**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of the Application | *  | SAT-MOD-20060929-00113       |
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| **SES Americom, Inc.**           |    |                              |
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| For Modification of AMC-16       | *) |                              |
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| Fixed Satellite Space Station    |    |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: December 22, 2006 Released: December 22, 2006**

By the Deputy Chief, International Bureau:

# INTRODUCTION

1.  With this Order, we grant SES Americom, Inc.'s (SES Americom)
    request to extend a previous waiver that allows the AMC-16
    Ka-band[^1] space station to be away from its authorized 85° W.L.
    orbital location. We grant the extension of waiver based on the
    unique circumstances in this case, in particular, the launch
    associated with the AMC-16 space station. We also deny SES
    Americom's application insofar as it requests authority to transfer
    AMC-16's Ka-band space station to operate under the control of
    Telesat Canada, pursuant to a Canadian license, at the 118.75° W.L.
    orbital location. SES Americom has not demonstrated any public
    interest that the transfer would provide that would not be provided
    through a U.S. authorization.

# BACKGROUND

2.  AMC-16 is a geostationary Ku-[^2]/Ka-band hybrid satellite
    originally licensed by the Commission to operate at the 85° W.L.
    orbital location.[^3] In April 2006, the International Bureau
    granted an application filed by SES Americom for authority needed in
    connection with the temporary relocation of AMC-16 to the 118.75°
    W.L. orbital location, and the transfer of control of its Ku-band
    payload to Telesat Canada, which would operate under authorization
    from Industry Canada.[^4] Operation of AMC-16's Ku-band payload
    under Canadian authority was the subject of an informal exchange of
    letters between the Commission and Industry Canada.[^5]

3.  The request the Bureau granted was filed by SES Americom, but was
    the result of a request from its customer, EchoStar Satellite, LLC
    (EchoStar), which has purchased the Ku-band capacity of AMC-16.[^6]
    EchoStar has an agreement with Telesat Canada for Ku-band service
    from the yet-to-be launched Anik F3 satellite, which will operate at
    the 118.75° W.L. orbital location.[^7]. EchoStar stated that its
    purpose for entering the agreement is to augment the spectrum
    currently used for direct-to-home (DTH) multi-channel video
    programming distribution services, including expanded
    local-into-local,[^8] international, high definition television and
    other programming. The companies had anticipated launch and
    operation of Anik F3 by late 2006.[^9]

4.  In order to provide service from the vicinity of the 118.7º W.L
    orbital location at an earlier date than the commencement of
    operations of the Anik F3 Ku-band space station, EchoStar requested
    that SES Americom move AMC-16 to the 118.75º W.L orbital
    location.[^10] EchoStar, SES Americom and Telesat Canada entered
    into a Memorandum of Agreement concerning operations of the AMC-16
    Ku-band space station at the 118.75º W.L. orbital location.[^11] In
    granting SES Americom's application, the Bureau found that grant
    would allow early commencement of Ku-band direct-to-home service to
    U.S. customers from an orbital location capable of providing service
    to the contiguous United States, therefore improving the choice of
    service to U.S. consumers.[^12]

5.  At the time of its application concerning AMC-16 and the 118.75º W.L
    orbital location, SES Americom also relocated AMC-2 to the 85° W.L.
    orbital location in order to provide Ku-band service there while
    AMC-16 was relocated. AMC-2, a hybrid C-/Ku-band satellite, is
    incapable of providing the authorized Ka-band service at the 85°
    W.L. orbital location. SES Americom stated that it had no other
    available satellite capable of providing Ka-band service at the 85°
    W.L. orbital location while AMC-16 was temporarily relocated.
    Consequently, SES Americom sought a waiver of Section 25.161(c) of
    the Commission's rules, which provides for automatic termination of
    authority if service is not operational at an assigned orbital
    location for over 90 days.[^13] In the *AMC-16 Ku-band Order*, the
    Bureau granted the waiver request because the relocation of AMC-16
    was for a short duration with a defined end date, and because the
    temporary use of the satellite at a different orbital location would
    facilitate improved service to U.S. customers.[^14] Grant of the
    waiver was conditioned upon AMC-16 returning to the 85° W.L. orbital
    location no later than December 31, 2006.

6.  The launch of Anik F3 and subsequent return of AMC-16 to its
    authorized location at 85º W.L. was anticipated for the fourth
    quarter of 2006. SES Americom now states that factors beyond its
    control have delayed the launch of Anik F3. The Anik F3 is
    contracted to be launched on an International Launch Services (ILS)
    Proton M/Breeze M launch vehicle.[^15] On February 28, 2006, a
    Proton M/Breeze M launch vehicle experienced an anomaly and failed
    to deliver the Arabsat 4A spacecraft to orbit.[^16] ILS suspended
    its launch schedule pending investigation into the cause of the
    failure, and advised Telesat Canada that a new date would be set for
    launch of Anik F3. ILS has now resumed launches on Proton, and has
    set a new launch window for Anik F3, February 27, 2007 to April 27,
    2007.[^17]

7.  SES Americom's application also, in effect, requests authorization
    that would permit transfer of the AMC-16 Ka-band payload to
    operation under Telesat Canada's direction and control, pursuant to
    a Canadian authorization at the 118.75º W.L. orbital location. This
    request is pursuant to a request by Telesat Canada to SES Americom
    to use AMC-16's Ka-band payload at the 118.75º W.L. orbital location
    pending the launch of Anik F3. On September 22, 2006, the Commission
    granted SES Americom authority to activate the Ka-band payload at
    that location under special temporary authority (STA).[^18] SES
    Americom ceased Ka-band operations at the 118.75º W.L. orbital
    location when the STA expired on November 21, 2006.[^19]

8.  SES Americom's application for modification and transfer of the
    AMC-16 Ka-band authorization was accepted for filing and placed on
    public notice.[^20] No comments were filed.

# DISCUSSION

## Request for Extension of Waiver of Section 25.161(c)

9.  Section 25.161(c) of the Commission's rules provides that a space
    station authorization will automatically terminate if removal of
    facilities renders the station not operational for over 90 days,
    unless specific authority is requested.[^21] In the *AMC-16 Ku-band
    Order*, the Bureau granted SES Americom's request to waive the
    rule,[^22] on the condition that AMC-16 return to the 85° W.L.
    orbital location no later than December 31, 2006.

10. SES Americom now requests an extension of the waiver to September
    30, 2007. SES Americom states that its request is based on launch
    delays that are beyond its control, and beyond the control of
    EchoStar and Telesat Canada. SES Americom asserts that grant of the
    waiver extension request will serve the public interest by ensuring
    the continuity of Ku-band service to U.S. customers at the 118.75 º
    W.L. orbital location, pending launch and operation of the Anik F3
    satellite. SES Americom argues that denial of the extension request
    would require it to return AMC-16 to the 85º W.L. orbital location,
    causing service disruption and confusion at the 118.75º W.L. orbital
    location. SES Americom further asserts that grant of the waiver is
    consistent with Commission precedent, because it would allow service
    continuity at the 118.75º W.L. orbital location, and does not raise
    concerns over warehousing of satellite spectrum.[^23]

11. In the *AMC-16 Ku-band Order*, the Bureau indicated that Section
    25.161(c) is intended to avoid unacceptable lapses in service to
    customers and to prevent warehousing of scarce orbit and spectrum
    resources.[^24] In this case, Ka-band service has never been offered
    commercially at the 85° W.L. orbital location. Thus, allowing AMC-16
    to remain at the 118.75° W.L. orbital location will not affect
    Ka-band customers. Further, there is no lapse in service to AMC-16's
    Ku-band customer, EchoStar, since EchoStar continues to receive
    service from the 118.75° W.L. orbital location. Indeed, if we
    require AMC-16 to relocate to the 85° W.L. orbital location before
    Anik F3 is launched, service will be disrupted to current Ku-band
    customers. This benefit to AMC-16's Ku-band customers outweighs any
    short delay in service to potential Ka-band customers at the 85°
    W.L. orbital location while AMC-16 remains at 118.75° W.L.

12. The Commission may waive a rule for good cause shown.[^25] Waiver is
    appropriate if special circumstances warrant a deviation from the
    general rule and such deviation would better serve the public
    interest than would strict adherence to the general rule.[^26]
    Generally, the Commission may grant a waiver of its rules in a
    particular case if the relief requested would not undermine the
    policy objective of the rule in question and would otherwise serve
    the pubic interest.[^27]

13. SES Americom has presented a definite plan for re-initiation of
    Ka-band service at the 85º W.L. orbital location, and we acknowledge
    the unforeseen difficulties and delay surrounding the Anik F3
    launch. On balance, we find that the continuity of Ku-band service
    to U.S. customers from the 118.75º W.L. orbital location and the
    launch difficulties warrant further extending the waiver of rule
    Section 25.161(c).

14. SES Americom requested extension of the waiver through September
    30, 2007. ILS has provided Telesat Canada with a new launch window
    between February 27, 2007 and April 27, 2007. Once Anik F3 is
    launched, SES Americom states that Telesat Canada will require
    approximately 35 days to test the satellite before the hand-off of
    traffic from AMC-16 to Anik F3, a task that will take an additional
    five days.[^28] Once the hand-off is complete, SES Americom states
    that it will take 35-45 days for AMC-16 to drift back to the 85º
    W.L. orbital location, where it can then establish Ka-band service
    under its authorization. Adding the time to undertake these
    additional steps, SES Americom anticipates that the AMC-16 space
    station will be back at the 85º W.L. orbital location between June
    and August, depending on whether Anik F3 is launched at the
    beginning or end of its launch window. SES Americom requests
    extension of the waiver through the end of September in order to
    build a modest cushion into its return schedule.

15. Although we grant the extension request, we limit the extension to
    the minimum time necessary to accomplish the return of AMC-16 to its
    authorized location and the initiation of Ka-band service at that
    location. We therefore extend the waiver of Section 25.161(c) to a
    date 80 days following the launch of Anik F3, or July 24, 2007,
    whichever date is earlier.

## Ka-band Operations under Canadian Authorization

16. SES Americom's application also, in effect, requests authorization
    that would permit transfer of the AMC-16 Ka-band payload to
    operation under Telesat Canada's direction and control, pursuant to
    a Canadian authorization at the 118.75º W.L. orbital location. [^29]
    SES Americom reports that Industry Canada has already authorized
    Telesat Canada to use the Ka-band payload on AMC-16 to serve Canada
    from the118.75º W.L. orbital location.

17. SES Americom argues that its request will serve the public interest
    by allowing efficient use of spectrum and orbital resources to
    provide service to customers. SES Americom acknowledges that the
    requested Ka-band service is limited to customers in Canada. While
    SES Americom observes that Telesat Canada's use of the Ka-band
    payload on AMC-16 could lead to a future request for introduction of
    Ka-band service to U.S. customers from that location, it is unclear
    from the record why the transfer of control to Telesat Canada of
    AMC-16's Ka-band payload serves the public interest.[^30] The
    potential benefits are speculative. Furthermore, SES Americom has
    provided no basis for concluding that these benefits cannot be
    achieved through operations under a U.S. authorization. Under the
    circumstances, we cannot find that grant of this request would serve
    the public interest. We therefore deny SES Americom's application
    insofar as it requests authority to transfer control of the Ka-band
    payload of AMC-16.

# ORDERING CLAUSES

18. IT IS ORDERED that SES Americom, Inc.'s request to waive Section
    25.161(c) of the Commission's rules, 47 C.F.R. § 25.161(c), is
    GRANTED. SES Americom, Inc. shall continue to be authorized to
    operate AMC-16 in Ka-band frequencies at the 85º W.L. orbital
    location, and shall resume those operations upon the relocation of
    the AMC-16 satellite to that location, by a date 80 days following
    the launch of Anik F3, or July 24, 2007, whichever date is earlier.
    If SES Americom, Inc. does not resume operating in Ka-band
    frequencies at the 85º W.L. orbital location by that date, the
    authorization for Ka-band authority at the 85º W.L. orbital location
    will be automatically terminated.

19. IT IS FURTHER ORDERED that the request to transfer control of the
    AMC-16 Ka-band payload is DENIED.

20. SES Americom, Inc. is afforded thirty days to decline these
    authorizations as conditioned. Failure to respond within this period
    will constitute formal acceptance of the authorizations as
    conditioned.

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

> FEDERAL COMMUNICATIONS COMMISSION
>
> Roderick K. Porter
>
> Deputy Chief
>
> International Bureau

[^1]: As used in this *Memorandum Opinion and Order,* the term "Ka-Band"
    refers to the 18.6-18.8 GHz, 19.7-20.2 GHz, 28.4-28.6 GHz
    (Earth-to-space, and 29.5-30.0 GHz (Earth-to-space) frequency bands.

[^2]: As used in this *Memorandum Opinion and Order,* the term "Ku-Band"
    refers to the 11.7-12.2 GHz (downlink) and 14.0-14.5 GHz (uplink)
    frequency bands.

[^3]: See Policy Branch Information, Actions Taken, Public Notice,
    Report No. SAT-00239, DA 04-2884 (rel. Sept. 3, 2004), disclosing
    action on File No. SAT-MOD-20040227-00022 (granted Sept. 2, 2004).

[^4]: SES Americom, Inc. and EchoStar Satellite LLC, *Order and
    Authorization*, 21 FCC Rcd 3430 (Int'l Bur. 2006) (*AMC-16 Ku-band
    Order*). *See also* Information Bulletin, Industry Canada Awards
    Satellite Licence
    \<<http://www.ic.gc.ca/cmb/Welcomeic.nsf/cdd9dc973c4bf6bc852564ca006418a0/85256a220056c2a485256a7200513218>

[^5]: The letters are attached as Annex A to the *AMC-16 Ku-band Order*.

[^6]: *See* Application by SES Americom, Inc. for Modification of AMC-16
    Fixed Satellite Space Station License, File No
    SAT-MOD-20060929-00113 (AMC-16 Ka-band Application) at p. 3.

[^7]: In 2005, the International Bureau granted EchoStar authority for
    earth station facilities in the United States to communicate with
    Anik F3. EchoStar Satellite LLC Application for Blanket
    Authorization to operate 1,000,000 Receive-Only Earth Stations,
    *Order and Authorization*, DA 05-3227 (Int'l Bur. 2005) (granting
    EchoStar a blanket authorization for one million receive-only earth
    stations to receive Ku-band DTH service from Telesat Canada's Anik
    F3 space station, licensed by Industry Canada at the 118.7° W.L.
    orbital location).

[^8]: The term "local-into-local," as used in this Order, refers to
    provision via satellite retransmission of local broadcast channels
    to subscribers who reside in the local TV station's market, which is
    defined as a Designated Market Area, or "DMA." *See* 17 U.S.C. § 122
    (j)(2)(A).

[^9]: Telesat Canada Petition for Declaratory Ruling for Inclusion of
    ANIK F3 on the Permitted Space Station List, *Order*, DA 06-XXXX
    (Int'l Bur., Sat. Div. 20XX).

[^10]: The 118.75º W.L. orbital location requested by SES Americom for
    AMC-16 is within .1 degree of the 118.7º W.L. orbital location
    assigned to Canada under the *1988 Trilateral Arrangement*.
    Trilateral Arrangement Regarding Use of the Geostationary Orbit
    Reached by Canada, Mexico, and the United States, *Public Notice*
    (Sept. 2, 1988) (*1988 Trilateral Arrangement*). *See also*
    International Telecommunication Union (ITU) Radio Regulations
    Article 22 (± .1 degree station keeping).

[^11]: SES Americom Application for Modification of the AMC-16
    Fixed-Satellite Service Space Station, File No.
    SAT-MOD-20050621-00132 at pp. 3-4.

[^12]: *AMC-16 Ku-band Order*, 21 FCC Rcd at 3431.

[^13]: 47 C.F.R. § 25.161(c).

[^14]: *AMC-16 Ku-band Order*, 21 FCC Rcd at 3434.

[^15]: AMC-16 Ka-band Application at p. 6.

[^16]: AMC-16 Ka-band Application at Declaration of Trevor Lewis.

[^17]: Id.

[^18]: See Policy Branch Information, Actions Taken, Public Notice,
    Report No. SAT-00391, DA 06-1963 (rel. Sept. 29, 2006), disclosing
    action on Application by SES Americom, Inc. for Special Temporary
    Authority to Operate the AMC-16 Ka-band Payload at 118.75º W.L.,
    File No. SAT-STA-20060921-00108 (granted Sept. 22, 2006).

[^19]: SES Americom has requested an additional STA for Ka-band service
    at the 118.75º W.L. orbital location. That request remains pending.
    *See* File No. SAT-STA-20061117-00141.

[^20]: Policy Branch Information, Satellite Space Applications Accepted
    for Filing, *Public Notice*, Report No. SAT-00394 (rel. Oct. 13,
    2006).

[^21]: 47 C.F.R. § 25.161(c).

[^22]: *AMC-16 Ku-band Order*, 21 FCC Rcd at 3434.

[^23]: AMC-16 Ka-band Application at pp. 13-14.

[^24]: *AMC-16 Ku-band Order*, 21 FCC Rcd at 3434 (citing VisionStar
    Incorporated, *Memorandum Opinion and Order*, 19 FCC Rcd 14820,
    14825 ¶ 12 (Int'l Bur. 2004); and Tempo Satellite, Inc., *Memorandum
    Opinion and Order*, 13 FCC Rcd 11069, 11072 ¶ 10 (Int'l Bur. 1998)).

[^25]: 47 C.F.R. § 1.3.

[^26]: Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1166 (D.C. Cir.
    1990).

[^27]: WAIT Radio v. FCC, 418 F.2d 1153, (D.C. Cir. 1969); Dominion
    Video Satellite, Inc., *Order and Authorization,* 14 FCC Rcd 8182
    (Int'l Bur. 1999).

[^28]: AMC-16 Ka-band Application at p. 7.

[^29]: AMC-16 Ka-band Application at p. 15.

[^30]: *Compare AMC-16 Ku-band Order*, 21 FCC Rcd 3430 (service to U.S.
    DTH subscribers); EchoStar 4 satellite, EchoStar Satellite LLC,
    *Order and Authorization*, 21 FCC Rcd 4077 (Int'l Bur. Sat. Div.
    2006) (potential service to U.S. from a location that would be
    assigned to Mexico in an ITU \"planned\" band); DIRECTV 2 satellite,
    Policy Branch Information, Actions Taken, Public Notice, Report No.
    SAT-00340, DA 06-194 (rel. Jan. 27, 2006), disclosing action on File
    No. SAT-STA-20051018-00201 (U.S. satellite transferred in order to
    provide back-up to established and ongoing Canadian service);
    DIRECTV 1 satellite, DIRECTV Enterprises LLC, *Order and
    Authorization*, 20 FCC Rcd 11772 (Sat. Div. 2005) (service to U.S.
    DTH subscribers from orbital location assigned to Canada in ITU
    \"planned\" band); EchoStar 5 satellite, EchoStar Satellite LLC,
    *Order and Authorization,* 20 FCC Rcd 11755 (Int'l Bur. Sat. Div.
    2005) (service to U.S. DTH subscribers from orbital location
    assigned to Canada in ITU \"planned\" band); DIRECTV 5 satellite,
    DIRECTV Enterprises LLC, *Order and Authorization*, 19 FCC Rcd 15529
    (Int'l Bur. Sat. Div. 2004) (service to U.S. DTH subscribers from
    orbital location assigned to Canada in ITU \"planned\" band);
    DIRECTV 3 satellite, DIRECTV, Inc., *Order*, 19 FCC Rcd 11055 (Int'l
    Bur. Sat. Div. 2004) (U.S. satellite transferred in order to provide
    back-up to established and ongoing Canadian service); Galaxy III-R
    satellite, File No. SAT-STA-20030609-00099 (U.S. satellite
    transferred in order to avoid disruption to long-established
    Canadian Ku-band service, at location and frequencies coordinated
    under the *1988 Trilateral Arrangement*).