIRECTV wished to remove the DIRECTV 3 satellite from
    the 101° W.L. orbital position, where it was not needed in order to
    provide service, and relocate it to a storage orbit at 308
    kilometers above the geostationary satellite orbit altitude. DIRECTV
    indicated that, in the event the remaining SCP failed while the
    satellite was in the storage orbit, rendering the satellite no
    longer controllable, the satellite would not present a potential
    hazard to other satellites in the geostationary arc.[^3] This
    request was granted. [^4] DIRECTV later indicated that its safety
    concerns may have been overstated.[^5]

3.  Telesat's Nimiq 2 satellite malfunctioned on February 20, 2003, when
    a solar array failed, necessitating the shutdown of several
    transponders.[^6] As a result, Telesat has been unable to use the
    Nimiq 2 satellite to provide full back-up capacity to the Nimiq 1
    satellite at 91° W.L. orbital location.[^7] Subsequently, Telesat
    and DIRECTV arranged to lease the DIRECTV 3 satellite to Telesat for
    use at the 82° W.L. and 91° W.L. orbital locations. On September 3,
    2003, DIRECTV filed an application for an STA to move DIRECTV 3 from
    its storage orbit to the 82° W.L. orbital location.[^8] On September
    4, 2004, DIRECTV began to move the DIRECTV 3 satellite to the 82°
    W.L. orbital location without Commission authorization.[^9] DIRECTV
    filed a subsequent STA request on October 3, 2003, seeking authority
    to maneuver DIRECTV 3 in order to keep it from entering the
    station-keeping box for Telesat's Nimiq 2 satellite.[^10]

4.  Telesat plans to use the DIRECTV 3 satellite not only to provide
    back-up capacity that has been lost as a result of Nimiq 2's
    malfunction, but also to improve the quality of the service Telesat
    provides to Canadian consumers by allowing the operation of the
    transponders on Nimiq 1 at a higher power level.[^11] Nimiq 1
    currently operates on medium power across all 32 frequencies
    available at 91° W.L.[^12] Telesat plans, after testing DIRECTV 3 at
    the 82° W.L. orbital location, to co-locate DIRECTV 3 with Nimiq 1
    at 91° W.L. to enable Telesat to operate 16 high power transponders
    (8 on DIRECTV 3 and 8 on Nimiq 1) and 16 medium power transponders
    on Nimiq 1.[^13] According to Telesat, high power operation is
    particularly important to remedy seasonal reductions in quality due
    to rain fade.[^14]

## The Transaction Between DIRECTV and Telesat Canada

5.  The lease of DIRECTV 3 is pursuant to a separate agreement
    concerning the use of DIRECTV 3 and another DIRECTV satellite,
    DIRECTV 5, at Canadian orbital locations. The DIRECTV lease provides
    Telesat the exclusive right to use the capacity of DIRECTV 3 at
    either the 82° W.L. or 91° W.L. orbital locations, and to direct and
    control use of DIRECTV 3 at those locations, provided that any use
    of the capacity to offer service to the United States at either of
    these locations is subject to DIRECTV's approval, which is not to be
    unreasonably withheld by DIRECTV.

6.  The agreement to lease DIRECTV 3 to Telesat terminates upon five
    days written notice to Telesat from DIRECTV, in the event of the
    catastrophic failure of any two DIRECTV satellites, or on December
    31, 2006, if U.S. regulatory approvals required to relocate DIRECTV
    5 to the 72.5° W.L. orbital location, have not been approved in a
    manner acceptable to DIRECTV,[^15] or upon end-of-life of the
    DIRECTV 3 satellite. The lease agreement provides that DIRECTV,
    through its affiliated company PanAmSat Licensee Corp. ("PanAmSat"),
    will perform telemetry, tracking, and control functions (TT&C
    functions) under Telesat's direction and control, until Telesat has
    developed and installed the necessary earth station facilities in
    Canada to perform such functions.[^16]

7.  On September 26, 2003, Industry Canada granted Telesat authority to
    use DIRECTV 3/Nimiq 2i to provide Broadcast Satellite Service
    ("BSS") in Canada using the 82° W.L. orbital location.[^17] Industry
    Canada granted this authority until the earlier of March 31, 2016,
    or when the satellite reaches the end of its operational life. The
    authorization provides that "... additional conditions may be
    required to give effect to any understandings developed between
    Industry Canada and any other administration respecting the use of
    the restoration satellite facilities."[^18] In separate proceedings,
    DIRECTV has filed a STA Request for the relocation of its DIRECTV 5
    satellite to the 72.5° W.L. orbital location[^19] and a request for
    the authorization of Earth stations to receive signals from DIRECTV
    5, for the purpose of providing local-into-local service in the
    US.[^20]

## Confidentiality Request

8.  DIRECTV filed the supporting documents to the DIRECTV 3 STA request
    pursuant to a request to withhold these documents from public
    inspection and accord them confidential treatment pursuant to
    Sections 0.457 and 0.459 of the Commission's rules.[^21] DIRECTV
    indicated in that request that the document submitted with that
    filing "contains sensitive trade secrets, and commercial information
    that falls within Exemption 4 of the Freedom of Information Act
    ("FOIA")."[^22] Pegasus Development Corp. ("Pegasus") filed a FOIA
    request for these documents.[^23] On March 15, 2004, both DIRECTV
    and Telesat responded to Pegasus' FOIA request. DIRECTV submitted
    portions of these confidential documents for inclusion in the public
    file,[^24] effectively withdrawing the request for confidential
    treatment for those portions of the documents that were submitted.
    We subsequently released a Protective Order that permitted
    conditional access to these confidential documents in their entirety
    and gave commenters a period of time in which to file comments in
    this and other related proceedings.[^25]

## Comments

9.  Digital Broadband Applications Corp. ("DBAC") filed comments
    opposing this STA.[^26] On November 12, 2003, DIRECTV and Telesat
    filed oppositions to DBAC's comments.[^27] Pegasus and EchoStar
    Satellite, LLC ("EchoStar") filed supplemental comments on April 5,
    2004, pursuant to the Protective Order.[^28] SES Americom, Inc.
    ("SES Americom") filed reply comments to EchoStar's supplemental
    comments on April 20, 2004.[^29] DIRECTV and Telesat filed responses
    to these supplemental comments on April 12, 2004.[^30] DBAC and
    Pegasus are both companies that have been granted an authorization
    by the Commission to deploy one million earth stations in the U.S.
    to communicate with the Nimiq 1 and Nimiq 2 satellites.[^31]

# DISCUSSION

10. We find that granting this STA is in the public interest. The use of
    the DIRECTV 3 satellite to augment the service currently provided by
    Telesat's Nimiq 1 and Nimiq 2 satellites helps to assure continuity
    of service to Canadian customers. This comports with cooperation
    between U.S. and Canadian satellite providers in times of emergency
    or capacity need.

11. The objections to the DIRECTV 3 STA request appear to be premised on
    two concerns. First, as expressed by EchoStar,[^32] the DIRECTV 3
    satellite will provide Direct Broadcast Satellite ("DBS") service to
    the U.S. from a Canadian BSS orbital location. Second, as expressed
    by Pegasus and DBAC, the arrangement between DIRECTV and Telesat
    would foreclose other service providers from using the Nimiq
    satellites and the DIRECTV satellite to provide service to the
    United States.

12. As to the first concern \-- that DBS service might be provided to
    the U.S. by the DIRECTV 3 satellite from a Canadian BSS orbital
    location \-- EchoStar believes that the planned use of Canadian
    orbital locations by foreign entities should be the subject of a
    rulemaking as these orbital locations could potentially be used to
    provide service to the United States.[^33] The STA that is before us
    does not in any way request service to the U.S. Furthermore, while
    the DIRECTV/Telesat agreement does not preclude service to the U.S.,
    DIRECTV or Telesat could not provide service to the U.S. without
    first requesting approval by the Commission of such service.
    Procedurally, such approval would be requested by the filing of an
    earth station application.[^34] Thus, we find that it is not
    necessary to address the issue of service to the U.S. from the
    DIRECTV 3 satellite, or any changes to the procedural mechanisms or
    policies for considering such authorizations, until there is a
    concrete proposal for such service before us. For the same reasons,
    we see no need to adopt the condition requested by DBAC, restricting
    DIRECTV from utilizing any of the transponders on the DIRECTV 3
    satellite for provision of service to the U.S.[^35] Any concerns
    raised by any such proposal can be adequately addressed if such a
    proposal is actually placed in an application before us.

13. As to the second concern \-- that the DIRECTV/Telesat arrangement
    would foreclose other service providers from using the Nimiq
    satellites or from DIRECTV 3 satellite to provide service to the
    United States \-- this concern appears unfounded. The
    DIRECTV/Telesat agreement does not preclude service to the United
    States using these satellites.[^36] In fact, the relocation of the
    DIRECTV 3 satellite may have a beneficial effect on the likelihood
    of additional service to the United States, to the extent that it
    increases capacity at the 82° W.L. and 91° W.L. orbital locations.

14. As a practical matter, however, it appears from statements of
    Telesat that any additional capacity made available as a result of
    the DIRECTV 3 satellite's use at the 82° W.L. and 91° W.L. orbital
    location will be fully used to meet Canadian requirements.[^37]
    Under these circumstances, we decline to adopt DBAC's request that
    the Commission condition any grant of the DIRECTV 3 STA on a
    requirement that DIRECTV make capacity on DIRECTV 3 available to any
    U.S. company that is authorized to utilize that capacity in a
    Canadian BSS orbital location from a U.S. earth station.[^38] We
    agree with Telesat that it would be inappropriate for the Commission
    to require DIRECTV to make DIRECTV 3 capacity available to other
    U.S. companies, particularly because the leasing arrangement for the
    DIRECTV 3 satellite is intended to make the satellite's capacity
    available for use by Telesat.[^39] Under these circumstances, we see
    no competitive benefit from adopting a priori limits on the possible
    entities to which Telesat may offer any available capacity.

15. Finally, even if DIRECTV's STA request were denied, there would be
    no transponders available for use by U.S. companies, absent further
    action. The last orbital location from which DIRECTV 3 was
    authorized to operate, the storage orbit, is not an orbital location
    from which the DIRECTV 3 satellite could provide service to
    consumers. Under these circumstances, we conclude that the use of
    the satellite to provide service to Canada has no detrimental impact
    upon competition in the United States market.

## Confidentiality

16. Both DBAC and Pegasus cite the need for public disclosure of the
    DIRECTV/Telesat agreements that are related to the DIRECTV 3 STA and
    other related matters. Despite the availability of these documents
    pursuant to the Protective Order, Pegasus argues that the Protective
    Order unfairly impairs the ability of interested parties to comment
    effectively in this proceeding, and that the Commission should
    require DIRECTV and Telesat to publicly disclose the contents of
    these documents. However, the Protective Order specifically provided
    a basis for all parties to participate in this DIRECTV STA
    proceeding by allowing those parties who agree to abide by the terms
    of the Protective Order to file comments for a specified period
    after having had access to the confidential documents even if they
    had not participated in this proceeding earlier.[^40] Furthermore,
    substantial portions of the agreements between DIRECTV and Telesat
    have been released for public inspection, particularly insofar as
    those documents concern the DIRECTV 3 satellite. For these reasons
    we see no need to further address confidentiality for purposes of
    our reaching a decision on the DIRECTV 3 STA request.

## Technical Considerations

17. In its STA request to move DIRECTV 3 to a storage orbit, DIRECTV
    initially expressed concern that DIRECTV 3, with only one remaining
    SCP, presented a potential hazard to other satellites.[^41] However,
    DIRECTV later expressed that while it stood by its decision to put
    this satellite in a temporary storage orbit, it did not wish to
    over-emphasize concerns about this SCP failure to the extent that an
    otherwise fully operational satellite would be rendered useless by
    the failure of the SCP unit.[^42] On December 8, 2003, the Satellite
    Division sent a letter to DIRECTV requesting additional information
    concerning the STA request, including information on the statistical
    failure rate for SCP's.[^43] That letter referred to a statistical
    analysis of "tin whisker" failure (crystalline filaments that grow
    from circuit boards on satellites that have in some instances
    short-circuited and consequently disabled SCP's) done by PanAmSat, a
    company under common ownership with DIRECTV.[^44] DIRECTV responded
    to this letter on December 18, 2003, stating that it generally
    relied on the statistical analysis that the Commission referred to
    in its inquiry.[^45] Based on the information provided and relied
    upon by DIRECTV, we have no basis for requiring the DIRECTV 3
    satellite to remain in a storage orbit.

## Other Concerns

18. We have exchanged letters with Industry Canada in order to ensure
    that there is a mutual understanding regarding the operation of the
    DIRECTV 3 satellite. The understandings, and the factual background
    for these understandings, are provided as Annex A and are material
    considerations for the authorization contained in this Order. In
    general, the exchange of letters indicates that any DIRECTV 3 space
    station operations at the 82° W.L. or 91° W.L. orbital locations, or
    while transiting between those two locations, will be pursuant to
    authorization of Telesat by Industry Canada.

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IV. **CONCLUSION AND ORDERING CLAUSES**

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19. Based on the foregoing, we find that grant of DIRECTV's application
    will serve the public interest by providing for the efficient use of
    the geostationary satellite orbit and spectrum in a manner that
    facilitates rapid efficient, and reliable communications.

20. Accordingly, IT IS ORDERED, that the application of DIRECTV, Inc.,
    File No. SAT-STA-200300903-00300 (Call Sign DBS 8402) is GRANTED,
    and DIRECTV, Inc., is authorized for a period of 180 days to
    relocate DIRECTV 3 to the 82° W.L. orbital location and to conduct
    space station Telemetry, Tracking and Command communications related
    to this relocation.

21. DIRECTV, Inc., shall coordinate all transfer orbit Telemetry,
    Tracking, and Control operations with other potentially affected
    in-orbit operators.

22. During relocation of the DIRECTV 3 satellite, DIRECTV, Inc.'s
    operations shall be on a non-harmful interference basis, i.e.,
    DIRECTV, Inc., shall not cause interference to, and shall not claim
    protection from interference caused to it by, any other lawfully
    operating satellites.

23. In the event that any harmful interference is caused as a result of
    DIRECTV, Inc.'s operations during the relocation of the DIRECTV 3
    satellite, DIRECTV, Inc., shall cease operations immediately upon
    notification of such interference and shall inform the FCC in
    writing immediately of such an event.

24. DIRECTV, Inc., shall provide the Chief, Satellite Division,
    International Bureau, with 30 days notice (confirmed email
    considered sufficient) prior to commencement of use of Telesat
    Canada's earth stations to provide the Earth station segment of
    Telemetry, Tracking, and Command communications.

25. DIRECTV, Inc., shall provide the Chief, Satellite Division,
    International Bureau, with a minimum of 60 days notice (confirmed
    email considered sufficient) prior to any transfer of title,
    pursuant to Article 5.1(b) of the DIRECTV 3 Lease Agreement, of the
    DIRECTV 3 satellite to Telesat Canada.

26. Grant of this special temporary authority is without prejudice to
    any enforcement action in connection with the operations and
    location of the DIRECTV 3 satellite prior to the date of this
    action.

27. DIRECTV, Inc., is afforded thirty days to decline this authorization
    as conditioned. Failure to respond within this period will
    constitute formal acceptance of the authorization as conditioned.

28. This Order is issued pursuant to Section 0.261 of the Commission's
    rules, 47 C.F.R. § 0.261 and is effective upon release.

    FEDERAL COMMUNICATIONS COMMISSION

    Cassandra C. Thomas

    Deputy Chief, Satellite Division

    International Bureau

    **Annex A**

    ![](media/image1.png){width="5.583333333333333in"
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    height="9.152083333333334in"}

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    height="8.724305555555556in"}

[^1]: *See* File No. SAT-STA-20030903-00300 ("DIRECTV 3 STA Request").
    This authorization concerns operations of the DIRECTV 3 space
    station only. Authorization of Earth station operations necessary to
    effect these space station operations will be addressed separately.

[^2]: *See* File No. SAT-STA-20020910-00172 (filed September 6,
    2002)("DIRECTV 3 Storage Orbit STA Request").

[^3]: Id. at 1-2.

[^4]: *See* Report No. SAT-00123, File No. SAT-STA-20020910-00172 (rel.
    Sept. 27, 2002). In connection with DIRECTV 3's relocation, DIRECTV
    also requested to move another satellite, DIRECTV 1R, into a
    position that would allow it to carry the traffic assigned to
    DIRECTV 3. DIRECTV also filed a modification application to make
    these changes permanent. *See* File No. SAT-MOD-20030205-00032. This
    application, except for the request to redesignate the orbital
    location for DIRECTV 1R, was withdrawn by DIRECTV on March 9, 2004.
    *See* Letter from James R. Butterworth, Senior Vice President,
    DIRECTV, to Thomas S. Tycz, Chief, Satellite Division, International
    Bureau, dated March 9, 2004.

[^5]: *See* Letter from James Butterworth, Senior Vice President,
    DIRECTV, to Thomas S. Tycz, Chief, Satellite Division, dated April
    24, 2003, File No. SAT-STA-20020910-00172.

[^6]: *See* DIRECTV 3 STA Request at 2. *See also* *Ex Parte* letter
    from Jennifer Hindin, Counsel for Telesat Canada, to Marlene H.
    Dortch, Secretary, FCC, dated March 15, 2004, at 2.

[^7]: *Id*.

[^8]: *See* DIRECTV 3 STA Request at 2. *See also* *Ex Parte* letter
    from Jennifer Hindin, Counsel for Telesat Canada, to Marlene H.
    Dortch, Secretary, FCC, dated March 15, 2004, at 2.

[^9]: *See* Letter from James H. Barker, Counsel for DIRECTV, to Thomas
    S. Tycz, Chief, Satellite Division, dated October 9, 2003. On June
    18, 2004, the Commission issued a Notice of Apparent Liability for
    Forfeiture in the amount of \$87,500 to DIRECTV for unauthorized
    repositioning of the DIRECTV 3 satellite from the orbit at which it
    was authorized, and maintenance of that satellite at unauthorized
    locations, in willful and repeated violation of Section 25.117(a) of
    the Rules, 47 C.F.R. § 25.117(a). *DIRECTV, Inc.*, FCC 04-138
    (released June 18, 2004).

[^10]: *See* File No. SAT-STA-20031003-00310. This STA was approved on
    October 3, 2003. DIRECTV has also executed a number of other
    stationkeeping maneuvers for the DIRECTV 3 satellite. *See, e.g.,*
    Letter from James H. Barker, Counsel for DIRECTV, to Thomas S. Tycz,
    Chief, Satellite Division, dated May 19, 2004.

[^11]: *Id*. at 1-2.

[^12]: *Id*.

[^13]: *Id*.

[^14]: *Id*.

[^15]: In such event, the agreement provides that DIRECTV will transfer
    and convey title to the DIRECTV 3 satellite to Telesat.

[^16]: The DIRECTV 3 Lease provides Telesat shall begin performing TT&C
    functions from its ground equipment within one year after the date
    when testing of the DIRECTV 3 satellite at a Canadian orbital
    location is completed, subject regulatory approvals for and the
    delivery of certain technical information to Telesat by DIRECTV.

[^17]: *See* Letter from Jan Skora, Director General, Radiocommunication
    and Broadcasting Regulatory Branch, Industry Canada, re Broadcasting
    -Satellite Service (BSS) Restoration, to Ted Ignacy, Vice President,
    Telesat Canada, dated September 26, 2003.

[^18]: *Id*.

[^19]: *See* File No. SAT-STA-20040107-00002, filed January 7, 2004.

[^20]: *See* File No. SES-LFS-20040112-00023, filed January 12, 2004.

[^21]: 47 C.F.R. §§ 0.457, 0.459. *See* DIRECTV Enterprises, LLC,
    Request for Confidential Treatment, filed October 7, 2003, File No.
    SAT-STA-20030903-00300.

[^22]: *Id*. at 1. DIRECTV extended this request to cover documents
    related to its agreement with Telesat that were filed with the
    Commission on December 17, 2003, and January 13, 2004. *See*
    DIRECTV's Response to Pegasus Development Corporation Freedom of
    Information Request, Letter to Managing Director, FCC, from James
    Barker, Counsel for DIRECTV, Inc., filed March 15, 2004*.*

[^23]: *See* Freedom of Information Act Request, FOIA No. 2004-227,
    DIRECTV ENTERPRISES, LLC, from Bruce Jacobs, Counsel for Pegasus
    Development Corporation to Managing Director, FCC, filed January 27,
    2004 (Pegasus FOIA Request).

[^24]: *See* DIRECTV's Response to Pegasus Development Corporation
    Freedom of Information Request, Letter to Managing Director, FCC,
    from James Barker, Counsel for DIRECTV, Inc., filed March 15, 2004*.
    See also* Telesat Canada Opposition to Pegasus Development
    Corporation Request, dated March 15, 2004. *See* *also* Letter from
    Jim Barker, Counsel for DIRECTV, to Thomas S. Tycz, Chief, Satellite
    Division, International Bureau, dated March 15, 2004, File No.
    SAT-STA-20030903-00300. This filing did not publicly disclose any
    contractual terms concerning DIRECTV's use of the DIRECTV 5
    satellite at the 72.5° W.L. orbital location.

[^25]: *Order Adopting Protective Order,* DA 04-755 (rel. Mar. 22, 2004)
    ("*Protective Order*").

[^26]: Comments of Digital Broadband Applications Corp., filed October
    27, 2003 ("DBAC Comments").

[^27]: *See* Opposition of DIRECTV Enterprises, LLC, filed November 12,
    2004 ("DIRECTV Opposition") and Opposition of Telesat Canada, filed
    November 12, 2004 ("Telesat Opposition").

[^28]: Pegasus Development Corporation Reply and Supplemental Comments,
    filed April 5, 2004 ("Pegasus Supplemental Comments"); EchoStar
    Satellite, LLC Comments with Respect to Information Filed Pursuant
    to Protective Order, filed April 5, 2004 ("EchoStar Supplemental
    Comments").

[^29]: Reply Comments of SES Americom, Inc., filed April 20, 2004 ("SES
    Americom Reply").

[^30]: GM, DIRECTV and News Corp. Consolidated Reply Comments, filed
    April 12, 2004 ("DIRECTV Consolidated Comments"); Telesat Canada
    Response to Comments, filed April 12, 2004 ("Telesat Response").

[^31]: *See* Digital Broadband Applications Corp., Consolidated
    Application for Authority to Operate U.S. Earth Stations with a
    U.S.- Licensed Ku-Band FSS Satellite and Canadian- Licensed Nimiq 1
    and Nimiq 2 Satellites to Offer Integrated Two-Way Broadband Video
    and Data Service Throughout the United States, 18 FCC Rcd 9455
    (2003); Pegasus Development Corporation, Consolidated Applications
    for Authority to Operate One U.S. Transmit/Receive Fixed Earth
    Station (Call Sign E010320) and 1,000,000 Receive-Only Earth
    Stations (Call Sign E020022) with the Canadian-Licensed Nimiq 1 and
    Nimiq 2 Satellites to Offer Direct Broadcast Satellite Service
    Throughout the United States, File Nos. SES-LIC-20011121-02186,
    SES-LIC-20020111-00075, DA 04-909, *Order* (rel. March 31, 2004)
    2004 WL 635289 (2004). Both DBAC's and Pegasus's applications were
    filed prior to the partial failure of the Nimiq 2 satellite, and
    neither company has a contractual arrangement with Telesat for use
    of either of the Nimiq satellites.

[^32]: EchoStar Supplemental Comments at 3.

[^33]: SES Americom filed comments arguing that a rulemaking to address
    provision of DBS service to the U.S. from foreign satellites is
    unnecessary, as this is handled under DISCO II, and states that the
    Commission should evaluate the DIRECTV 3 request on a case-by-case
    basis just as it would for any other foreign satellite. *See* SES
    Americom Reply at 2-4. EchoStar also advocates a reexamination of
    the Commission's order in *Amendment of the Commission's Regulatory
    Policies To Allow Non-U.S.-Licensed Space Stations To Provide
    Domestic and International Satellite Service in the United States*,
    Report and Order, IB Docket No. 96-111, 12 FCC Rcd 24094 (1997)
    (*DISCO II* or *DISCO II Order*). *Id*. Such a reexamination is
    outside the scope of this STA proceeding and need not be addressed
    here.

[^34]: *See* *DISCO II Order* and 47 C.F.R. §§ 25.131, 25.137.

[^35]: DBAC Comments at 4-5.

[^36]: Although the agreement provides that DIRECTV must approve such
    use of the DIRECTV 3 satellite, its agreement may not be
    unreasonably withheld. In the absence of evidence that DIRECTV has
    unreasonably withheld approval of such service, this provision of
    the agreement does not raise concerns.

[^37]: Telesat Opposition at 3. Telesat indicates that the transponders
    in question on Nimiq 1 and Nimiq 2 are already leased exclusively to
    a Canadian DTH provider, Bell ExpressVu, so there are presently no
    transponders left to lease, nor will any new capacity be available
    once DIRECTV 3 is put into service pursuant to a Canadian
    authorization. Telesat also indicates that the DIRECTV 3 satellite
    will be pointed toward the North to enhance service to Canada, and
    thus would not be suitable for service to the United States.

[^38]: DBAC Comments at 5.

[^39]: Telesat Opposition at 4.

[^40]: *See* DIRECTV 3 Protective Order at 2 (para. 2).

[^41]: *See* DIRECTV 3 Storage Orbit STA Request at 2.

[^42]: *See* Letter from James Butterworth, Senior Vice President,
    DIRECTV, to Thomas S. Tycz, Chief, Satellite Division, dated April
    24, 2003.

[^43]: *See* Letter from Thomas S. Tycz, Chief, Satellite Division, to
    James H. Barker, Counsel for DIRECTV, dated December 8, 2003.

[^44]: *See* PanAmSat Licensee Corp., Further Supplement to STA, filed
    April 24, 2003, File No. SAT-STA-20030324-00039.

[^45]: *See* Letter from James H. Barker, Counsel for DIRECTV, to Thomas
    S. Tycz, Chief, Satellite Division, dated December 18, 2003. In that
    letter, DIRECTV stated: "DIRECTV has not conducted its own
    statistical analysis of tin whisker failures, nor is it aware of any
    analysis other than PanAmSat's. DIRECTV has received two briefings
    from Boeing regarding tin whisker failures. The hypothesis offered
    by Boeing supports PanAmSat's analysis \-- that in-orbit time is the
    only parameter that shows a strong correlation to failure
    probability."