**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C.** **20554**

)

In the Matter of )

)

Telesat Canada )

Request for Declaratory Ruling or Petition for )

Waiver on Earth Stations\' Use of ANIK E1 and )

ANIK E2 Satellite Capacity to Provide Basic ) File No. 116-SAT-STA-98

Telecommunications Service in the United States )

)

**ORDER**

Adopted: December 8, 1999 Released: December 9, 1999

By the Chief, International Bureau:

**I. INTRODUCTION**

1\. In this Order, we add Telesat Canada\'s (Telesat\'s) ANIK E1 and
ANIK E2 satellites, located at the 111.1º W.L. and 107.3º W.L. orbit
locations, respectively, to the \"Permitted Space Station\" list. The
Permitted Space Station list denotes all satellites with which U.S.
earth stations with \"routinely\" authorized technical parameters are
permitted to communicate without additional Commission action, provided
that those communications fall within the same technical parameters and
conditions established in the earth stations\' licenses. The Commission
recently established the \"Permitted Space Station\" list in the *DISCO
II First Reconsideration Order*.[^1] This list is intended to streamline
the process by which foreign-licensed satellites can access the U.S.
market, and as a result, stimulate competition in the United States,
provide consumers more alternatives in choosing communications providers
and services, reduce prices, and facilitate technological innovation.
ANIK E1 and ANIK E2 are the first non-U.S. satellites to be placed on
the Permitted Space Station list.

**II. BACKGROUND**

2\. The Commission\'s *DISCO II* *Order* adopted a framework under which
the Commission would consider requests for non-U.S. satellite systems to
serve the United States. To implement this framework, the Commission,
among other things, established a procedure by which a service provider
in the United States could request immediate access to a foreign
in-orbit satellite that would serve the U.S. market.[^2] This procedure
requires a U.S. earth station operator seeking to communicate with a
non-U.S. space station to file an earth station application for an
initial license or a modification to an existing earth station license
that specifically lists the foreign satellite as a permitted \"point of
communication.\"[^3] To determine whether the non-U.S. satellite
complies with all applicable Commission requirements, the earth station
application must be accompanied by the same detailed information about
the non-U.S. space station and its operations that the Commission
requires U.S. space station applicants to provide. Specifically, each
application must contain the information required in Section 25.114 of
the Commission\'s rules, which governs applications for space station
authorizations.[^4]

3\. On April 27, 1998, Telesat requested that the Commission issue a
declaratory ruling or grant a petition for waiver of the Commission\'s
earth station licensing procedures to permit U.S. earth stations to
access the Canadian ANIK E1 and ANIK E2 satellites without requiring
earth station licensees to file modification applications to add these
satellites as authorized points of communication. Telesat notes that
many U.S. earth station licenses permit licensees to communicate with
\"ALSAT,\" meaning \"all U.S.-licensed satellites.\" Telesat requests us
to broaden the scope of \"ALSAT\" to include the ANIK E1 and ANIK E2
satellites.

4\. In the *DISCO* *II First Reconsideration Order*, the Commission
specified a new procedure by which non-U.S. fixed-satellites operating
in the conventional C- and Ku-bands may serve the U.S. market.[^5] Under
this procedure, once a non-U.S. space station is permitted to access the
U.S. market, it is placed on the \"Permitted Space Station\" list upon
the applicant\'s request. This list will include all satellites with
which U.S. earth stations with routinely-authorized technical parameters
are permitted to communicate without additional Commission action,
provided that those communications fall within the same technical
parameters and conditions established in the earth stations\' original
licenses.[^6] The Permitted Space Station list will be maintained on our
website, and will also be available via fax or e-mail.[^7]

5\. In the *DISCO II First Reconsideration Order*, the Commission did
not address issues specific to ANIK E1 and ANIK E2, but said we would
address them in a separate proceeding.[^8] We act on Telesat\'s petition
regarding ANIK E1 and ANIK E2 in this Order. GE American Communications,
Inc. (GE Americom) filed an opposition to Telesat\'s petition to include
ANIK E1 and ANIK E2 in any \"ALSAT\"-like designation.[^9] JFL
Communications, Inc. (JFL) filed comments supporting Telesat\'s
petition. Telesat filed a reply to GE Americom\'s opposition.

**III. DISCUSSION**

**A. General Framework**

6\. In *DISCO II*, the Commission set forth the public interest analysis
applicable in evaluating applications to use non-U.S. licensed space
stations to provide satellite service in the United States. This
analysis considers the effect on competition in the United States,[^10]
spectrum availability,[^11] eligibility and operating (*e.g.*,
technical) requirements,[^12] and national security, law enforcement,
foreign policy, and trade concerns.[^13] We evaluate the ANIK E1 and
ANIK E2 requests under this framework.

**B. Competition Considerations**

7\. In *DISCO II*, the Commission established a rebuttable presumption
in favor of entry by non-U.S. satellites licensed by World Trade
Organization (WTO) Members to provide services covered by the U.S.
commitments under the WTO Agreement on Basic Telecommunications Services
(WTO Basic Telecom Agreement).[^14] These commitments included
fixed-satellite service, except for direct-to-home (DTH) service. The
Commission concluded that the market access commitments made by WTO
Members under the WTO Basic Telecom Agreement will help ensure the
presence and advancement of competition in the satellite services market
and yield the benefits of a competitive marketplace to consumers in the
United States and other countries.[^15] In this case, the presumption in
favor of entry is applicable to Telesat, because Canada is a WTO Member,
and Telesat will use ANIK E1 and ANIK E2 to provide fixed-satellite
services, excluding DTH services, in the conventional C- and
Ku-bands.[^16] No commenter in this proceeding has presented any
arguments to rebut this presumption.

8\. Nevertheless, GE Americom opposes treating ANIK E1 and ANIK E2 as
\"ALSAT\" because it claims that Canada has not sufficiently opened its
market to entry by foreign space station operators. GE Americom
maintains that Telesat is the only authorized fixed-satellite service
provider in Canada.[^17] Although GE Americom notes that Telesat\'s
monopoly is scheduled to end on March 1, 2000, it claims that Industry
Canada had proposed to require all new entrants into the Canadian market
to serve all of Canada, including Northern Canada. GE Americom argues
further that this \"All Canada\" requirement would be an unreasonable
barrier to entry by non-Canadian providers into the Canadian market, and
so would tend to perpetuate Telesat\'s monopoly in the Canadian
market.[^18]

9\. In *DISCO II*, the Commission adopted the presumption in favor of
entry in lieu of the \"Effective Competitive Opportunities for
Satellites\" test (\"ECO-Sat test\") it had originally proposed in the
*DISCO II Notice of Proposed Rulemaking*. [^19] The ECO-Sat test
requires parties to demonstrate that U.S.-licensed satellite systems
have effective competitive opportunities in foreign markets.[^20] The
Commission adopted a presumption in favor of entry for WTO-Member
satellites providing WTO-covered services, after concluding that market
access commitments made by WTO Members under the WTO Basic Telecom
Agreement and the general procompetitive obligations of WTO Members
under the General Agreement on Trade in Services (GATS) would enhance
competition in the U.S. satellite services market. [^21] GE Americom is,
in effect, requesting us to conduct an ECO-Sat test, and to ignore the
presumption in favor of entry that the Commission adopted in *DISCO II*
and that is applicable here. Moreover, we note that subsequent to the
close of the pleading cycle in this proceeding, Industry Canada adopted
a policy framework for evaluating the provision of fixed satellite
services in the Canadian market that does not include an \"All Canada\"
requirement.[^22] We find, therefore, that under the *DISCO II*
presumption in favor of entry, GE Americom has failed to meet its burden
to demonstrate competitive harm in the United States. We thus find that
granting Telesat entry into the U.S. satellite market will further
competition in the United States.

**C. Spectrum Availability**

10\. In *DISCO II*, the Commission determined that, given the scarcity
of orbit and spectrum resources, it would consider spectrum availability
as a factor in determining whether to allow a foreign satellite to serve
the United States.[^23] This is consistent with the Chairman\'s Note to
the WTO Basic Telecom Agreement, which states that WTO Members may
exercise their domestic spectrum/frequency management policies when
considering foreign entry.

11\. In this case, the ANIK E1 and ANIK E2 satellites are located at
orbital positions agreed to in a trilateral agreement among the United
States, Canada, and Mexico. Consequently, the Commission has not
licensed satellites at these locations. Allowing the ANIK E1 and E2
satellites to serve the United States from their respective orbit
locations will not affect operations of any U.S.-licensed satellites nor
contravene the Commission\'s spectrum/frequency management policies.

**D. Eligibility Requirements**

**1. Legal and Financial Qualifications**

12\. In *DISCO II*, the Commission stated it would require non-U.S.
space station operators to meet the same technical, legal, and financial
qualifications that U.S.-licensed space station operators must meet to
obtain a license.[^24] In this case, we need not, however, require
Telesat to demonstrate its financial qualifications to construct and
launch satellites, because ANIK E1 and ANIK E2 are already in
orbit.[^25]

13\. With respect to legal qualifications, Telesat states that it will
abide by the Commission\'s rules and policies regarding the provision of
satellite services in the United States.[^26] Nothing in the record
questions this representation.[^27] Accordingly, we conclude that
Telesat has adequately demonstrated its legal and financial
qualifications.

**2. Technical Qualifications**

14\. The Commission\'s satellite licensing policy is predicated upon
two-degree orbital spacing between geostationary satellites.[^28] This
policy permits the maximum use of the geostationary satellite
orbit.[^29] Applicants must demonstrate that they comply with the
Commission\'s technical requirements, designed to permit two-degree
orbital spacing, before being authorized to provide service in the
United States. The Commission may license satellites that are not
two-degree compliant (or earth stations seeking to access such), but
only when the applicants can demonstrate that their operations will
cause no harmful interference to existing compliant satellite
operations. Further, non-conforming operations are authorized
conditioned upon a licensee accommodating future satellite networks
serving the United States that are two-degree compliant.[^30]

15\. Telesat states that it has completed coordination internationally
for the ANIK E1 and ANIK E2 satellites.[^31] Accordingly, Telesat is not
required to submit technical information for ANIK E1 and ANIK E2.[^32]
Based on the information exchanged with Canada during the coordination,
we can determine that the ANIK E1 and ANIK E2 satellites will not cause
harmful interference to U.S.-licensed satellites, the nearest of which
is more than two degrees away. Absent the more detailed technical
information required by Section 25.114 of the Commission\'s rules,[^33]
however, we cannot determine whether these satellites can operate
interference-free in a two-degree spacing environment. Accordingly,
consistent with our treatment of U.S.-licensed systems, we permit
ALSAT-designated earth stations to communicate with the ANIK E1 and ANIK
E2 satellites to provide service in the United States, on a
non-interference basis relative to two-degree-compliant satellite
systems currently in operation.

16\. Further, the ANIK E1 and ANIK E2 satellites are located at orbital
positions subject to a trilateral agreement among the United States,
Canada, and Mexico.[^34] Based on that agreement, we do not expect these
satellites to cause harmful interference to any U.S. or foreign licensed
satellite network now serving the United States. In the future, however,
should the Commission authorize access to the U.S. market by a satellite
that is two-degree-compliant, and is located within two degrees of the
ANIK E1 or ANIK E2 satellites, Telesat would be expected to coordinate
in good faith with the licensee of that satellite. If a coordination
agreement is not reached, the operation of U.S. earth stations
communicating with the ANIK E1 or ANIK E2 satellites must be on a
non-interference basis relative to U.S. services provided by the
compliant satellite.

17\. Finally, Telesat recognizes that earth stations accessing ANIK E1
with a Ku-band uplink originating in the United States must \"use a
sufficiently large antenna\" to comply with the input power density
requirements of Section 25.212(c) of the Commission\'s rules.[^35]
Section 25.212(c) establishes a minimum antenna diameter of 1.2 meters
for routine licensing of Ku-band earth stations operating within certain
power density requirements.[^36] Because only routinely licensed
antennas are permitted to access space stations on the \"Permitted
List,\" [^37] smaller antennas cannot automatically access ANIK E1
without further Commission action. To ensure that there is no confusion
in this regard, we will include in the Permitted List entry for ANIK E1
a condition that requires earth stations to comply with Section
25.212(c), including the 1.2-meter minimum size standard, in order to
access ANIK E1.

**E. Other Issues**

18\. As described above, under *DISCO II*, national security, law
enforcement, foreign policy, and trade concerns are included in the
public interest analysis.[^38] No party objected to the authorization we
grant today on these grounds.

**IV. ORDERING CLAUSES**

19\. Accordingly, IT IS ORDERED that, pursuant to Sections 303(r), 308,
309, and 310 of the Communications Act of 1934, as amended, 47 U.S.C. §§
303(r), 308, 309, 310, and Sections 25.121(a) and 25.137(c) of the
Commission\'s rules, 47 C.F.R. §§ 25.121(a), 25.137(c), each earth
station with \"ALSAT\" designated as a point of communication, IS
GRANTED authority to provide Fixed Satellite Services (FSS), excluding
FSS Direct-to-Home services, to, from, or within the United States, by
accessing the ANIK E1 and ANIK E2 satellites, located at the 111.1° W.L.
and 107.3° W.L. orbit locations, respectively, the subject to the
conditions set forth in its earth station license and in this Order
above.

21\. IT IS FURTHER ORDERED that the ANIK E1 and ANIK E2 satellites,
together with the conditions set forth in this Order, SHALL BE PLACED on
the \"Permitted Space Station\" list.

22\. IT IS FURTHER ORDERED that this authorization does not authorize
Telesat to provide any Direct-to-Home (DTH) service, Direct Broadcast
Satellite (DBS) service, or Digital Audio Radio Service (DARS) to, from,
or within the United States.

23\. IT IS FURTHER ORDERED that access to ANIK E1 and ANIK E2 shall be
in compliance with the satellite coordination agreements reached between
the United States and Canada regarding the operations of ANIK E1 and
ANIK E2.

24\. IT IS FURTHER ORDERED that operations over the ANIK E1 and ANIK E2
satellite networks shall not cause harmful interference to, nor shall
operators accessing these satellite networks claim protection from, U.S.
services provided by U.S.-authorized satellite networks that are
compliant with the Commission\'s two-degree spacing rules.

25\. IT IS FURTHER ORDERED that operations over the ANIK E1 and ANIK E2
satellite networks shall not cause harmful interference to, nor shall
operators accessing these satellite networks claim protection from,
U.S.-authorized services provided over non-U.S.-authorized satellite
networks that are compliant with the Commission\'s two-degree spacing
rules.

26\. IT IS FURTHER ORDERED that operations over and access to the ANIK
E1 and ANIK E2 satellite networks shall cease immediately upon
notification of harmful interference. Complaints of all radio
interference shall be forwarded to the Commission in writing.

27\. IT IS FURTHER ORDERED that this Order is issued pursuant to
Sections 0.261 and 25.137 of the Commission\'s rules on delegations of
authority, 47 C.F.R. §§ 0.261, 25.137. This Order SHALL BE effective
upon the date that the rule revisions adopted in the *DISCO II First
Reconsideration Order*, FCC 99-325, take effect. Petitions for
reconsideration under Section 1.106 or applications for review under
Section 1.115 of the Commission\'s rules, 47 C.F.R. §§ 1.106, 1.115, may
be filed within 30 days of the effective date of this Order.

FEDERAL COMMUNICATIONS COMMISSION

Donald Abelson

Chief, International Bureau

[^1]: 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, Order, IB
    Docket No. 96-111, FCC 99-325 (released Oct. 29, 1999) (*DISCO II
    First Reconsideration Order*).

[^2]: ^?^ Amendment of the Commission\'s Regulatory Policies to Allow
    Non-U.S. Licensed Satellites Providing Domestic and International
    Service in the United States, Report and Order, IB Docket No.
    96-111, 12 FCC Rcd 24094, 24174 (para. 186) (1997) (*DISCO II*). For
    a more detailed summary of the *DISCO II* framework, see *DISCO II
    First Reconsideration Order* at paras. 4-5.

[^3]: ^?^ *DISCO II*, 12 FCC Rcd at 24174 (para. 188). Subsequent earth
    station licensees are permitted to seek modifications of their
    licenses to add that space station as a permitted \"point of
    communication,\" without providing supporting documentation,
    provided that those earth stations communicate using the same
    technical parameters and operate under the same conditions applied
    to the first earth station licensee. *DISCO II*, 12 FCC Rcd at 24176
    (para. 192). In the *DISCO II First Reconsideration Order*, the
    Commission explained that these \"technical parameters\" include all
    the technical requirements of Part 25 of the Commission\'s rules,
    including but not limited to frequency bands, effective
    isotropically radiated power (e.i.r.p.), density, polarization,
    power, and emission characteristics. *DISCO II First Reconsideration
    Order* at para. 5 n.17. The Commission also explained that the ALSAT
    framework does not eliminate the need for an earth station or space
    station to request authority to make technical changes to its
    facility where those changes require prior Commission approval under
    Sections 25.117 and 25.118 of the Commission\'s rules. *DISCO II
    First Reconsideration Order* at para. 13 n.31.

[^4]: ^?^ *See generally* 25 C.F.R. § 25.137; *DISCO II*, 12 FCC Rcd at
    24174 (para. 188). The Commission does not require the non-U.S.
    space station operator to submit technical information if it has
    completed the coordination process with the United States, or to
    submit financial information if the satellite has been launched.
    *See* 25 C.F.R. § 25.137(b); *DISCO II*, 12 FCC Rcd at 24175-76
    (para. 191).

[^5]: ^?^ The conventional C- and Ku-bands are 3700-4200 MHz and
    5925-6425 MHz, and 11.7-12.2 GHz and 14.0-14.5 GHz, respectively.

[^6]: ^?^ *DISCO II First Reconsideration Order* at paras. 16-20.

[^7]: ^?^ *Id.* at para. 19.

[^8]: ^?^ *Id.* at para. 7 n.20.

[^9]: ^?^ Loral Space and Communications LTD (Loral) also opposed
    Telesat\'s petition, but later withdrew its opposition. *See* Letter
    from John P. Stern, Associate General Counsel, Loral, to Magalie
    Roman Salas, Secretary, Federal Communications Commission, dated
    Nov. 8, 1999.

[^10]: ^?^ *DISCO II*, 12 FCC Rcd at 24107-24156 (paras. 30-145).

[^11]: ^?^ *Id.* at 24157-59 (paras. 146-50).

[^12]: ^?^ *Id.* at 24159-69 (paras. 151-74).

[^13]: ^?^ *Id.* at 24169-72 (paras. 175-82).

[^14]: ^?^ *Id.* at 24112 (para. 39).

[^15]: ^?^ *Id.*

[^16]: ^?^ Telesat Petition at 1 n.3.

[^17]: ^?^ GE Americom Opposition at 1-2.

[^18]: ^?^ GE Americom Opposition at 2-3.

[^19]: ^?^ Amendment of the Commission\'s Regulatory Policies to Allow
    Non-U.S.-Licenced Space Stations to Provide Domestic and
    International Satellite Service in the United States, Notice of
    Proposed Rulemaking, IB Docket No. 96-111, 11 FCC Rcd 13178, 18180
    (para. 2) (1996) (*DISCO II Notice of Proposed Rulemaking*).

[^20]: ^?^ *DISCO II*, 12 FCC Rcd at 24112-13 (para. 40); 47 C.F.R. §
    25.137(a).

[^21]: ^?^ *DISCO II*, 12 FCC Rcd at 24112-13 (paras. 39-40).

[^22]: ^?^ Industry Canada, Policy Framework for the Provision of Fixed
    Satellite Services, R-008, DGTP-019-98, December 1998. This document
    is available via the Internet at the following address:
    http://www.strategis.ic.gc.ca/spectrum.

[^23]: ^?^ *DISCO II*, 12 FCC Rcd at 24159 (para. 150).

[^24]: ^?^ *Id.* at 24161-63 (paras. 154-59).

[^25]: ^?^ *Id.* at 24176 (para. 191) (financial qualification showing
    is not required for in-orbit satellite); Telesat Petition at 5 n.12.

[^26]: ^?^ Telesat Petition at 6.

[^27]: ^?^ *See DISCO II*, 12 FCC Rcd at 24162 (para. 158).

[^28]: ^?^ For more information regarding the Commission\'s two-degree
    spacing policy, see Licensing Space Stations in the Domestic
    Fixed-Satellite Service, 48 F.R. 40233 (Sept. 6, 1983).

[^29]: ^?^ Assignment of Orbital Locations to Space Stations in the
    Domestic Fixed-Satellite Service, 11 FCC Rcd 13788, 13790 (para. 6)
    (1996). Prior to the Commission\'s adoption of the two-degree
    spacing policy, satellites in the geostationary satellite orbit were
    usually spaced three or four degrees apart. By adopting rules that
    enabled satellite operators to place their space stations two
    degrees apart, the Commission was able to accommodate more
    geostationary satellites.

[^30]: ^?^ *See*, *e.g.*, Systematics General Corporation, Order and
    Authorization, 2 FCC Rcd 7550, 7550-51 (para. 9) (Com. Car. Bur.
    1987); New Skies Satellites, N.V., Order and Authorization, 14 FCC
    Rcd 13003, 13038 (para. 78) (1999).

[^31]: ^?^ Telesat Petition, Exh. 3.

[^32]: ^?^ *DISCO II*, 12 FCC Rcd at 24176 (para. 191) (non-U.S.
    satellite operators are not required to submit technical information
    for satellites for which international coordination has been
    completed).

[^33]: ^?^ 47 C.F.R. § 25.114.

[^34]: ^?^ *See* Public Notice, Trilateral Arrangement Regarding Use of
    the Geostationary Orbit Reached by Canada, Mexico, and the United
    States (Sept. 2, 1988).

[^35]: ^?^ Telesat Petition, Exh. 1 at 5.

[^36]: ^?^ 47 C.F.R. § 25.212(c). The Commission determined that Ku-band
    earth stations with antennas smaller than 1.2 meters in diameter may
    cause or receive interference in a two-degree spacing environment.
    This is because, in general, the smaller the antenna, the higher the
    transmission powers must be to and from the geostationary satellite.
    Unless other technical measures are used to offset these higher
    powers, interference is likely. Consequently, applications for earth
    stations with smaller antennas must be evaluated on a case-by-case
    basis rather than licensed routinely. Streamlining the Commission\'s
    Rules and Regulations for Satellite Application and Licensing
    Procedures, Report and Order, 11 FCC Rcd 21581, 21597-98 (para. 39)
    (1996).

[^37]: ^?^ *See DISCO II First Reconsideration Order* at para. 16 (all
    future routinely licensed earth stations will be allowed to access
    any satellite on the Permitted Space Station list); para. 17
    (existing ALSAT-designated earth stations that are not two-degree
    compliant, *i.e.* are not \"routinely licensed,\" must show that
    operation of that earth station will not cause more interference
    than would be caused by a two-degree-compliant earth station).

[^38]: ^?^ *DISCO II*, 12 FCC Rcd at 24170-72 (paras. 178-82).