> **Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. DBS-88-01           |
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| EchoStar Satellite Corporation   | ** |                              |
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| For Assignment of Direct         | *  |                              |
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| Satellite Orbital Position and   |    |                              |
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**ORDER**

**Adopted: May 7, 2003 Released: May 7, 2003**

By the Chief, Satellite Division, International Bureau:

I.  **INTRODUCTION**

1\. In this Order we grant EchoStar Satellite Corporation's (EchoStar)
outstanding assignment for 11 channels for a Direct Broadcast Satellite
(DBS) system. As described below, EchoStar is entitled to use 11 DBS
channels pursuant to its 1989 permit. Specifically, we authorize
EchoStar to operate a satellite using three channels at the 157° W.L.
orbital location and eight channels at the 148° W.L. orbital location.

II. **BACKGROUND**

2\. This action follows a *Memorandum Opinion and Order* (*EchoStar
Order*) in which the Satellite Division concluded that EchoStar had
satisfied the first due diligence condition of its permit to operate a
DBS system at a western orbital location.[^1] In the *EchoStar Order*,
the Division found that EchoStar had demonstrated that it has contracted
for the construction of a satellite to be located at a western orbital
location.[^2] As explained in the *EchoStar Order,* particular orbital
positions and channels are not assigned to a DBS permittee unless and
until a permittee has demonstrated that it has fulfilled this component
of the due diligence requirements. Pursuant to its permit, EchoStar is
entitled to use 11 DBS channels at a western orbital location.[^3]
EchoStar requested an assignment of eight channels at 148° W.L. and
three channels at 175° W.L.[^4] The Division concluded, however, that
EchoStar's due diligence showing demonstrated its intent to construct
only one satellite. Consequently, the Division ordered EchoStar to
select one western orbital location and provided EchoStar 10 days to
specify a revised preference for an orbital location and channel
assignment.[^5]

3\. On May 28, 2002, EchoStar submitted its request for 11 odd-numbered
channels, 1-21, at the 157° W.L. orbital location.[^6] EchoStar
explained that the 148° W.L. orbital location was no longer a feasible
option because it was entitled to 11 channels, and only eight channels
were available at the 148° W.L. orbital location. Further, the 175° W.L.
orbital location was no longer viable because its prior authorization
for 22 channels at that location had been cancelled, making an
assignment at the westernmost orbit slot unattractive.[^7] Thereafter,
the Division nonetheless directed EchoStar to select one of its original
orbital location selections, either 148° W.L. or 175° W.L.[^8] In
response, EchoStar requested to use the eight remaining channels at 148°
W.L. subject to a request for further review of its entitlement to its
full compliment of 11 channels.[^9]

4\. Subsequently, on February 11, 2003, EchoStar advised the Commission
that the "ideal placement" of its 11 frequencies would be eight channels
at 148° W.L. and three channels at 157° W.L.[^10] EchoStar is presently
using the eight channels at 148° W.L. pursuant to a grant of special
temporary authority. As a result, EchoStar asserts it would be able to
continue to provide service to the public at that location under a
permanent authorization.[^11] With respect to the three channels at 157°
W.L., EchoStar states it would bring the channels into timely use by
moving an existing satellite, EchoStar 4, to that orbital location.[^12]
EchoStar observes that although EchoStar 4 is not operating at full
capacity, it has enough functioning transponders to operate over three
channels. As a result, according to EchoStar, EchoStar 4 is well suited
to operate at 157° W.L.[^13]

5\. In further support of its request for three channels at the 157°
W.L. orbital location, EchoStar indicates that the tilt or "slew" angle
to transmit to the United States is attainable by EchoStar 4 from 157°
W.L. but not likely from 175° W.L.[^14] EchoStar explains that the slew
angle is the degree of tilt to which a satellite's control system must
be to orient the spacecraft in space, to effectively transmit to the
United States. EchoStar states it is more capable of maintaining the
slew angle for EchoStar 4 from the 157° W.L. orbital location. This is
because EchoStar 4's design specifications limit the capability of
maintaining the higher slew angle required at 175° W.L. Thus, EchoStar 4
would require the use of more station keeping fuel at 175° W.L. than
would be needed to maintain the slew angle and keep the satellite in
place at 157° W.L.[^15] In addition, EchoStar states that customers
receiving service from 148° W.L. will also be able to receive service
from 157° W.L. utilizing existing receive dishes, but would not be able
to do so from a satellite located at 175° W.L.[^16]

**III. DISCUSSION**

6\. EchoStar's 1989 permit entitled it to operate 11 channels in the
western portion of the orbital arc.[^17] EchoStar requested authority to
operate its 11 channels at two orbital locations. The Division found
that while EchoStar had satisfied it due diligence showing, it had
contracted for only one satellite. The Division, therefore, requested
EchoStar to implement all of its channels at one orbital location.
EchoStar responded, however, that under a revised business plan it could
provide service to the public most expeditiously by utilizing two
orbital locations. Specifically, EchoStar indicates that it can
implement this plan by moving an in-orbit satellite to 157° W.L. and by
operating the channels at 148° W.L., on a regularly-licensed basis, that
it is now operating pursuant to special temporary authority.

7\. The purpose of the Commission's DBS due diligence rules, and its
policy of assigning orbit locations and channels only after a
construction contract is in place, is to ensure that permittees
implement services to the public in a timely manner and do not warehouse
spectrum.[^18] We see no reason to preclude EchoStar from operating its
11 channels at two orbit locations because it can do so immediately.
Limiting EchoStar to one orbit location because its initial contract
involved only one satellite would frustrate its business plans and
undermine the purpose of our due diligence requirement. Indeed, EchoStar
can meet its ultimate due diligence milestone -- providing service to
the public --immediately upon grant of these assignments. Thus, we
assign EchoStar to operate on three channels at the 157° W.L. orbital
location, and eight channels at the 148° W.L. orbital location.

8\. With respect to the three channels at the 157° W.L. orbital
location, EchoStar states that it intends to move EchoStar 4 to this
location.[^19] This will allow EchoStar to provide timely service to the
public. We note, however, EchoStar's acknowledgement that EchoStar 4 is
not operating at full capacity because of several transponder
anomalies.[^20] As a result, we require EchoStar to ensure continuity of
service by filing a timely application for a replacement satellite
before EchoStar 4 is no longer able to provide service from 157° W.L.

9\. With respect to 148° W.L., there are eight unassigned channels at
this orbital location. Under the circumstances in this case, we will
assign EchoStar to these eight channels. EchoStar has had a longstanding
interest in DBS channels at 148° W.L.[^21] It is currently licensed and
operating on the other twenty-four channels at 148° W.L. and is
providing service on the remaining eight channels under special
temporary authority. [^22] There are no pending requests for DBS
frequencies at 148° W.L. EchoStar is able to provide immediate service
to the public from these channels. As the only entity licensed to
operate from the 148° W.L. orbital location, EchoStar can use the
additional channels to provide continued and enhanced service to its
customers from a single space station platform.[^23]

**IV. CONCLUSION AND ORDERING CLAUSES**

10\. Based on the foregoing, we assign EchoStar Satellite Corporation 11
DBS channels pursuant to its western DBS permit, File No. DBS-88-01,
eight channels at the 148° W.L. orbital location and three channels at
the 157° W.L. orbital location.

11\. Accordingly, IT IS ORDERED that the authorization of EchoStar
Satellite Corporation is modified to allow EchoStar to move the EchoStar
4 satellite to the 157° W.L. orbital location and provide service from
channels 1, 3 and 5.

12\. IT IS FURTHER ORDERED that EchoStar Satellite Corporation has 120
days from the release date of this Order to move EchoStar 4 from the
119° W.L. orbital location to the 157° W.L. orbital location and must
notify the Commission within 10 days of the relocation.

13\. IT IS FURTHER ORDERED that during the drift of EchoStar 4 from 119°
W.L. to the 157° W.L. orbital location, EchoStar Satellite Corporation
shall coordinate its tracking, telemetry, and control (TT&C) operations
with existing geostationary satellites to ensure that no unacceptable
interference results from EchoStar 4's TT&C operations.

14\. IT IS FURTHER ORDERED that the authorization granted in this Order
is subject to the following conditions: (1) until the International
Telecommunication Union (ITU) Region 2 Broadcasting Satellite Service
(BSS) Plan and its associated Feeder Link Plan are modified to include
the technical parameters of EchoStar 4 and its associated feeder links,
this satellite system shall not cause greater interference than that
which would occur from the current U.S. assignments in the Region 2 BSS
Plan at 157° W.L. to other BSS or other services or satellite systems
operating in accordance with the ITU Radio Regulations; and (2) no
protection from interference caused by radio stations authorized by
other administrations is guaranteed to EchoStar 4 unless and until
Appendices 30 and 30A plan modification procedures are successfully and
timely completed.

15\. IT IS FURTHER ORDERED that EchoStar Satellite Corporation is
authorized to operate EchoStar 2 to provide DBS service from channels
18-32 (even) at the 148° W.L. orbital location.

16\. IT IS FURTHER ORDERED that the authorization granted in this Order
is subject to the following conditions: (1) until the International
Telecommunication Union (ITU) Region 2 Broadcasting Satellite Service
(BSS) Plan and its associated Feeder Link Plan are modified to include
the technical parameters of EchoStar 2 and its associated feeder links,
this satellite system shall not cause greater interference than that
which would occur from the current U.S. assignments in the Region 2 BSS
Plan at 148° W.L. to other BSS or other services or satellite systems
operating in accordance with the ITU Radio Regulations; and (2) no
protection from interference caused by radio stations authorized by
other administrations is guaranteed to EchoStar 2 unless and until
Appendices 30 and 30A plan modification procedures are successfully and
timely completed.

17\. IT IS FURTHER ORDERED that EchoStar Satellite Corporation is no
longer required to submit a revised construction milestone schedule as
set forth in paragraph 11 in EchoStar Satellite Corporation, For
Assignment of Direct Broadcast Satellite Orbital Position and Channels,
*Memorandum Opinion and Order*, 17 FCC Rcd 8827 (Int'l Bur. 2002).

> 18\. This action is taken pursuant to Section 0.261 of the
> Commission's rules, 47 C.F.R.

§ 0.261 and is effective upon release.

FEDERAL COMMUNICATIONS COMMISSION

Thomas S. Tycz

Chief

Satellite Division

[^1]: EchoStar Satellite Corporation, For Assignment of Direct Broadcast
    Satellite Orbital Position and Channels, *Memorandum Opinion and
    Order*, 17 FCC Rcd 8827 (Int'l Bur. 2002) (*EchoStar Order*).
    Compass System, Inc. filed an Application for Review of this Order
    on June 17, 2002. We will address this application in a separate
    order.

[^2]: *EchoStar Order*, 17 FCC Rcd at 8829.

[^3]: Continental Satellite Corporation, *et al.,* *Memorandum Opinion
    and Order*, 4 FCC Rcd 6292, 6300 (1989).

[^4]: Letter to Magalie Roman Salas, Secretary, Federal Communications
    Commission, from David K. Moskowitz, Senior Vice President and
    General Counsel, EchoStar Satellite Corporation (January 8, 2002).
    At the time the EchoStar DBS permit was granted the east/west
    pairing rule was in effect. Under this rule, DBS channels would be
    assigned in east/west pairs with service to the eastern half of the
    United States permitted from the 61.5° W.L., 101° W.L., 110° W.L.
    and 119° W.L. orbital locations, and service to the western half of
    the United States permitted from the 148° W.L., 157° W.L., 166° W.L.
    and 175° W.L. orbital locations. Subsequently the east/west pairing
    policy was eliminated because full coverage of the contiguous United
    States (CONUS) is technically possible from several of the eastern
    locations.

[^5]: *EchoStar Order*, 17 FCC Rcd at 8830.

[^6]: Letter to Marlene H. Dortch, Secretary, Federal Communications
    Commission, from Pantelis Michalopoulos, Counsel for EchoStar
    Satellite Corporation (May 28, 2002).

[^7]: *Id*.

[^8]: Letter to Pantelis Michalopoulas, Counsel for EchoStar Satellite
    Corporation, from Cassandra C. Thomas, Deputy Chief, Satellite
    Division (December 24, 2002).

[^9]: Letter to Marlene H. Dortch, Secretary, Federal Communications
    Commission, from David R. Goodfriend, Director, Legal and Business
    Affairs, EchoStar Satellite Corporation (Jan. 3, 2003); *see also*,
    EchoStar Satellite Corporation, Application for Review, Filed
    January 23, 2003.

[^10]: Letter to Marlene H. Dortch, Secretary, Federal Communications
    Commission, from David R. Goodfriend, Director, Legal and Business
    Affairs, EchoStar Satellite Corporation (February 11, 2003)
    (*EchoStar Feb. 11 Letter*).

[^11]: *Id*.

[^12]: *Id*.

[^13]: *Id*.

[^14]: *Id*. at p. 2.

[^15]: *Id*.

[^16]: *Id*.

[^17]: Continental Satellite Corporation, 4 FCC Rcd at 6299. In 1992
    EchoStar was assigned 11 channels at the 119° W.L. orbital location
    and granted additional time to demonstrate due diligence for its
    proposed western satellite. EchoStar Satellite Corporation,
    Assignment of Direct Broadcast Satellite Orbital Positions and
    Channels, *Memorandum Opinion and* *Order*, 7 FCC Rcd 1765, 1770
    (1992).

[^18]: Dominion Video Satellite, *Order*, 14 FCC Rcd 8182 (Int'l Bur.
    1999).

[^19]: The EchoStar 4 satellite is presently at the 119° W.L. orbital
    location.

[^20]: *EchoStar Feb. 11 Letter,* at 1.

[^21]: Continental Satellite Corp., 4 FCC Rcd at 6295; EchoStar
    Satellite Corporation, 7 FCC Rcd at 1770.

[^22]: EchoStar Satellite Corporation, *Order and Authorization*, DA
    03-1263 (released April 25, 2003).

[^23]: *See* Letter to David Moskowitz, Senior Vice President and
    General Counsel, EchoStar Satellite Corporation, Request for STA
    (SAT-STA-20011025-00091), from Thomas S. Tycz, Chief, Satellite and
    Radiocommunication Division (December 28, 2001) (requiring EchoStar
    to notify its customers that service may be diminished or
    discontinued at any time).