Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                | *  | File Nos. 25-SAT-P/LA-95     |
|                                 | *) |                              |
| FINAL ANALYSIS                  | ** | 76-SAT-AMEND-95              |
|                                 |    |                              |
| COMMUNICATIONS SERVICES, INC.   | *  | 79-SAT-AMEND-96              |
|                                 | *) |                              |
| For Authorization to Construct, | ** | 151-SAT-AMEND-96             |
| Launch                          |    |                              |
|                                 | *  | 7-SAT-AMEND-98               |
| and Operate a Non-Voice,        | *) |                              |
|                                 | ** | Call Sign S 2150             |
| Non-Geostationary Mobile        |    |                              |
| Satellite                       | *  | File Nos. 57-DSS-P/LA-94     |
|                                 | *) |                              |
| System in the 137-138 MHz,      | ** | 27-SAT-AMEND-95              |
| 148-150.05 MHz, and 400.15-401  |    |                              |
| MHz Bands                       | *  | 10-SAT-AMEND-98              |
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| **LEO ONE USA CORPORATION**     | ** | 64-SAT-AMEND-98              |
|                                 |    |                              |
| For Authorization to Construct, | *  | Call Sign S 2145             |
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| Launch and Operate a Non-Voice, | ** | File Nos. 28-SAT-MP/ML-95    |
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| Non-Geostationary Mobile        | *  | 5-SAT-ML-96                  |
| Satellite                       | *) |                              |
|                                 | ** | 194-SAT-ML-97                |
| System in the 137-138 MHz,      |    |                              |
| 148-150.05 MHz and 400.15-401   | *  | 8-SAT-AMEND-98               |
| MHz Bands                       | *) |                              |
|                                 | ** | Call Sign S 2103             |
| **ORBITAL COMMUNICATIONS**      |    |                              |
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| For Modification of Its         |    |                              |
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+---------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: November 7, 2001 Released: November 29, 2001**

By the Commission:

# INTRODUCTION

1.  With this Order, we deny two Applications for Review filed by
    Orbital Communications Corporation ("Orbcomm") that seek Commission
    review of the International Bureau orders licensing Final Analysis
    Communication Services, Inc. ("Final Analysis") and Leo One USA
    Corporation ("Leo One") in the second processing round for
    non-voice, non-geostationary mobile satellite systems ("NVNG MSS" or
    "Little LEO" systems).[^1] We uphold the Bureau's finding that
    Orbcomm's Little LEO system, which was authorized in the first
    Little LEO processing round ("First Round") and modified in the
    second processing round ("Second Round"), was not entitled to
    interference protection from the operations of other systems
    licensed in the second processing round. Because we deny Orbcomm's
    Applications for Review, we also dismiss as moot the Application for
    Review filed by Leo One against Orbcomm, which is contingent upon a
    favorable decision on Orbcomm's Applications for Review.

# BACKGROUND

2.  In 1990, the Commission proposed allocating frequencies to the
    Little LEO service in response to petitions for rulemaking filed the
    prior year by Orbcomm, STARSYS Global Positioning, Inc., and
    Volunteers in Technical Assistance ("VITA").[^2] The Commission
    proposed and then adopted rules to govern the new service in
    1993.[^3] The following year, the International Bureau granted a
    system license to Orbcomm in the First Round, for a constellation
    consisting of 36 low-Earth orbiting satellites operating in four
    inclined orbital planes with eight satellites each, and two
    near-polar orbital planes with two satellites each.[^4]

3.  The Commission initiated the Second Round after Leo One filed an
    application for its proposed Little LEO system.[^5] Five applicants
    participated in the Second Round -- three proposing new systems
    (E-SAT, Inc., Leo One, and Final Analysis) and two proposing
    expansion of licensed First Round systems (Orbcomm and VITA). The
    Commission proposed rules for the Second Round Little LEO applicants
    in October 1996, including a proposal designed to promote
    competition in the service by limiting Second Round participation to
    new entrants.[^6]

4.  Subsequently, the Second Round applicants reached a spectrum sharing
    plan that could accommodate all five proposed systems.[^7] The
    "Joint Proposal" submitted by the Second Round applicants provided
    that they would share portions of the Little LEO spectrum among
    themselves, including the 148-149.9 MHz uplink band. Specifically,
    Orbcomm agreed to share the 148.0-148.905 MHz sub-band with E-SAT,
    Leo One USA and Final Analysis, to share the 148.905-149.810 MHz
    sub-band with Final Analysis and Leo One, and to share the
    149.810-149.9 MHz sub-band with VITA.[^8] The parties asked the
    Commission to adopt their Joint Proposal and to award each applicant
    a license. The applicants also agreed to amend their pending Second
    Round applications in a manner consistent with the Joint Proposal.

5.  The Commission's *Report and Order* adopted the applicants' Joint
    Proposal, and found that the spectrum sharing plan resolved mutual
    exclusivity among the Second Round applicants.[^9] The Commission
    further found that because it could accommodate all five applicants,
    including the new entrants, it was not necessary to adopt a proposed
    rule precluding First Round licensees from participating in the
    Second Round.[^10]

6.  The Bureau's five licensing orders were based upon the Joint
    Proposal adopted in the *Report and Order*. Orbcomm's Second Round
    license authorized it to modify its system by launching and
    operating twelve additional satellites, nearly doubling its uplink
    frequency band, changing its downlink frequency band, increasing the
    altitude of the four inclined orbital planes, and shifting the
    inclination of one of the near-polar orbital planes.[^11] The
    modified constellation's orbital planes include eight satellites
    each.

7.  In the Second Round licenses issued to Final Analysis and Leo One,
    the Bureau rejected Orbcomm's argument that the Commission's Little
    LEO rules require Second Round licensees to protect Orbcomm's
    operations.[^12] Orbcomm's applications for review of the Leo One
    and Final Analysis licenses essentially repeat this argument.[^13]

# discussion

8.  The Commission's rules require a party seeking Commission review of
    an action taken pursuant to delegated authority to specify with
    particularity which among a list of factor warrants Commission
    consideration of the questions presented.[^14] The factors
    include (i) a conflict with statute, regulation, case precedent or
    established policy; (ii) an undecided question of law or
    policy; (iii) a precedent that should be overturned or revised; (iv)
    an erroneous finding on an material question of fact; or (v)
    prejudicial procedural error.[^15] Orbcomm has not presented
    sufficient reason on any of these grounds to overturn the Bureau's
    decisions.

## Orbcomm Applications for Review

9.  Orbcomm claims it is entitled to protection against interference
    from other Second Round systems by virtue of Section 25.142(a)(1) of
    the Commissions rules. Section 25.142(a)(1) provides that NVNG MSS
    applicants shall:

    file information demonstrating compliance with all requirements of
    this section, and showing, based on existing system information
    publicly available at the Commission at the time of filing, that
    they will not cause unacceptable interference to any non-voice,
    non-geostationary mobile-satellite service system authorized to
    construct or operate.[^16]

10. Because Orbcomm received a First Round license, it asserts that its
    system, although modified in the Second Round, should have been
    afforded interference protection from subsequently licensed systems.
    Final Analysis and Leo One each filed an opposition to the Orbcomm
    Application for Review directed against it.[^17] Final Analysis and
    Leo One both argue that Orbcomm's Applications for Review untimely
    seek reconsideration of uplink sharing in the 148-149.9 MHz uplink
    band, which, they argue, was conclusively decided in the *Report and
    Order*.[^18] Final Analysis also asserts that existing
    post-licensing coordination will adequately protect Orbcomm's
    uplinks.[^19]

11. We affirm the Bureau's finding that Orbcomm relinquished any
    superior status its First Round system may have had by making
    wholesale changes to that system in the Second Round, including
    nearly doubling its First Round uplink spectrum. The Bureau order
    licensing Final Analysis correctly finds that:

    As part of the Joint Proposal, ORBCOMM expressly agreed to permit
    other second processing round applicants to operate in the channels
    comprising the 148-149.9 MHz uplink band, including those
    frequencies licensed to ORBCOMM in the first processing round, in
    exchange for gaining the right to add twelve satellites to its
    constellation and to operate in the lower part of the 148-149.9 MHz
    band (148-148.855 MHz band) and in new downlink frequencies. The
    Joint Proposal, as adopted in the \[*Report and Order*\], reflected
    all of the material terms and conditions of the spectrum sharing
    plan mutually agreed to by the second processing round
    applicants.[^20]

12. Thus, we agree with the Bureau that Orbcomm's participation in the
    Second Round put it on equal footing with all other Second Round
    applicants.[^21] Nowhere in the Joint Proposal does it indicate that
    other Second Round applicants agreed to or were aware that their
    proposed systems were relegated to non-interference status with
    respect to Orbcomm's modified system. Rather, as with all
    settlements, it was reasonable to assume that all parties made
    compromises to enable all proposed systems to be accommodated.
    Indeed, had the parties not reached a sharing agreement, the
    Commission was poised to adopt licensing rules that, among other
    things, would have prohibited Orbcomm from participating in the
    Second Round. We therefore uphold the Bureau's finding that Orbcomm
    cannot accept the benefits flowing from its participation in the
    Second Round, yet reject the burdens that it assumed in order to
    receive those benefits.

13. Further, in denying Orbcomm's request for interference protection,
    the Bureau did not change or ignore Section 25.142(a)(1), as Orbcomm
    suggests. Rather, the Bureau did not dispute that Orbcomm's First
    Round system was entitled to protection against interference from
    Second Round systems, but, instead, found that the First Round
    system essentially no longer existed.[^22] The Bureau correctly
    noted that it is not technically feasible to separate for protection
    whatever aspects of Orbcomm's system were not modified by its Second
    Round application, in light of the extensive modifications made.

14. Finally, to the extent the Bureau Orders indicated in *dicta* that,
    even if Section 25.142(a)(1) did apply, it would be in the public
    interest to waive the rule, we clarify that the rule does not
    require coordination to be completed prior to licensing.
    Consequently, it would not, in any event, have been necessary to
    invoke the waiver process.

## The Leo One Application for Review 

15. Leo One filed a contingent Application for Review, which argues that
    if the Commission grants Orbcomm's Application for Review against
    the Leo One license, the Joint proposal will be undermined, and the
    Commission should revoke Orbcomm's Second Round license. Since we do
    not grant Orbcomm's Application for Review, we dismiss as moot the
    Leo One Application for Review.

# ORDERING CLAUSES

16. Accordingly, IT IS ORDERED, that the Applications for Review filed
    by Orbital Communications Corporation against the licenses of Leo
    One USA Corporation and Final Analysis Communication Services, Inc.
    are DENIED;

17. IT IS FURTHER ORDERED that the Application for Review filed by Leo
    One USA Corporation is DISMISSED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: Orbital Communications Corporation, Application For Review, *In
    the Matter of Final Analysis Communication Services, Inc.
    Application for Authority to Construct, Launch and Operate
    Non-Voice, Non-Geostationary Mobile-Satellite System in the 137-138
    MHz, 148-150.05 MHz and 400.15-401 MHz Bands*, DA 98-616
    (Application filed May 1, 1998); Orbital Communications Corporation,
    Application For Review, *In the Matter of Leo One USA Corporation
    Application for Authority to Construct, Launch and Operate
    Non-Voice, Non-Geostationary Mobile-Satellite System in the 137-138
    MHz, 148-150.05 MHz and 400.15-401 MHz, 455-456 MHz, 459-460 MHz and
    36-51.4 GHz Bands*, DA 98-238 (Application filed March 16, 1998)
    ("Applications for Review"). *See also* *Final Analysis
    Communication Services, Inc.*, Order and Authorization, 13 FCC Rcd.
    6618 (Int'l Bur. 1998) ("*Final Analysis License")*; *Leo One USA
    Corporation*, Order and Authorization, 13 FCC Rcd. 2801 (Int'l Bur.
    1998) ("*Leo One License*").

[^2]: *Amendment of Section 2.106 of the Commission's Rules to Allocate
    Spectrum to the Fixed-Satellite Service and the Mobile-Satellite
    Service for Low-Earth Orbit Satellites*, Notice of Proposed
    Rulemaking, 6 FCC Rcd. 5932 (1991).

[^3]: *Amendment of the Commission's Rules to Establish Rules and
    Policies Pertaining to a Non-Voice, Non-Geostationary
    Mobile-Satellite Service*, Notice of Proposed Rulemaking, 8 FCC Rcd.
    6330; Report and Order, 8 FCC Rcd. 8450 (1993).

[^4]: *Orbital Communications Corp.*, 9 FCC Rcd. 6476 (1994); *recon.
    denied*, 10 FCC Rcd. 7801 (1995).

[^5]: *Satellite Application Acceptable for Filing; Cut-Off Established
    For Additional Applications*, Public Notice Report No. DS-1459, 9
    FCC Rcd 5261 (1994).

[^6]: *Amendment of Part 25 of the Commission's Rules to Establish Rules
    and Policies Pertaining to the Second Processing Round of the
    Non-Voice, Non-Geostationary Mobile Satellite Service*, Notice of
    Proposed Rulemaking, 11 FCC Rcd. 19841, 19846 ¶¶ 11-38 (1996)
    ("*Second Round NPRM*").

[^7]: Joint Proposal among E-SAT, Inc., Final Analysis Communications
    Services, Inc., Leo One USA Corporation, Orbital Communications
    Corporation, Orbital Sciences Corporation and Volunteers in
    Technical Assistance, Inc., IB Docket No. 96-220 (filed Sept. 22,
    1997) ("Joint Proposal").

[^8]: The Joint Proposal also noted the Second Round applicants'
    requirements for sharing their spectrum with foreign-licensed
    operations, including a proposed French satellite system (S80-1).
    That sharing is the subject of international coordination, but is
    not questioned in Orbcomm's Applications for Review.

[^9]: *See* *Amendment of Part 25 of the Commission's Rules to Establish
    Rules and Policies Pertaining to the Second Processing Round of the
    Non-Voice, Non-Geostationary Mobile Satellite Service*, Report and
    Order, FCC 97-370, 13 FCC Rcd 9111, 9157 ¶ 122 (rel. October 15,
    1997) ("*Report and Order"*).

[^10]: *Id.* at 9118 ¶ 14.

[^11]: *Orbital Communications Corp.*, 13 FCC Rcd. 10828 (Int'l Bur.
    1998) ("*Orbcomm License*").

[^12]: *See* 47 C.F.R. § 25.142(a)(1).

[^13]: Applications for Review, *supra* n.1.

[^14]: 47 C.F.R. § 1.115(b)(2).

[^15]: *Id.*

[^16]: 47 C.F.R. § 25.142(a)(1).

[^17]: Final Analysis Communication Services, Inc., Opposition, *In the
    Matter of Final Analysis Communication Services, Inc. Application
    for Authority to Construct, Launch and Operate Non-Voice,
    Non-Geostationary Mobile-Satellite System in the 137-138 MHz,
    148-150.05 MHz and 400.15-401 MHz Bands*, (filed May 18, 1998)
    ("Final Analysis Opposition"); Opposition of Leo One USA
    Corporation, *In the Matter of Leo One USA Corporation Application
    for Authority to Construct, Launch and Operate Non-Voice,
    Non-Geostationary Mobile-Satellite System in the 137-138 MHz,
    148-150.05 MHz and 400.15-401 MHz Bands*, DA 98-238 (filed March 31,
    1998) ("Leo One Opposition").

[^18]: Final Analysis Opposition at 7; Leo One Opposition at 6.

[^19]: Final Analysis Opposition at 4.

[^20]: *Final Analysis License*, 13 FCC Rcd at 6627; *see also* *Orbcomm
    License*, 13 FCC Rcd. at 10835-36.

[^21]: *Final Analysis License*, 13 FCC Rcd. at 6628.

[^22]: *See* *Application of Geostar Positioning Corporation For
    Modification of Space Station Authorizations in the
    Radiodetermination Satellite Service*, 6 FCC Rcd. 2276 (Common
    Carrier Bureau 1991) (concluding that Geostar's proposed
    modification was so significantly different from its authorized
    system that it must be considered as a new system in a new
    application processing round).