**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | DA 02-1796                   |
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| National Rural                   | ** |                              |
| Telecommunications Cooperative   |    |                              |
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| Petition for Reconsideration of  | *) |                              |
| the                              | ** |                              |
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| Second Round Assignment of       | *  |                              |
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| Geostationary Satellite Orbit    | ** |                              |
| Locations                        |    |                              |
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| to Fixed Satellite Service Space | *) |                              |
| Stations                         | ** |                              |
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| in the Ka-band                   | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: August 12, 2003 Released: August 12, 2003**

By the Chief, International Bureau:

# INTRODUCTION

1\. By this Order, we deny the Petition for Reconsideration from the
National Rural Telecommunications Cooperative (NRTC) filed in response
to the Second Round Assignment of Geostationary Satellite Orbit
Locations to Fixed Satellite Service Space Stations in the Ka-band
(Reassignment Order).[^1] For the reasons set forth below, we affirm the
decision in the Reassignment Order.

**II. BACKGROUND**

2\. Since 1997, the International Bureau (Bureau) has licensed 21
entities to launch and operate fixed satellite service (FSS) satellites
in the geostationary satellite orbit (GSO) operating in parts of the
Ka-band frequencies.[^2] The authorizations were granted in two
"processing rounds." Orbit locations in the First Ka-band Processing
Round (First Round) were assigned by adopting a plan negotiated by the
applicants that resolved conflicts over several contested locations.[^3]
The First Round Assignment Order noted that the Bureau would entertain
requests for changes in orbital assignments if all affected applicants
agreed to those changes.[^4] In August 2001, as part of the Second
Ka-band Processing Round (Second Round) the Bureau authorized nine new
entities to operate GSO satellites in Ka-band frequencies, and
authorized additional satellites for three entities licensed in the
First Round.[^5] In the Second Round, the applicants were unable to
reach an agreement regarding assignments. This was because there were
not enough orbit locations with U.S.-date priority for international
coordination purposes that also provided coverage of the continental
United States to accommodate all the applicants. Thus, the Bureau
assigned orbital locations based on several factors including each
applicant's requests and its established policy of giving new entrants
at least one location capable of serving the United States.[^6]
Consequently, the Bureau assigned each applicant to at least one orbital
location that it did not request or that did not have U.S. date
priority. The Second Round Assignment Order provided that, as with
previous assignment plans, requests for changes in the orbital
assignment plan would be entertained if they were consistent with the
basic structure of the plan and to which most, if not all, of the
operators affected by the change agreed. Licensees were afforded 30 days
to file such requests.[^7] The Second Round Assignment Order also stated
that orbit locations that may become available as a result of then
pending transfer applications would be made available to all Ka-band
licensees before considering new applications for these locations.[^8]
In response, two entities requested reassignment to orbital locations
previously assigned to U.S. satellites. In the Reassignment Order
granting these requests, the Satellite Division stated that to the
extent that any other orbital locations become available as a result of
future Commission action, "we will make these orbital locations
available for reassignment to all Ka-band licensees before considering
new applications for these locations."[^9]

3\. The NRTC filed a petition for reconsideration of the Reassignment
Order.[^10] The NRTC is a cooperative of rural electric and telephone
cooperatives and independent rural telephone cooperatives.[^11] It is
involved in broadband deployment for rural areas in the United States
and has indicated its intent to file an application to operate a Ka-band
system at the 113° W.L. orbital location should that location become
available.[^12] In its petition for reconsideration, the NRTC takes
exception to the Division's statement that it would make vacated orbit
locations available for reassignment to all Ka-band licensees before
considering new applications. Specifically, the NRTC sets forth three
reasons why the Bureau should reconsider the Reassignment Order. First,
the NRTC asserts that the Order creates an unauthorized and
inappropriate preference for existing Ka-band licensees.[^13] According
to the NRTC, regardless of whether slots become available two or 10
years from now, qualified non-licensees are barred from applying to
provide domestic satellite services in the Ka-band from vacated orbital
locations.[^14] Second, NTRC states that eligibility for orbital slots
that become available should be based on an applicant's qualifications,
not a licensee's incumbency.[^15] The NRTC states there is no evidence
to support the Division's presumption that existing licensees are better
situated to use an orbital location that may become available. Third,
the NRTC claims that the Reassignment Order is inconsistent with
Commission precedent and unlawful.[^16] In the Ka-band Third Report and
Order, NRTC notes, the Commission's policy was to promote open entry and
competition, and thus "afford all applicants an opportunity to compete
in the marketplace."[^17] The Reassignment Order, NRTC states, blocks
open entry and inhibits competition by giving licensees a "first shot"
at certain orbital locations. In this regard, NRTC claims that the
Reassignment Order violates the Administrative Procedure Act because it
failed to give parties an opportunity to comment before affecting the
rights of non-licensed applicants.[^18] In addition, the NRTC refers to
a then pending Notice of Proposed Rulemaking to streamline satellite
licensing, and states that the proposal, to facilitate "new entry into
the satellite market" demonstrates that the Division's restriction is
invalid.[^19]

4\. Two entities, both second round licensees, opposed NRTC's petition.
Pegasus Development Corporation (Pegasus) asserts that the "priority
policy" to which the NRTC objects was set forth in the Second Round
Assignment Order. In failing to seek reconsideration of that Order,
NRTC's petition is untimely.[^20] In addition, Pegasus states that NRTC
lacks the necessary standing to file the petition as set forth in
Section 1.106 of the Commission's rules.[^21] Pegasus also states that
many second round assignments are compromises. Because Pegasus did not
get its first choice locations, it asserts it should have priority for
reassignment over the initial assignment of an applicant that has not
participated in the "seven year, two round process."[^22] In addition,
Pegasus notes that the primary justification for reassignment
preferences is the immediacy of the International Telecommunication
Union (ITU) deadlines for licensees to implement their systems.[^23]

5\. TRW, Inc. asserts that, contrary to NRTC's petition, the
Reassignment Order reinforces the "long established and well justified"
Commission policy of providing incumbent licensees an opportunity to
request a reassignment to an orbital location prior to consideration of
new applications. It notes its own interest in requesting reassignment
to the 113° W.L. orbital location should it become available. TRW also
states that allowing incumbent licensees with systems under development
to have first preference will ensure that satellite operators will
commence services prior to the ITU deadlines.[^24] The NTRC filed
replies to both oppositions.[^25]

**III. DISCUSSION**

6\. We do not agree with NRTC that the Reassignment Order creates an
"unauthorized and inappropriate" preference for existing Ka-band
licensees. In the context of processing rounds, orbital locations were
treated as fungible as a means of resolving mutually exclusive
applications.[^26] If the parties could not agree to a compromise
arrangement by which they resolved competing requests for the same
location, the Commission would impose an arrangement under which it
would decide which of the competing applicants to assign to a particular
location. As a result, to the extent previously assigned orbital
locations become available, a request for reassignment allows a current
licensee the opportunity to seek a location that it may have originally
requested and that may better conform to its business plans than the
location assigned to it by the Bureau or to which it agreed as a
compromise with other competing applicants. Consequently, the Bureau has
permitted licensees to request reassignment to previously unavailable
orbital locations without commencing a processing round.[^27] In both
the First and Second Ka-band Processing Rounds, most applicants did not
receive all of their initially requested orbital locations due to the
unavailability or competing requests for assignments to these
locations.[^28] Providing Ka-band licensees an opportunity to request
reassignment to preferred locations equitably redistributes "contested"
locations to those licensees that had previously requested those
locations but were not ultimately assigned to them.

###  7. Further, as set forth in the Reassignment Order, allowing existing licensees to request reassignment to preferred orbital locations without engaging in the prolonged delays that occur with processing rounds enables the most expeditious use of spectrum. Expeditious use of Ka-band spectrum is of particular importance since most orbital locations have impending ITU bring-into-use dates. Existing licensees that have commenced construction are more apt to meet the ITU dates.[^29] Failure to meet the ITU deadlines results in the loss of U.S. priority for the particular orbital location, thus allowing other countries to obtain coordination priority at that location. In granting the Second Round authorizations, the Bureau noted that impending ITU deadlines for operating satellites at available Ka-band orbital locations would be difficult to meet if the Commission initiated another processing round.[^30]  {#further-as-set-forth-in-the-reassignment-order-allowing-existing-licensees-to-request-reassignment-to-preferred-orbital-locations-without-engaging-in-the-prolonged-delays-that-occur-with-processing-rounds-enables-the-most-expeditious-use-of-spectrum.-expeditious-use-of-ka-band-spectrum-is-of-particular-importance-since-most-orbital-locations-have-impending-itu-bring-into-use-dates.-existing-licensees-that-have-commenced-construction-are-more-apt-to-meet-the-itu-dates.-failure-to-meet-the-itu-deadlines-results-in-the-loss-of-u.s.-priority-for-the-particular-orbital-location-thus-allowing-other-countries-to-obtain-coordination-priority-at-that-location.-in-granting-the-second-round-authorizations-the-bureau-noted-that-impending-itu-deadlines-for-operating-satellites-at-available-ka-band-orbital-locations-would-be-difficult-to-meet-if-the-commission-initiated-another-processing-round. .unnumbered}

8\. Moreover, we note that Section 316 of the Communications Act
authorizes the Commission to modify any space station license on a
permanent basis if the Commission determines that such action will
promote the public interest, convenience and necessity.[^31] Thus, the
Commission may modify Ka-band licensees by reassigning orbit locations
if such modifications are in the public interest.

9\. In addition, we note that our policy regarding the assignment of
newly available Ka-band orbital locations has not precluded the NRTC
from filing an application for a Ka-band system.[^32] NRTC has indicated
an interest in operating a Ka-band system at the 113° W.L. orbital
location but asserted it is "blocked" from filing an application for
this location. First, the Bureau has already licensed the 113° W.L.
orbital location to a company; thus it is not available.[^33] Second,
even if 113° W.L. were available, NTRC has cited no rule or policy that
entitles it to priority to the spectrum at 113° W.L.[^34] Indeed, in
processing rounds, the Commission historically has resolved competing
requests for the same location by assigning one of the applicants to
another location.[^35] Further, after the Second Processing Round was
completed, several Ka-band orbit locations remained available for future
entry.[^36] Thus, interested entities that did not participate in the
first two processing rounds were not precluded from seeking Ka-band
authorizations at unassigned additional orbital locations. The NRTC had
two opportunities to participate in Ka-band processing rounds and an
open-ended opportunity to file an application for an unassigned Ka-band
orbital location. It did not do so.

10\. Further, Ka-band licensees will not, as NRTC asserts, have an
open-ended opportunity to seek reassignments to locations as they become
available. Rather, in a Public Notice released concurrently with this
Order, Ka-band licensees have 14 days to seek reassignment to a
previously assigned orbital location that has since been relinquished or
cancelled.[^37] After this time period, all unassigned Ka-band orbital
locations will be available to all applicants under the new first come,
first served procedure recently adopted in the Commission's Space
Station Licensing Reform Order.[^38]

11\. We note, however, that if the new satellite licensing rules go into
effect during the 14-day time frame, the application of the new rules
could invalidate the Bureau's decision here to affirm the opportunity of
current licensees to apply for Ka-band orbital locations first, before
new applications are considered. Therefore, we waive Sections 25.155,
25.156, and 25.158 of the Commission's rules, on our own motion, to the
extent necessary to allow this limited opportunity for Ka-band
reassignments.[^39] Waiver is appropriate if special circumstances
warrant a deviation from the general rules, and such deviation would
better serve the pubic interest than strict adherence to the general
rule.[^40] We find that giving existing licensees the opportunity to
request reassignment before considering new applications is in the
public interest and consequently there is good cause for a waiver. As
noted above, it is the most equitable means to allow licensees to obtain
orbital locations they may have requested but were assigned to other
applicants. In addition, the Ka-band licensees that are presently
working on implementing their systems are in the best position to meet
ITU bring-into-use dates for the locations that had been previously
assigned. Finally, we emphasize that the waiver granted here is for a
limited time period, and for a limited number of Ka-band orbital
locations only.

**IV. CONCLUSION AND ORDERING CLAUSES**

12\. Based on the foregoing, we conclude that there is no justification
for granting reconsideration of the Second Round Assignment of
Geostationary Satellite Orbit Locations in the Ka-band Order.

13\. Accordingly, IT IS ORDERED, that the Petition for Reconsideration
filed by the National Rural Telecommunications Cooperative is DENIED.

14\. IT IS FURTHER ORDERED, pursuant to Section 1.3 of the Commission\'s
rules, 47 C.F.R. § 1.3, that current Ka-band GSO FSS licensees ARE
GRANTED waivers of Sections 25.155, 25.156, and 25.158 of the
Commission\'s rules, 47 C.F.R. §§ 25.155, 25.156, 25.158, to the extent
necessary, for a period ending 14 days after the release date of this
Order, for the purposes set forth in this Order.

FEDERAL COMMUNICATIONS COMMISSION

Donald Abelson

Chief, International Bureau

[^1]: Second Round Assignment of Geostationary Satellite Orbit Locations
    to Fixed Satellite Service Space Stations in the Ka-band, *Order*,
    17 FCC Rcd 14400 (Int'l Bur. 2002) (*Reassignment Order*).

[^2]: The term "Ka-band" refers to space-to-Earth communications
    (downlink) in radio frequencies at 17.7-20.2 GHz and the
    corresponding Earth-to-space communications (uplink) in frequencies
    at 27.5-30.0 GHz.

[^3]: Assignment of Orbital Locations to Space Stations in the Ka-band,
    *Order*, 13 FCC Rcd 1030 (Int'l Bur. 1997) (*First Round Assignment
    Order*).

[^4]: *First Round Assignment Order*, 13 FCC Rcd at 1031.

[^5]: Second Round Assignment of Geostationary Satellite Orbit Locations
    to Fixed Satellite Service Space Stations in the Ka-Band, *Order*,
    16 FCC Rcd 14389 (Int'l Bur. 2001) (*Second Round Assignment
    Order*).

[^6]: *Second Round Assignment Order,* 16 FCC Rcd at 14391.

[^7]: *Second Round Assignment Order*, 16 FCC Rcd at 14400.

[^8]: *Second Round Assignment Order*, 16 FCC Rcd at 14399.

[^9]: *Reassignment Order*, 17 FCC Rcd at 14401.

[^10]: Petition for Reconsideration of the National Rural
    Telecommunications Cooperative, filed August 29, 2002 (*NRTC
    Petition*).

[^11]: *NRTC Petition* at 2.

[^12]: *NRTC Petition* at IV, Appendix A: Notice of Intent to File
    Application dated August 8, 2002.

[^13]: *NRTC Petition* at 4.

[^14]: *NRTC Petition* at 5.

[^15]: *NRTC Petition* at 6.

[^16]: *NRTC Petition* at 9.

[^17]: *NRTC Petition* at 10, citing the Rulemaking to Amend Parts 1, 2,
    21 and 25 of the Commission's Rules to Redesignate the 27.5-29.5 GHz
    Frequency Band, to Reallocate the 29.5-30.0 GHz Frequency Band, to
    Establish Rules and Policies for Local Multipoint Distribution
    Service and for Fixed Satellite Services, *Third Report and*
    *Order*, 12 FCC Rcd 22310 (1997) (*Third Report and Order*).

[^18]: *NRTC Petition* at 11.

[^19]: *NRTC Petition* at 12.

[^20]: Pegasus Development Corporation, Opposition, filed September 20,
    2002 (*Pegasus Opposition*).

[^21]: *Pegasus Opposition* at 5.

[^22]: *Pegasus Opposition* at 6.

[^23]: *Pegasus Opposition* at 6.

[^24]: TRW, Inc., Opposition to Petition for Reconsideration Filed
    September 11, 2002. In December 2002, TRW, Inc. transferred its
    Ka-band authorizations to Northrop Grumman Corporation. Application
    of TRW, Inc., Transferor and Northrop Grumman Corp., Transferee,
    *Order and Authorization*, 17 FCC Rcd 24625 (Int'l Bur., Sat. Div.
    2002). Thereafter, Northrop Grumman surrendered its Ka-band
    authorization. Letter to Marlene H. Dortch, Secretary, FCC from
    Stephen D. Baruch, Attorney for Northrop Grumman (March 5, 2003).

[^25]: Reply to Opposition (of TRW, Inc.) of the National Rural
    Telecommunications Cooperative, Filed September 23, 2002; NRTC Reply
    to Opposition (of Pegasus Development Corp.), filed September 30,
    2002. The NRTC raised no new issues in its replies.

[^26]: Amendment of the Commission's Space Station Licensing Rules and
    Policies, Mitigation of Orbital Debris, *First Report and Order and
    Further Notice of Proposed Rulemaking in IB Docket No 02-34, and
    First Report and Order in* *IB Docket No. 02-54*, 18 FCC Rcd 10760,
    10820 (2003) (*Space Station Licensing Reform Order*).

[^27]: *See, e.g*., Assignment of Orbital Locations to Space Stations in
    the Domestic Fixed Satellite Service, 11 FCC Rcd 13788, 13793
    (1996).

[^28]: *Second Round Assignment Order*, 16 FCC Rcd at 14399.

[^29]: Each Ka-band authorization, consistent with the Commission's
    rules, requires the licensee to commence construction of the first
    satellite in its system within one year of the grant of the
    authorization or the license is null and void. 47 C.F.R. §
    25.145(f).

[^30]: *Second Round Assignment Order*, 16 FCC Rcd at 14395.

[^31]: 47 U.S.C. § 316(a); *see, e.g*., Modification of Licenses held by
    Iridium Constellation LLC and Iridium US LP, *Order*, DA 03-1917
    (rel. June 11, 2003).

[^32]: *NRTC Petition* at 5.

[^33]: The 113° W.L. orbital location is assigned to EchoStar VisionStar
    Corp. *See* Application of VisionStar Incorp., Shant Hovnanian,
    Transferor, and EchoStar VisionStar Corp., Transferee, *Order and
    Authorization*, 16 FCC Rcd 19187 (Int'l Bur. 2001).

[^34]: *See e.g.,* EchoStar Satellite Corporation Modification of
    Ka-band Authorization*, Memorandum* *Opinion and* *Order*, 17 FCC
    Rcd 8305, 8308 (Int'l Bur. 2002).

[^35]: Columbia Communications Corp., *Order on Reconsideration*, 18 FCC
    Rcd 9448, 9452-53 (Int'l Bur. 2003).

[^36]: *Second Round Assignment Order*, 16 FCC Rcd at 14396.

[^37]: International Bureau Explains Procedure for Ka-band GSO-Like
    Satellite Applications, *Public Notice*, Report No. SPB 189, DA
    03-2630 (rel. August 12, 2003).

[^38]: *Space Station Licensing Reform Order*, 18 FCC Rcd at 10764.

[^39]: 47 C.F.R. § 1.3; 47 C.F.R. §§ 25.155, 25.156, and 25.158.

[^40]: *Northeast Cellular Telephone Co. v. FCC*, 897 F.2d 1164 (D.C.
    Cir. 1990); *see also, Wait Radio v. FCC*, 418 F.2d 1153, 1159 (D.C.
    Cir. 1969), *cert. denied,* 409 U.S. 1027 (1972) (stating that in
    granting waivers the Commission may take into account considerations
    of hardship, equity or more effective implementation of overall
    policy).