Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | File No.                     |
|                                  | *) | SAT-LOA-20030609-00113       |
| **EchoStar Satellite L.L.C.**    | ** |                              |
|                                  |    | Call Sign S2454              |
| Application to Construct,        | *  |                              |
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| a Direct Broadcast Satellite at  |    |                              |
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| 86.5° W.L. Orbital Location      | ** |                              |
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**ORDER AND AUTHORIZATION**

**Adopted: November 29, 2006 Released: November 29, 2006**

By the Acting Chief, International Bureau:

# INTRODUCTION

1.  By this *Order*, we grant EchoStar Satellite L.L.C. (EchoStar)
    authority to construct a new Direct Broadcast Satellite (DBS)
    service satellite, EchoStar-86.5W, to be located at the 86.5° W.L.
    orbital location. This satellite should allow EchoStar to offer its
    customers more local-into-local channels, expand its programming
    options, and more efficiently use the orbital resources and spectrum
    allocated for DBS service. This could, in turn, provide consumers
    with more satellite programming choices, more alternatives in
    subscription video providers and services at reduced prices, and
    encourage technological innovation. At this time, we do not
    authorize EchoStar to launch or operate EchoStar-86.5W, pending
    EchoStar's development of additional information regarding the
    end-of-life disposal plans for this satellite.[^1] We address issues
    relating to EchoStar's proposed operations in this *Order* so we
    will be in a position to act expeditiously upon its request for
    launch and operation authority.

# background

2.  *DBS Regulatory History*. DBS satellites serving the United States
    are governed by Commission policies and rules. Their operation is
    also governed by international regulations administered by the
    International Telecommunication Union (ITU).[^2] The ITU Radio
    Regulations apportion spectrum and orbit locations for the
    broadcasting-satellite service (BSS)[^3] among all nations in
    various geographic regions in certain planned frequency bands[^4] on
    a regional basis through agreements reached at Regional and World
    Radiocommunication Conferences.[^5] This differs from the process in
    most fixed-satellite service ("FSS") bands where orbital locations
    are selected by administrations on a first-come, first-served basis,
    subject to resolving interference issues through satellite
    coordinations. In the early 1980\'s, ITU members reached agreement
    on assigning BSS spectrum at specific orbit locations among the
    ITU\'s Region 2 member countries.[^6] Under the terms of the Region
    2 BSS and feeder link Plans, the United States is assigned eight
    orbital locations for providing broadcasting-satellite service.[^7]
    The eight U.S. orbital positions, proceeding from east to west (all
    West Longitude), are 61.5, 101, 110, 119, 148, 157, 166, and 175°.
    Three of these orbital locations, 101 W.L., 110 W.L., and 119 W.L.,
    can provide coverage of the 48 contiguous United States ("CONUS").
    Each of the eight orbital locations is capable of providing 32
    channels, each using 24 megahertz of bandwidth.[^8] Currently, U.S.
    DBS orbit assignments are separated by at least nine degrees. The
    nine-degree orbital spacing in the DBS service enables subscribers
    to use earth station antennas that are smaller than those generally
    employed for C- and Ku-band services.[^9]

3.  The orbital spacing between satellites serving the same geographic
    area, combined with both the satellite transmit characteristics and
    receive earth station antenna performance, determines the amount of
    interference a DBS system will receive.[^10] The Commission took
    notice of the possibility of reduced-spacing DBS satellites in 2002.
    In the *Part 100 Order*, the Commission stated that provision of
    service "into the United States from future entrants such as
    non-U.S. DBS satellites could result in smaller satellite spacing
    than the current nine-degree separation between U.S. DBS orbital
    locations."[^11] Also in the *Part 100 Order,* the Commission
    adopted Section 25.114(c)(22)(i), which required that applicants
    provide sufficient technical showings that their proposed systems
    could operate satisfactorily if all assignments in the BSS and
    feeder link Plans are implemented,[^12] and Section
    25.114(c)(22)(ii),[^13] which required that applicants provide
    analyses of the proposed system with respect to the limits in Annex
    1 to Appendices 30 and 30A of the ITU Radio Regulations.[^14] The
    Commission also adopted Section 25.148(f), which states that
    operation of DBS systems with characteristics differing from those
    in the Appendix 30 and 30A plans may be permitted with adequate
    technical showing, and if a request has been made to the ITU to
    modify the appropriate Plans to include the system's technical
    parameters.[^15] The Commission also stated that in accordance with
    the ITU Radio Regulations, other countries wishing to serve the
    United States will normally have to modify their assignments in the
    ITU BSS and feeder link Plans to allow them to provide service in
    the United States. The ITU modification process will identify the
    U.S. DBS systems that are affected by the proposed Plan modification
    of another administration, giving the United States an opportunity
    to work with the subject administration to ensure that no
    modification is made that will cause harmful interference to U.S.
    DBS systems.[^16] Considering these factors, the Commission found it
    unnecessary to adopt DBS receive earth station antenna performance
    requirements.[^17]

4.  *EchoStar Application*. EchoStar already provides DBS service to
    U.S. consumers from the 61.5° W.L., 110° W.L., 119° W.L., and 148°
    W.L. orbital locations, and says that an expansion in programming
    will enable it to compete more effectively with cable operators in
    the multichannel video programming distribution ("MVPD") market.
    During the period from June 5 through June 9, 2003, EchoStar
    Satellite Corporation (EchoStar) filed applications to construct,
    launch, and operate DBS space stations at the 86.5º W.L., 96.5º
    W.L., 114.5º W.L., and 123.5º W.L. orbital locations, none of which
    are part of the original Region 2 Plans.[^18] It later withdrew all
    applications except for the one pertaining to the 86.5° W.L. orbital
    location.[^19] In support of the proposed 86.5° W.L. satellite
    ("EchoStar-86.5W"),[^20] EchoStar explains that this satellite will
    increase DBS consumers' programming choices, including HDTV
    offerings and international programming, improve EchoStar's spectrum
    efficiency, and enhance the system's capacity to provide local
    broadcasting.[^21] Although the proposed EchoStar-86.5W satellite is
    not a reduced spacing satellite relative to U.S. DBS operators, it
    would be located less than nine degrees from two Canadian DBS
    satellites for which Canada filed Region 2 Plan modifications
    requesting to add U.S. coverage. The two Canadian satellites are
    Nimiq 1 at 91° W.L. and Nimiq 2 at 82° W.L., which operate under the
    ITU network names CAN-BSS2 at 91° W.L. and CAN-BSS1 at 82° W.L.

5.  In the *DBS Reduced Spacing Public Notice*[^22] issued in December
    2003, the Commission sought comment generically on the technical
    issues raised by the EchoStar applications and other proposals
    regarding provision of DBS service from non-nine degree spaced
    orbital locations.[^23] On January 28, 2004, the International
    Bureau released a *Public Notice* that clarified the DBS space
    station application processing rules,[^24] noting that in order to
    be complete, space station applications, including those for DBS,
    must contain all information specified in Section 25.114 of the
    Commission's rules.[^25] This *Public Notice* also said:

> . . . we place DBS applicants on notice that, as of the date of this
> Public Notice, if a DBS application fails to include any of the
> required information . . . the Bureau will return the application
> without prejudice to refiling as being unacceptable for filing. . . .
> Applications filed prior to this Public Notice that do not meet these
> requirements may be subject to a Commission letter requesting that the
> applicant provide the required information.[^26]

On February 12, 2004, and in accordance with the procedure just
described, the Satellite Division of the International Bureau sent a
letter[^27] to EchoStar requesting information required by Section
25.114(c) of the Commission's Rules.[^28] On February 27, 2004, EchoStar
filed an amendment to its 86.5° W.L. application supplying the requested
information.[^29] This information included a detailed analysis of
interference from the new DBS space station requested by EchoStar into
existing DBS systems.[^30] The analysis for EchoStar at 86.5° W.L.
showed that the 0.25 dB change in overall equivalent protection margin
("delta-OEPM") that triggers the requirement to seek agreement of
potentially-affected administrations under Annex 1 of Appendix 30 of the
ITU Radio Regulations was exceeded for several non-U.S. Region 2
administrations. The Bureau placed EchoStar's application on Public
Notice on April 15, 2005[^31] and received comments from SES Americom
and oppositions from Telesat Canada ("Telesat") and Bell ExpressVu L.P.
("Bell ExpressVu").

6.  Telesat is the Canadian-licensed satellite operator of the Nimiq 1
    and Nimiq 2 DBS satellites, each located 4.5 degrees from the 86.5°
    W.L. orbital location that EchoStar seeks.[^32] The Commission
    authorized DIRECTV Inc. to move its DIRECTV 3 DBS satellite to the
    82° W.L. orbital location pursuant to an agreement between DIRECTV
    and Telesat under which the DIRECTV 3 satellite would provide
    back-up capacity to the Nimiq 2 satellite, which experienced a solar
    power array malfunction and transponder shutdown.[^33] Telesat
    opposes EchoStar's application, asserting that its 1.5 million
    Canadian customers would experience service disruptions if the
    Commission were to permit EchoStar's proposed operations.[^34] Bell
    ExpressVu, which owns the transponders on the Nimiq satellites,[^35]
    "fully supports" the Telesat Opposition and notes that "the
    financial consequences of a change from 9 degree satellite spacing
    to 4.5 degree spacing would undermine billions of dollars of
    satellite-based infrastructure investment by ExpressVu and its
    customers."[^36] In response, EchoStar said that Telesat's and Bell
    ExpressVu's concerns can be addressed by a coordination condition as
    long as their plans "do not implicate use of 'triple-feed'
    antennas."[^37] EchoStar also states that Telesat's and Bell
    ExpressVu's concerns "underscore the need for the Commission to
    initiate a rulemaking on the \[reduced spacing\] satellite issues to
    determine, among other things, whether the interference that may be
    caused by \[reduced spacing\] satellites into existing DBS networks
    would be acceptable and if so, whether technical rules can be
    established to ensure that these satellites do not limit the ability
    of existing DBS providers to take advantage of such innovations as
    triple-feed antennas."[^38] Telesat replied that a triple-feed
    antenna is a distinct possibility given its current operations at
    82º W.L. and 91º W.L. and its planned future operations at 72.5º
    W.L.[^39] Telesat also argues that the EchoStar Application should
    be dismissed as defective and unacceptable for filing because
    EchoStar has not provided an adequate showing that its system could
    operate satisfactorily if all assignments in the BSS and feeder link
    Plans were implemented.[^40]

# DISCUSSION

7.  We find that granting EchoStar's application subject to certain
    conditions is in the public interest. Notably we condition
    EchoStar's authorization subject to submission of a detailed orbital
    debris mitigation plan[^41] and subject to the condition that
    EchoStar not exceed certain interference limits until it has
    successfully coordinated its operations with operators of adjacent
    and affected DBS satellites.[^42] As explained below, we grant
    EchoStar's application pursuant to our statutory authority to grant
    authorizations where the applicant is legally, technically, and
    financially qualified and the public interest will be served.
    Although the Commission is contemporaneously seeking comment on
    procedures for processing new DBS applications,[^43] grant of this
    application is consistent with our past practice of resolving
    pending applications during a period of transition to a new
    licensing scheme.[^44]

## Processing Procedures for Reduced Spacing DBS Applications

8.  We grant the EchoStar Application pursuant to our statutory
    authority to grant authorizations where the applicant is legally,
    technically, and financially qualified and the public interest will
    be served.[^45] Although the Commission is seeking comment on rules
    for processing applications and petitions for the provision of DBS
    service,[^46] the pendency of that proceeding does not prevent us
    from acting on the EchoStar Application.[^47] Specifically, given
    the Commission's general statutory authority under Sections 308 and
    309 of the Communications Act, coupled with the application filing
    requirements and rules regarding non-interference showings, we find
    that we can process the EchoStar Application consistent with the
    public interest, convenience, and necessity.[^48]

9.  We find that current Commission rules can accommodate DBS
    applications filed prior to the freeze that specify operations at
    locations other than the eight orbital slots assigned to the United
    States in the ITU Region 2 Plan (as specified in Appendices 30 and
    30A of the ITU Radio Regulations). The Commission's Part 25 rules
    refer to and incorporate provisions of the ITU Radio Regulations for
    purposes of analyzing applications for DBS with technical parameters
    that differ from those in the Region 2 Plans. Specifically, Section
    25.114(d)(13)(i) requires that for satellites in the DBS service,
    applicants must submit a "sufficient technical showing that the
    proposed system could operate satisfactorily if all assignments in
    the BSS and feeder link Plans were implemented."[^49] This showing
    is intended to demonstrate that the proposed system will meet its
    performance objectives given the Region 2 Plan assignments. Section
    25.114(d)(13)(ii) requires "\[a\]nalyses of the proposed systems
    with respect to the limits in Annex 1 to Appendices 30 and 30A" of
    the International Telecommunication Union ("ITU") Radio
    Regulations.[^50] This showing is intended to demonstrate how the
    proposed system will affect operating DBS systems and those systems
    that are subject to pending Region 2 modification proposals. Section
    25.148(f) requires that "DBS operations must be in accordance with
    the sharing criteria and technical characteristics contained in
    Appendices 30 and 30A of the ITU Radio Regulations. Operation of
    systems using differing technical characteristics may be permitted,
    with adequate technical showing, and if a request has been made to
    the ITU to modify the appropriate Plans to include the system's
    technical parameters."[^51] Further, as noted previously, the *Part
    100 Report and Order* contemplated reduced spacings.[^52] Thus, if
    an applicant can coordinate its proposal with other U.S. DBS
    operators and secure agreement with U.S. or any other operators
    already having assignments in the Region 2 Plans or with prior
    requests for Plan modifications, we believe our rules allow us to
    consider these applications prior to completing the rulemaking
    proceeding.

10. Section 25.156(d)(6) of the Commission's rules provides that a DBS
    application is entitled to comparative consideration with one or
    more conflicting applications if they are mutually exclusive and the
    application was filed by the "cut-off" date specified in a public
    notice.[^53] In this case, no cut-off date was ever established and
    no other applications or petitions for a DBS satellite at 86.5° W.L.
    were received by the Commission. We acknowledge that the Commission
    is seeking comment on licensing procedures for both Region 2 Plan
    and non-Plan DBS satellite applications in the *DBS Notice*.[^54]
    However, the need to determine processing procedures for DBS
    satellite applications does not prevent us from acting on the
    EchoStar-86.5W Application at this time. We have granted
    applications in the past, absent specific licensing procedures when,
    as now, mutual exclusivity is not present among pending
    applications[^55] and the public might benefit from expeditious
    processing and delivery of new or expanded service offerings.[^56]
    Indeed, we used such an approach when granting earth station
    licenses to DBAC and Pegasus to use Canadian DBS satellites to
    provide service in the United States.[^57] Given the application
    filing requirements and rules regarding non-interference showings,
    we can process an application provided that it is complete and we
    find that grant would serve the public interest.[^58]

## Technical Qualifications

11. *Background*. EchoStar proposes to position its EchoStar-86.5W
    satellite at the 86.5º W.L. orbital location, with ± 0.05º
    longitudinal stationkeeping.[^59] EchoStar will operate
    EchoStar-86.5W on 32, 24 megahertz bandwidth service link channels
    in the 12.2 to 12.7 GHz Direct Broadcast Satellite Service (DBS)
    frequency band, and 32 corresponding feeder link channels in the
    17.3 to 17.8 GHz frequency band.[^60] EchoStar-86.5W will have a
    shaped service-link beam covering the contiguous United States and
    Mexico, Puerto Rico, and the U.S. Virgin Islands.[^61] The feeder
    link beam of EchoStar-86.5W will be a spot beam that covers the
    EchoStar feeder link uplink sites at Cheyenne, WY and Gilbert,
    AZ.[^62] All 32 service link channels will be provided to all areas
    served by EchoStar-86.5W. EchoStar-86.5W will have a maximum
    downlink effective isotropically radiated power (EIRP) of 56 dBW in
    high-power mode, or 53.2 dBW in low-power mode.[^63] It will use
    circular polarization that is opposite in sense (*i.e*., left-hand
    instead of right-hand, and *vice versa*) from the standard Region 2
    Plan polarizations.[^64] EchoStar states that EchoStar-86.5W will
    use tracking, telemetry, and command (TT&C) frequencies at the edges
    of the 12.2 to 12.7 GHz and 17.3 to 17.8 GHz frequency bands for
    transfer-orbit and on-station operations.[^65]

12. EchoStar believes that Telesat's concerns about a DBS satellite
    located at 86.5º W.L. can be addressed through a coordination
    condition so long as the plans of Telesat and Bell ExpressVu do not
    implicate the use of "triple-feed" antennas.[^66] EchoStar says that
    Telesat's interference concerns "underscore the need for the
    Commission to initiate a rulemaking" on DBS reduced spacing
    issues.[^67] Telesat responds that it has been awarded a Canadian
    authorization to develop the 72.5º W.L. orbital location, and that
    it might use "triple-feed" antennas, designed to receive DBS signals
    from satellites at the 72.5º, 82º, and 91º W.L. orbital
    locations.[^68] Telesat also argues that EchoStar's application for
    a DBS satellite at 86.5º W.L. should be dismissed as defective and
    unacceptable for filing because EchoStar has not provided an
    adequate showing that its system could operate satisfactorily if all
    assignments in the Broadcasting-Satellite Service ('BSS') and feeder
    link Plans were implemented.[^69]

13. SES Americom, Inc. ("SES Americom") points out that it has ITU date
    priority over EchoStar to employ BSS frequencies at the 86.5° W.L.
    orbital location via two filings submitted by the United Kingdom
    (USAT S3 and USAT S3 MOD A) on behalf of SES Americom's subsidiary
    SES Satellites (Gibraltar) Limited.[^70] SES Americom asks that the
    Commission condition any EchoStar-86.5W grant such that EchoStar (a)
    is not entitled to interference protection from networks operating
    pursuant to prior ITU filings and (b) must coordinate with affected
    systems of other administrations that have ITU date priority.[^71]
    EchoStar acknowledged these comments, but did not respond to
    them.[^72]

14. *Discussion*. Sections 25.114(d) and 25.148(f) of the Commission's
    rules permit applicants to propose DBS systems that differ from the
    parameters established in the Region 2 Plans. If an applicant can
    coordinate its proposal with other U.S. DBS operators and secure
    agreement with all other operators that have assignments in the
    Region 2 Plans or prior requests for Plan modifications, the
    Commission believes that it can grant its application prior to
    adoption of final rules in the DBS Notice proceeding.[^73]

15. In considering the EchoStar Application, we must evaluate the
    proposed satellite's interference potential to other authorized DBS
    satellites and to the radiocommunications systems of other
    countries. In particular, we must determine whether the
    EchoStar-86.5W satellite will be operated in accordance with
    Appendices 30 and 30A of the ITU Radio Regulations. Because the
    technical parameters of EchoStar's DBS system vary from those set
    forth for U.S. assignments in the Region 2 BSS plans and its
    associated feeder link Plan,[^74] the Commission must request
    modification of the Region 2 BSS Plan and its associated feeder link
    Plan for the EchoStar-86.5W satellite.[^75] Annex 1 of Appendices 30
    and 30A provide the methodology and criteria for determining whether
    a proposed satellite system (*i.e.*, a proposed modification to the
    Plan) might interfere with frequency assignments in accordance with
    the Region 2 BSS Plan and its associated feeder link Plan, other
    satellite systems, or terrestrial services.[^76] If the limits in
    Annex 1 are exceeded, the system must be coordinated with the
    affected operator.

16. Upon reviewing EchoStar's application, we find sufficient evidence
    to determine that EchoStar-86.5W will not cause unacceptable
    interference to other U.S. DBS systems. In addition, EchoStar has
    submitted analyses demonstrating EchoStar-86.5W's interference
    potential to radiocommunications systems of other countries. The
    analyses indicate that a number of administrations, including
    Canada, would be affected by the EchoStar-86.5W satellite.[^77]
    Therefore, the Commission, on behalf of EchoStar, must seek the
    agreement of the affected administrations prior to EchoStar
    operating EchoStar-86.5W. Telesat asserts that a DBS satellite at
    86.5º W.L. has the potential to seriously disrupt Telesat's and Bell
    ExpressVu's operations.[^78] Telesat also states that its satellites
    have been designed to provide coverage of the United States, and
    have been approved by the Commission to provide DTH service within
    the United States.[^79] Telesat disputes EchoStar's suggestion that
    "through the proper design of the proposed satellite, including beam
    shaping and power roll-off, harmful interference to other nearby
    planned BSS systems can be avoided,"[^80] saying such techniques
    "cannot be used in co-coverage coordination situations as is the
    case here. Indeed, to ensure adequate protection for the existing
    Canadian DBS operations at 82º and 91º W.L., very substantial
    reductions of the power levels on the proposed EchoStar satellite
    would appear to be the only way that the MSPACE triggers could be
    removed."[^81]

17. Any operations of EchoStar-86.5W will be subject to the provisions
    of Article 4.2 of Appendices 30 and 30A of the ITU Regulations. In
    addition, any operations of EchoStar-86.5W may continue even after
    launch of a satellite that would operate consistent with an entry in
    the ITU plan or pursuant to an earlier filed modification, upon a
    showing of coordination with such satellite. Absent coordination,
    continued operation is still possible within the confines of
    Appendices 30 and 30A of the ITU Radio Regulations, provided that no
    other authorized operators are affected.[^82] The conditions of this
    authorization address the commenters' concerns.[^83] In addition,
    until it has successfully coordinated with affected operators,
    EchoStar must inform its customers that service from EchoStar-86.5W
    is subject to coordination agreements with other operators, both
    foreign and domestic, and that EchoStar may be required to
    discontinue or alter service (*e.g*., by replacement of subscriber
    antennas).

18. To help effectuate coordination, EchoStar is required to submit to
    the Commission, within 30 days from the release date of this grant,
    all information required in order to modify the Appendix 30
    Broadcasting-Satellite Service Plans and associated Appendix 30A
    feeder link Plans to incorporate the characteristics of
    EchoStar-86.5W, in accordance with the ITU Radio Regulations.[^84]
    EchoStar will be held responsible for all cost recovery fees
    associated with these ITU filings.[^85] Upon receipt of this
    information and EchoStar's certification that it unconditionally
    accepts all cost recovery responsibilities,[^86] the United States
    will submit to the ITU EchoStar's application to provide DBS/BSS at
    the 86.5° W.L. orbital location. EchoStar's failure to provide this
    information within 30 days of this grant will result in immediate
    cancellation of its construction authority by its own terms.

## Geographic Service Rule

19. Section 25.148(c) of the Commission's rules requires DBS licensees
    to provide DBS service to Alaska and Hawaii where such service is
    technically feasible from the authorized orbital location.[^87]
    EchoStar states that service to Alaska and Hawaii from
    EchoStar-86.5W is not technically feasible, due to the very low
    elevation angles of the 86.5º W.L. orbital location as seen from
    these states.[^88] EchoStar states that the elevation angles from
    Hawaii to EchoStar-86.5W would be between 7 and 12 degrees above the
    horizon, and the elevation angles from Alaska would be at most 8
    degrees above the horizon, with most of Alaska below the horizon as
    seen from EchoStar-86.5W.[^89] No parties commented on this issue.
    Given the very low elevation angles to the 86.5º W.L. orbital
    location from Alaska and Hawaii, it is very unlikely that service to
    these states from EchoStar-86.5W would be technically feasible.
    Therefore, we will not require EchoStar-86.5W to provide service to
    Alaska and Hawaii from the 86.5º W.L. orbital location. However, we
    take this opportunity to inform EchoStar that in the event that it
    seeks any future authorization to move the EchoStar-86.5W DBS space
    station to a more western orbital location, we may include a
    condition requiring provision of DBS services to Alaska and Hawaii
    from that new orbital location, consistent with 47 C.F.R. §
    25.148(c). Therefore we strongly encourage EchoStar to consider a
    possible future requirement to serve Alaska and Hawaii, from a
    different orbital location, in the design of this DBS space
    station.[^90]

## Orbital Debris Mitigation

20. Section 25.114(d) of the Commission's rules requires applicants for
    space station authorizations to submit a description of the design
    and operational strategies that it will use to mitigate orbital
    debris, including a statement detailing post-mission disposal plans
    for space stations at the end of their operating life.[^91] In
    conjunction with adopting this rule, the Bureau released a Public
    Notice stating that pending applications must be amended to include
    information requested in Section 25.114(d).[^92] This information
    addresses four specific elements of orbital debris mitigation: 1)
    spacecraft hardware and design; 2) minimizing accidental
    explosions; 3) safe flight profiles; and 4) post-mission disposal.

21. EchoStar submitted an amendment disclosing the orbital debris
    mitigation plans for the EchoStar-86.5W satellite.[^93] According to
    EchoStar, the EchoStar-86.5W satellite is still in the design
    process.[^94] As a result, EchoStar states that it is not in a
    position to supply specific information concerning the four elements
    of orbital debris mitigation identified in Section 25.114(d) and in
    the *October 2005 Orbital Debris Public Notice*. In particular,
    EchoStar states that it is unable to provide detailed information
    concerning end-of-life disposal and the amount of fuel that will be
    reserved, in kilograms, to effectuate such disposal.[^95] We believe
    that a more detailed review of EchoStar's orbital debris mitigation
    plans is warranted as system design progresses, and prior to grant
    of launch and operating authority. Until such review can be
    completed, we are not in a position to conclude that the operation
    and disposal of the EchoStar-86.5W satellite, or the launch that
    would lead to such operations and disposal, are in the public
    interest. Accordingly, EchoStar must file, no later than December
    29, 2008, an application to modify its authorization, providing a
    complete and detailed orbital debris mitigation plan for the
    EchoStar-86.5W satellite, including post-mission disposal of the
    spacecraft. Authority to launch and operate the satellite, as
    specified in this Order, will be granted if the information
    submitted demonstrates that EchoStar's orbital debris mitigation
    plans are consistent with our rules and subject to, as discussed
    above, modification of the Region 2 Plans.[^96]

## Financial Qualifications

22. In the *First Space Station Reform Order,* the Commission eliminated
    the financial requirements then in place for space station
    applicants and replaced them with a bond requirement.[^97] In
    accordance with this requirement, any entity awarded a license for a
    geostationary satellite must execute a payment bond, payable to the
    U.S. Treasury, within 30 days of the date of the license grant.[^98]
    This requirement is intended to ensure that licensees are
    financially able and committed to implementing their systems in a
    timely manner. The bond is payable upon failure to meet any of the
    implementation milestones included in every license, where the
    licensee has not provided adequate justification for extending the
    milestone. Licensees may reduce the amount of the bond upon meeting
    each milestone. Once the licensee meets the last milestone, that is,
    it launches the satellite, it no longer has any bond obligation.
    This requirement applies to both U.S.-licensed space stations and
    non-U.S.-licensed space stations that seek to serve the U.S.
    market.[^99]

23. The Commission excepted DBS and DARS licenses from the bond
    requirement at the time it was adopted.[^100] Thus, we cannot impose
    the bond requirement, at this time, on DBS licensees.[^101] However,
    we note that in the *DBS Notice*, the Commission seeks comment on
    whether to expand the Space Station Licensing Reform licensing
    framework, including the bond requirement of Section 25.165, to
    DBS.[^102] If the Commission adopts rules requiring DBS licensees to
    post a bond, we will modify EchoStar's authorization for the
    EchoStar-86.5W satellite accordingly.

## General DBS Requirements

24. EchoStar will be subject to the same service rules and obligations
    as existing DBS licensees. This includes the public service
    obligations detailed in Section 25.701 of the Commission's rules,
    the emergency alert system rules in Part 11 of the Commission's
    rules, and the spacecraft end-of-life disposal requirements in
    Section 25.283 of the Commission's rules.[^103] These rules apply to
    DBS, regardless of whether a licensee's satellites are part of the
    original Region 2 Plans, because the rules apply to all entities
    licensed to operate DBS satellites serving the United States in the
    12.2-12.7 GHz DBS frequency band.[^104] In addition, DBS licensees,
    including licensees of reduced spacing DBS satellites, that offer
    television broadcast channels to subscribers pursuant to the
    statutory copyright license must comply with all applicable
    statutory requirements and Commission rules related to such
    carriage.[^105] Therefore, to the extent that EchoStar falls in this
    category with regard to the 86.5° satellite, it must comply with
    such rules and requirements.

## Due Diligence

25. Section 25.148(b) of the Commission's rules establishes a milestone
    schedule for DBS authorization holders to ensure that entities
    exercise due diligence in constructing their systems.[^106]
    According to this schedule, authorization holders must complete
    contracting for all system satellites within one year of grant;
    complete construction of the first satellite in the system within
    four years of grant; and bring all satellites in the system into
    operation within six years of grant.[^107] We require that EchoStar
    adhere to this milestone schedule. We also require that EchoStar
    complete its critical design review (CDR) two years after this
    grant. The Commission has defined critical design review as "the
    stage in the spacecraft implementation process at which the design
    and development phase ends and the manufacturing phase
    starts."[^108] Although the Commission has not prescribed a
    particular method for demonstrating that the CDR milestone has been
    met, evidence of compliance may include:

    \(1\) evidence of a large payment of money, required by most
    construction contracts at the time of the spacecraft CDR; (2)
    affidavits from independent manufacturers; and (3) evidence that the
    licensee has ordered all the long lead items needed to begin
    physical construction of the spacecraft.[^109]

26. In addition to these milestones, EchoStar must also file annual
    progress reports that illustrate the steps it has taken toward
    meeting its milestones. Progress reports will be due every June 30,
    with the first report due June 30, 2007, until the EchoStar-86.5W
    satellite has been launched and is operating. Submission of annual
    reports is consistent with the reporting requirements of other fixed
    satellite service operators.[^110] We require the submission of
    these reports in order to ensure that EchoStar is taking all
    necessary action to meet its milestones.

## License Term

27. Section 25.121(a) of our rules specifies that licenses for DBS space
    stations not licensed as broadcast facilities will be issued for a
    period of 10 years, beginning on the date that the licensee
    certifies to the Commission that the satellite has been successfully
    placed into orbit and has begun authorized operations.[^111] Thus,
    the license term for EchoStar's satellite will be 10 years,
    effective from the date that EchoStar-86.5W is located at the 86.5°
    W.L. orbital location and begins providing service to customers.

# ORDERING CLAUSES

28. Accordingly, IT IS ORDERED that, pursuant to Sections 303(r), 308,
    309, and 319 of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 303(r), 308, 309, and 319 and Sections 0.261 and 25.113(f)
    of the Commission's rules, 47 C.F.R. §§ 0.261 and 25.113(f), the
    Application of EchoStar Satellite L.L.C. for Application to
    Construct, Launch, and Operate A Direct Broadcast Satellite at the
    86.5° W.L. Orbital Location, File No. SAT-LOA-20030609-00113 IS
    GRANTED IN PART, and EchoStar Satellite L.L.C. IS AUTHORIZED to
    construct its satellite, EchoStar-86.5W, capable of using channels
    1-32 at the 86.5° W.L. orbit location in accordance with the terms,
    representations, and technical specifications set forth in its
    application, subject to the following conditions:

#### Any operations of EchoStar-86.5W shall be conducted in a manner that does not exceed the interference limits in Annex 1 to Appendices 30 and 30A of the ITU Radio Regulations[^112] within the service areas of any affected operators.[^113] Upon a showing to the Commission of successful coordination with any such affected operator (pursuant to Article 4.2 of Appendices 30 and 30A of the Radio Regulations), EchoStar may operate in a manner consistent with such coordination. 

#### EchoStar's operations on the EchoStar-86.5W satellite are subject to the provisions of Article 4.2 of Appendices 30 and 30A of the International Radio Regulations. Even after launch of a satellite that would operate pursuant to an entry in the ITU plan or pursuant to an earlier filed modification, EchoStar may continue operations on the EchoStar-86.5W satellite: (i) upon a showing of coordination with such satellite, or (ii) if such satellite is not affected by continued operations of the EchoStar-86.5W satellite and associated earth stations. EchoStar's operations shall be in compliance with applicable current and future operational requirements as a result of coordination agreements reached with other satellite systems. 

#### EchoStar-86.5W's operations must comply with all rules applicable to other Commission DBS/DTH licensees (*e.g*., the public interest obligations of 47 C.F.R. § 25.701, the emergency alert system rules in 47 C.F.R. Part 11, and spacecraft end-of-life disposal requirements of 47 C.F.R. § 25.283). In addition, to the extent that EchoStar offers television broadcast channels to subscribers pursuant to the statutory copyright license, it must comply with all applicable statutory requirements and Commission rules related to such carriage.

#### EchoStar is required to submit to the Commission, within 30 days from the release date of this grant, all information required in order to modify the Appendix 30 Broadcasting-Satellite Service Plans and associated Appendix 30A feeder link Plans to incorporate the characteristics of EchoStar-86.5W, in accordance with the ITU Radio Regulations. EchoStar will be held responsible for all cost recovery fees associated with these ITU filings.

#### EchoStar must file, no later than December 29, 2008, an application to modify its authorization, specifying its end-of-life operations for the EchoStar-86.5W satellite. Authority to launch and operate the satellite, as specified in this Order, will be granted if the information submitted demonstrates that EchoStar's orbital debris mitigation plans are in the public interest.

#### Until it has successfully coordinated with affected operators, EchoStar must inform its customers that service from EchoStar-86.5W is subject to coordination agreements with other operators, both foreign and domestic, and that EchoStar may be required to discontinue or alter service (*e.g*., by replacement of subscriber antennas).

#### EchoStar Satellite L.L.C. is afforded 30 days from the date of the release of this Order and Authorization to decline it, as conditioned. Failure to respond within this period will constitute formal acceptance of the authorization, as conditioned.

29. IT IS FURTHER ORDERED that this grant is subject to any rules
    adopted in the Notice of Proposed Rulemaking Proceeding in IB Docket
    06-160.

30. IT IS FURTHER ORDERED that EchoStar must comply with the milestone
    schedule required by Section 25.148(b) of the Commission's rules, 47
    C.F.R. § 25.148(b): (1) Within *one year* of grant: complete
    contracting for all system satellites. (2) Within *four years* of
    grant: complete construction of the first satellite in the
    system. (3) Within *six years* of grant: all satellites in the
    system must be in operation. In addition, EchoStar must complete its
    critical design review within two years of this grant.

31. IT IS FURTHER ORDERED that EchoStar file must submit annual progress
    reports that illustrate the steps it has taken toward meeting its
    milestones. Progress reports will be due every June 30, with the
    first report due June 30, 2007, until the EchoStar-86.5W satellite
    has been launched and is operating.

32. This *Order and Authorization* is issued pursuant to Section 0.261
    of the Commission's rules on delegations of authority, 47 C.F.R. §
    0.261, and is effective upon release.

> FEDERAL COMMUNICATIONS COMMISSION

John V. Giusti

Acting Chief, International Bureau

[^1]: *See* paragraphs 20-21, *infra*.

[^2]: [The International Telecommunication Union
    (ITU)](http://www.itu.int/aboutitu/index.html), headquartered in
    Geneva, Switzerland is an international organization within the
    [United Nations System](http://www.unsystem.org/) where
    administrations coordinate global telecommunication networks and
    services.

[^3]: BSS is the international term used for a radiocommunication
    service in which signals transmitted or retransmitted by space
    stations are intended for direct reception by the general public.
    *See* 47 C.F.R. § 2.1. DBS is the term used in the United States to
    describe the domestic implementation of the BSS international
    service in the 12.2-12.7 GHz band.

[^4]: The provisions of Appendices 30 and 30A of the International Radio
    Regulations are applicable to the BSS in the frequency bands
    11.7-12.2 GHz (Region 3), 11.7-12.5 GHz (Region 1) and 12.2-12.7 GHz
    (Region 2), and to their associated feeder links in the bands
    14.5-14.8 GHz and 17.3-18.1 GHz (Regions 1 and 3) and 17.3-17.8 GHz
    (Region 2). Other BSS allocations are not subject to the provisions
    of these Plans.

[^5]: The Regional Administrative Radio Conference in 1983 ("RARC‑83")
    developed and adopted the Region 2 BSS and feeder link Plans. It was
    not until 1985, at the World Administrative Radio Conference ("WARC
    Orb‑85"), that the Region 2 Plans were adopted internationally
    worldwide and became a part of the ITU\'s Radio Regulations. The
    Regions 1 (Europe and Africa) and 3 (Asia-Pacific) BSS Plan became a
    part of the ITU Radio Regulations in 1977 at the World
    Broadcasting-Satellite Administrative Radio Conference ("WARC-77").
    The Regions 1 and 3 feeder link Plan became a part of the ITU Radio
    Regulations in 1988 at the World Administrative Radio Conference
    ("WARC Orb-88").

[^6]: ITU Region 2 includes North, Central, and South America and
    Greenland. *See* Article 5, Section I of the ITU Radio Regulations.
    The ITU Region 2 BSS Plan is comprised of the Plan for BSS in the
    band 12.2-12.7 GHz in ITU Region 2, as contained in Appendix 30 of
    the ITU Radio Regulations, and the associated Plan for the feeder
    links in the frequency band 17.3-17.8 GHz for the
    broadcasting-satellite service in Region 2, as contained in Appendix
    30A of the ITU Radio Regulations.

[^7]: *See* Appendix 30 of the ITU\'s Radio Regulations.

[^8]: Digital compression enables operators to carry multiple
    video-programming services per 24 megahertz DBS channel. Current
    technology permits up to 12 digital channels per 24 megahertz DBS
    channel. *See e.g.* <http://www.lyngsat.com/packages/dish110.html>
    (visited on October 18, 2006) showing a large percentage of the
    transponders (24 MHz DBS channels) carrying 12 channels or more of
    television programming.

[^9]: Earth station antennas with a diameter of 45 cm (18 inches) are
    commonly employed in the DBS service, whereas earth station antennas
    employed in the Ku-band direct-to-home (DTH)-FSS are generally on
    the order of 0.84 to 1 meter (about 36 inches) in diameter.

[^10]: Policies and Rules for the Direct Broadcast Satellite Service,
    *Report and Order*, IB Docket No. 98-21, 17 FCC Rcd 11331, 11391 at
    para. 129 (2002) ("*Part 100 Order"*).

[^11]: *Part 100 Order*, 17 FCC Rcd. at 11391, para. 129 (2002).

[^12]: This rule section has since been renumbered as 25.114(d)(13)(i).

[^13]: This rule section has since been renumbered as 25.114(d)(13)(ii).

[^14]: Annex 1 contains technical criteria for determining whether a
    proposed BSS system will affect radiocom-munications systems of
    other administrations.

[^15]: The modification procedures for the Region 2 Plans are stipulated
    in Section 4.2 of Article 4 of Appendices 30 and 30A of the ITU
    Radio Regulations. Administrations start the process by filing the
    information required by Appendix 4 of the Radio Regulations to
    request a modification to the Plan. For U.S. Plan modifications, the
    Appendix 4 information is prepared by the satellite operators and
    submitted to the Commission, which reviews the information and
    forwards it to the ITU/BR. The Appendix 4 information includes such
    BSS satellite parameters as antenna beam footprint, transmitted
    power, modulation techniques, forward-error-correction techniques,
    earth station antenna characteristics (including typical subscriber
    terminal characteristics), and satellite orbital location.

[^16]: As used in this order, the term "affected" or "affected operator"
    has the meaning given in the Annex 1 of Appendices 30 and 30A of the
    ITU Radio Regulations. Carrier-to-interference ratio is a measure at
    a reference point--typically, the input to the receiver--of the
    amount of power in the wanted signal, the "carrier" (C), compared to
    the amount of power in the interfering signal (I). The assessment of
    interference between ITU Region 2 Plan assignments is based on the
    concept of overall equivalent protection margin ("OEPM"). The OEPM
    is the overall margin relative to a predefined level of aggregate
    C/I ratio. The C/I ratio takes account of the interference from the
    co-channel operation of the interfering satellite as well as the
    nearest and next nearest neighboring channels both above and below
    the wanted channel in frequency. The interference is summed for all
    the beams of every assignment in the plan and every plan
    modification request preceding the proposed plan modification. This
    calculation is done for a number of earth station locations defined
    as downlink test points for each potentially affected plan
    assignment or preceding plan modification request. According to
    Annex 1 of Appendices 30 and 30A, if the effect of the proposed
    network is to reduce the OEPM of any channel and test point of any
    network in the plan or pending plan modification below -0.25 db, or
    if already negative, by 0.25 dB or more, that network is considered
    to be "affected" and the new network can only be added to the plan
    with the agreement of all the administrations whose networks are
    affected.

[^17]: *Part 100 Order,*17 FCC Rcd 11331, 11391-92 at para. 130.

[^18]: EchoStar Satellite Corporation, Application of EchoStar Satellite
    Corporation for Authority to Construct, Launch and Operate a Direct
    Broadcast Satellite in the 12.2-12.7 GHz and 17.3-17.8 GHz Frequency
    Bands at the 86.5º W.L. Orbital Location, File No.
    SAT-LOA-20030609-00113 (filed June 9, 2003) (*EchoStar-86.5W
    Application*); Application for Authority to Construct, Launch and
    Operate a Direct Broadcast Satellite in the 12.2-12.7 GHz and
    17.3-17.8 GHz Frequency Bands at the 96.5º W.L. Orbital Location,
    File No. SAT-LOA-20030605-00109 (filed June 5, 2003); Application of
    EchoStar Satellite Corporation for Authority to Construct, Launch
    and Operate a Direct Broadcast Satellite in the 12.2-12.7 GHz and
    17.3-17.8 GHz Frequency Bands at the 114.5º W.L. Orbital Location,
    File No. SAT-LOA-20030604-00108 (filed June 4, 2003); and
    Application of EchoStar Satellite Corporation for Authority to
    Construct, Launch and Operate a Direct Broadcast Satellite in the
    12.2-12.7 GHz and 17.3-17.8 GHz Frequency Bands at the 123.5º W.L.
    Orbital Location, File No. SAT-LOA-20030606-00107 (filed June 6,
    2003).

[^19]: The Commission granted EchoStar's request to dismiss its
    applications for DBS space stations at the 114.5º, 123.5°, and 96.5°
    W.L., orbital locations. *See* Satellite Policy Branch Information,
    *Public Notice*, Report No. SAT-00171 (rel. October 10, 2003) (Int'l
    Bur. 2003), Satellite Policy Branch Information, *Public Notice*,
    Report No. SAT-00283 (rel. April 8, 2005) (Int'l Bur. 2003).

[^20]: EchoStar proposes to use a "single North American shaped antenna
    beam" to cover CONUS, Puerto Rico, the U.S. Virgin Islands, and
    Mexico. EchoStar-86.5W Application, Technical Annex at 1.

[^21]: EchoStar Application at 12-13.

[^22]: International Bureau Seeks Comments on Proposals to Permit
    Reduced Orbital Spacings Between U.S. Direct Broadcast Satellites,
    *Public Notice*, Report No. SPB-196, 18 FCC Rcd 25683 (2003) ("*DBS*
    *Reduced Spacing Public Notice*").

[^23]: At the time the *DBS* *Reduced Spacing Public Notice* was
    released, the Commission had not yet accepted for filing the
    EchoStar applications, including the application for the 86.5° W.L.
    orbital location.

[^24]: International Bureau Clarifies Direct Broadcast Satellite Space
    Station Application Processing Rules, *Public Notice,* Report No.
    SPB-198, 19 FCC Rcd 1346 (2004) ("*2004 DBS Application Processing
    Public Notice"*).

[^25]: *Id. See also* 47 C.F.R. § 25.114.

[^26]: *2004 DBS Application Processing Public Notice,* 19 FCC Rcd 1346,
    1347.

[^27]: Letter from Thomas S. Tycz, Chief, Satellite Division, FCC, to
    David K. Moskowitz, Senior Vice President and General Counsel,
    EchoStar Satellite Corporation (February 12, 2004).

[^28]: 47 C.F.R. § 25.114(c).

[^29]: EchoStar Satellite L.L.C. Amendment to File No.
    SAT-LOA-20030609-00113, filed Feb. 27, 2004 (EchoStar Amendment).

[^30]: The Commission subsequently granted EchoStar's request to dismiss
    its applications for DBS space stations at the 114.5º, 123.5°, and
    96.5° W.L., orbital locations. *See* Satellite Policy Branch
    Information, *Public Notice*, Report No. SAT-00171 (rel. October 10,
    2003) (Int'l Bur. 2003), Satellite Policy Branch Information,
    *Public Notice*, Report No. SAT-00283 (rel. April 8, 2005) (Int'l
    Bur. 2005).

[^31]: *See* Policy Branch Information: Applications Accepted for
    Filing, *Public Notice*, Report No. SAT-00284 (rel. April 15, 2005).

[^32]: Opposition of Telesat Canada re EchoStar Satellite L.L.C.,
    Application File No. SAT-LOA-20030609-00113 ("Telesat Opposition")
    at 1-2. We observe that all co-channel and co-coverage orbital
    location assignments in the Region 2 Plans were spaced a minimum of
    nine degrees apart. Therefore, DBS locations assigned to different
    nations may be less than nine degrees apart if their original plan
    assignments were not co-coverage. However, as previously mentioned,
    Canada requested and received approval from the ITU to modify the
    Region 2 Band Plan for the 91º W.L. and 82º W.L. orbital locations
    to expand the Nimiq satellites' coverage areas into the United
    States. *See* Digital Broadband Applications Corp., Consolidated
    Application for Authority to Operate U.S. Earth Stations with a
    U.S.-Licensed Ku-Band FSS Satellite and Canadian-Licensed Nimiq 1
    and Nimiq 2 Satellites to Offer Integrated Two-Way Broadband Video
    and Data Service Throughout the United States (Call Sign E020010),
    *Order*, 18 FCC Rcd 9455 at n. 9 (2003) ("*DBAC Order*"). Thus, the
    86.5° W.L. location that EchoStar seeks is a reduced spacing
    location relative to Canadian locations.

[^33]: *See* Telesat Opposition at 1-2. The DIRECTV 3 satellite is now
    known as Nimiq 3. *Id. See also* Application of DIRECTV, Inc.
    Request For Special Temporary Authority for the DIRECTV 3 Satellite,
    *Order*, 19 FCC Rcd 11055 (2004). DIRECTV moved the DIRECTV 2
    satellite from the 100.6º W.L. to the 91° W.L. orbital location
    (designated orbital location) pursuant to grant of IBFS File No.
    SAT-STA-20051018-00201, and renamed the satellite Nimiq 4i. Under
    DIRECTV's contract with Telesat, Telesat has the exclusive right to
    use the capacity, and direct and control DIRECTV 2 at the 82° W.L.
    and 91° W.L. orbital locations. The agreement contemplates that
    Telesat will use the satellite to provide back up capacity for any
    of its NIMIQ1, NIMIQ 2, or NIMIQ 3 satellites at the 82° W.L. or 91°
    W.L. orbital locations for use solely in Canada.

[^34]: *See* Telesat Opposition at 2-3 and Bell ExpressVu L.P.
    Opposition re: EchoStar Satellite L.L.C., Application File No.
    SAT-LOA-20030609-00113 at 5. Bell ExpressVu Opposition.

[^35]: Bell ExpressVu Opposition at 1.

[^36]: Bell ExpressVu Opposition at 2.

[^37]: EchoStar Satellite L.L.C, Consolidated Reply to Oppositions and
    Comments re: Application File No. SAT-LOA-20030609-00113 at 2.

[^38]: *Id*. at 2-3. In its comments on the Petition of DIRECTV
    Enterprises, LLC for a Rulemaking on the Feasibility of Reduced
    Orbital Spacing in the U.S. Direct Broadcast Satellite Service
    (filed September 5, 2003), EchoStar said that the "Commission's DBS
    technical rules do not prohibit consideration and grant" of the
    EchoStar and SES Americom reduced spacing proposals. EchoStar
    comments on DIRECTV Petition at 6.

[^39]: Telesat Reply to EchoStar Satellite L.L.C, Consolidated Reply to
    Oppositions and Comments re: Application File No.
    SAT-LOA-20030609-00113, at 2-3.

[^40]: Telesat Reply at 3-4.

[^41]: *See* orbital debris mitigation discussion in section III. D,
    *infra*.

[^42]: In this context, an "affected" operator is one that is deemed
    affected in Annex 1 of Appendix 30 and 30A of the ITU Regulations.
    *See supra* n. 16.

[^43]: Amendment of the Commission's Policies and Rules for Processing
    Applications in the Direct Broadcast Satellite Service; Feasibility
    of Reduced Orbital Spacing for Provision of Direct Broadcast
    Satellite Service in the United States, IB Docket No. 06-160,
    *Notice of Proposed Rulemaking*, FCC 06-120, rel. August 18, 2006.
    ("*DBS Notice"*).

[^44]: Although the Commission is considering applying the Commission's
    Space Station Licensing Reform first-come, first-served satellite
    processing rules to DBS, we may continue to consider pending
    applications under the existing Part 25 framework. *See* Amendment
    of the Commission\'s Space Station Licensing Rules and Policies,
    *First Report and Order and Further Notice of Proposed Rulemaking*,
    IB Docket No. 02-34, 18 FCC Rcd 10760 (2003) ("*First Space Station
    Reform Order*").

[^45]: *See, e.g*., PANAMSAT LICENSEE CORP., Application for authority
    to construct, launch and operate a hybrid international
    communications satellite, *Order and Authorization*, 14 FCC Rcd.
    2719 (1998).

[^46]: Amendment of the Commission's Policies and Rules for Processing
    Applications in the Direct Broadcast Satellite Service; Feasibility
    of Reduced Orbital Spacing for Provision of Direct Broadcast
    Satellite Service in the United States, IB Docket No. 06-160,
    *Notice of Proposed Rulemaking*, FCC 06-120, rel. August 18, 2006.
    (*DBS Notice*).

[^47]: Although the Commission has adopted a freeze on applications for
    new DBS service, EchoStar filed its application prior to the
    imposition of the freeze, which was limited to "applications for
    licenses for new space stations or for new requests for market
    access by foreign-licensed space stations." *See* Direct Broadcast
    Satellite Service Auction Nullified: Commission Sets Forth Refund
    Procedures for Auction No. 52 Winning Bidders and Adopts a Freeze on
    All New DBS Service Applications, *Public Notice*, 20 FCC Rcd 20618,
    20619 (2005). Accordingly, the EchoStar Application is not subject
    to the freeze.

[^48]: *See* 47 C.F.R. §§ 25.114(d)(13), 25.156(a); 47 U.S.C. § 308(a)
    (stating that "the Commission may grant construction permits and
    station licenses . . . only upon written application therefore
    received by it"); § 308(b) (requiring that Section 308(a)
    applications set forth "such facts as the Commission by regulation
    *may* prescribe," but not requiring the Commission to prescribe such
    regulations) (emphasis added); § 309(a) (stating that "the
    Commission shall determine . . . whether the public interest,
    convenience, and necessity will be served by the granting of \[a
    Section 308\] application," and, if so, the Commission "shall grant
    such application"). 47 U.S.C. §§ 308, 309. *See also* *DBS Notice*,
    FCC 06-120, para. 21.

[^49]: 25 C.F.R. § 25.114(d)(13)(i).

[^50]: 25 C.F.R. § 25.114(d)(13)(ii).

[^51]: 47 C.F.R. § 25.148(f). Section 25.111(c) provides additional
    guidance regarding the filing of plan modifications at the ITU. In
    particular, this rule indicates what U.S. applicants and licensees
    must provide to the Commission so that it may file plan
    modifications on the licensee's/applicant's behalf. *See* 47 C.F.R.
    § 25.111(c).

[^52]: *See supra* para. 3.

[^53]: 47 C.F.R. § 25.156(d)(6).

[^54]: Although the Commission is considering expanding the streamlined
    satellite application processing rules (*e.g*.,
    first-come/first-served processing) to DBS, it may continue to
    consider pending applications under the existing Part 25 framework.

[^55]: *See Ashbacker Radio Corp. v. FCC*, 326 U.S. 327 (1945). The
    Court held in *Ashbacker* "that where two *bona fide* applications
    are mutually exclusive the grant of one without a hearing to both
    deprives the loser of the opportunity which Congress chose to give
    him." *Ashbacker*, 326 U.S. at 333.

[^56]: *See, e.g*., PANAMSAT LICENSEE CORP., Application for authority
    to construct, launch and operate a hybrid international
    communications satellite, *Order and Authorization*, 14 FCC Rcd 2719
    (1998).

[^57]: *See* Digital Broadband Applications Corp., Consolidated
    Application for Authority to Operate U.S. Earth Stations with a
    U.S.-Licensed Ku-Band FSS Satellite and Canadian-Licensed Nimiq and
    Nimiq 2 Satellites to Offer Integrated Two-Way Broadband Video and
    Data Service Throughout the United States (Call Sign E020010),
    *Order*, 18 FCC Rcd 9455 (2003) ("*DBAC Order*"); Pegasus
    Development Corporation, Consolidated Applications for Authority to
    Operate one U.S. Transmit/Receive Fixed Earth Station (Call Sign
    E010320) and 1,000,000 Receive-Only Earth Stations (Call Sign
    E020022) with the Canadian-Licensed Nimiq 1 and Nimiq 2 Satellites
    to Offer Direct Broadcast Satellite Service Throughout the United
    States, *Order*, 19 FCC Rcd 6080 (2004) ("*Pegasus Order*"). No U.S.
    applications for satellites at the Canadian locations were pending
    when the DBAC and Pegasus applications were under consideration. We
    granted both the DBAC and Pegasus applications, in part, because
    co-frequency receive-only operations are not mutually exclusive and
    gateway stations that provide feeder links to/from the same DBS
    satellite can operate at different frequencies or polarizations.

[^58]: *See* footnote 48.

[^59]: EchoStar Application, Exhibit A to Technical Annex at 1.

[^60]: EchoStar Application, Technical Annex at 4.

[^61]: EchoStar Application, Technical Annex at 1.

[^62]: EchoStar Application, Technical Annex at 2.

[^63]: EchoStar Application, Technical Annex at 1.

[^64]: EchoStar Application, Technical Annex at 3.

[^65]: EchoStar Application, Technical Annex at 3 and Supplemental
    Technical Annex at 13.

[^66]: EchoStar Consolidated Reply at 1-2.

[^67]: EchoStar Consolidated Reply at 2-3.

[^68]: Telesat Reply at 2-3

[^69]: Telesat Reply at 3-4.

[^70]: SES Americom comments at 1-2. The Commission has not submitted
    the EchoStar Application to the ITU for modification of the Region 2
    BSS Plan because EchoStar has not prepared a cost recovery letter
    and the necessary elements for an ITU filing. As noted below,
    EchoStar is required to submit this information within 30 days from
    the release date of this decision, in order for this Order and
    Authorization to remain valid.

[^71]: *Id*. at 3.

[^72]: EchoStar Consolidated Reply at 1, n. 1.

[^73]: *See* Spectrum Five, LLC, Petition for Declaratory Ruling to
    Serve the U.S. Market Using Broadcast Satellite Service (BSS)
    Spectrum from the 114.5° W.L. Orbital Location, *Order and
    Authorization*, DA 06-2439, rel. November 29, 2006.

[^74]: The International Telecommunication Union (ITU) Radio Regulations
    divide the world into three Regions. Generally, Region 1 includes
    Africa, Europe, Northern and Western portions of Asia; Region 2
    includes the Americas and Greenland; and Region 3 includes Southern
    portions of Asia, Australia and the South Pacific. *See* ITU Radio
    Regulations Article S5, Section I. Unless referring specifically to
    the Region 2 BSS Plan and its associated feeder link Plan, in the
    United States the term "DBS" is used interchangeably with "BSS" with
    regard to service in the 12.2-12.7 GHz band.

[^75]: Some of these varying parameters include type of emission, size
    of receive dish antennas and the use of spot beams.

[^76]: *See* ITU Radio Regulations, Appendices 30 and 30A.

[^77]: EchoStar Amendment at Appendix 2, A2-2.

[^78]: *Id*. Telesat asserts that it and Bell ExpressVu would be faced
    with a situation of dual-feed subscriber earth station antennas
    facing the 82º W.L. and 91º W.L. orbital locations, and due to the
    technology of these antennas and their inability to selectively
    discriminate an intermediate interferer, technical coordination with
    EchoStar as required under the ITU Radio Regulations is unlikely to
    be successful. (Telesat Opposition at 4).

[^79]: *Id.*, citing Digital Broadband Applications Corp. (DBAC),
    Consolidated Application for Authority to Operate U.S. Earth
    Stations with a U.S.-Licensed Ku-Band FSS Satellite and
    Canadian-Licensed Nimiq and Nimiq 2 Satellites to Offer Integrated
    Two-Way Broadband Video and Data Service Throughout the United
    States *Order*, 18 FCC Rcd 9455 (2003). DBAC's authorization to
    access the Nimiq 1 and Nimiq 2 satellites was subsequently
    withdrawn. *See* Satellite Communications Services Information,
    *Public Notice*, Report No. SES-00663 (released November 24, 2004).
    We note that we also granted Pegasus Development Corporation
    authority to access the Nimiq 1 and Nimiq 2 satellites. *See*
    Pegasus Development Corporation, Consolidated Applications for
    Authority to Operate One U.S. Transmit/Receive Fixed Earth Station
    (Call Sign E010320) and 1,000,000 Receive-Only Earth Stations (Call
    Sign E020022) with the Canadian-Licensed Nimiq 1 and Nimiq 2
    Satellites to Offer Direct Broadcast Satellite Service Throughout
    the United States, *Order*, 19 FCC Rcd 6080 (2004) ("*Pegasus
    Order*").

[^80]: Telesat Opposition at 4, citing EchoStar Application at 5.

[^81]: Telesat Opposition at 5. MSPACE is a software package designed to
    determine the coordination requirements for space networks in
    Appendices 30, 30A and 30B of the ITU Radio Regulations. For
    additional information regarding MSPACE, s*ee*
    <http://www.itu.int/ITU-R/space/plans/MSPACEg_files/>SPS_v5_readme.html.

[^82]: In this context, an "affected" operator is one that is deemed
    affected in Annex 1 of Appendix 30 and 30A of the ITU Regulations.
    *See supra* n. 16.

[^83]: *See* Telesat Opposition at 4-5; Telesat reply at 3-4; Bell
    ExpressVu Opposition 2; SES Americom comments at 3.

[^84]: This includes, but is not limited to, the submission of any
    information or analyses necessary for completing the Plan
    modification process. *See also* 47 C.F.R. § 25.111(c).

[^85]: *See* Implementation of ITU Cost Recovery Charges for Satellite
    Network Filings, *Public Notice*, 16 FCC Rcd 18732 (2001).

[^86]: *Id*.

[^87]: 47 C.F.R. § 25.148(c).

[^88]: EchoStar Application at 10-11 and Technical Annex at 5-6.

[^89]: EchoStar Application, Technical Annex at 5.

[^90]: This is consistent with the Commission's determination that for
    DBS operators to use the Section 25.118(e) streamlined fleet
    management procedure, they must certify that they will meet, among
    other requirements, the geographic service requirements in Section
    25.148(c) of the Commission\'s rules. *See* 47 C.F.R. §
    25.118(e)(9).

[^91]: *See* 47 C.F.R. § 25.114(d); Mitigation of Orbital Debris,
    *Second Report and Order*, 19 FCC Rcd 11567 (2004).

[^92]: *Public Notice*, International Bureau Satellite Division
    Information, Disclosure of Orbital Debris Mitigation Plans,
    Including Amendment of Pending Applications, Report No. SPB-112, DA
    05-2698 (Oct. 13, 2005) (*October 2005 Orbital Debris Public
    Notice*).

[^93]: EchoStar Satellite Operating Corporation, IBFS File No.
    SAT-AMD-20051118-00244 (*EchoStar-86.5W Orbital Debris Amendment*).

[^94]: *EchoStar-86.5W Orbital Debris Amendment* at Orbital Debris
    Mitigation Plan, 1.

[^95]: *Id.* at 3.

[^96]: *See supra* para. 17.

[^97]: *See* Amendment of the Commission's Space Station Licensing Rules
    and Policies, *First Report and Order and Further Notice of Proposed
    Rulemaking,* 18 FCC Rcd 10760, 10826, at para. 170 (2003) ("*First
    Space Station Reform Order"*).

[^98]: *See* 47 C.F.R. § 25.165.

[^99]: *First Space Station Reform Order*, 18 FCC Rcd 10760*,* 10875 at
    para. 309.

[^100]: *First Space Station Reform Order*, 18 FCC Rcd 10760, 10764-65
    at n. 4 and Amendment of the Commission\'s Space Station Licensing
    Rules and Policies, *Notice of Proposed Rulemaking*, IB Docket No.
    02-34, 17 FCC Rcd 3847, 3859 at n.4 (2002) ("*Space Station Reform
    NPRM or Notice*").

[^101]: The previous financial qualification requirements (which
    included submission of financial statements) have been eliminated
    entirely by *First Space Station Reform Order* and therefore we
    cannot impose them on DBS licensees, or any satellite licensee. *See
    supra* n. 115.

[^102]: *See* 47 C.F.R. §§ 25.165 (establishing the bond requirement for
    satellite licensees) and 25.137(d)(4) (making the bond requirement
    apply both to earth station applicants seeking access to foreign
    satellites and to non-U.S.-licensed satellite operators seeking
    access to the United States market). *See also DBS Notice*, FCC
    06-120, para. 26.

[^103]: *See* 47 C.F.R. §§ 25.701, 25.283. In 2005, the Commission
    adopted revised emergency alert system ("EAS") rules that now extend
    to DBS. *See* Review of the Emergency Alert System, EB Docket No.
    04-296, *First Report and Order and Further Notice of Proposed
    Rulemaking*, FCC 05-191 (rel. Nov. 10, 2005) and 47 C.F.R. Part 11.

[^104]: *See, e.g*., *DBAC Order*, 18 FCC Rcd 9455, 9469-70 at para. 39;
    *Pegasus Order*, 19 FCC Rcd 6080, 6092 at para. 28.

[^105]: *See* 17 U.S.C. §§ 119 & 122. *See also* 47 U.S.C. §§ 338 & 339;
    47 C.F.R. § 76.66.

[^106]: *See* 47 C.F.R. § 25.148(b).

[^107]: *Id*. By contrast, Section 25.164 of the Commission's rules
    establishes a milestone schedule for GSO satellite system licensees,
    other than DBS and DARS satellite systems. Under this milestone
    schedule, one year after grant, the grantee must enter into a
    binding, non-contingent construction contract; at two years,
    complete critical design review; at three years begin construction
    of the first satellite; at five years, launch and operate the
    satellite. 47 C.F.R. § 25.164.

[^108]: *First Space Station Reform Order*, 18 FCC Rcd 10760, 10833 at
    para. 191.

[^109]: *Id*.

[^110]: *See* 47 C.F.R. § 25.210(l). We note that in the *DBS Notice*,
    the Commission seeks comment on whether to require all DBS operators
    to be subject to annual reporting requirements. *See DBS Notice* at
    para. 27.

[^111]: 47 C.F.R § 25.121(d)(1)(2004).

[^112]: In particular, EchoStar shall not exceed a 0.25 dB change in
    overall equivalent protection margin with respect to the reference
    situation that existed for DBS satellites serving the U.S.

[^113]: In this context, an "affected" operator is one that is deemed
    affected in Appendices 30 and 30A of the ITU Radio Regulations.