Before the

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In the Matter of Application of

)

AFRISPACE, INC. ) File No. CSS-90-017;

) IBFS File Nos. SAT-LOA-

For Authority to Construct, Launch, and ) 19900723-00002; SAT-

Operate a Subregional Africa and ) AMD-19990125-00016

Middle Eastern Satellite Sound )

Broadcasting Transmission System )

# ORDER AND AUTHORIZATION

Adopted: December 17, 1999 Released: December 17, 1999

By Chief, Satellite and Radiocommunication Division, International
Bureau:

# Introduction

1.  With this Order, we authorize AfriSpace, Inc. ("AfriSpace") to
    launch and operate a satellite ("AfriStar") in the
    geostationary-satellite orbit ("GSO") in order to provide
    Broadcasting-Satellite Service (Sound) ("BSS(Sound)") on a
    non-common carrier basis to Africa and the Middle East in the
    1452-1492 MHz frequency band. This satellite will distribute
    multiple channels of radio programming originating in Africa,
    Europe, and the United States that can be received by simple,
    handheld radio sets by individuals in Africa and the Middle East.
    The new service has the potential to increase the variety of
    programming available in areas that already have service and to
    provide service to rural areas that have previously had no
    programming available.

# Background

2.  On July 23, 1990, AfriSpace, Inc. ("AfriSpace") filed an application
    for a private international satellite system to provide BSS(Sound)
    service. On June 21, 1991, AfriSpace was granted an experimental
    license for the AfriStar satellite to locate at the 12º W.L. orbital
    location and to use the 2310-2360 MHz band. Since 1991, the
    experimental license has been renewed every two years. Various
    amendments and modifications have been made by AfriSpace, including
    amendments to bring its requested operating frequencies into
    compliance with the outcome of the World Administrative Radio
    Conference 1992 (WARC-92) of the International Telecommunication
    Union.

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3.  On March 3, 1992, WARC-92 allocated the band 1452-1492 for
    facilities downlinking BSS(Sound) in Region 1. WARC-92 allocated
    other frequencies in the S-band, 2310-2360 MHz, to provide that
    service in the United States and India.[^1] The S-Band was chosen
    for BSS-Sound in the United States because its operation in the
    L-band would have caused unacceptable interference to Mobile
    Aeronautical Telemetry Service ("MATS"). In order to address those
    concerns, AfriSpace reached an agreement with the National
    Telecommunications and Information Administration ("NTIA") and the
    Department of Defense to change the orbital location of its AfriStar
    satellite from 12° W.L. to 21° E.L. The Commission granted the
    requested modifications in orbital location and downlink frequency
    and AfriSpace successfully launched its AfriStar satellite under the
    modified experimental license on October 28, 1998.[^2]

4.  On January 22, 1999, AfriSpace amended its pending application for a
    permanent license to bring its requested orbital location into
    conformance with the FCC experimental license granted in 1991, as
    amended, as well as with its actual operating location, and to
    modify its application to include the use of the lower frequencies
    allocated to the BSS(Sound) service in Region 1, specifically
    1452-1467 MHz. On March 4, 1999, the Commission issued a Public
    Notice, requesting comment on that amendment.[^3]

5.  In addition, in its amendment, AfriSpace describes its satellite
    operations and ownership and system structure. For example,
    AfriSpace states that a Regional Operations Center ("ROC") in
    Washington, D.C. will manage the performance and operation of all
    AfriStar satellite systems, including the on-board communications
    payload. The Washington, D.C. center will control and facilitate the
    delivery and quality of the signals to the satellite and route them
    through the onboard communications payload to their appropriate
    downlink carriers. Because the orbital location of the satellite was
    moved to 21º E.L., the locations of the earth station uplinks had to
    be moved offshore. The Washington, D.C. control center is currently
    connected to earth stations in Bangalore, India and Port Luis,
    Maritius by dedicated telephone lines.[^4] AfriSpace states that
    these stations are "largely unmanned and controlled directly from
    the ROC in Washington, D.C. and that local contractors provide
    maintenance of these stations on an "as needed" basis.[^5] AfriSpace
    further states that the ROC in Washington, D.C. is the control
    center for all operations of the satellite, it can turn off any
    transponder if there is a technical problem, can control individual
    channels on half of the transponders and is being equipped to relay
    U.S. originated programming.[^6]

6.  In its 1999 amendment, AfriSpace describes its ownership structure
    as follows: AfriSpace is a Washington, D.C. corporation that is 100
    percent owned by WorldSpace, Inc., a Maryland corporation.
    WorldSpace, Inc. is 97.5 percent owned by U.S. shareholders and 2.5
    percent owned by foreign shareholders. In December, 1996,
    WorldSpace, Inc. sold all its non-AfriSpace assets to an offshore
    entity, WIN, in exchange for capital and a sixteen percent equity
    stake in WIN. The cash proceeds of the sale are being used to
    finance AfriSpace's financial needs through the second quarter
    of 1999. Simultaneously, the shareholders and holders of options of
    WorldSpace, Inc. were granted rights to exchange their WorldSpace,
    Inc. shares for WIN shares, subject to FCC approval. AfriSpace
    states that, if all of these rights were to be exercised, WorldSpace
    would become a wholly-owned subsidiary of WIN. AfriSpace
    acknowledges that, before those rights could be converted,
    WorldSpace would have to file a transfer of control application.[^7]

7.  AfriSpace represented that no party has filed a petition to deny its
    application.[^8] AfriSpace addressed the interference concerns that
    NTIA and the U.S. Department of Defense raised by agreeing to move
    the satellite to a location from which the satellite cannot
    interfere with MATS operations in the United States. Although the
    Aerospace and Flight Test Radio Coordinating Council ("AFTRCC")
    initially opposed AfriSpace's application because of concerns about
    the coordination of another satellite to be operated by WorldSpace
    in the Caribbean and to be licensed by Trinadad,[^9] AFTRCC has
    withdrawn its opposition.[^10] Similarly, the NTIA, Department of
    Defense and Federal Aviation Administration have withdrawn[^11]
    their opposition[^12] to the grant of AfriSpace's license. The
    Commission issued a special temporary authority to allow AfriSpace
    to operate while these issues were being resolved.[^13]

# Discussion

8.  We find that AfriSpace is legally and technically qualified to hold
    a satellite BSS(Sound) license and that it is in the public interest
    to grant such a license.

9.  AfriSpace proposes to use satellite technology to bring additional
    sources of information, entertainment and news to the vastly
    underserved people and communities of Africa and the Middle East.
    AfriSpace notes that Africa has an average of .8 radios per
    household, compared to 5.4 radios per household in the United States
    and 3.0 in Europe. AfriSpace states that most people in the regions
    to be served by AfriStar satellite rely on radio as a primary means
    of accessing local and national information. AfriSpace further
    states that a small percentage of the population in these areas has
    access to international news and information resources through
    unreliable shortwave radio.[^14] The radio signals from the AfriStar
    satellite will be capable of being received by small, inexpensive
    portable radios. Spectrum on the AfriStar satellite will be leased
    to programmers that will use it to deliver a mix of commercial and
    non-commercial programming, including public service information
    supplied by international, regional and national health and welfare
    social agencies. AfriSpace represents that these programmers,
    including U.S. based programmers, will be able to use the AfriStar
    satellite to reach over one billion people in Africa and the Middle
    East which previously have largely been inaccessible to these
    programmers.[^15]

10. AfriSpace states that the coordination process in accordance with
    the International Telecommunication Union ("ITU") procedures is far
    along. AfriSpace has followed the ITU requirements by filing the
    advance publication and coordination information in a timely manner.
    The advance publication information describes the general parameters
    of the satellite system, such as orbital location and frequencies.
    The coordination information contains detailed technical data and
    provides other countries an opportunity to comment on how the
    proposed system may affect existing and future radio facilities.
    During the last phase of the ITU process, notification, the final
    technical parameters of the operation are published. Seventeen
    countries have informed the ITU Radiocommunication Bureau that they
    intend to authorize the use of the AFRIBSS satellite system within
    their territories.[^16]

11. Because AfriSpace will offer service on a non-common carrier,
    non-broadcast basis, it is not subject to the statutory foreign
    ownership restrictions in Section 310(b) of the Communications
    Act.[^17] In addition, even if Section 310(b) applied to AfriSpace's
    application, we would nevertheless conclude that AfriSpace's
    application is not barred. According to AfriSpace's application, it
    is wholly owned by WorldSpace, Inc, a closely held Maryland
    corporation. All of WorldSpace's shareholders holding more than ten
    percent of the voting stock are U.S. entities and the total foreign
    ownership is 2.5 percent of the voting stock. All of the directors
    of both WorldSpace and AfriSpace are U.S. citizens. AfriSpace's
    total disclosed foreign ownership thus amounts to 2.5 percent, well
    below the relevant twenty-five percent statutory benchmark. Any
    potential transfer of WorldSpace to WIN, a foreign corporation, does
    not make WIN a real-party-in-interest at this time. Future ownership
    rights, such as options and convertible stock warrants, are not
    considered cognizable until exercised.[^18] Additionally, AfriSpace
    has stated that the exercise of options held by WorldSpace
    shareholders would be subject to Commission approvals.[^19]

12. AfriSpace had applied for a pioneer preference as early as
    1991.[^20] Congress subsequently enacted a sunset provision,
    terminating the Commission's authority to grant pioneer
    preferences.[^21] The Commission subsequently dismissed all pending
    pioneer preference requests, including AfriSpace's.[^22] The court
    of appeals issued a ruling on the pioneer preference issue that
    disposed of all pending appeals by granting a pioneer preference
    only to Qualcomm.[^23] AfriSpace is not currently contending that it
    has any rights to obtain a pioneer preference for the AfriStar
    satellite[^24] and, therefore, that issue is moot.

# Conclusion

13. We find that AfriSpace is qualified to be a Commission licensee and,
    pursuant to Section 309 of the Communications Act, that grant of its
    application will serve the public interest, convenience and
    necessity. Thus, AfriSpace's authorization is granted, subject to
    the conditions described below.

# Ordering Clauses

14. IT IS ORDERED that the application File No. CSS-90-017, as
    amended,[^25] IS GRANTED, and AfriSpace, Inc. IS AUTHORIZED to
    launch and operate a geostationary satellite at the 21º E.L. orbital
    location for the purpose of providing a satellite digital audio
    radio service to Africa and the Middle East, in the 1452-1492 MHz
    (space-to-earth) frequency band in accordance with technical
    specifications set forth in its application and consistent with our
    rules, unless specifically conditioned or waived herein.

15. IT IS FURTHER ORDERED that, with respect to the operations
    authorized herein, AfriSpace shall prepare the necessary
    information, as may be required, for submission to the ITU to
    initiate and complete the advanced publication, international
    coordination, and notification process of this space station in
    accordance with the ITU Radio Regulations. We also remind all
    licensees that no protection from interference caused by radio
    stations authorized by other administrations is guaranteed unless
    coordination procedures are timely completed or, with respect to
    individual administrations, coordination agreements are successfully
    completed. Any radio station authorization for which coordination
    has not been completed may be subject to additional terms and
    conditions as required to effect coordination of the frequency
    assignments of other administrations, 47 C.F.R. § 25.111(b).

16. IT IS FURTHER ORDERED that AfriSpace is obligated to comply with the
    applicable laws, regulations, rules and licensing procedures for
    those countries it proposes to serve.

17. IT IS FURTHER ORDERED that the license term for the space station is
    ten years and will begin on the date AfriSpace, Inc. certifies to
    the Commission that its operations fully conform to the terms and
    conditions of this authorization.

18. IT IS FURTHER ORDERED that AfriSpace is afforded thirty days from
    the date of the release of this Order and authorization to decline
    this authorization as conditioned.

19. This Order is issued pursuant to Section 0.261 of the Commission's
    rules on delegated authority, 47 C.F.R. § 0.261, and is effective
    upon release. 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 and 1.115, may be filed within thirty days
    of the date of public notice of this Order (*see* 47 C.F.R. § 1.4
    (b)(2)).

> FEDERAL COMMUNICATIONS COMMISSION
>
> Thomas S. Tycz
>
> Chief, Satellite and Radiocommunication Division
>
> International Bureau

[^1]: In 1997, Mexico was added to the footnote to use the S-Band for
    BSS(Sound). *See* Article 55.393 of Chapter S II of the ITU Radio
    Regulations.

[^2]: The experimental license authorizes AfriSpace to operate in the
    1467-1492 MHz band, a portion of the 1452-1492 MHz. frequency band
    allocated for BBS(Sound) services in Region 1. *See* Amendment to
    AfriSpace Application at 10, n.29. AfriSpace initially requested
    these frequencies in the upper portion of the band because they were
    immediately available. When the technical issues surrounding the use
    of the lower portion of the band were resolved, AfriSpace amended
    its application to request all allocated frequencies, *i.e.,*
    1452-1492 MHz. *Id.* at iii.

[^3]: Application of AfriSpace, Inc. for Authority to Launch and Operate
    a Satellite Sound Broadcasting Transmission System, File No.
    CSS-90-017, \[IBFS File No. SAT-LOA-19900723-00002\]; Amendment File
    No. SAT-AMD-19990125-00016 (Call Sign 52367), Report No. SPB-149
    (Mar. 4, 1999).

[^4]: Amendment to AfriSpace application at 20.

[^5]: Response of WorldSpace, Inc. and AfriSpace, Inc. to the Comments
    of AeroSpace and Flight Test Radio Coordinating Council, at 10
    (filed May 3, 1999).

[^6]: Letter from Counsel for AfriSpace to Staff, Satellite and
    Radiotelecommunication Division at 2 (Oct. 15, 1999).

[^7]: Amendment to AfriSpace application at 29.

[^8]: Amendment to AfriSpace application at 6.

[^9]: Letter from AFTRCC to the Secretary, FCC (Apr. 8. 1999). *See
    also* Letter from General Aviation Manufacturer's Association to the
    Secretary, FCC ("GAMA") (May 3, 1999) (GAMA endorsed AFTRCC's April
    8^th^ letter).

[^10]: *See* letter from Rex D. Miller, AFTRCC to Secretary, FCC (Dec.
    14, 1999) and letter from Edward M. Bolen, GAMA to Secretary, FCC
    (Dec. 13, 1999).

[^11]: *See* letter from Gregory L. Rohde, Assistant Secretary for
    Communications and Information, Department of Commerce, to William
    Kennard, Chairman, FCC (Dec. 14, 1999) (withdraws the objections of
    all three federal agencies).

[^12]: Letter from Arthur L. Money, Department of Defense, Larry Irving,
    Assistant Secretary for Communications and Information, Department
    of Commerce and Steven J. Brown, Associate Administrator for Air
    Traffic Services, Federal Aviation Administration to William E.
    Kennard, FCC (May 17, 1999).

[^13]: *See* letter from Thomas S. Tycz, Chief of the Satellite and
    Radiotelecommunication Division, International Bureau to Tara
    Giunta, Counsel for AfriSpace (Oct. 20, 1999) (granted initial
    30-day special temporary authority) and letter from Tycz to Giunta
    (Nov. 19, 1999) (granted 30-day extension of the special temporary
    authority).

[^14]: Amendment to AfriSpace application at iii (filed Jan. 22, 1999).

[^15]: Amendment to AfriSpace application at iv.

[^16]: Amendment to AfriSpace application at D-23. (The seventeen
    countries are Angola, Botswana, Central African Republic, Democratic
    Republic of the Congo, Egypt, Gabon, Gambia, Ghana, Kenya, Lesotho,
    Liberia Mauritius, Senegal, Sierra Leone, South Africa, Togo and
    Uganda.) *see also* Letter from Richard B. Engleman, FCC to the
    Director, Radiocommunication Bureau, ITU (June 21, 1999).

[^17]: 47 U.S.C. § 310b). *See also* American Mobile Radio Corporation,
    Application for Authority to Construct, Launch and Operate Two
    Satellites in the Satellite Digital Audio Radio Service, Order and
    Authorization, DA 97-2210 (rel. Oct. 16, 1997); In re Application of
    MCI Telecommunications Corporation for Authority to Construct,
    Launch and Operate a Direct Broadcast Satellite System at 110
    Degrees W.L., DA 96-1793 (rel. Dec. 6, 1996).

[^18]: American Mobile Radio Corporation, Application for Authority to
    Construct, Launch, and Operate Two Satellites in the Satellite
    Digital Audio Radio Service, 13 FCC Rcd 8829, 8836 (IB 1997).

[^19]: Amendment to AfriSpace application at 29.

[^20]: Amendment to AfriSpace application at 9.

[^21]: Uruguay Round Agreements Act, Pub. L. No. 102-465, § 801, 108
    Stat. 4809, 5050-51, codified at 47 U.S.C. § 309(j)(13)(F)
    (terminated the Commission's authority to grant pioneer's
    preferences after September 30, 1998). Congress subsequently
    advanced the sunset date from September 30, 1998 to August 5, 1997.
    *See* Balanced Budget Act of 1997, Pub. L. No. 105-33, § 3002
    (a)(1)(F), 111 Stat. 251, 259 (1997), amending 47 U.S.C. §309
    (j)(13)(F).

[^22]: Dismissal of All Pending Pioneer Preference Requests; Review of
    the Pioneer's Preference Rules, *Order*, 12 FCC Rcd 14006, 14009
    (1997); *Memorandum Opinion and Order*, 13 FCC Rcd 11485 (1998).

[^23]: *See Qualcomm Incorporated v. FCC*, 181 F. 3d 1370 (D.C. Cir.,
    Jul. 23, 1999).

[^24]: Letter from Counsel for AfriSpace to Staff, Satellite and
    Radiotelecommunication Division (Nov. 16, 1999).

[^25]: IBFS File Nos. SAT-LOA-19900723-00002; as amended by
    SAT-AMD-19990125-00016.