**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

)

DIRECTV Enterprises, LLC ) IBFS File Nos.

) SAT-LOA-20060908-00100

Application for 17/24 GHz BSS ) SAT-AMD-20080321-00077

Satellite at 102.825° W.L. ) SAT-AMD-20080114-00014

)

) Call Sign: S2712

)

Spectrum Five LLC ) SAT-LOI-20081119-00217

Petition for Declaratory Ruling )

) Call Sign: S2778

**DECLARATORY RULING**

Adopted: January 16, 2009 Released: January 16, 2009

By the Chief, International Bureau:

**I. INTRODUCTION**

1 In this Order, we grant Spectrum Five LLC\'s (Spectrum Five\'s)
petition for declaratory ruling, in part, to the extent that Spectrum
Five seeks a declaration that a satellite proposed by DIRECTV
Enterprises, LLC (DIRECTV) in the 17/24 GHz Broadcast Satellite Service
(BSS) at the 102.825° W.L. orbital location would not comply with the
Commission\'s rules for such satellites.[^1] As a result, we find that
DIRECTV\'s application for a 17/24 GHz BSS satellite at the 102.825°
W.L. orbital location must be dismissed as defective.[^2]

**II. BACKGROUND**

2 The 17/24 GHz BSS service will introduce a new generation of broadband
services to the public, providing a mix of local and domestic video,
audio, data, video-on-demand, and multi-media services to U.S.
consumers. In some cases, these services will complement existing Direct
Broadcast Satellite (DBS) services.[^3]

3 In May 2007, the Commission adopted an Order establishing service
rules for the 17/24 GHz BSS.[^4] In that Order, the Commission also
determined how to address the pending 17/24 GHz BSS applications filed
by four applicants, including DIRECTV.[^5] Specifically, the Commission
decided to treat all the pending applications as filed
simultaneously.[^6] To implement its decision, the Commission directed
the International Bureau (Bureau) to release a Public Notice shortly
after the 17/24 GHz BSS rules become effective, inviting applicants to
amend the then pending applications to be consistent with those
rules.[^7] The Commission stated that applicants could amend their
choice of orbital locations, consistent with the 17/24 GHz BSS spacing
rules set forth in Appendix F of the *May 4 Order*, to reduce the
likelihood of mutual exclusivity.[^8]

4 In a *Reconsideration Order* released on September 28, 2007, the
Commission provided space station operators additional flexibility.[^9]
In that Order, the Commission recognized that, until all conforming
amendments were filed, an applicant requesting authority to operate a
full-power satellite at an offset location would not know whether
another applicant has requested authority to operate a satellite at an
adjacent Appendix F location.[^10] The Commission decided to provide
applicants facing such a situation a second opportunity to amend its
application. An applicant seeking to operate a full-power space station
with full interference protection at a location offset from an Appendix
F location by up to one degree may file a second amendment, if another
entity has filed a conflicting application for the adjacent Appendix F
location or its associated offsets.[^11] No other applicants were
permitted to file second amendments.[^12] In addition, second amendments
were limited to: (1) requests to change the proposed orbital location
from the offset location or its associated offsets to the Appendix F
orbital location from which it was offset, or (2) requests to reduce
power and to operate with reduced interference protection at the offset
location.[^13] Again, the Commission noted that the Bureau will dismiss
as defective any amended applications that are not substantially
complete.[^14]

5 The Bureau released the Public Notice establishing deadlines for
amendments to the pending 17/24 GHz applications in December 2007.[^15]
The deadline for the first amendments was January 14, 2008, and the
deadline for the second amendments was February 13, 2008. Consistent
with the Commission\'s Orders, the Bureau stated that any amended
application that was defective would be dismissed.[^16]

6 DIRECTV filed its first amendment to its application for a satellite
at the 102.825° W.L. location within the January 14, 2008 deadline.
Specifically, because it planned to operate at an offset orbit location,
DIRECTV amended its application to reduce the power flux density (PFD)
of its proposed satellite as required by the Commission\'s 17/24 GHz BSS
rules.[^17] DIRECTV did not file any second amendment, as was permitted
by the *December 5 Public Notice*.[^18]

7 On November 19, 2008, Spectrum Five filed a petition for declaratory
ruling seeking a finding that DIRECTV\'s application for a 17/24 GHz BSS
satellite at the 102.825° W.L. location is defective. DIRECTV responded
to Spectrum Five\'s petition on December 8, 2008. Spectrum Five filed a
reply on December 19, 2008. For the reasons set forth below, we grant
Spectrum Five\'s petition in part.[^19]

**III. DISCUSSION**

8 Spectrum Five objects to the methodology DIRECTV used to calculate the
reduction in power required for it to operate its satellite at its
proposed offset location.[^20] Spectrum Five argues that DIRECTV\'s
supporting technical analysis improperly took into account atmospheric
loss when calculating the power levels under \"clear sky conditions\"
pursuant to Section 25.202(w) of the Commission\'s rules.[^21] Spectrum
Five argues that, when calculating power under \"clear sky conditions,\"
atmospheric loss should not be included. This is because, according to
Spectrum Five, including atmospheric loss assumes that clouds and other
moisture effects in the atmosphere will limit interference in all places
and at all times.[^22]

9 In contrast, DIRECTV argues that Section 25.208 uses two unique terms
regarding the methodology for calculating PFD, \"free space conditions\"
and \"clear sky conditions.\" Based on the use of these two different
terms, DIRECTV asserts that they have two separate meanings.
Specifically, DIRECTV contends that \"clear sky conditions\" include
atmospheric loss factors, while \"free space conditions\" exclude those
factors.[^23] Although DIRECTV concedes that it should have excluded
\"cloud cover\" from its analysis, it also asserts that removing this
factor from its analysis yields a result that is still below the maximum
power limit specified in the rule.[^24] Therefore, DIRECTV asserts that
its application is not deficient.[^25]

10 In its reply, Spectrum Five disagrees with DIRECTV\'s assertion that
the power level of its proposed satellite complies with the
Commission\'s rules for such satellites.[^26] Spectrum Five claims that,
because DIRECTV improperly relies on atmospheric loss factors in its
analysis to mitigate some interference, DIRECTV understates the
interference effect of its proposed satellite.[^27] As a result,
according to Spectrum Five, DIRECTV\'s technical showing is not
adequate, and DIRECTV has not shown that its satellite will comply with
the Commission\'s power rules.[^28]

11 We find Spectrum Five to be persuasive here. The use of atmospheric
loss assumes that clouds and other moisture effects in the atmosphere
will limit interference in all places and at all times. However, as
Spectrum Five observes, these atmospheric effects vary over time and
location.[^29] Spectrum Five states that DIRECTV\'s reliance on
atmospheric loss obscures the fact that DIRECTV\'s satellite will be
operated at a PFD level 13 percent greater than that permitted by the
Commission\'s rules.[^30] It follows that DIRECTV\'s 17/24 GHz BSS
satellite proposed for the 102.825° W.L. Orbit Location exceeds the
reduced power level required by the Commission\'s rules for a satellite
to be operated at an offset location.[^31] Therefore, DIRECTV\'s
application is defective, and must be dismissed.[^32]

12 Spectrum Five points out that its application is next-in-line for the
nominal 103° W.L. orbit location, after DIRECTV\'s application is
dismissed as defective.[^33] Spectrum Five proposes to operate a
Netherlands-licensed satellite at the 103.15° W.L. orbit location.[^34]
Spectrum Five further proposes to operate at a reduced power level so
that a 17/24 GHz BSS satellite at 107° W.L. would not experience any
more interference than it would from a full-power satellite at the 103°
W.L. orbit location.[^35] We will place this request on public notice,
and consider it in a future Order.

**IV. ORDERING CLUASES**

13 Accordingly, IT IS ORDERED, that the DIRECTV application for a 17/24
GHz BSS satellite to be operated at the 102.825° W.L. Orbit Location IS
DEFECTIVE and must be returned to the applicant.

14 IT IS FURTHER ORDERED that the petition for declaratory ruling filed
by Spectrum Five LLC is GRANTED IN PART, to the extent indicated above.

FEDERAL COMMUNICATIONS COMMISSION

Helen Domenici

Chief, International Bureau

[^1]: The Establishment of Policies and Service Rules for the
    Broadcasting-Satellite Service at the 17.3-17.7 GHz Frequency Band
    and at the 17.7-17.8 GHz Frequency Band Internationally, and at the
    24.75-25.25 GHz Frequency Band for Fixed Satellite Services
    Providing Feeder Links to the Broadcasting-Satellite Service and for
    the Satellite Services Operating Bi-directionally in the 17.3-17.8
    GHz Frequency Band, *Report and Order and Further Notice of Proposed
    Rulemaking,* IB Docket No. 06-123, FCC 07-76 (released May 4, 2007)
    (*May 4 Order*). In this item, the term "17/24 GHz BSS" generally
    refers to the broadcasting-satellite service operating on
    space-to-Earth (downlink) frequencies in the 17.3-17.8 GHz band and
    the corresponding Earth-to-space (uplink) frequencies in the
    24.75-25.25 GHz band.

[^2]: Spectrum Five\'s petition for declaratory ruling also requests a
    finding that allowing it to enter the U.S. market with a
    non-U.S.-licensed satellite at the 103.15° W.L. would further the
    public interest. We will consider this request in a further Order.

[^3]: *May 4 Order* at para. 1.

[^4]: *May 4 Order* at para. 1.

[^5]: *May 4 Order* at paras. 140-146. The other three applicants were
    Pegasus Development DBS Corp. (Pegasus), EchoStar Satellite LLC
    (EchoStar), and Intelsat North America LLC (Intelsat).

[^6]: *May 4 Order* at para. 143.

[^7]: *May 4 Order* at para. 145.

[^8]: *May 4 Order* at para. 145. *See also* *May 4 Order* at App. F.

[^9]: The Establishment of Policies and Service Rules for the
    Broadcasting-Satellite Service at the 17.3-17-7 GHz Frequency Band
    and at the 17.7-17.8 GHz Frequency Band Internationally, and at the
    24.75-25.25 GHz Frequency Band for Fixed Satellite Services
    Providing Feeder Links to the Broadcasting-Satellite Service and for
    the Satellite Services Operating Bi-directionally in the 17.3-17.8
    GHz Frequency Band, *Order on Reconsideration*, IB Docket No.
    06-123, FCC 07-174 (released Sept. 28, 2007) (*September 28*
    *Reconsideration Order*).

[^10]: *September 28* *Reconsideration Order* at para. 34.

[^11]: *September 28* *Reconsideration Order* at para. 34.

[^12]: *September 28* *Reconsideration Order* at para. 37.

[^13]: *September 28* *Reconsideration Order* at paras. 34-35.

[^14]: *September 28* *Reconsideration Order* at para. 37.

[^15]: International Bureau Establishes Deadline for Amendments to
    Pending 17/24 GHz BSS Applications, *Public Notice*, DA 07-4895
    (released Dec. 5, 2007) (*December 5 Public Notice*).

[^16]: *December 5 Public Notice* at 2.

[^17]: DIRECTV Amendment Application at 12-13.

[^18]: Ciel Satellite Limited Partnership (Ciel) filed pleadings on
    August 1 and August 26, 2008, requesting that DIRECTV\'s license be
    conditioned on its compliance with international coordination
    requirements. Because we dismiss DIRECTV\'s application in this
    Order, Ciel\'s concerns with respect to DIRECTV\'s application are
    moot.

[^19]: Spectrum Five filed a supplement to its petition on January 12,
    2009. Because we do not rely on any of the arguments in that
    supplement, we do not discuss it further in this Order.

[^20]: Spectrum Five Petition at 6-11.

[^21]: 47 C.F.R. § 25.202(w).

[^22]: Spectrum Five Petition at 9.

[^23]: DIRECTV Opposition at 2.

[^24]: DIRECTV Opposition at 2.

[^25]: DIRECTV Opposition at 1-3.

[^26]: Spectrum Five Reply at 5.

[^27]: Spectrum Five Reply at 5.

[^28]: Spectrum Five Reply at 5.

[^29]: Spectrum Five Petition at 9.

[^30]: Spectrum Five Petition at 11.

[^31]: *See* 47 C.F.R. § 25.262.

[^32]: *See* 47 C.F.R. § 25.112(a)(2).

[^33]: Spectrum Five Petition at 3-4.

[^34]: Spectrum Five Petition at 2.

[^35]: Spectrum Five Petition at 2 and Technical Appendix.