**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of the Applications of )

)

**SatCom Systems, Inc.** )

)

For Blanket Authorization to operate up to )

25,000 mobile satellite earth terminals (METs) )

through Canadian-licensed satellite MSAT-1 at ) File Number:
647-DSE-P/L-98

106.5 degrees W.L., in frequency bands ) IBFS File Number:

1631.5-1660.5 MHz (transmit) and ) SES-LIC-19980310-00272E9808159

1530-1559 MHz (receive) throughout )

the Continental United States, United States )

territories, Alaska, and Hawaii )

)

**TMI Communications and Company, L.P.** )

)

For Blanket Authorization to operate up to )

100,000 mobile satellite earth terminals (METs) ) File Number:
730-DSE-P/L-98

through Canadian-licensed satellite MSAT-1 at ) IBFS File Number:

106.5 degrees W.L. in frequency bands ) SES-LIC-19980330-00339E980179

1631.5-1660.5 MHz (transmit) and )

1530-1559 MHz (receive) throughout the )

Continental United States, United States )

territories, Alaska, and Hawaii )

)

**SatCom Systems, Inc.** ) File No. 1217-SSA-98

)

For Special Temporary Authority to Provide )

Mobile Satellite Service Through The )

Canadian-Licensed MSAT-1 Satellite )

**ORDER AND AUTHORIZATION**

**Adopted:** November 12, 1999 **Released:** November 30, 1999

By the Commission: Commissioner Furchtgott-Roth issuing a statement.

**I. Introduction**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level71. By this action, we grant SatCom Systems, Inc. (SatCom)
and TMI Communications and Company, L.P. (TMI) blanket authority to
operate mobile earth terminals (METs) to provide mobile satellite
service (MSS) in the United States via a Canadian-licensed satellite,
subject to conditions. SatCom and TMI\'s METs will operate in portions
of the L-Band spectrum.[^1] Grant of these applications will serve the
public interest by facilitating increased competition in the mobile
satellite services market, which will provide U.S. consumers and users,
including various federal and state governments and agencies, businesses
and individual consumers additional service options as well as other
benefits of competition such as lower prices, innovation, and improved
service.[^2]

**II. Background**

**A. The Applications**

2\. On March 10, 1998, SatCom, a U.S. company, filed an application for
blanket authorization to operate up to 25,000 METs in the United States
for communication with the Canadian satellite, MSAT-1. MSAT-1 is a
geostationary satellite licensed by the Canadian government that
currently operates at 106.5^0^ W.L.[^3] SatCom proposes to operate in
the 1530-1559 MHz and 1631.5-1660.5 MHz frequency bands. Pursuant to
this authority, SatCom would provide circuit-switched mobile telephone
services and packet-switched data services to land vehicles, maritime
and aeronautical vessels, and temporary fixed stations.

3\. On March 30, 1998, TMI, a Canadian Company, filed an application for
blanket authorization to operate up to 100,000 METs to communicate with
the MSAT-1 satellite.[^4] TMI proposes to operate in the 1530-1559 MHz
and 1631.5-1660.5 MHz frequency bands.[^5] Pursuant to this authority,
TMI would provide circuit-switched mobile telephone services and
packet-switched data services to land vehicles, maritime and
aeronautical vessels, and temporary fixed stations.[^6]

4\. AMSC Subsidiary Corporation (AMSC), which the Commission licensed in
1989 to operate a mobile satellite system in the upper L-band, filed a
Petition to Deny both the SatCom and TMI applications.[^7] AMSC argues
that the Commission should not permit foreign licensed L-band mobile
satellites to serve the United States until AMSC has successfully
coordinated sufficient L-band spectrum for its system. Space System
License, Inc., (SSL) a wholly owned subsidiary of Motorola Inc., filing
jointly with Iridium LLC, (SSL/Iridium), Globalstar, L.P., and Norcom
Networks Corporation (Norcom) argue that the Commission should not
permit foreign-licensed satellite systems to operate in the \"lower\"
L-band until the Commission lifts the \"freeze\" it imposed in 1996 on
applications for this band.[^8] In response, both SatCom and TMI state
that they would not object to an initial license grant for operating
authority solely in the \"upper\" L-band.[^9] SSL/Iridium also requests
that if we were to grant the SatCom and TMI applications, we require
SatCom and TMI to coordinate out-of-band interference with its licensed
\"Big LEO\" Iridium system,[^10] while Norcom requests that we require
TMI to provide satellite capacity on MSAT-1 at non-discriminatory
rates.[^11]

5\. In addition, in April 1999, the Federal Bureau of Investigation
(FBI) filed Petitions to Defer and Request for Imposition of Conditions
on both applications.[^12] Accompanying the respective Petitions were
Motions for Leave to File Late Pleadings.[^13] In response, TMI and
Satcom filed Oppositions to both the FBI\'s Motion and the FBI\'s
Petition.[^14] The FBI filed Replies to the Oppositions.[^15] The FBI,
however, reached agreement with TMI in October 1999 and filed a
conditional withdrawal of its Petition to Defer and Request for
Imposition of Conditions.[^16]

6\. On February 10, 1998, the International Bureau granted SatCom\'s
request for special temporary authority (STA) to conduct limited
technical trials until September 26, 1998 using up to thirty METs.[^17]
SatCom currently is conducting commercial trials for up to 500 terminals
under an STA granted July 17, 1998.[^18] The International Bureau
granted the STAs without prejudice to Commission action on SatCom\'s
underlying application for regular authority. To this end, the
International Bureau required SatCom, as a condition of its STA to
conduct commercial trials for 500 METs, to inform customers that it is
operating under temporary authority and would be required to terminate
operations in the event the Commission denied its underlying
application. Globalstar filed a Petition for Reconsideration of the STA
for commercial trials and AMSC filed a Motion for Stay and an
Application for Review of the STA.[^19]

**B. Current L-Band Licensee**

7\. AMSC is the only U.S. system currently authorized to provide
domestic L-band service in the United States.[^20] AMSC was formed as a
consortium of all qualified applicants that had filed MSS space station
applications in response to a 1985 cut-off notice.[^21] In developing
licensing rules for this new service, the Commission determined that the
available spectrum could support only one U.S. space station licensee
and directed the qualified applicants to form a consortium.[^22] In
1989, the Commission granted AMSC authority to construct, launch, and
operate a three-satellite geostationary-satellite MSS system to operate
in 28 megahertz (14 megahertz in each transmission direction) of L-band
spectrum.[^23] AMSC was authorized to operate in the \"upper\" portion
of the L-band only, specifically the 1545-1559 MHz and 1646.5-1660.5 MHz
bands, subject to international coordination. AMSC currently operates
one satellite, AMSC-1, at 101^0^ W.L.

**C. L-Band Coordination Agreement**

8\. The L-band is comprised of 66 megahertz (33 megahertz in each
transmission direction). In the North America coverage area,[^24] five
operators, including AMSC, currently provide service in the L-band.[^25]
In accordance with the provisions of the Radio Regulations of the
International Telecommunication Union (ITU), operators of satellite
systems are required to coordinate their spectrum use to prevent
interference to, and receive protection from, other systems.[^26]
International coordination of the L-band frequencies has been difficult
because the stated requirements of the five systems involved in the
coordination, which included their domestic requirements, far exceed the
66 megahertz of spectrum available. In June 1996, in Mexico City, after
seven years of negotiations, the operators recognized that they would
not be able to reach a long-term coordination agreement that would
accommodate their business plans. Their respective administrations (the
United States, Canada, Mexico, Russia, and Inmarsat)[^27] developed and
agreed upon a unique framework to facilitate annual and dynamic spectrum
assignment agreements among the operators.[^28] The operators then
signed a one-year agreement that would be revisited annually based upon
current and projected traffic levels of each system (\"annual
operator-to-operator agreement\"). The 1996 operator-to-operator
agreement provided each system with an amount of spectrum based upon its
current and projected near-term traffic requirements. Thus unlike most
international coordinations that create permanent assignments of
specific spectrum, here the operators\' assignments could change from
year to year based on their marketplace needs. Significantly, each of
the five operators received less spectrum than it had requested for its
system, for its long-term use, and in some cases, less spectrum than it
had been authorized to use by its respective administration. By
agreement of the operators, the actual amount of spectrum and the
frequencies that each party has coordinated and is able to use is
confidential.

**D. Lower L-Band Notice of Proposed Rulemaking**

9\. Although the entire L-band spectrum has been and continues to be
coordinated among the five operators, certain issues remain
domestically. In June 1996, the Commission issued a Notice of Proposed
Rulemaking to establish rules and policies for the use of spectrum for
MSS in the lower L-band.[^29] In that *Notice*, the Commission
acknowledged that in the course of international coordination, it became
clear that the United States would not be able to secure sufficient
spectrum in the upper L-band to support AMSC\'s system. Consequently,
the United States began to coordinate spectrum in the lower L-band to
make up some of the shortfall to support the U.S. system.

10\. In the *Lower L-Band Notice,* the Commission recognized that when
it established licensing policies for L-band MSS in 1985, it had
\"estimated that an MSS system would require 20 megahertz\"[^30] (10
megahertz in each transmission direction). The Commission further
recognized that based on the status of coordination negotiations, it was
unlikely to coordinate more than 20 to 24 megahertz (10 to 12 megahertz,
respectively, in each transmission direction) in the entire L-band and
significantly less than that in the upper L-band.[^31] The Commission
further stated that while it cannot guarantee the outcome of
international coordinations regarding the L-band spectrum, it would
attempt to secure sufficient spectrum \"to ensure that our licensees
have a fair opportunity to compete.\"[^32] To provide AMSC with this
opportunity, the Commission proposed to modify AMSC\'s authorization to
permit it to operate in the lower L-band spectrum coordinated for the
U.S. system, without considering competing U.S. lower L-band
applications for U.S. space station licenses.[^33] The Commission
requested comment on this proposal, as well as on whether its 1985
estimate regarding the amount of spectrum (10 megahertz in each
direction) needed to operate a viable MSS system was still valid.[^34]
The Commission also proposed that if the United States were able to
coordinate more than 28 megahertz of spectrum in the upper and/or lower
L-bands, it would allow other parties to apply for assignment of the
additional spectrum for U.S. space station licenses.[^35]

**E. World Trade Organization Agreement and DISCO II**

11\. The United States signed the World Trade Organization (WTO)
Agreement on Basic Telecommunication Services in 1997. In the WTO
Agreement, the United States committed to open its satellite market to
foreign systems licensed by WTO-member countries to provide fixed and
mobile satellite services (excluding direct-to-home fixed-satellite
service).[^36] In November 1997, we adopted the *DISCO II* *Order* which
implements the United States\' satellite commitments made under the WTO
Agreement.[^37] In *DISCO II*, we stated that we would

consider requests to serve the U.S. market pursuant to our public
interest mandate[^38] and identified public interest factors relevant to
making this determination.[^39]

**III. Discussion**

12\. Consistent with *DISCO II,* in our public interest review of the
TMI and SatCom earth station applications, we will take into account a
number of factors, including the effect of the pending applications on
competition in the United States, spectrum availability, eligibility
requirements, technical requirements, and national security, law
enforcement, foreign policy and trade issues, as appropriate.[^40]

13\. In *DISCO II*, the Commission established two procedural vehicles
by which a foreign-licensed satellite could seek access to the United
States. The first involved the foreign entity participating in a *space
station* processing round. The Commission envisioned that this vehicle
would be used in response to a Public Notice announcing a \"cut-off\"
date for filing *space station* applications to be considered in the
round.[^41] Due to the difficulties in coordinating the five licensed
L-band systems, the Commission does not intend to open a space station
processing round to consider additional space stations in the upper
L-band.

14\. The second procedure by which the Commission considers requests for
foreign systems to access the United States involves the *earth station*
licensing process independent of a space station processing round. In
*DISCO II*, the Commission said it expected this procedure would be used
where an earth station in the United States seeks to access a non-U.S.
satellite that \"is already operating and for which the international
coordination process\...has been initiated.\"[^42] This is the case
here. The TMI satellite is in-orbit and operating on frequencies
coordinated for the Canadian L-band MSS system. SatCom and TMI, both
seek to access the TMI satellite using earth stations located and
licensed in the United States. As discussed below, we find that granting
these earth station applications is in the public interest.
Consequently, grant of the TMI and SatCom earth station applications is
consistent with the *DISCO II* framework, which was designed to consider
requests for foreign access to the U.S. satellite market in a
transparent and non-discriminatory fashion.

**A. Competition Issues**

15\. The first factor in our public interest analysis is the effect
foreign entry will have on competition in the U.S. satellite market. In
*DISCO II*, we adopted a presumption that entry by satellite systems
from WTO-member countries seeking to provide satellite services in the
United States for which the United States made market access commitments
will promote competition.[^43] In their applications, SatCom and TMI
seek to access a satellite licensed by Canada, a WTO member, to provide
WTO-covered mobile-satellite services in the United States.
Consequently, we presume that grant of the applications will promote
competition in the United States.

16\. Nevertheless, a party may seek to rebut the presumption that entry
by a WTO-member satellite to provide WTO-covered service will further
competition by demonstrating that entry would cause competitive harm in
the U.S. satellite market.[^44] In *DISCO II*, the Commission gave
examples of the \"exceptional\" circumstances that could give rise to
competition concerns including, \"market concentration, discrimination,
below average variable cost pricing, monopoly supply of service . . . or
where the applicant has market power and could use that power to raise
prices and limit output in the U.S. satellite market . . . .\"[^45] We
also stated that where necessary to constrain the potential for
anti-competitive harm in the U.S. market for satellite services, we
reserve the right to attach conditions to a grant of authority, and in
the exceptional case in which an application poses a very high risk to
competition, to deny an application.[^46]

17\. AMSC contends that grant of SatCom and TMI\'s applications would
pose a \"very high risk to competition in the U.S. MSS market.\"[^47]
Specifically, AMSC alleges that TMI has received substantial subsidies
from the Canadian government during the course of its development, and
that this investment has significantly lowered TMI\'s effective capital
costs.[^48] As a result, AMSC claims that TMI has the ability to engage
in price discrimination or below average variable cost pricing.[^49] In
response, SatCom and TMI claim they have not benefitted from Canadian
government subsidies.[^50] TMI asserts that the Canadian government did
provide financial support for the research and development of mobile
terminals and applications, but that it provided those to independent
manufacturers for development purposes, not to TMI.[^51]

18\. AMSC has not met its burden of proof under the *DISCO II*
standard.[^52] It has not demonstrated that grant of SatCom\'s or TMI\'s
applications would cause competitive harm or pose a very high risk to
competition in the U.S. satellite market to warrant either imposing
conditions on the grants, or denial of the applications. AMSC provides
no convincing evidence that TMI was subsidized by the Canadian
government. AMSC merely states that it \"believes that the Canadian
government nurtured the project in its early stages, providing more than
\$2 million (U.S.) of internal funding.\"[^53] Further, AMSC\'s
reference to a pre-paid services agreement between the Canadian
government and TMI, pursuant to which the Government paid TMI
approximately \$111 million in exchange for capacity on TMI\'s
system,[^54] does not convince us that the Canadian government
subsidized TMI such that TMI has a competitive advantage that would
require us to take account of it in our action on these applications. As
TMI indicates, it is not unusual for a satellite operator to obtain
commitments for use of capacity and to secure prepayment on that
commitment.[^55] Moreover, TMI asserts that the liability for the
prepaid services is recorded on TMI\'s financial statements and that the
Canadian government is now using the services TMI has contracted to
provide.[^56] AMSC also alleges that BCE, Inc., the current owner of
TMI, committed \$100 million to TMI\'s development at the time of TMI\'s
bankruptcy reorganization in 1993 only because it would receive
favorable tax treatment from the Canadian government.[^57] TMI claims,
however, that this tax treatment would have been available to other
taxpayers in Canada.[^58] Further, even if, as AMSC asserts, the
Canadian government did provide substantial financial support to TMI
during its developmental phase, we find that AMSC has not demonstrated
that such contributions have impacted the pricing of TMI\'s services.
Again, AMSC merely states that such contributions will allow TMI more
\"pricing flexibility than AMSC has.\"[^59] AMSC does not provide any
empirical evidence supporting its assertions regarding the pricing of
TMI\'s services. AMSC\'s allegations, without supporting evidence,
therefore, do not rise to the level of \"exceptional\" circumstances
anticipated by *DISCO II* as a basis for denying an application based on
competition grounds.

19\. Norcom Networks is also concerned about possible anticompetitive
effects that may result from TMI\'s entry into the U.S. packet data MSS
market. Both Norcom and TMI own and operate Packet Data Hub stations,
which are used to control mobile earth terminals and route packet data
transmissions, originating from mobile earth terminals, over terrestrial
networks.[^60] Norcom asserts that if the Commission grants TMI\'s
application, TMI and Norcom will be direct competitors in the provision
of value-added packet data MSS and Norcom will be a potential customer
of TMI for satellite capacity.[^61] Specifically, Norcom contends that
TMI could subsidize its satellite capacity to end-users by charging TMI
competitors, in the market to provide packet data and circuit-switched
MSS, \"anticompetitive\" prices for access to its satellite.[^62]

20\. Norcom, therefore, requests the Commission to condition any grant
of TMI\'s application by requiring TMI to \"disclose its cost structure
for the provision of MSS satellite capacity to its own Packet Data Hub
and provide Norcom with capacity on MSAT-1 at a rate equal to the
transfer price at which TMI provides satellite capacity to its own
Packet Data Hub.\"[^63] Norcom asserts that such a condition is
consistent with the Commission\'s policy of imposing reporting
requirements to allow the Commission to monitor transfer pricing.[^64]
TMI asserts that it plans to provide only wholesale services in the U.S.
market and will not compete directly with Norcom\'s retail
services.[^65] TMI further states that it plans to offer its capacity on
MSAT-1 to packet data service providers separate from TMI\'s packet hub
services, and \"on a price which takes into account the reduced costs
which TMI may incur from providing an unbundled offering.\"[^66]

21\. Norcom has not demonstrated that TMI will set prices in a
discriminatory manner. Norcom provides no justification or quantitative
evidence to support its assertion that TMI will set anticompetitive
prices. Instead, Norcom offers conclusory statements about alleged
future behavior of TMI. Further, because TMI is not providing its
services directly to end-users, it will not be competing directly with
Norcom. The cases cited by Norcom are inapposite here. We find that it
is not necessary to place the condition requested by Norcom on TMI\'s
license since Norcom has not demonstrated that TMI will set prices in a
discriminatory manner.

**B. Spectrum Availability**

22\. The second public interest factor we consider here is spectrum
availability. Specifically, we consider whether there is spectrum
available to accommodate SatCom and TMI\'s earth station request. As the
Commission noted in *DISCO II,* we will consider spectrum availability
in determining whether to grant a non-U.S. satellite access to the U.S.
market.[^67] In particular, we noted that when considering earth station
applications that propose to provide service in the United States using
an operating non-U.S. licensed satellite, \"\[w\]e must determine
whether, and to what extent, the proposed U.S. service will impact
existing operations in the United States.\"[^68] For example, the
Commission stated that \"it did not expect to require existing U.S.
satellite systems to change their licensed operating parameters or to
decrease their capacity in order to accommodate additional non-U.S.
systems.\"[^69]

**1. Contentions of the Parties**

23\. In their respective applications, both SatCom and TMI assert that
the L-band frequencies that each proposes for service in the United
States already have been coordinated for the Canadian system under the
annual operator-to-operator agreement.[^70] As described above, in the
Mexico City Agreement, the five administrations established a framework
that permitted operators to develop a plan that designated discrete
portions of the L-band to each system for operation. SatCom and TMI note
that in serving the United States via the earth station applications at
issue here, they only will use spectrum that was coordinated for the
Canadian system; they will not provide service using spectrum
coordinated for the United States, i.e., the only system currently
authorized for domestic service, AMSC. As a result, SatCom and TMI

contend that their proposed services will not cause harmful interference
or adversely impact any existing U.S. operations.[^71]

24\. Under the annual operator-to-operator agreements AMSC has received
access to less than 20 megahertz of L-band spectrum (10 megahertz in
each transmission direction).[^72] AMSC argues that no other company
should be allowed to provide L-Band service in the United States until
AMSC has successfully coordinated the 20 megahertz of spectrum it
believes it needs to implement a viable system and which it believes the
Commission \"promised\" it in the *Lower L-Band Notice*.[^73]
Specifically, AMSC is concerned that TMI will use any increase in
traffic usage as a result of serving the U.S. market to negotiate
additional spectrum for MSAT-1 in the annual operator-to-operator
coordination negotiations.[^74] AMSC asserts that this opportunity will,
in turn, hinder its ability to coordinate the additional spectrum
necessary to bring its assignment to 20 megahertz. AMSC further asserts
that, because of the lack of available spectrum, the Commission should
not find that it is in the public interest to grant the SatCom and TMI
applications based on the spectrum availability policy articulated under
*DISCO II*.[^75] AMSC also argues that grant of SatCom and TMI\'s earth
station applications would result in a modification of AMSC\'s
authorization and would cause interference with AMSC\'s coordinated
spectrum.[^76]

**2. Discussion**

25\. We find that allowing the TMI system to serve the United States in
the spectrum coordinated for the Canadian L-band MSS system will not,
under our *DISCO II* policies, impact AMSC\'s existing operations,
change its licensed operating parameters, or necessarily decrease
AMSC\'s capacity. AMSC is now operating on spectrum coordinated for the
U.S. MSS system in the annual operator-to-operator agreement. TMI is now
operating on spectrum coordinated for the Canadian MSS system in the
annual operator-to-operator agreement. These spectrum segments do not
overlap and under the current operator-to-operator agreement, the use of
the respective spectrum segments by AMSC and TMI will not result in
interference to the operations of either system. The earth station
grants we issue to SatCom and TMI will allow them to provide service
only on the frequencies coordinated for the Canadian system, and on
which the TMI system is operating. Consequently, grant of the
applications will not in any way affect AMSC\'s existing operations nor
will AMSC\'s license be modified. AMSC\'s license continues to provide
that its operations will be subject to international coordination.[^77]
The spectrum has been coordinated and granting these earth station
applications will not alter the existing operator-to-operator agreement.
The spectrum used by TMI, which has been coordinated for use by the
Canadian system, is not currently available for use by the U.S. system.
In addition, as discussed below, the United States will continue to
pursue the coordination of additional spectrum for AMSC. Thus, the grant
of the SatCom and TMI earth station applications modifies none of the
terms and conditions of AMSC\'s license within the meaning of Section
316 of the Communications Act, 47 U.S.C. §316. Section 316 is not
invoked by the grant of SatCom and TMI\'s earth station
authorizations.[^78]

26\. Further, granting the SatCom and TMI earth station applications
will not necessarily reduce the capacity of AMSC\'s system at any future
time. As we have discussed elsewhere, L-band MSS systems currently
operate under a unique and dynamic spectrum coordination and designation
arrangement. This fluid arrangement allows segments designated for
specific spectrum usage to be altered based on traffic projections. We
also note that any single administration has the power to veto any
coordination agreement not to its liking. The U.S. Administration has
attempted to coordinate 20 megahertz of spectrum for AMSC since it began
the international coordination process in 1989. It has not been able to
do so \-- even though the coordination process has not, to date,
involved foreign L-band systems serving the United States. We have no
assurance that AMSC will *ever* have access to 20 megahertz of
coordinated spectrum in the L-band regardless of whether or not we allow
the Canadian MSS satellite to serve the U.S. market. The only variable
that may influence this procedure is AMSC\'s ability to attract traffic
\-- a variable far outside the Commission\'s control \-- and independent
of these applications.

27\. Under international treaty, all satellite systems licensed by the
Commission must be coordinated internationally, in accordance with the
International Telecommunication Union\'s Radio Regulations, with
satellites licensed by other countries or administrations that may be
affected by the U.S. system\'s operations, to avoid harmful interference
either to or from other countries\' systems.[^79] In this case, five
countries \-- the United States, Russia, Canada, Mexico, and the United
Kingdom \-- planned to implement L-band MSS systems that would serve
North America. Thus, the United States was required to coordinate
AMSC\'s operations with the operations of these four other systems. The
proposed operating bands and coverage \"footprints\" of those systems
overlapped with AMSC\'s proposed operation. The Commission recognized
the difficulty of this coordination in the *Lower L-Band Notice*, when
it stated that the Commission \"certainly cannot guarantee that other
administrations will always accommodate U.S.-licensed systems. We can
and should, however, take reasonable and appropriate steps to ensure
that our licensees have a fair opportunity to compete.\"[^80]

28\. Throughout the years of coordination, the U.S. Administration has
taken all reasonable and appropriate steps to facilitate coordination of
20 megahertz of spectrum for AMSC. AMSC is correct in noting that in
1985 the Commission estimated that an L-band MSS system would require a
minimum of 20 megahertz (10 megahertz in each transmission direction) to
be viable. This estimate was based upon AMSC\'s representations and was
consistent with the amount of spectrum other administrations were
seeking for their MSS systems in the L-band coordination process at that
time.[^81] Since the first coordination discussions were held in 1989,
the goal has been to coordinate 20 megahertz of spectrum for the AMSC
system. Despite its best efforts, however, the U.S. Administration has
not been able to do so because there is only a limited amount of L-band
spectrum (66 megahertz) available and it must be coordinated on an
international basis among all five participating operators. Based on the
stated spectrum requirements of each of the five operators, there simply
is not enough spectrum available to satisfy all their stated
requirements.

29\. Furthermore, based on the experience in the L-band coordination
process over the past ten years, future negotiations will continue to be
characterized by excess demand for spectrum. Therefore, in order for
AMSC to secure additional spectrum, another L-band system or systems
would need to agree to operate using less spectrum than currently is
coordinated for their systems. While AMSC may now have the traffic to
support 20 megahertz of spectrum,[^82] other L-band MSS operators likely
will continue to attract new customers over the next few years as MSS
becomes more ubiquitous. As a result, the spectrum needs of all five
operators may all continue to increase, making it more difficult to
secure agreement from operators to relinquish spectrum.[^83]
Alternatively, market forces and technological change may free up
spectrum from other operators and permit AMSC to obtain 20 megahertz
regardless of the SatCom and TMI earth station applications.

30\. AMSC argues that as a means of ensuring that it secures 20
megahertz of spectrum through the coordination, we should preclude any
other L-band system from serving the United States until AMSC has
coordinated 20 megahertz of spectrum. In effect, AMSC claims that, in
exchange for allowing a foreign L-band operator to serve the United
States, we should require the foreign operator to relinquish to AMSC
spectrum already coordinated under the annual operator-to-operator
agreement. Put another way, AMSC requests that we keep foreign carriers
out of the U.S. market long enough for AMSC to use its monopoly power
over U.S. customers to increase its traffic so significantly that it
justifies its increased spectrum assignment. We find that such a *quid
pro quo* would be inconsistent with U.S. market access commitments in
the WTO Agreement. If the United States is to obtain 20 megahertz of
spectrum for its system, it should be done in the normal course of the
international coordination process.

31\. We appreciate AMSC\'s position and the difficulties it may
encounter if it does not have access to 20 megahertz of spectrum. We
recognize that investment in U.S. systems may be impacted if licensees
and their investors do not have the necessary certainty that they will
be able to coordinate sufficient spectrum to support what the licensee
believes it needs to be viable. Nevertheless, pursuant to ITU treaty
obligations, the Commission must condition all licenses on the outcome
of the international coordination process.[^84] In this case, AMSC and
the U.S. Administration have made their best efforts over the last ten
years to coordinate AMSC\'s system. The inability to secure 20 megahertz
is based upon the fact that the current usage and projections of the
other systems exceed the amount of spectrum available in the L-band. We
note that all L-band systems are operating on less spectrum than
requested. Further, our 1985 estimate concerning MSS system spectrum
requirements may no longer be current.[^85]

32\. Significantly, nothing in this *Order and Authorization* prevents
AMSC from seeking to obtain additional spectrum for its system in the
annual coordination meetings pursuant to the applicable procedures. As
AMSC develops a customer-base sufficient to justify additional spectrum,
AMSC will be well-positioned to make every effort to secure additional
spectrum. Indeed, we encourage AMSC to continue to do so. The U.S.
Administration will continue to advocate the coordination of additional
spectrum for the AMSC system in the coordination process.[^86]

33\. Nevertheless, spectrum availability concerns here do not justify
precluding SatCom and TMI from entering the U.S. market. SatCom and TMI
will be permitted to provide domestic service in those portions of the
upper L-band spectrum coordinated for the MSAT-1 Canadian system.
Specifically, SatCom and TMI are authorized to use the spectrum in the
1545-1559 and 1646.5-1660.5 MHz bands coordinated for the TMI satellite
network in the 1999 annual operator-to-operator agreement, as well as
any subsequent or appropriate agreements. In the absence of any
continuing operator-to-operator agreement in the L-band, SatCom and
TMI\'s operations \-- like those of AMSC \-- and the other operators
with overlapping North America coverage areas, will be on a
non-interference basis until a future operator-to-operator agreement is
reached.

34\. The operator-to-operator agreement expires on December 31 each
year. We understand that the operators have not as yet reached an
agreement for the year 2000.[^87] Without an agreement assigning each of
the five systems to specific operating frequencies, all systems must
operate on a non-interference basis consistent with the ITU Radio
Regulations.[^88] Consequently, SatCom and TMI\'s operations, in the
absence of a continuing operator-to-operator agreement, must be
conducted on a non-interference basis. Because SatCom and TMI will be
providing service to customers in the United States, we will not require
them to discontinue those services after December 31, 1999 if the
parties cannot reach a coordination agreement. Rather, to minimize any
disruption to customers, we will allow SatCom and TMI to continue to
serve and acquire customers on a non-interference basis after December
31, 1999. In that event, we will require SatCom and TMI to inform its
U.S. customers that service is being provided on a non-interference
basis.

> **3. Freeze on Lower L-Band Applications**

35\. TMI and SatCom originally requested operating authority across the
entire L-band. As previously noted, the applicants later indicated that
they would not object to a grant in the upper L-band only. Because this
*Order and Authorization* permits TMI and SatCom to provide service only
in the \"upper\" L-band, we need not now address the claims by
SSL/Iridium, Norcom, and GlobalStar that the TMI and SatCom applications
cannot be granted due to a Commission \"freeze\" on applications seeking
to provide MSS in the lower L-band.[^89] Access to the lower L-band by
SatCom and TMI will be considered in the context of the pending *Lower
L-Band Proceeding*.

**4. Effect on Other Potential U.S. Satellite Systems**

36\. Significantly, if SatCom and TMI are not permitted to use the
spectrum that Canada has coordinated for its system in the upper L-band,
no other provider could use that spectrum to serve customers in the
United States. This arises from the United States\' international treaty
obligation to honor the ITU Radio Regulations. Because of these
obligations, the Commission would not consider licensing a U.S.
satellite to operate in spectrum being used by another Administration\'s
satellite and that has been coordinated for use by that satellite. Given
our shared geographic borders, the transmission beams of a Canadian
satellite and a U.S. satellite will cover overlapping geographic areas.
As a result, Canadian and U.S. satellite systems cannot operate in the
same frequency bands without causing each other mutual interference.
This is why the operator-to-operator coordination agreement designates
each Administration\'s satellite to use discrete frequency bands.

37\. Hughes and Loral argue that a decision to grant the TMI and SatCom
earth station applications, while prohibiting applications for
additional U.S. space station authorizations, will favor
foreign-licensed entities over U.S.-licensed entities.[^90] We reject
this view. As noted above, the earth station applications before us seek
to communicate with a foreign-licensed satellite on spectrum that
already has been coordinated for the exclusive use of that satellite. If
an otherwise qualified earth station applicant filed to communicate with
AMSC over spectrum coordinated solely for use by AMSC, the Commission
would grant that application as well. Therefore, nothing in our decision
favors foreign entities over U.S. entities with respect to earth station
licenses. In addition, the Commission thus far has concluded that there
is insufficient spectrum to authorize another space station to provide
MSS in the L-band in U.S. coordinated spectrum. This conclusion, which
is based on spectrum limitations, applies equally to foreign and U.S.
entities. Therefore, under the current circumstances, we would not
authorize a space station provider \-- foreign or U.S. \-- to operate in
the L-band on U.S. coordinated spectrum. Thus, the decision we reach
today does not favor foreign entities.

38\. If the Commission were to consider licensing another U.S.
satellite, the satellite would have to operate in the spectrum licensed
to and coordinated for the AMSC satellite. Given the ongoing spectrum
conflicts among the five licensed satellites in the L-band, we simply
cannot accommodate an additional U.S. satellite system in the upper
L-band at this time. Moreover, the Commission long ago determined that
there would be only one U.S. L-band satellite space station operator -
AMSC.[^91] Consequently, allowing the TMI MSS satellite to operate in
the upper L-band in the United States will permit it to provide service
to U.S. customers only on frequency bands that are designated for use by
Canada. We note that SatCom and TMI have represented that they have a
wide range of prospective U.S. customers, including U.S. federal and
local government agencies and citizens in Alaska.[^92]

**C. Eligibility Requirements**

39\. The Commission\'s *DISCO II* framework requires a foreign-licensed
satellite operator seeking U.S. earth station authorization to
demonstrate that it meets all eligibility and operating requirements
applicable to U.S. satellite and earth station operators in that
particular service. SatCom and TMI both assert they are qualified to
hold the blanket earth station licenses for which they have applied.

**1. Legal Qualifications**

40\. AMSC contends that SatCom is not legally qualified to hold a
Commission license because it violated the Communications Act and the
terms of its Special TemporaryAuthority for technical trials by openly
marketing and providing domestic commercial service in the United
States.[^93] AMSC states that SatCom was authorized to conduct technical
trials only, and expressly prohibited the use of the terminals \"for
service by any customer or clients of SatCom.\"[^94] AMSC bases its
contention on three specific instances. First, AMSC alleges a SatCom
marketing representative informed AMSC\'s Product Manager that SatCom
was authorized to provide MSS through TMI\'s space segment.[^95] Second,
AMSC alleges that a customer of one of AMSC\'s resellers, Skysite,
requested Skysite to deactivate two mobile terminals and indicated it
would be reactivating its terminals to receive service from SatCom.[^96]
Finally, AMSC contends that an AMSC consultant, hired to investigate
SatCom\'s sales activities, was able to obtain a purchase contract from
SatCom with the stated purpose of receiving domestic land-based or fixed
site MSS, received the handset and made several calls.[^97]

41\. SatCom claims that it has not violated the terms of its STA and has
filed three Affidavits to refute AMSC\'s allegations.[^98] Specifically,
SatCom argues that its representative may have been vague about
SatCom\'s FCC authority, but that in any event, there has been no
demonstration that TMI sold service to AMSC\'s employee.[^99] SatCom
further asserts that AMSC\'s ex-customer, Skysite, has been provided
access to TMI as part of SatCom\'s technical trial.[^100] Finally,
SatCom claims that it received no payment from AMSC\'s consultant for
the terminal, arguing that the terminal was an equipment purchase only
to be used as part of SatCom\'s technical tests.

42\. AMSC is correct in noting that the Commission \"has traditionally
dealt harshly with parties that provide unauthorized radio services to
the public\...\"[^101] However, there is nothing in the record that
raises a substantial and material question of fact that SatCom has
violated its STA and provided unauthorized services to the public on a
commercial basis and would therefore lack the basic qualifications to
hold or obtain an FCC license. Although we take AMSC\'s allegations
seriously, there is no demonstrated pattern of conduct on the part of
SatCom that raises a substantial and material question of fact that
SatCom went beyond its authorized technical trials and would otherwise
constitute grounds for denying SatCom\'s application. Furthermore, there
is nothing in the record that indicates SatCom, as a Commission
licensee, would fail to comply with Commission rules and policies in the
future.

**2. Financial Qualifications**

43\. SatCom and TMI will use the MSAT-1 satellite that is already in
orbit. The purpose of the Commission\'s financial requirements is to
ensure that a space station applicant has the financial resources to
construct, launch, and operate a satellite.[^102] Because the MSAT-1
satellite already is in orbit, TMI satisfies the financial requirement.

**3. Regulatory Status**

44\. In their petitions to deny, AMSC and Globalstar assert that SatCom
and TMI should be regulated as common carriers because their terminals
will be used to provide service to land vehicles, maritime and
aeronautical vessels.[^103] In response, SatCom and TMI assert that
because they will not be offering service directly to end-users but will
be operating as a \"carrier\'s carrier,\" they are not required to
operate on a common carrier basis.[^104]

45\. Section 332(c) of the Communications Act requires that providers of
commercial mobile radio service (CMRS) be regulated as common
carriers.[^105] Section 332(d)(1) of the Communications Act defines
\"commercial mobile service\" as \"any mobile service . . . that is
provided for profit and makes interconnected service available (A) to
the public or (B) to such class of eligible users as to be effectively
available to a substantial portion of the public, as specified by
regulation by the Commission.\"[^106] The Commission has determined that
each mobile satellite service must be evaluated to determine whether the
service offering is CMRS or private mobile radio service (PMRS).[^107]
In discussing Section 332(c)(5) of the Communications Act, Congress
indicated that the provision of earth segment capacity, either by MSS
operators through their own terminals or earth stations sold by vendors,
to users of CMRS shall be treated as common carriage.[^108] In applying
this requirement, the Commission has stated that to the extent a system
or other entity provides a service to end users that meets the elements
of the CMRS definition or its functional equivalent, it will be
regulated as common carriage.[^109]

46\. Therefore, we conclude that, to the extent that the earth stations
authorized by this *Order and Authorization* are used to make service
available to end users ‑‑ (A) the public, or (B) such classes of users
as to be effectively available to a substantial portion of the public ‑‑
for profit and for interconnection with the public switched network, the
offering of user transceivers to end users must be regulated as common
carriage because the service falls within the statutory definition of
CMRS. Moreover, to the extent that TMI seeks to provide common carrier
service, it is subject to the foreign ownership restrictions contained
in Section 310(b) of the Communications Act.[^110] As a result, TMI
cannot provide common carrier services directly, but may offer such
services through a service provider, either affiliated or unaffiliated,
that meets the requirements of Section 310 of the Act. Further,
provision of international CMRS using MSAT-1 by Satcom or any other
service provider will require prior authorization pursuant to Section
214 of the Communications Act, which covers authorizations for
international common carrier services.

**4.** **Technical Requirements**

**a. Conformance with U.S. Spectrum and Use Regulations**

**Regarding AMS(R)S**

47\. In the upper L-Band, mobile satellite service operators must comply
with a footnote to the U.S. Table of Frequency Allocation and a
provision in the ITU\'s Radio Regulations regarding priority and
preemptive access for Aeronautical Mobile Satellite (Route) Service
(AMS(R)S)[^111] operating in a portion of this band.[^112] In 1993, the
National Telecommunications and Information Administration (NTIA) and
the Federal Aviation Administration (FAA) proposed a minimum set of
capabilities to ensure that METs operating in the band 1545-1559 MHz and
1646.5-1660.5 MHz comply with US Footnote 308 and ITU Radio Regulation
S5.357A.[^113]

48\. In 1999, NTIA submitted a letter to the Commission that, among
other things, addressed the provision of priority and preemptive access
for AMS(R)S by SatCom and TMI.[^114] Specifically, in order to clarify
TMI\'s obligations as a U.S. mobile earth terminal licensee, NTIA
suggests two options concerning SatCom and TMI\'s respective
authorizations. First, in a case where AMS(R)S is not offered and
real-time preemption for AMS(R)S is not provided, NTIA notes that US
footnote 308 requires that any spectrum authorized for use in the United
States is on a secondary basis to AMS(R)S and proposes the Commission
include an Ordering Clause in the SatCom and TMI authorizations
specifically stating this.[^115] As noted by AMSC in its *ex parte*
letter, AMSC operates on a primary basis and as a condition of its
license AMSC will provide AMS(R)S service as required.[^116] AMSC,
however, claims that permitting TMI to operate on a secondary basis is
contrary to the Commission\'s rules for MSS operation in the L-band and
that if TMI operates on a secondary basis, TMI\'s customers would have
an advantage over AMSC\'s customers because TMI\'s service would not be
subject to real-time preemption, as AMSC\'s service would.[^117] TMI's
operations, on the other hand, will be on a secondary basis. Thus, in
the event of interference, its services may be reassigned or terminated
as necessary to meet U.S. AMS(R)S traffic requirements. Thus, we do not
believe that the secondary status of TMI\'s operations will provide TMI
any advantage over AMSC. We also are persuaded that the TMI network will
allow U.S. traffic to be shifted in the event that spectrum used for
that U.S. traffic must be reassigned to meet U.S. AMS(R)S requirements.
Therefore, we adopt NTIA\'s proposal to clarify the operational status
of SatCom and TMI as U.S. earth station licensees. In addition, we note
that SatCom and TMI will not be permitted to operate in the 1558.5-1559
MHz band or the 1660-1660.5 MHz band because this band is reserved
exclusively for AMS(R)S operation.

49\. NTIA\'s second alternative with respect to TMI\'s application is
that TMI obligate itself to be capable of offering AMS(R)S services and
to implement within its network all required priority and preemption
facilities for its own, and its resellers, operations in the United
States.[^118] NTIA notes that this will likely involve additional
expense for TMI. AMSC also notes that SatCom and TMI cannot meet the
Commission\'s technical requirements for priority and preemptive
access.[^119]

50\. The MSAT-1 satellite that SatCom and TMI seek to access is
technically similar to AMSC\'s satellite. We also have reviewed SatCom
and TMI\'s application, and with the exception of two of the stated
conditions, it appears they both comply with the requirements set forth
by NTIA and the FAA. We note that neither SatCom nor TMI is seeking
authority to provide AMS(R)S service, therefore, two of the conditions
are not applicable to SatCom and TMI at this time.[^120] In any event,
we condition, in all other respects, SatCom and TMI\'s authorization the
same way we conditioned AMSC\'s blanket license to operate up to 200,000
METs.[^121] If in the future SatCom and/or TMI desire to provide AMS(R)S
in the United States, they must make a full demonstration that they will
meet all of the applicable U.S. requirements for AMS(R)S service.

**b. Out-of-Band Emissions**

51\. SatCom and TMI assert in their respective applications that the
level of out-of-band and spurious emissions from all METs conforms with
Section 25.202(f) of the Commission\'s Rules, 47 C.F.R. § 25.202(f), and
with the 1994 Memorandum of Understanding among the Commission, the
National Telecommunications Information Administration, and the Federal
Aviation Administration.[^122] These levels were designed to protect the
Global Navigation Satellite Systems (GNSS). SSL/Iridium claim that the
proposed SatCom and TMI earth terminals may cause unacceptable
interference to its MSS \"Big LEO\" Iridium system which operates in
nearby frequencies.[^123] SSL/Iridium therefore request that the
Commission condition any grant of the SatCom and TMI applications on the
\"completion of coordination with Motorola with respect to out-of-band
interference to the licensed Iridium system.\"[^124]

52\. We find that it is not necessary to impose a condition on SatCom
and TMI to coordinate out-of-band interference with Iridium. For all
transmissions, a limited amount of power radiates outside of the
\"operating\" bandwidth. These \"out-of-band\" emissions may cause
interference into another system. For this reason, the Commission has
created rules to govern such emissions.[^125] Moreover, SatCom and TMI
have stated that in the event Iridium actually experiences interference
from out-of-band emissions, they will each work with Iridium to avoid
interference.[^126] We also note that this Order and Authorization does
not address SatCom and TMI\'s use of spectrum below 1631.5 MHz and that
the upper edge of Iridium\'s frequency band is 1626.5 MHz. Therefore, we
expect that this factor would further facilitate resolution of the
out-of-band interference issues with respect to SatCom and TMI\'s
operations. As a general matter, the Commission believes that issues
concerning out-of-band emissions should first be addressed by the
parties themselves.[^127] If the parties cannot agree to a mutually
acceptable solution with respect to operations, the Commission then will
become involved as necessary. Of course, SatCom and TMI must comply with
the Commission\'s rules dealing with emission limitations.[^128]

53\. We also note that the emissions limits proposed in the
Commission\'s Notice of Proposed Rulemaking pertaining to emissions
limits for mobile stations operating in the 1610-1660.5 MHz bands[^129]
are more stringent than the levels stated in SatCom and TMI\'s
respective applications. As a condition to this authorization, SatCom
and TMI must meet whatever final requirements are eventually adopted by
the Commission in that rulemaking proceeding.

**c. Emergency Communications**

54\. AMSC also asserts that SatCom and TMI fail to demonstrate that they
have any emergency communications capability.[^130] As TMI correctly
asserts, however, there is no requirement that MSS operators provide
access to emergency communications.[^131] SatCom and TMI both indicate
that if the Commission eventually determines that providing access to
emergency communications should be a requirement for MSS operators, they
will make every effort to comply with whatever technical standards are
established.[^132] While we will not adopt conditions in this licensing
proceeding, we strongly encourage all MSS providers to begin taking
steps now to provide routing for emergency communications to appropriate
public safety answering points.[^133]

**D. National Security and Law Enforcement Issues**

55\. The Executive Branch has raised concerns regarding national
security and law enforcement in this proceeding. In particular, the FBI
noted that SatCom and TMI\'s proposed use of a Canadian gateway to
switch, control, and route U.S. communications must not impair the U.S.
government\'s ability to: (1) carry out lawfully-authorized electronic
surveillance of domestic U.S. calls or calls that originate or terminate
in the United States; (2) prevent and detect foreign-based electronic
surveillance and espionage conducted in violation of U.S. law; and (3)
satisfy the National Security Emergency Preparedness and U.S.
infrastructure protection requirements.

56\. The Department of Justice (DoJ), the FBI, and TMI, however, have
informed the Commission that they have reached an agreement that
resolves the national security, law enforcement, and public safety
issues raised in the DoJ and FBI comments in this proceeding. The DOJ
and the FBI have submitted a copy of the executed agreement
(\"DoJ/FBI/TMI Agreement\") and request that the Commission approve and
adopt the Agreement and condition the TMI license on compliance with it.
In brief, the DoJ/FBI/TMI Agreement provides that TMI has committed,
among other actions and obligations, to establish a point of presence in
the United States, and to route to that point of presence all
communications traffic emanating from TMI METs to which users domiciled
in the United States subscribe.

57\. In *DISCO II*, we stated that \"other federal agencies have
specific expertise in matters that may be relevant in particular
cases.\"[^134] We also indicated that we will \"\[c\]ontinue to accord
deference to the expertise of the Executive Branch agencies in
identifying and interpreting issues of concern related to national
security, law enforcement, and foreign policy that are relevant to an
application pending before us.\"[^135] In addition, in *DISCO II*, we
stated that \"\[t\]he Commission will make an independent decision on
applications to be considered and will evaluate concerns raised by the
Executive Branch agencies in light of all the issues raised (and
comments in response) in the context of a particular
application.\"[^136] We note that the DoJ/FBI/TMI Agreement reflects a
unique situation, and contains certain provisions that, if broadly
applied, would have significant consequences for the telecommunications
industry. These provisions, if viewed as precedent for other service
providers and potential investors, would warrant further inquiry on our
part. Therefore, this Agreement does not establish precedent for future
cases. Notwithstanding these concerns about the potential implications
of some provisions of this Agreement, we see no reason to modify or
disturb the Agreement of the parties on this matter. If, however,
pursuant to paragraphs 5.3 or 7.2 of the DoJ/FBI/TMI Agreement, a party
to the Agreement seeks judicial relief for an alleged breach of
paragraph 5.1(a) or (b) of the Agreement, and pursues a court order
requiring that TMI immediately cease and desist from providing service
through the TMI space segment and ground networking equipment, TMI must
provide written notice to its customers that service may be terminated.
We also note that Section 63.19 of the Commission\'s rules, 47 C.F.R. §
63.19, is applicable regarding discontinuance of international common
carrier service.[^137]

58\. In accordance with the request of these parties and the discussion
above, we condition our grant of TMI and SatCom\'s application on
compliance with the DoJ/FBI/TMI Agreement, a copy of which is attached
hereto as Appendix A.

**E*.* Other Issues**

**1. Regulatory Fees and Universal Service Contributions**

59\. Contrary to AMSC\'s claims, SatCom and TMI agree to pay any
regulatory fees or universal service contributions to which its U.S.
operations would be subject under the Communications Act and the
Commission\'s Rules.[^138]

**2. SatCom Special Temporary Authority**

60\. As previously discussed, SatCom was granted special temporary
authority to conduct limited technical trials from the MSAT-1 satellite
pending Commission action on its underlying application. Because the
Commission has found the grant of SatCom\'s blanket earth station
application to be in the public interest, the Motion for Stay,
Application for Review, and Petition for Reconsideration filed against
the SatCom STA, granted for technical trials, are denied.

**3. CALEA**

61\. Under the Communications Assistance for Law Enforcement Act
(CALEA), telecommunications carriers must ensure that law enforcement
agencies can intercept certain communications transmitted over their
networks and are able to access certain \"call-identifying\" information
relating to communications over these networks.[^139] AMSC asserts that
SatCom and TMI fail to provide any indication as to how they will be
able to comply with CALEA.[^140] Contrary to AMSC\'s claim, there is no
requirement, however, that an applicant submit a demonstration with its
earth station application concerning its ability to comply with CALEA.
Further, we note that in the DoJ/FBI/TMI Agreement, TMI has agreed to
address law enforcement concerns, including providing capabilities and
capacity for authorized wiretaps.[^141]

**V. Conclusion**

62\. SatCom and TMI have demonstrated that their operations will be
consistent with the Commission\'s policies permitting service in the
United States over space stations licensed by foreign administrations
and therefore we find that both SatCom and TMI are qualified to hold the
blanket earth station authorizations requested. For all of the reasons
described above, we grant the earth station applications of SatCom and
TMI to provide MSS service in the United States over the MSAT-1
satellite using spectrum coordinated by Canada.

**VI. Ordering Clauses**

63\. Accordingly, IT IS ORDERED that Application File Number
647-DSE-P/L-98; IBFS File Number SES-LIC-19980310-00272E9808159 IS
GRANTED and SatCom Systems, Inc. IS AUTHORIZED to operate up to 25,000
mobile earth terminals through the Canadian licensed MSAT-1 space
station in the portions of the 1545-1558.5 and 1646.5-1660 MHz band
coordinated for the TMI satellite network in the most recent annual
L-band operator-to-operator coordination agreement, to the extent
indicated herein, in accordance with the technical specifications set
forth in its application and its Radio Station Authorization, and
consistent with the Commission\'s rules. In the absence of a continuing
annual L-band operator-to-operator coordination agreement, SatCom\'s
operation in the 1545-1558.5 and 1546.5-1660 MHz bands will be on a
non-interference basis until a future operator-to-operator agreement is
concluded. In this instance, SatCom must notify the other four operators
in these frequency bands that it will be operating on a non-interference
basis. SatCom must also notify its customers that SatCom\'s operations
are on a non-interference basis.

64\. IT IS FURTHER ORDERED that Application File Number 730-DSE-P/L-98;
IBFS File No. SES-LIC-19980330-00339E980179 IS GRANTED and TMI
Communications and Company, L.P. IS AUTHORIZED to operate up to 100,000
mobile earth terminals through the Canadian licensed MSAT-1 space
station in the portions of the 1545-1558.5 and 1646.5-1660 MHz band
coordinated for the TMI satellite network in the most recent annual
L-band operator-to-operator coordination agreement, to the extent
indicated herein, in accordance with the technical specifications set
forth in its application and its Radio Station Authorization, and
consistent with the Commission\'s rules. In the absence of a continuing
annual operator-to-operator coordination agreement, TMI\'s operation in
the 1545-1558.5 and 1646.5-1660 MHz band will be on a non-interference
basis until a future operator-to-operator agreement is concluded. In
this instance, TMI must notify the other four operators in the these
frequency bands that it will be operating on a non-interference basis.
TMI must also notify its customers in the United States that TMI\'s
operations are on a non-interference basis.

65\. IT IS FURTHER ORDERED that the TMI Communications and Company, L.P.
authorization and the license related thereto are subject to compliance
with the provisions of the Agreement attached hereto between TMI and the
Department of Justice and the Federal Bureau of Investigation, dated
September 10, 1999, which the Agreement is designed to address national
security, law enforcement, and public safety concerns of the Department
of Justice and the Federal Bureau of Investigation regarding the license
granted herein. Nothing in this Agreement or the Implementation Plan is
intended to limit any obligation imposed by Federal law or regulation
including, but not limited to, 47 U.S.C. § 222(a) and (c)(a) and the
Commission\'s implementing regulations.

66\. IT IS FURTHER ORDERED that the Petition to Adopt Conditions to
Authorization and Licenses, filed by DoJ and the FBI on October 6, 1999,
IS GRANTED.

67\. IT IS FURTHER ORDERED that SatCom Systems, Inc. and TMI
Communications and Company, L.P. must operate their respective mobile
earth terminals in a full-duplex mode and have the following minimum set
of capabilities to ensure compliance with US Footnote 308 to Section
2.106 of the Commission\'s Rules, 47 C.F.R. Section 2.106, and ITU Radio
Regulation S5.357:

a\. All MET transmissions shall have a priority assigned to them that
preserves the priority and preemptive access given to aeronautical
distress and safety-related communications sharing the band;

b\. Each MET shall be assigned a unique technical identification number
that will be transmitted upon any attempt to gain access to a system;

c\. After a MET has gained access to a system, the mobile terminal shall
be under control of a Land Earth Station and shall obtain all channel
assignments from it;

d\. All METs that do not continuously monitor a separate signalling
channel shall have provision for signalling within the communications
channel;

e\. Each MET shall automatically inhibit its transmissions if it is not
correctly receiving a separate signalling channel or signalling within
the communications channel from its associated Land Earth Station; and

f\. Each MET shall automatically inhibit its transmissions on any or all
channels upon receiving a channel-shut-off command on a signalling or
communications channel it is receiving from its associated Land Earth
Station.

68\. IT IS FURTHER ORDERED that, in accordance with US footnote 308, the
operation of TMI and SatCom METs, in the bands 1545-1558.5 and
1646.5-1660 MHz, is on a secondary basis to U.S. AMS(R)S requirements of
other U.S.-authorized MSS providers operating in the 1545-1559 and
1646.5-1660 MHz bands.

69\. IT IS FURTHER ORDERED that, SatCom Systems, Inc. and TMI
Communications and Company, L.P. will be subject to any applicable
out-of-band emission standards subsequently incorporated in the FCC\'s
rules for protection of the Global Navigation Satellite Service.

70\. IT IS FURTHER ORDERED that AMSC\'s Application for Review and
Motion to Stay of the Special Temporary Authority for Satcom Systems,
Inc. ARE DISMISSED.

71\. IT IS FURTHER ORDERED that GlobalStar L.P.\'s Petition for
Reconsideration of the Special Temporary Authority for SatCom Systems,
Inc. IS DISMISSED.

72\. IT IS FURTHER ORDERED that this license shall not vest in the
licensee any right to operate Earth stations or use the assigned
frequencies beyond the term thereof or in any manner other than
authorized herein, and neither the license nor the rights granted
thereunder shall be assigned or otherwise transferred in violation of
the Communications Act.

73\. IT IS FURTHER ORDERED that the license term for the mobile earth
terminals that are authorized by this *Order and Authorization* is for
ten years.

74\. IT IS FURTHER ORDERED that SatCom Systems, Inc. is afforded thirty
days to decline this authorization. Failure to respond within this
period will constitute formal acceptance of the authorization.

75\. IT IS FURTHER ORDERED that TMI Communications and Company, L.P. is
afforded thirty days to decline this authorization. Failure to respond
within this period will constitute formal acceptance of the
authorization.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

**APPENDIX A**

**AGREEMENT**

This AGREEMENT is made this 10th day of September, 1999, by and between,
on the one hand, TMI Communications and Company, Limited Partnership
(\"TMI\"), a Canadian limited partnership with its headquarters in
Gloucester, Ontario, Canada, and, on the other hand, the United States
Department of Justice (the \"DoJ\") and the Federal Bureau of
Investigation (the \"FBI\") (collectively, the \"Parties\").

**BACKGROUND**

TMI is seeking a blanket authorization from the Federal Communications
Commission ("FCC" or "Commission") to operate up to 100,000 satellite
mobile earth terminals (\"METs\") through a Canadian-licensed MSAT-1
satellite and a Canadian-licensed earth station gateway located in
Canada. (See FCC File No. 730-DSE-P/L-98; SES-LIC-19980330-00339 (Call
Sign E980179)). Specifically, TMI seeks licensing authority to provide
mobile satellite services, including circuit-switched mobile telephone
service and packet-switched data services within certain frequency bands
to subscribers in the United States. TMI's current network is engineered
utilizing a single geosynchronous satellite and a single gateway located
in Ontario, Canada, which provides all service to TMI customers. TMI's
current target market is primarily fleet services including land,
maritime and aeronautical vessels. TMI's voice METs cannot be readily
concealed. The relatively limited number of subscribers in TMI's target
market, the system architecture, the location of U.S. subscriber data in
the United States, the size of the METs, and the ability to securely
intercept U.S. subscribers are among the factors the U.S. Government is
taking into consideration in making this Agreement.

Given the U.S. Government's strong interest in ensuring the viability,
integrity, and security of U.S. telecommunications and its
infrastructure, the FBI filed petitions with the FCC on April 7, 1999
and April 27, 1999, raising concerns that United States national
security, law enforcement, and public safety may be adversely affected
if U.S. mobile communications are switched, controlled and routed by a
foreign-located satellite gateway. The petitions ask the FCC to act in
the public interest by conditioning its licensing approval so as to
address the FBI's national security, law enforcement and public safety
concerns. This Agreement is entered into by the Parties in
acknowledgment of the fact that there is a need for TMI to work closely
with, and provide appropriate information and commitments to, the DoJ
and the FBI in order to resolve these concerns.

**PURPOSE**

The Parties are entering into this Agreement to address three primary
national security, public safety, and law enforcement concerns
associated with the use of a foreign gateway by TMI to switch, control,
or route U.S. telecommunications: (1) the ability to conduct effective
and secure lawfully-authorized electronic surveillance of U.S.
communications or communications that originate and/or terminate in the
United States; (2) the need to prevent and detect foreign-based
espionage and economic espionage and to protect the privacy of U.S.
communications from electronic surveillance conducted in violation of
U.S. law; and (3) the ability to assure that National Security Emergency
Preparedness and U.S. infrastructure protection requirements are met.

**ARTICLE I**

**DEFINITION OF TERMS**

1.1 [Definition of Terms]{.underline}. As used in this Agreement and the
Implementation Plan, the

terms below shall have the following meanings:

\(a\) \"[Classified Information]{.underline}\" means any information
that has been determined pursuant to Executive Order 12958, or any
predecessor or successor order, or the Atomic Energy Act of 1954, or any
statute that succeeds or amends the Atomic Energy Act, to require
protection against unauthorized disclosure.

\(b\) \"[Condition to FCC Licenses]{.underline}\" means conditions,
substantially in the form of Exhibit A, to be imposed by the FCC on the
license granted to TMI.

\(c\) \"[Customer Proprietary Network Information]{.underline}\" or
\"[CPNI]{.underline}\" means information as defined in 47 U.S.C. §
222(f)(1).

\(d\) \"[DoJ]{.underline}\" has the meaning given to it in the Preamble.

\(e\) \"[Domestic Telecommunication]{.underline}\" means the provision
of any Wire Communication or Electronic Communication either: (i) which
is from one U.S. location (a state, district, territory, possession,
commonwealth or special maritime jurisdiction of the United States) to
another U.S. location; or (ii) which originate or terminate with a MET
at a U.S. location.

\(f\) \"[Electronic Communication]{.underline}\" has the meaning defined
in 18 U.S.C. § 2510(12).

\(g\) \"[Electronic Surveillance]{.underline}\" means: (i) interception
of any Wire Communication or Electronic Communication as defined in 18
U.S.C. § 2510(l) and (12), respectively, and electronic surveillance as
defined in 50 U.S.C. § 1801(f); (ii) access to any stored Wire
Communication or Electronic Communication, as referred to in 18 U.S.C. §
2701 et seq. (and including preservation pursuant to 18 U.S.C. §
2703(f)); (iii) acquisition of dialing or signaling information through
pen register or trap and trace devices or other devices or features
capable of acquiring such information pursuant to law as defined in 18
U.S.C. § 3121 et seq. and 50 U.S.C. § 1841 et seq.; (iv) acquisition of
location‑related information concerning a telecommunications service
subscriber pursuant to Lawful Process; (v) access to Subscriber
Information pursuant to the authorities identified in paragraph 1.1(r)
below; and (vi) access to or acquisition or interception of
communications or information as described in (i) through (v) above
pursuant to U.S. state law.

\(h\) \"[FBI]{.underline}\" has the meaning given to it in the Preamble.

\(i\) \"[FCC]{.underline}\" has the meaning given to it in the
Background. It includes any agency or instrumentality of the United
States to which, in the future, all or any part of the functions or
responsibilities of the FCC may be transferred or assigned.

\(j\) \"[Implementation Plan]{.underline}\" means the TMI Confidential
document titled Implementation Plan and dated September 10, 1999.

\(k\) \"[Intercept]{.underline}\" or \"[Intercepted]{.underline}\" has
the meaning defined in 18 U.S.C. § 2510(4).

\(l\) \"[Lawful Process]{.underline}\" means any orders, statutory
authorizations, applications, subpoenas, certifications, or other
process for any form of Electronic Surveillance authorized by U.S.
Federal or state law.

\(m\) \"[MET]{.underline}\" means a satellite mobile earth terminal that
allows for the transmission or receipt of Wire Communication or
Electronic Communication through the TMI Space Segment and ground
networking equipment.

\(n\) \"[Non‑U.S. MET]{.underline}\" means a MET that is put into
service outside the United States by an entity that is authorized to
distribute or otherwise provide TMI\'s mobile satellite services outside
the United States.

\(o\) \"[Parties]{.underline}\" has the meaning given to it in the
Preamble.

\(p\) \"[Sensitive Information]{.underline}\" means unclassified
information regarding: (i) the persons or facilities that are the
subjects of Lawful Process; (ii) the identity of the government agency
or agencies serving such Lawful Process; (iii) the location or identity
of the line, circuit, transmission path, or other facilities or
equipment used to conduct Electronic Surveillance; (iv) the means of
carrying out Electronic Surveillance; (v) the type(s) of service,
telephone number(s), records, communications, or facilities subjected to
Lawful Process; and (vi) other unclassified information reasonably
designated in writing by an authorized government official as
\"Sensitive Information.\"

\(q\) \"[Sensitive Network Position]{.underline}\" means any position
that involves access to TMI facilities, systems, or equipment that
enable the employee, contractor, or other agent of TMI to monitor any
Wire Communication or Electronic Communication carried via the TMI Space
Segment, including any such communications that are in electronic
storage. This term excludes a position the only responsibilities of
which are: (i) performing outside plant operations and maintenance
functions; (ii) performing network‑level monitoring without the ability
to monitor the content of any Wire Communication or Electronic
Communication carried via the TMI Space Segment; or (iii) monitoring
telemarketing calls by TMI personnel or customer‑originated calls to
TMI.

\(r\) \"[Subscriber Information]{.underline}\" means information of the
type referred to and accessible subject to procedures specified in 18
U.S.C. § 2703(c) or (d) or 18 U.S.C. § 2709. Such information shall also
be considered subscriber information when it is sought pursuant to the
provisions of U.S. state law.

\(s\) \"[TMI]{.underline}\" has the meaning given to it in the Preamble.
It includes all successors and assigns of TMI.

\(t\) \"[TMI Space Segment]{.underline}\" means MSAT-1 and any other
satellite used by TMI to provide mobile satellite service during the
term of this Agreement.

\(u\) \"[TMI U.S. POP]{.underline}\" means the point of presence in the
United States where TMI maintains a network switch.

\(v\) \"[U.S. MET]{.underline}\" means a MET that is put into service in
the United States by a party that is authorized to distribute or
otherwise provide TMI\'s mobile satellite services in the United States.

\(w\) \"[Wire Communication]{.underline}\" has the meaning defined in 18
U.S.C. § 2510(l).

**ARTICLE II**

**NON‑OBJECTION BY DoJ AND FBI TO GRANT OF LICENSE TO TMI**

2.1 [Non‑Objection]{.underline}.

\(a\) Upon the execution of this Agreement and adoption by TMI of the
Implementation Plan, the DoJ and the FBI shall: (i) immediately notify
the FCC that, provided the FCC approves this Agreement and adopts the
Condition to FCC Licenses, the DoJ and the FBI have no objection to
grant of TMI\'s pending license application in FCC File No.
730‑DSE‑P/L‑98; SES-LIC-19980330-00339 (Call Sign E980179); and (ii)
immediately withdraw the FBI\'s April 16, 1999 \"Petition to Defer\"
regarding the pending license application of SatCom Systems, Inc. (FCC
File No. 647‑DSE‑P/L‑98; SES-LIC-19980310-002272 (Call Sign E980159)).

\(b\) Upon FCC grant of the TMI license application described in
paragraph 2.1(a) of this Agreement, subject to the Condition to FCC
Licenses, the DoJ and the FBI agree not to formally or informally object
to the grant of any other FCC application of TMI or any TMI service
provider for a license under Section 310 of the Communications Act of
1934, as amended, to operate METs in the United States for
communications via the TMI Space Segment, provided that such application
makes clear that the terms and conditions of this Agreement and the
Implementation Plan shall apply to any license issued pursuant to that
application. Notwithstanding the foregoing, the DoJ and the FBI may
raise objections to a particular service provider if such objections are
limited to concerns related to such provider or its employees and do not
relate to the technical operation of TMI\'s network. Nothing in this
Agreement shall preclude the DoJ or the FBI from opposing, formally or
informally, an FCC application by TMI to transfer its license(s) to a
third party, or an application by a party seeking a license to use the
TMI Space Segment together with that party\'s own U.S. or non-U.S.
network switch or ground segment.

2.2 [Effective Date]{.underline}. Unless otherwise specified in the
Agreement or Implementation Plan, the provisions of this Agreement and
the Implementation Plan shall take effect on the date the FCC first
adopts an order approving the pending TMI license application, and shall
terminate upon the expiration of said TMI license, including any renewal
term or terms, except that Section 2.1 (\"Non‑Objection\") shall take
effect immediately upon the execution of this Agreement.

**ARTICLE III**

**GENERAL OBLIGATIONS OF THE PARTIES**

3.1 [Implementation Plan]{.underline}. Certain of the rights and
obligations of the Parties are set forth in further detail in an
Implementation Plan, which is consistent with this Agreement. TMI shall
comply with the Implementation Plan, as it may be modified from time to
time pursuant to Section 12.7.

3.2 [Written Policies]{.underline}. The written policies and procedures
of TMI regarding Electronic Surveillance shall be consistent with the
provisions of this Agreement and the Implementation Plan.

3.3 [Training]{.underline}. TMI shall instruct appropriate officials and
staff as to their obligations under this Agreement and the
Implementation Plan and issue annual reminders to them of such
obligations.

3.4 [All Reasonable Measures]{.underline}. The Parties shall employ all
reasonable measures for the purpose of preventing violations of this
Agreement and the Implementation Plan. Such measures shall take into
account considerations associated with TMI's foreign ownership as well
as advances in technology and changes in how TMI conducts its business.

3.5 [Contractors]{.underline}. TMI shall ensure that current and future
contractors and contractors\' employees who provide services to TMI that
relate to the provisions of this Agreement, or who may have access to
information covered by this Agreement, comply with the pertinent
provisions of this Agreement and the Implementation Plan. The compliance
of TMI\'s contractors will be taken into consideration by the DoJ and
FBI when assessing the adequacy of TMI\'s compliance with this Agreement
and the Implementation Plan. If TMI learns that a contractor has
violated a provision of this Agreement or the Implementation Plan, TMI
will notify the DoJ and FBI promptly, and take all reasonable steps, in
consultation with the DoJ and the FBI, to rectify the situation. One
such step may be the termination of all contracts with that contractor.

3.6 [Distributors, Resellers, and Other Agents]{.underline}. TMI shall,
in its contracts with its resellers, distributors, and all other agents
(collectively \"Resellers\") require that such Resellers: (i) obtain
reasonable evidence of each potential MET user\'s domicile before
providing a MET to any such potential user; (ii) provide only U.S. METs
to users domiciled in the United States; and (iii) only provide Non-U.S.
METs to users domiciled outside the United States. TMI and its Resellers
may rely on the results of a credit check or other similar verification
as establishing \"reasonable evidence\" of the domicile of a user.

3.7 [FCC Approval Required]{.underline}. TMI\'s obligations under this
Agreement and the Implementation Plan shall be null and void if the FCC
does not grant TMI\'s application for license in File No.
730‑DSE‑P/L‑98; SES-LIC-19980330-00339 (Call Sign E980179). In addition,
TMI\'s obligations hereunder shall be suspended for so long as the grant
of said license is stayed or enjoined by the FCC or any judicial
authority.

3.8 [Communications Assistance for Law Enforcement
Compliance]{.underline}. TMI agrees that it is obligated to comply with
the Communications Assistance for Law Enforcement Act (47 U.S.C. § 1001
et seq.) and will timely modify the switch employed at the TMI U.S. POP
or other TMI U.S. facility to provide the capabilities and capacity
required for compliance with the Act.

**ARTICLE IV**

**REPORTING, ASSISTANCE, AND ACCESS TO INFORMATION**

4.1 [Access to Information]{.underline}. In response to reasonable
requests made by the DoJ or the FBI, TMI, itself or through its
contractors or agents, shall provide access to appropriate information
concerning technical, physical, management, or other measures and other
reasonably available information needed by the DoJ or the FBI to assess
TMI\'s compliance with this Agreement and the Implementation Plan and to
protect the DoJ\'s and the FBI\'s interests.

4.2 [Inspections]{.underline}. Upon reasonable notice and during
reasonable hours, the DoJ and the FBI may visit any telecommunications
facility of TMI in the United States, and may inspect any part of said
TMI facility for the purpose of verifying compliance with the terms of
this Agreement and the Implementation Plan.

4.3 [Interviews]{.underline}. Upon reasonable notice from the DoJ or the
FBI, TMI will make available for interview at a mutually convenient
location officers or employees of TMI, and will seek to require
contractors to make available appropriate personnel who are in the
position to provide information to the DoJ or the FBI reasonably related
to TMI\'s compliance with its obligations under this Agreement or the
Implementation Plan.

4.4 [Reporting of Incidents]{.underline}. TMI shall report promptly to
the DoJ and FBI any information TMI management acquires concerning
activity occurring on TMI's network that objectively indicates: (i) a
breach of this Agreement or the Implementation Plan; (ii) any
surveillance activities not authorized by Canadian or U.S. law;
(iii) Electronic Surveillance conducted in violation of U.S. Federal or
state law or regulation, this Agreement or the Implementation Plan;
(iv) access to or disclosure of CPNI or Subscriber Information in
violation of U.S. Federal or state law or regulation, this Agreement or
the Implementation Plan (except for violations of FCC regulations
related to improper marketing use of CPNI); or (v) access to or
disclosure of Classified Information or Sensitive Information in
contravention of the requirements of section 8.4 of this Agreement.

4.5 [Assistance in Investigations]{.underline}. TMI shall cooperate with
the DoJ and the FBI in investigating, *inter alia*: (i) a breach of this
Agreement or the Implementation Plan; (ii) any surveillance activities
not authorized by Canadian or U.S. law; (iii) Electronic Surveillance
conducted in violation of U.S. Federal or state law or regulation, this
Agreement or the Implementation Plan; (iv) access to or disclosure of
CPNI or Subscriber Information in violation of U.S. Federal or state law
or regulation, this Agreement or the Implementation Plan (except for
violations of FCC regulations related to improper marketing use of
CPNI); or (v) access to or disclosure of Classified Information or
Sensitive Information in contravention of the requirements of section
8.4 of this Agreement.

4.6 [Summary Annual Report]{.underline}. On or before the last day of
January of each year, the Chief Executive Officer of TMI, or a senior
corporate officer of TMI designated by the Chief Executive Officer,
shall submit to the DoJ and the FBI a summary report covering the
preceding calendar year. The report shall include:

\(a\) A summary of the manner in which TMI is carrying out its
obligations under

this Agreement and the Implementation Plan;

\(b\) A summary of changes to security procedures, implemented or
proposed, and the

reasons for those changes;

\(c\) A summary of any known acts of noncompliance, whether inadvertent
or intentional, with a discussion of what steps have been or will be
taken to prevent such acts from occurring in the future; and

\(d\) Identification of issues, if any, that could affect the
effectiveness or implementation of this Agreement or the Implementation
Plan.

**ARTICLE V**

**DOMESTIC TELECOMMUNICATION CONTROL FACILITIES**

5.1 [TMI U.S. POP]{.underline}.

\(a\) A TMI U.S. POP shall be established by TMI pursuant to the
Implementation Plan by no later than two hundred ten (210) calendar days
after the FCC grants TMI\'s license application in File No.
730-DSE-P/L-98; SES-LIC19980330-00339 (Call Sign E980179). The TMI U.S.
POP shall include, but may not be limited to, a network switch which has
substantially the same functions as TMI\'s Canadian network switch, and
the TMI U.S. POP shall be connected to TMI\'s Canadian gateway network
in such a manner as to allow for the real‑time switching of
communications over TMI\'s mobile satellite network at the TMI U.S. POP
and/or TMI\'s Canadian network switch.

\(b\) Once the TMI U.S. POP is operational, and thereafter for the term
of any license (including any renewal term) granted by the FCC in File
No. 730-DSE-P/L-98; SES-LIC-19980330-00339 (Call Sign E980179), TMI
shall make available the Electronic Communication, Wire Communication,
and Subscriber Information of U.S. METs at the TMI U.S. POP.

\(c\) Until the TMI U.S. POP is operational TMI shall, pursuant to
Lawful Process and consistent with Canadian law: (i) provide access to
any Wire Communication and Electronic Communication of METs in
accordance with the Implementation Plan; and (ii) make Subscriber
Information for METs available in accordance with the Implementation
Plan.

5.2 [Emergency Preparedness]{.underline}. The TMI U.S. POP shall be
capable of complying and configured to comply, and TMI\'s officials in
the United States shall have unconstrained authority to comply in an
effective, efficient, and unimpeded fashion, with applicable provisions
of: (i) all National Security and Emergency Preparedness rules,
regulations, and orders issued by the FCC under the Communications Act
of 1934, as amended (47 U.S.C. § 151 et seq.); (ii) the orders of the
President in the exercise of his or her authority under section 706 of
the Communications Act of 1934, as amended (47 U.S.C. § 606), and under
section 302(e) of the Aviation Act of 1958 (49 U.S.C. § 40107(b)); and
(iii) Executive Order 11161 (as amended by Executive Order 11382).

5.3 [Noncompliance]{.underline}. TMI acknowledges that, in and of
itself, monetary relief is not an adequate remedy for a breach of
paragraphs 5.1(a) and (b) of this Agreement. Therefore, in the event
that any U.S. court determines that any such breach of paragraphs 5.1(a)
or (b) of this Agreement has occurred, TMI hereby consents to entry or
issuance of an injunction or other suitable equitable relief in favor of
the United States requiring that TMI immediately cease and desist from
providing Domestic Telecommunication service through the TMI Space
Segment and ground networking equipment.

**ARTICLE VI**

**ROAMER METS**

Once the TMI U.S. POP is operational, TMI will, upon receipt of Lawful
Process, and for the period covered by such Lawful Process,
expeditiously route any Wire Communication and Electronic Communication
of a Non‑U.S. MET to the TMI U.S. POP pursuant to the Implementation
Plan.

**ARTICLE VII**

**USE OF NETWORK AND INFORMATION**

7.1 [Measures to Prevent Improper Use]{.underline}.

\(a\) TMI shall implement all reasonable and appropriate measures to
prevent: (i) access to or use of TMI\'s equipment or facilities to
conduct Electronic Surveillance in violation of U.S. law; and (ii)
access to or use of CPNI or Subscriber Information in violation of U.S.
law or the terms of this Agreement or the Implementation Plan.

\(b\) Notwithstanding any other provision of this Agreement or the
Implementation Plan, under no circumstance shall TMI, its employees, or
agents permit any third party access to any Domestic Telecommunication
on TMI\'s network unless that party is an agent of the United States
Government authorized by or pursuant to U.S. law to have such access or
an agent of the Canadian Government authorized by or pursuant to
Canadian law to have such access.

7.2 TMI acknowledges that, in and of itself, monetary relief is not an
adequate remedy for a breach of paragraph 7.1(b) of this Agreement.
Therefore, in the event that any U.S. court determines that any such
breach has occurred, TMI hereby consents to entry or issuance of an
injunction or other suitable equitable relief in favor of the United
States requiring, at the option of the United States, that TMI
immediately cease and desist from permitting unauthorized third persons
access to any Domestic Telecommunication on the TMI network or providing
any Domestic Telecommunication service through the TMI Space Segment and
ground networking equipment.

7.3 [Personnel Holding Sensitive Network Positions]{.underline}. To
verify the trustworthiness of persons employed by TMI, its contractors
and other agents whose positions enable them to monitor Domestic
Telecommunication:

\(a\) TMI shall provide to the FBI the recent employment and residence
history, as well as personal identifying information (including name(s),
alias(es), date and place of birth, social security number, and visa and
passport information), for persons who occupy Sensitive Network
Positions as of the effective date of this Agreement. This requirement
shall also apply to individuals who are hired to occupy, or who are
transferred into, such positions after the effective date of this
Agreement. TMI shall only permit Canadian and U.S. citizens to hold such
positions.

\(b\) Following the receipt by the FBI of the information described in
paragraph 7.3(a) of this Agreement, if the FBI reasonably believes that
a person is not sufficiently trustworthy to occupy a Sensitive Network
Position and so notifies TMI in writing, then TMI shall take all
reasonable steps, in conjunction with the FBI to resolve the matter,
including, if necessary, not permitting the person to assume the
position.

\(c\) If TMI has knowledge of adverse information material to the
trustworthiness of any person who occupies a Sensitive Network Position
(or if the FBI has such knowledge and so informs TMI), then TMI shall
either remove the person from such position or consult with the FBI
regarding the appropriateness of having such person continue in a
Sensitive Network Position.

7.4 [Information Storage and Access]{.underline}. TMI shall:

\(a\) comply with all FCC regulations governing access to and storage of
CPNI;

\(b\) store and make available in the United States when the TMI U.S.
POP is operational:

\(i\) the Subscriber Information for U.S. METs and Non‑U.S. METs;

\(ii\) any Wire Communication received by, intended to be received by,
or stored in the account of a U.S. MET (or a Non‑U.S. MET that is the
subject of an Electronic Surveillance request pursuant to Lawful
Process), if TMI stores such communication for any reason; and

\(iii\) any information relating to a U.S. MET (or a Non‑U.S. MET that
is the subject of an Electronic Surveillance request pursuant to Lawful
Process) or information relating to any communication of such METs to
which the United States is entitled access pursuant to 18 U.S.C. § 2703,
if TMI stores such information for any reason.

\(c\) make available in the United States any Electronic Communication
received by, intended to be received by, or stored in the account of a
U.S. MET (or a Non‑U.S. MET that is the subject of an Electronic
Surveillance request pursuant to Lawful Process), if TMI stores such
communication for any reason.

\(d\) Any information that TMI stores or makes available in the United
States pursuant to paragraphs 7.3(b) and (c) of this Agreement shall not
be destroyed pursuant to any law except U.S. Federal or state law.

7.5 [Disclosure to Foreign Governments]{.underline}. Except as required
by Canadian court order, TMI shall not disclose, or permit the
disclosure of, any information that must be made available in the United
States pursuant to section 7.4 of this Agreement, including but not
limited to any Electronic Communication, Wire Communication, or records
relating to such communications, to any foreign government absent the
express written consent of the DoJ.

**ARTICLE VIII**

**ELECTRONIC SURVEILLANCE AND SUBSCRIBER INFORMATION**

8.1 [Points of Contact.]{.underline} In accordance with the
Implementation Plan, TMI shall designate a TMI employee or employees as
the point(s) of contact at its security office(s) within the United
States with the authority and responsibility for carrying out Lawful
Process. The points of contact will be responsible for accepting service
and maintaining the security of Classified Information and any Lawful
Process for electronic surveillance in accordance with the requirements
of U.S. law. TMI will immediately notify in writing the DoJ and the FBI
of such designation. Changes to these points of contact shall be subject
to the approval of the FBI and DoJ.

8.2 [Security Clearances]{.underline}. The points of contact shall be
U.S. citizens who are eligible for appropriate U.S. security clearances.
TMI shall comply with any U.S. government request that a background
check and/or security clearance process be completed for a designated
point of contact.

8.3 [Security of Lawful Process]{.underline}. TMI shall protect the
confidentiality and security of all Lawful Process and the
confidentiality and security of Classified Information and Sensitive
Information in accordance with U.S. Federal and state law or regulation
and the Implementation Plan.

8.4 [Classified Information and Sensitive Information]{.underline}. TMI
shall: (i) take appropriate measures to prevent unauthorized access to
data or facilities that might contain Classified Information or
Sensitive Information; (ii) when the TMI U.S. POP is operational, and
except in connection with the provision of locational information by a
Canadian citizen pursuant to the Implementation Plan, assign U.S.
citizens, who meet high standards of trustworthiness for maintaining the
confidentiality of Sensitive Information, to positions that handle or
that regularly deal with information identifiable to such person as
Sensitive Information; (iii) specify that personnel handling Classified
Information shall be eligible for and shall have been granted
appropriate security clearances; (iv) provide that the points of contact
described in section 8.1 of this Agreement shall have sufficient
authority over any of its employees who may handle Classified
Information or Sensitive Information to maintain the confidentiality of
such information; and (v) specify that TMI shall maintain appropriately
secure facilities (e.g., offices) for the handling and storage of any
Classified Information and Sensitive Information.

**ARTICLE IX**

**FREEDOM OF INFORMATION ACT**

9.1 [Marking of Information]{.underline}. The DoJ and the FBI shall take
reasonable precautions to protect from improper public disclosure all
information submitted by TMI to the DoJ and the FBI in connection with
or in furtherance of this Agreement or the Implementation Plan, and
clearly marked with the legend \"TMI Confidential\" or similar
designation. Such marking shall represent to the DoJ and the FBI that
the information so marked constitutes \"trade secrets\" and/or
\"commercial or financial information obtained from a person and
privileged or confidential,\" or otherwise warrants protection within
the meaning of 5 U.S.C. § 552(b)(4). For purposes of 5 U.S.C.
§ 552(b)(4), the Parties agree that such information is voluntarily
submitted. In the event of a request under 5 U.S.C. § 552(a)(3) for
information so marked, the DoJ or the FBI, as appropriate, shall notify
TMI of such request and consult with it as to any contemplated release
(including release in redacted form) of such information. The DoJ or the
FBI, as appropriate, shall notify TMI five (5) business days in advance
of any release of such information under 5 U.S.C. § 552(a)(3).

9.2 [Use of Information for Government Purposes]{.underline}. Nothing in
this Agreement or the Implementation Plan shall prevent the DoJ or the
FBI from lawfully disseminating information as appropriate to seek
enforcement of this Agreement or the Implementation Plan, or as
otherwise necessary in furtherance of the missions, responsibilities, or
obligations of the DoJ or the FBI, provided that the DoJ or the FBI
shall take reasonable precautions to protect from improper public
disclosure information marked as described in the preceding section;
where feasible, the DoJ and the FBI will make information available for
inspection rather than providing copies thereof.

**ARTICLE X**

**COST REIMBURSEMENT**

Any entity which serves an Electronic Surveillance request on TMI shall
in accordance with U.S. law pay TMI a fee which reimburses TMI for
reasonable costs directly incurred in responding to the request. The
amount of the fee shall be mutually agreed or, in the absence of an
agreement, shall be resolved pursuant to the dispute mechanism in
Article XI of the Agreement or, failing that, by the court which has
jurisdiction over the relevant request for the Electronic Surveillance.
TMI agrees that the capital expenditures and variable costs associated
with the establishment and day-to-day operation of the TMI U.S. POP are
the sole responsibility of TMI and that such expenditures may not be
considered as part of the reasonable costs directly incurred in
responding to an Electronic Surveillance request.

**ARTICLE XI**

**DISPUTES**

11.1 [Informal Resolution]{.underline}. Except as provided in sections
5.3 and 7.2 of this Agreement, the Parties shall use their best efforts
to resolve any disagreements that may arise under this Agreement or the
Implementation Plan. Disagreements will be addressed in the first
instance at the staff level. Any disagreement that has not been resolved
at that level shall be submitted promptly to an inter‑party panel of
four senior officials, two from the DoJ and/or FBI and two from TMI,
unless any party believes that important national interests or paramount
corporate interests can be protected only by resorting to a U.S. Federal
court of competent jurisdiction. If the disagreement involves Classified
Information, TMI\'s senior official(s) shall possess the appropriate
security clearances. If the disagreement involves the FBI, the FBI\'s
senior official(s) shall be the Assistant Director of the National
Security Division and/or his or her designee(s). If the disagreement
involves the DoJ, the DoJ\'s senior official(s) shall be the Assistant
Attorney General for the Criminal Division and/or his or her
designee(s). The panel shall hear a presentation from each party to the
dispute and then attempt to resolve the dispute. If, after the
presentations, the Parties\' senior officials are unable to agree, the
remedies set forth in section 11.2 of this Agreement shall be available.

11.2 [Enforcement of Agreement]{.underline}. Subject to section 11.1
(\"Informal Resolution\"), if any party believes that this Agreement or
the Implementation Plan has been breached, that party may bring an
appropriate action for judicial relief in a U.S. court of competent
jurisdiction or move for relief from the FCC. Such an action may include
an appropriate action for an equitable remedy or monetary damages. Any
party may also seek appropriate relief for an anticipatory breach.

11.3 [Forum Selection]{.underline}. It is agreed by and between the
Parties that an action for judicial relief with respect to any dispute
or matter whatsoever arising under, in connection with, or incident to,
this Agreement that is not resolved under section 11.1 (\"Informal
Resolution\") shall be brought, if at all, in and before a Federal court
of competent jurisdiction in the United States, to the exclusion of the
courts of any state, territory or other nation.

**ARTICLE XII**

**MISCELLANEOUS**

12.1 [Right to Make and Perform Agreement]{.underline}. TMI warrants
that, to the best of its knowledge, neither the execution of this
Agreement and the Implementation Plan, nor the actions contemplated
hereby, violate any provision of law or any judgment, writ, injunction,
order, or decree of any court or governmental authority having
jurisdiction over it; result in or constitute a breach or default under
any indenture, contract, other commitment or restriction to which it is
a party or by which it is bound; or require any consent, vote, or
approval that has not been given or taken, or at the time of the
transaction involved, shall not have been given or taken. TMI covenants
that, to the best of its knowledge, it has and will continue to have
throughout the term of this Agreement the full right to enter into this
Agreement and perform its obligations hereunder and that this Agreement
is a legal, valid, and binding obligation of TMI enforceable in
accordance with its terms.

12.2 [Waiver]{.underline}. The failure of the DoJ or the FBI to insist
on strict performance of any of the provisions of this Agreement or the
Implementation Plan, or to exercise any right they grant, shall not be
construed as a relinquishment or future waiver; rather, the provision or
right shall continue in full force. No waiver of any provision or right
shall be valid unless it is in writing and signed by the U.S. Government
agency giving it.

12.3 [Headings]{.underline}. The various headings of this Agreement and
the Implementation Plan are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or the
Implementation Plan, or any provisions thereof.

12.4 [Other Laws]{.underline}. Nothing in this Agreement or the
Implementation Plan is intended to limit or constitute a waiver of: (i)
any obligation imposed by U.S. Federal law or regulation on TMI, the
DoJ, or the FBI or by state law or regulation on TMI; (ii) any
enforcement authority available under U.S. Federal or state law or
regulation; (iii) the sovereign immunity of the United States; or (iv)
any authority over TMI\'s activities or facilities located outside the
United States that the U.S. Government may possess.

12.5 [Statutory References]{.underline}. All references to statutory
provisions or to Executive Orders shall include any future amendments to
such authorities.

12.6 [Non‑Parties]{.underline}. Nothing in this Agreement or the
Implementation Plan is intended to confer or does confer any rights on
anyone other than TMI, the DoJ, the FBI, and any other entities entitled
to effect lawful Electronic Surveillance in accordance with Lawful
Process.

12.7 [Modification]{.underline}.

\(a\) This Agreement and the Implementation Plan may be modified only by
written agreement signed by all of the Parties. Any substantial
modification to this Agreement shall be reported to the FCC within
thirty (30) days after approval by the Parties.

\(b\) The Parties agree to negotiate in good faith regarding
modifications of this Agreement and the Implementation Plan as may be
required:

\(i\) by any material changes in the U.S. national security, law
enforcement, and public safety concerns and public safety laws and
policies which provided the predicate for this Agreement; and

\(ii\) for the consistent application of U.S. national security, law
enforcement and public safety laws and policies to TMI vis‑a‑vis other
U.S. and foreign licensed mobile satellite service providers in like
circumstances.

12.8 [Partial Invalidity]{.underline}. If any part of this Agreement or
the Implementation Plan is declared invalid by a court of competent
jurisdiction, this Agreement and the Implementation Plan shall be
construed as if such portion had never existed, unless this construction
would constitute a substantial deviation from the parties' intent as
reflected in this Agreement and the Implementation Plan.

12.9 [Notices]{.underline}. With the exception of service of Lawful
Process, all requests for information, visits, or interviews and all
reports, notices, and proposed modifications provided under this
Agreement and the Implementation Plan shall be made to the parties'
designated representatives. All reports, notices and proposed
modifications to the Parties under this Agreement and the Implementation
Plan shall be given by: (1) registered or certified mail; (2) delivery
by overnight courier (receipt requested); or (3) transmission by
facsimile (confirmed by mail) addressed to the addresses shown below, or
to such other addresses as the Parties may designate by agreement. The
representatives shall be:

[Department of Justice]{.underline}

Department of Justice

Assistant Attorney General

Criminal Division

Main Justice Building

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

[Federal Bureau of Investigation]{.underline}

Federal Bureau of Investigation

Assistant Director

National Security Division

935 Pennsylvania Avenue, N.W.

Washington, D.C. 20535

With a copy to:

Federal Bureau of Investigation

General Counsel

935 Pennsylvania Avenue, N.W.

Washington, D.C. 20535

Tel: (202) 324-6829

Fax: (202) 324-5366

[TMI Communications and Company, Limited Partnership]{.underline}

TMI Communications and Company, Limited Partnership

Vice President, Law

1601 Telesat Court

Gloucester, Ontario K1B 5P4

Canada

Tel: (613) 748-8700 ext. 2268

Fax: (613) 748-8783

IN WITNESS WHEREOF, the Parties have executed this Agreement:

TMI Communications Inc.,

on behalf of TMI Communications and

Company, Limited Partnership

Date: [September 10, 1999]{.underline} By:

/s/

Laurier J. Boisvert

President and Chief Executive Officer

Department of Justice

Date: [October 6, 1999]{.underline} By:

/s/

\[Eric Holder, Jr.\]

\[Deputy Attorney General\]

Federal Bureau of Investigation

Date: [October 6, 1999]{.underline} By:

/s/

\[Larry R. Parkinson\]

\[General Counsel\]

**EXHIBIT A**

**CONDITION TO FCC LICENSES**

IT IS FURTHER ORDERED, that the authorization and the license related
thereto are subject to compliance with the provisions of the Agreement
attached hereto between TMI and the Department of Justice (the \"DoJ\")
and the Federal Bureau of Investigation (the \"FBI\"), dated September
10, 1999, which Agreement is designed to address national security, law
enforcement, and public safety concerns of the DoJ and the FBI regarding
the license granted herein. Nothing in this Agreement or the
Implementation Plan is intended to limit any obligation imposed by
Federal law or regulation including, but not limited to, 47 U.S.C. §
222(a) and (c)(1) and the FCC\'s implementing regulations.

**SEPARATE STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT-ROTH**

> *Re: In the Matter of Applications of SatCom Systems Inc., TMI
> Communications and Company, L.P. and SatCom Systems Inc., File No.
> 647-DSE-P/L-98 et al*

I support the Commission's decision today to permit another entrant into
the United States satellite communications marketplace. The WTO
agreement has created a solid foundation that will allow American
companies to compete freely abroad and will create corresponding
opportunities for American consumers to purchase the services of new
domestic telecommunications providers. I write separately solely to
express my continued concern about the role of other government agencies
in the Commission's licensing process.[^142]

It is clear that the WTO intended for national security concerns to play
a role in determining whether certain markets would be opened to
competition. The GATS provides for "essential security" exceptions under
Articles XIV *bis*.[^143] Similarly, in our DISCO II Order we assured
the parties that we would "consider any such legitimate concerns
\[regarding national security or law enforcement\] as we undertake our
own independent analyses of whether grant of a particular authorization
is in the public interest."[^144] I believe the process here went far
beyond the process envisioned by the WTO and our prior decisions.

In March 1998, two companies (one American-owned (SatCom) and the other
Canadian-owned (TMI)) filed earth station applications to receive the
signal of a Canadian satellite (MSAT-1). Comments were due on these
applications in May of 1998. Eleven months later, the Federal Bureau of
Investigation (FBI) filed its comments. The FBI then entered into seven
months of "negotiations" with the applicants in order to reach a
"voluntary" agreement that would place conditions on the licenses. In
October 1999, the FBI withdrew its objections and requested that we
incorporate the "agreement" into our approval of the license
applications.

####  **I. A Muddled Process** 

> I am concerned that the FCC's licensing procedure is being hijacked to
> achieve other agencies' public policy goals. The FBI's procedural
> record here is particularly unfortunate.
>
> The Commission may well have been able to approve this application a
> year ago, but for the last minute epiphany of the FBI that the
> application raised grave national security issues. Indeed, the FBI
> filed its comments eleven months late. This is not a minor
> oversight.[^145] The FBI then consumed another seven months
> negotiating a "voluntary" agreement with the applicants. This
> effectively created an 18-month freeze on our approval process. This
> freeze prejudices not only the notice-and-comment process, but also
> the parties' interest in a full, fair and prompt resolution. Moreover,
> an applicant's competitors now have an incentive to complicate our
> licensing process by utilizing other government agencies to slow down
> our approval. The resulting procedural morass undermines
> predictability and creates tremendous delays that deny American
> consumers' competitive service options.
>
> **II. Potentially Discriminatory Obligations**
>
> These side agreements between the private parties and the Department
> of Justice (DOJ) and the FBI are also potentially discriminatory.
> Putting aside the underlying merits of any side agreement, I am
> troubled by the ad hoc nature of these obligations. To the extent we
> have jurisdiction and "national security" issues arise, then we should
> promulgate generally applicable rules to address earth stations
> accessing non-U.S. licensed space stations. We should utilize the
> Administrative Procedure Act to develop a comprehensive record on
> these issues.[^146] In fact, at least one rulemaking proceeding could
> have provided such an opportunity.[^147] However, to date no such
> generally applicable rules have been proposed or adopted by the
> Commission.
>
> Similarly, if the DOJ or FBI have such concerns, they should utilize
> their independent authority to address those issues. If they lack such
> authority, then the Administration should turn to Congress for the
> appropriate delegation of authority.
>
> As I noted in the AT&T/BT proceeding, our Order here attempts to
> distance the agency from the conclusions reached and conditions
> advanced by the DOJ and FBI:
>
> "We note that the Agreement reflects a unique situation, and contains
> certain provisions that, if broadly applied, would have significant
> consequences for the telecommunications industry. These provisions, if
> viewed as precedent for other service providers and potential
> investors, would warrant further inquiry on our part. Therefore, this
> agreement does not establish precedent for future cases." [^148] Once
> again, the Order does not identify what is "unique" about this
> "situation," except that it is obvious that the agency does not want
> to be bound by the findings of DOJ and the FBI. I remain concerned
> that we are trying to have it both ways -- we use our authority to
> impose these onerous obligations, while distancing ourselves from the
> outcome.
>
> **III. The FCC's Bureau for Third-Party Contract Enforcement?**
>
> Finally, as I have discussed elsewhere, this agency is on dangerous
> ground when it purports to play a role in the enforcement of other
> agency's regulatory determinations. Here the side agreement calls for
> the parties to seek judicial enforcement of the agreement or "move for
> relief from the FCC."[^149] As I stated in AT&T/TCI, "we have no
> jurisdiction to enforce rules not promulgated under the Communications
> Act. . . and we cannot and should not do the enforcement work of
> others."[^150] The public would be far better served if the Commission
> were to decline to incorporate the side agreement into our approval
> order and leave the contract's enforcement to the parties and the
> courts.[^151]
>
> \*\*\*\*\*
>
> I urge my fellow Commissioners, the FBI and the Department of Justice
> to move swiftly to remedy this ad hoc and arduous "process" for
> national security review by the Administration. To the extent that
> national security concerns warrant broadly applicable rules, I will
> readily support efforts to create such regulations. However, we should
> not continue to develop these rules "as we go along" without any of
> the procedural and legal protections traditionally afforded parties
> impacted by rulemakings. The current process does not serve the
> parties or the American people well.

[^1]:     ^?^ The \"L-Band\" is a general designation for frequencies
    from 1 to 2 GHz. In this *Order and Authorization*, however, the
    term \"L-Band\" denotes only the 1545-1559 MHz and 1646.5-1660.5 MHz
    frequency bands (\"upper L-band\") and the 1525-1530 MHz, 1530-1544
    MHz, and 1626.5-1645.5 MHz frequency bands (\"lower L-band\"). The
    United States is the only country that distinguishes between the
    \"upper\" and \"lower\" L-band.

[^2]:     ^?^ The Commission\'s regulatory policies for licensing
    providers of domestic service using non-U.S. licensed satellite
    systems are based on the goals of promoting competition in the
    United States and in foreign markets. *See Amendment of the
    Commission\'s Regulatory Policies to Allow Non-U.S. Licensed Space
    Stations to Provide Domestic and International Service in the United
    States*, Report and Order, 12 FCC Rcd 24094 (1997), appeal docketed,
    *ComSat Corp. v. FCC*, No. 98-1001 (D.C. Cir. filed Jan.12, 1998)
    (\"*DISCO II Order*\") at ¶¶ 39-40.

[^3]:     ^?^ In the Matter of the Application of SatCom Systems, Inc.
    for Blanket Authorization to operate up to 25,000 METs, File No.
    647-DSE-P/L/-98 (\"SatCom Application\"). MSAT-1 is operated by TMI.

[^4]:     ^?^ In the Matter of the Application of TMI Communications and
    Company, L.P. For Blanket Authorization to Operate Up to 100,000
    METs, File No. 647-DSE-P/L/-98 (\"TMI Application\").

[^5]:     ^?^ SatCom and TMI state that pursuant to Commission\'s rules,
    they will not operate in the 1544-1545 MHz and 1645.5-1646.5 MHz
    bands that are limited in the United States exclusively for use for
    distress and safety communications. *See* 47 C.F.R. § 2.106 nn.727A,
    734B.

[^6]:     ^?^ On August 25, 1998, the International Bureau modified the
    *ex parte* status of the SatCom and TMI application proceeding from
    restricted to \"permit-but-disclose.\" Public Notice, Report No.
    SPB-136.

[^7]:     ^?^ AMSC Subsidiary Corporation Petition to Deny Application
    of SatCom Systems Inc. (filed April 24, 1998) (\"AMSC Petition to
    Deny SatCom\"); AMSC Subsidiary Corporation Petition to Deny
    Application of TMI Communications and Company, L.P. (filed May 29,
    1998) (\"AMSC Petition to Deny TMI\").

[^8]:     ^?^ GlobalStar, L.P. Petition to Deny TMI\'s application at
    6-9 (filed May 29, 1998) (\"GlobalStar Petition to Deny TMI\");
    Space System License, Inc. and Iridium LLC Petition to Deny or Defer
    TMI\'s application at 2-4 (filed May 29, 1998) (\"SSL/Iridium
    Petition to Deny TMI\"); Norcom Networks Corporation Petition to
    Defer and Request for Imposition of Conditions on TMI\'s application
    at 4-9 (filed May 29, 1998) (\"Norcom Petition on TMI\'s
    application\"); Reply of Globalstar, L.P. to Opposition to Petitions
    to Deny filed by SatCom (filed June 4, 1998) (\"GlobalStar Reply to
    SatCom\"); Space System License, Inc. and Iridium LLC Reply to the
    Opposition to Petitions to Deny filed by SatCom at 2-4 (filed June
    4, 1998) (\"SSL/Iridium Reply to SatCom\'s Opposition\").

[^9]:     ^?^ *Ex parte* Letter to Magalie Roman Salas, Secretary,
    Federal Communications Commission from Gregory C. Staple, Counsel
    for TMI (December 4, 1998); *Ex parte* Letter to Magalie Roman
    Salas, Secretary, Federal Communications Commission from Gregory C.
    Staple, Counsel for SatCom (December 4, 1998).

[^10]:     ^?^ SSL/Iridium Petition to Deny SatCom at 5 and Appendix 1;
    SSL/Iridium Petition to Deny TMI at 5-6.

[^11]:     ^?^ Norcom Petition on TMI\'s application at 12-15.

[^12]:     ^?^ FBI Petition to Defer and Request For Imposition of
    Conditions on TMI\'s application (filed April 7, 1999); FBI Petition
    to Defer and Request For Imposition of Conditions on SatCom
    application (filed April 16, 1999).

[^13]:     ^?^ FBI Motion for Leave to File Late Pleading on the TMI
    application (filed April 7, 1999); FBI Motion for Leave to File Late
    Pleading on the SatCom application (filed April 16, 1999). We find
    that it is in the public interest to grant the FBI\'s Motions to
    File Late Pleadings.

[^14]:     ^?^ TMI\'s Opposition to FBI\'s Motion for Leave to File Late
    Pleading (filed April 19, 1999); SatCom\'s Opposition to FBI\'s
    Motion for Leave to File Late Pleading (filed April 26, 1999).

[^15]:     ^?^ FBI Reply to TMI Opposition (filed April 27, 1999).

[^16]:     ^?^ FBI Withdrawal of Petition to Defer the SatCom
    application (filed October 6, 1999).

[^17]:     ^?^ Letter from Steven B. Sharkey, Chief, Satellite
    Engineering Branch, Satellite and Radiocommunication Division,
    International Bureau, to Gregory C. Staple, Counsel for SatCom
    (February 10, 1998); *see also* Letter from Steve B. Sharkey, Chief,
    Satellite Engineering Branch, Satellite and Radiocommunication
    Division, International Bureau, to Gregory C. Staple, Counsel for
    SatCom, L.L.P. (June 26, 1998).

[^18]:     ^?^ *SatCom Systems, Inc.,* 13 FCC Rcd. 13507 (Int\'l Bur.
    1998). This authority was extended twice and expires on February 5,
    2000. *See* SES-STA-19981218-02052 and SES-STA-19990730-01309.

[^19]:     ^?^ SSL/Iridium filed comments in support of the Petition for
    Reconsideration. SatCom filed Oppositions to all of these pleadings.
    Globalstar and AMSC filed replies to SatCom\'s Oppositions. On
    August 25, 1998, the International Bureau also modified the *ex
    parte* status of the SatCom STA proceeding from restricted to
    \"permit-but-disclose. Public Notice, Report No. SPB-136.

[^20]:     ^?^ Comsat Corporation, the U.S. signatory to Inmarsat,
    however, was authorized to provide Aeronautical Mobile Satellite
    (Route) Service and Aeronautical Mobile-Satellite Service to
    aircraft in international flight in the United States. *See* 13 FCC
    Rcd 211155 (1998).

[^21]:     ^?^ *See Amendment of Parts 2, 22, and 25 of the
    Commission\'s Rules to Allocate Spectrum for and to Establish Other
    Rules and Policies Pertaining to the Use of Radio Frequencies in a
    Land Mobile Satellite Service for the Provision of Various Common
    Carrier Services*, Notice of Proposed Rulemaking, 50 Fed. Reg. 8149
    (Feb. 28, 1985).

[^22]:     ^?^ *Amendment of Parts 2, 22, and 25 of the Commission\'s
    Rules to Allocate Spectrum for and to Establish Other Rules and
    Policies Pertaining to the Use of Radio Frequencies in a Land Mobile
    Satellite Service for the Provision of Various Common Carrier
    Services,* Second Report and Order, 2 FCC 2d 485 (1987).

[^23]:     ^?^ *Amendment of Parts 2, 22, and 25 of the Commission\'s
    Rules to Allocate Spectrum for and to Establish Other Rules and
    Policies Pertaining to the Use of Radio Frequencies in a Land Mobile
    Satellite Service, Memorandum Opinion Order and Authorization*, 4
    FCC Rcd 6041 (1989); 7 FCC Rcd 266 (1992) (remand decision); *aff\'d
    sub nom. Aeronautical Radio, Inc. v. FCC*, 983 F.2d 275 (D.C. Cir.
    1993) (\"AMSC Authorization\").

[^24]:     ^?^ The North America coverage area includes all of North
    America and surrounding water areas, up to twelve miles off-shore.

[^25]:     ^?^ The five operators are: AMSC; MSAT; Solidaridad, a
    Mexican-licensed operator; TM Sat, a Russian licensed operator; and
    Inmarsat Ltd., a United Kingdom operator.

[^26]:     ^?^ *See generally* International Telecommunication Union\'s
    Radio Regulations Article S9 (1998 edition).

[^27]:     ^?^ Inmarsat has since restructured as a private company of
    the United Kingdom, Inmarsat Ltd. The United Kingdom has informed
    the Commission that it is now a party to the Mexico City Agreement.
    *See* Letter from Steve Jones, United Kingdom Radiocommunications
    Agency, to Thomas S. Tycz, Federal Communications Commission, dated
    August 18, 1999.

[^28]:     ^?^ *See* International Action: \"FCC Hails Historic
    Agreement on International Satellite Coordination,\" News Release,
    Report No. IN 96-16 (June 25, 1996) (\"Mexico City Agreement\").

[^29]:     ^?^ *In the Matter of Establishing Rules and Policies for the
    Use of Spectrum for Mobile Satellite Service in the Upper and Lower
    L-band*, Notice of Proposed Rulemaking, 11 FCC Rcd 11675 (1996)
    (\"*Lower L-band Notice*\").

[^30]:     ^?^ *Lower L-Band Notice* at ¶ 9, *citing Amendments of Parts
    2, 22, and 25 of the Commission\'s Rules to Allocate Spectrum for
    and Establish Rules Pertaining to the Use of Radio Frequencies in
    Land Mobile Satellite Service*, Notice of Proposed Rulemaking, 50
    Fed. Reg. 5983 (1985).

[^31]:     ^?^ *Lower L-Band Notice* at ¶ 9.

[^32]:     ^?^ *Id*. at ¶ 14.

[^33]:     ^?^ *Id.* at ¶ 11.

[^34]:     ^?^ *Id.* at ¶ 10.

[^35]:     ^?^ *Id.* at ¶ 16.

[^36]:     ^?^ The results of the WTO basic telecommunications services
    negotiations are incorporated into the General Agreement on Trade in
    Services (GATS) by the Fourth Protocol to the GATS (April 30, 1996),
    36 I.L.M. 336 (1997). These results, as well as the basic
    obligations contained in the GATS, are referred to herein as the
    \"WTO Agreement.\"

[^37]:     ^?^ *DISCO II Order*, 12 FCC Rcd 24094 (1997).

[^38]:     ^?^ 47 USC at §§ 308(b), 309; *DISCO II* at¶ 158.

[^39]:     ^?^ *DISCO II* at ¶ 15.

[^40]:     ^?^ *See id.* at ¶ 15.

[^41]:     ^?^ *Id.* at ¶ 184.

[^42]:     ^?^ *Id.* at ¶ 186.

[^43]:     ^?^ *Id.* at ¶ 7 (\"We adopt a presumption that entry by WTO
    Member satellite systems will promote competition in the U.S.
    satellite services market\").

[^44]:     ^?^ *Id.* at ¶ 41.

[^45]:     ^?^ *Id.*

[^46]:     ^?^ *Id.* at ¶ 11 and ¶ 41.

[^47]:     ^?^ AMSC Petition to Deny SatCom at 22; AMSC Petition to Deny
    TMI at 17-18.

[^48]:     ^?^ *Id.*

[^49]:     ^?^ *Id.*

[^50]:     ^?^ SatCom Opposition to Petitions to Deny at 16; TMI
    Opposition to Petitions to Deny at 18-20.

[^51]:     ^?^ TMI Opposition to Petitions to Deny at 18-20.

[^52]:     ^?^ *DISCO II Order* at ¶ 41.

[^53]:     ^?^ AMSC Petition to Deny SatCom at 7.

[^54]:     ^?^ *Id*.

[^55]:     ^?^ TMI Opposition to Petitions to Deny at 18-19.

[^56]:     ^?^ *Id.*

[^57]:     ^?^ *Id*. at 8.

[^58]:     ^?^ TMI Opposition to Petitions to Deny at 19.

[^59]:     ^?^ AMSC Reply to Opposition of TMI at 22.

[^60]:     ^?^ Norcom owns and operates a ground-based data transport
    system that provides value-added packet data MSS in the United
    States in conjunction with the AMSC-1 satellite. Norcom Petition at
    2.

[^61]:     ^?^ *See* Norcom Petition at 13. Norcom and TMI own and
    operate the only two Packet Data Hubs capable of providing packet
    data MSS over satellites in North America. *Id* at n. 32.

[^62]:     ^?^ Norcom Petition on TMI\'s application at 14.

[^63]:     ^?^ Norcom Petition on TMI\'s application at 12-13; 15.

[^64]:     ^?^ *Id*. at n.33, *citing* *Rules and Policies on Foreign
    Participation in the U.S. Telecommunications Market*, Report and
    Order, 12 FCC Rcd 23891 (1997) ¶¶ 270-292 (requiring certain
    foreign-affiliated carriers to file quarterly reports to allow the
    Commission to monitor whether the carriers are receiving
    preferential treatment by foreign carriers).

[^65]:     ^?^ *See* discussion *infra* at ¶¶ 44-45.

[^66]:     ^?^ TMI Oppositions to Petitions to Deny at 21.

[^67]:     ^?^ *DISCO II* at ¶ 149.

[^68]:     ^?^ *DISCO II* at ¶ 150.

[^69]:     ^?^ *DISCO II* at ¶ 147.

[^70]:     ^?^ SatCom Application Exhibit 2, at 1; TMI Application
    Exhibit 2 at 1.

[^71]:     ^?^ *Id.*

[^72]:     ^?^ As noted previously, the five operators have agreed to
    keep the specific spectrum assignments confidential.

[^73]:     ^?^ AMSC Petition to Deny SatCom at 15; AMSC Petition to Deny
    TMI at 9; *see also* *ex parte* letter to Magalie Roman Salas,
    Secretary, Federal Communications Commission, from Bruce Jacobs,
    Counsel for AMSC, dated December 1, 1998.

[^74]:     ^?^ AMSC Petition to Deny SatCom at 15-17; AMSC Petition to
    Deny TMI at 9-11.

[^75]:     ^?^ AMSC Petition to Deny SatCom at 17; AMSC Petition to Deny
    TMI at 11.

[^76]:     ^?^ *See ex parte* Letter to Magalie Roman Salas, Federal
    Communications Commission, from Bruce Jacobs, Counsel for AMSC,
    dated November 10, 1999.

[^77]:     ^?^ *See* discussion above at ¶ 7.

[^78]:     ^?^ Contrary to AMSC\'s assertions, there is also nothing in
    the grant of these applications that limits the number of METS that
    may operate in the upper L-band.

[^79]:     ^?^ *See generally* International Telecommunication Union\'s
    Radio Regulations at Article S9.

[^80]:     ^?^ *Lower L-Band Notice* at ¶ 14.

[^81]:     ^?^ *Lower L-Band Notice* at ¶ 9.

[^82]:     ^?^ *See, e.g.,* *ex parte* letter to Magalie Roman Salas,
    Federal Communications Commission, from Wanda K. Denson-Low, Vice
    President and General Counsel, Hughes Space and Communications
    Company, dated February 26, 1999; *ex parte* letter to Magalie Roman
    Salas, Federal Communications Commission, from Alfred M. Mamlet,
    Counsel for Stratos Global Corporation and Marine Satellite
    Services, Inc., dated February 18, 1999.

[^83]:     ^?^ C.E. Unterberg, Towbin projects a global MSS market value
    over \$20 billion by the year 2005. *The Satellite Book* released
    February 11, 1999.

[^84]:     ^?^ *See, e.g.,* AMSC Authorization at ¶ 52; *Motorola
    Satellite Communications, Inc. for Authority to Construct, Launch,
    and Operate a Low Earth Orbit Satellite System in the 1616-1626.5
    MHz Band,* Order and Authorization, 10 FCC Rcd 2268 (1995) at ¶ 31;
    *Teledesic Corporation Application for Authority to Construct,
    Launch, and Operate a Low Earth Orbit Satellite System in the
    Domestic and International Fixed Satellite Service*, Order and
    Authorization, 12 FCC Rcd 3154 (1997) at ¶ 41.

[^85]:     ^?^ As previously noted in paragraph 10, the accuracy of our
    1985 estimate is an issue in the pending *Lower L-Band Notice*. The
    more recently developed generation of MSS systems are operating or
    are licensed to operate on significantly less than 20 megahertz of
    spectrum. For example, \"Big LEO\" systems, which provide the same
    voice mobile satellite services that AMSC provides, are licensed to
    operate on the equivalent of five megahertz of spectrum. In the
    \"Big LEO\" Report and Order, the Commission concluded that four
    systems operating with a code division multiple access (CDMA)
    architecture could share 11.5 MHz of spectrum and that one system
    using time division multiple access/ frequency division multiple
    access (TDMA/FDMA) architecture could operate on 5.15 MHz of
    spectrum. *Amendment of Commission\'s Rules to Establish Rules and
    Policies Pertaining to a Mobile Satellite Service in the
    1610-1626.5/2483.5-2500 MHz Frequency Bands,* Report and Order, 9
    FCC Rcd. 5936 at ¶ 44 (1994) (*Big LEO Report and Order*). We expect
    AMSC to take advantage of changing technology in its next generation
    system, enabling it to improve its service offering and make more
    efficient use of the spectrum assigned to it.

[^86]:     ^?^ In granting the requested MET authorizations, the
    Commission does not reach any conclusion with regard to the effect
    of the WTO on the Mexico City Agreement.

[^87]:     ^?^ *See ex parte* letter to Magalie Roman Salas, Federal
    Communications Commission, from Lon C. Levin, Vice President and
    Regulatory Counsel for American Mobile, dated October 19, 1999,
    indicating that as of January 1, 2000 there is no spectrum sharing
    agreement among the five North American L-band MSS operators.

[^88]:     ^?^ Operations will be on a non-interference basis in
    accordance with 47 C.F.R § 25.111(b) and ITU Radio Regulation S4.4.
    In addition, in the absence of a coordination agreement among the
    operators, the U.S. Administration may need to take actions under
    its ITU obligations, ITU Radio Regulation S5.357A, to ensure the
    protection and continued operation of safety communications now
    provided in the L-band spectrum.

[^89]:     ^?^ SSL/Iridium Petition at 2-4; Norcom Petition at 4-8;
    Globalstar Petition at 4-9.

[^90]:     ^?^ *See* *ex parte* Letter to the Honorable William Kennard,
    Chairman, Federal Communications Commission, from Michael T. Smith,
    Chairman and Chief Executive Officer, Hughes Electronics, dated
    November 3, 1999 and *ex parte* Letter to the Honorable William
    Kennard, Chairman, Federal Communications Commission, from Laurence
    Atlas, Vice President, Government Relations Telecommunications,
    Loral Space & Communications, dated November 3, 1999.

[^91]:     ^?^ *See* discussion at paragraph 7.

[^92]:     ^?^ The Federal Aviation Administration, the National Oceanic
    and Atmospheric Administration (NOAA), the U.S. Army Corps of
    Engineers, the Bureau of Land Management and the U.S. Geological
    Survey have expressed a strong interest in accessing TMI\'s
    satellite. *See* SatCom Request to Extend Special Temporary
    Authority to Provide Mobile Satellite Service Through the
    Canadian-Licensed MSAT-1 Satellite (filed December 18, 1998); *see
    also* *ex parte* letter to Magalie Roman Salas, Federal
    Communications Commission, from Jeffrey L. Sheldon, Vice President
    and General Counsel, Utilities Telecom Council, dated April 5, 1999
    and *ex parte* letter to Magalie Roman Salas, Federal Communications
    Commission, from Charles C. Maynard, Chief Executive Officer, U.S.
    Digital Communications, Inc., dated April 2, 1999.

[^93]:     ^?^ AMSC Opposition to SatCom at 11.

[^94]:     ^?^ AMSC Opposition to SatCom application at 12, *citing*
    letter from Steve B. Sharkey, Chief, Satellite Engineering Branch,
    Satellite and Radiocommunication Division, International Bureau, to
    Gregory C. Staple, Counsel for SatCom, (February 10, 1998).

[^95]:     ^?^ AMSC Petition to Deny SatCom at 11-12 and Exhibit B,
    Affidavit of Steve Yocum, AMSC Product Manager.

[^96]:     ^?^ AMSC Opposition at 11 and Exhibit C - Affidavit of Patti
    Aston, AMSC Senior Program Manager.

[^97]:     ^?^ AMSC Opposition at 11-12 and Exhibit D, Affidavit of
    William A. Sullivan.

[^98]:     ^?^ SatCom Opposition to Petitions to Deny at 4 and Exhibits
    1, 2, and 3. In a May 14, 1998 letter to the Commission, in response
    to AMSC\'s Petition to Deny the SatCom application, TMI denied any
    knowledge of SatCom\'s illegal behavior, indicating that, to the
    best of its knowledge, SatCom\'s use of TMI\'s service was in
    compliance with the Commission\'s STA conditions. Letter to Magalie
    Roman Salas, Secretary, FCC, from Jennifer Perkins, Vice President,
    Law, TMI (May 14, 1998).

[^99]:     ^?^ SatCom Opposition to Petitions to Deny at 7.

[^100]:     ^?^ SatCom Opposition at 6 and Exhibit 1.

[^101]:     ^?^ AMSC Petition to Deny SatCom at 13, *citing* *Ramax
    Printing Service,* 69 FCC 2d 1791 (1978); *Beehive Telephone Co.,
    Inc.* 79 FCC 2d 354 (Review Board, 1980) and *Applications of
    Liberty Cable Co., Inc*., 11 FCC Rcd 14122 (1996).

[^102]:     ^?^ *See* 47 C.F.R.§ 25.114(c)(13).

[^103]:     ^?^ AMSC Petition to Deny SatCom at 16-17; Globalstar
    Petition to Deny TMI at 9-10.

[^104]:     ^?^ TMI Opposition to Petitions to Deny at 14.

[^105]:     ^?^ 47 U.S.C. § 332(c).

[^106]:     ^?^ *Id.*

[^107]:     ^?^ *CMRS Second Report & Order*, 9 FCC Rcd at 1457 ¶ 108.
    PMRS is defined as any service that does not meet the definition of
    CMRS or is not the functional equivalent of CMRS. *Id.* at 1447 ¶
    79.

[^108]:     ^?^ *Id.* at 1457 ¶ 108 (*citing* H.R. Conf. Rep. No.
    103-213, at 494 (1993)).

[^109]:     ^?^ *Id.* at 1457-58 ¶ 109.

[^110]:     ^?^ TMI in its application, identifies itself as an alien
    corporation or the representative of an alien corporation. TMI
    Application, FCC 312, Main Form at 3. SatCom in its application
    identifies itself as a U.S. corporation, SatCom Application, FCC
    312, Main Form at 3, (questions 29-34 regarding alien ownership
    SatCom responds \'no\').

[^111]:     ^?^ AMS(R)S is a mobile satellite service using mobile
    terminals on-board aircraft. This service can be used to support
    domestic and international air traffic, including air traffic
    control. The (R) indicates that the spectrum is used for
    aeronautical communications related to the safety and regularity of
    flights primarily along national and international civil air routes.

[^112]:     ^?^ Footnote US 308 to the U.S. Table of Frequency
    Allocations, 47 C.F.R. Section 2.106, US 308, states: \"In the
    frequency bands 1549.5-1558.5 MHz and 1651-1660 MHz, the
    Aeronautical-Mobile-Satellite (R) requirements that cannot be
    accommodated in the 1545-1549.5 MHz, 1558-1559 MHz, 1646.5-1651 MHz
    and 1660-1660.5 MHz bands shall have priority access with real-time
    capability for communications in the mobile satellite service.
    Systems not interoperable with the services shall operate on a
    secondary basis.\" S5.357A in the ITU\'s Radio Regulations has a
    similar priority and preemptive access requirement. We note, in
    addition, that in the 1545-1549.5 MHz, 1558-1559 MHz, 1646.5-1651
    MHz and 1660-1660.5 MHz bands, MSS is secondary to AMS(R)S and the
    1660-1660.5 MHz band is reserved for AMS(R)S with the further
    condition that mobile earth stations operating in these bands shall
    not cause harmful interference to stations in the Radio Astronomy
    Service.

[^113]:     ^?^ *See* Letter to Cheryl Tritt, Chief, Common Carrier
    Bureau, FCC, from Richard D. Parlow, Associate Administrator, Office
    of Spectrum Management, NTIA, and Gerald Markey, Manager, Spectrum
    Engineering Division, FAA, and attachment to the letter, dated
    January 14, 1993 (\"1993 NTIA Recommendations\").

[^114]:     ^?^ Letter to Roderick K. Porter, Acting Chief,
    International Bureau, FCC, from William Hatch, Acting Associate
    Administrator, Office of Spectrum Management, NTIA, dated May 27,
    1999 (\"NTIA 1999 Letter\").

[^115]:     ^?^ NTIA 1999 Letter at 2.

[^116]:     ^?^ AMSC was authorized to provide both MSS and AMS(R)S
    services. *See* *AMSC Authorization*.

[^117]:     ^?^ AMSC *ex parte* Letter dated June 18, 1999. Stations of
    a secondary service shall not cause harmful interference to stations
    of primary or permitted services; cannot claim protection from
    harmful interference from stations of a primary or permitted
    service, but can claim protection from harmful interference from
    stations of the same or other secondary service(s) to which
    frequencies may be assigned at a later date. 47 C.F.R. §§ 2.104(d);
    2.105(c)(3). We also note that in the L-band, the sharing
    arrangements among the satellite operators effectively gives
    exclusive use of parts of the frequency band to each operator.

[^118]:     ^?^ 1999 NTIA Letter at 2.

[^119]:     ^?^ AMSC Opposition to SatCom at 18; AMSC Opposition to TMI
    at 11-13.

[^120]:     ^?^ The following two capabilities are not applicable to
    SatCom and TMI at this time: \"Each MET with a requirement to handle
    distress and safety-related communications shall be capable of
    recognizing message and call priority and identification when
    transmitted from its associated Land Earth Station\" and the
    requirement that \"\[E\]ach MET with a requirement to handle
    distress and safety-related communication shall have the capability
    within the station to automatically preempt lower precedence
    traffic.\" *See* 1993 NTIA Recommendations at Attachment pages 1-2.

[^121]:     ^?^ AMSC Subsidiary Corporation For a Blanket License to
    Construct and Operate up to 200,000 L-Band Mobile Earth Stations,
    Order and Authorization, DA 95-482 (rel. March 13, 1995).

[^122]:     ^?^ Application of SatCom Exhibit 2 at 2; Application of TMI
    Exhibit 2 at 2.

[^123]:     ^?^ SSL/Iridium Petition to Deny or Defer SatCom at 5 and
    Appendix 1; SSL/Iridium Petition to Deny or Defer at 5-6.

[^124]:     ^?^ *Id.*

[^125]:     ^?^ *See* 47 C.F.R. § 25.202(f).

[^126]:     ^?^ SatCom Oppositions to Petitions to Deny at 19 and
    Exhibit 3; TMI Oppositions to Petitions to Deny at 19 and Exhibit 3.

[^127]:     ^?^ See *AMSC Subsidiary Corporation For Modification of its
    Blanket License to Construct and Operate 30,000 L-Band Mobile Earth
    Stations*, Order and Authorization, 10 FCC Rcd 9507 at ¶ 24 (1995).

[^128]:     ^?^ 47 C.F.R. § 25.202(f).

[^129]:     ^?^ Amendment of Parts 2 and 25 to Implement the Global
    Mobile Personal Communications by Satellite (GMPCS) Memorandum of
    Understanding and Arrangements and Petition of the National
    Telecommunications and Information Administration to Amend Part 25
    of the Commission\'s Rules to Establish Emissions Limits for Mobile
    and Portable Earth Stations Operating in the 1610-1660.5 MHz Band,
    Notice of Proposed Rulemaking, FCC 99-37 (rel. March 5, 1999).

[^130]:     ^?^ AMSC Petition to Deny SatCom at 19-20; AMSC Petition to
    Deny TMI at 14-15.

[^131]:     ^?^ *Enhanced 911 Order*, 11 FCC Rcd 18676, 18718 (1996)
    (\"For present. . . recognize that adding specific regulatory
    requirements to MSS may impede the development of the service in
    ways that might reduce its ability to meet public safety needs . . .
    . Thus, while we expect that CMRS voice MSS will eventually be
    required to provide appropriate access to emergency services, we do
    not adopt schedules or other requirements for them here. . . . )*;
    see also* *The Establishment of Policies and Service Rules for the
    Mobile Satellite Service in the 2 GHz Band*, Notice of Proposed
    Rulemaking, 14 FCC Rcd 4843 (1999) (\"*2 GHz NPRM\")* at ¶¶ 93-94.

[^132]:     ^?^ SatCom Opposition to Petitions to Deny at 14; TMI
    Opposition to Petitions to Deny at 16.

[^133]:     ^?^ *See, e.g.,* *2 GHz NPRM* at ¶¶ 93-94.

[^134]:     ^?^ *DISCO II* at ¶ 179.

[^135]:     ^?^ *Id.* at ¶ 180.

[^136]:     ^?^ *Id.* at ¶ 182.

[^137]:     ^?^ To the extent the prospective judicial action would make
    it infeasible to comply with the sixty-day requirement, parties may
    seek a waiver(s) of the discontinuation provisions outlined in
    Section 63.19(a) and (b).

[^138]:     ^?^ SatCom Opposition to Petitions to Deny at 15; TMI
    Opposition to Petitions to Deny at 15.

[^139]:     ^?^ Communications Assistance for Law Enforcement Act, Pub.
    L. No. 103-414, 108 Stat. 4279 (1994) (codified as amended in
    sections of 18 U.S.C. and 47 U.S.C.).

[^140]:     ^?^ AMSC Petition to Deny SatCom at 20-21; AMSC Petition to
    Deny TMI at 15.

[^141]:     ^?^ Appendix A DoJ/FBI/TMI Agreement at paragraph 3.8.

[^142]: *See* Separate Statement of Commissioner Harold Furchtgott-Roth
    in *AT&T Corp., British Telecommunications, plc, VLT Co. L.L.C.,
    Violet License Co. LLC, and TNV \[Bahamas\] Limited Applications for
    Grant of Section 214 Authority, Modification of Authorizations and
    Assignment of Licenses in Connection with the Proposed Joint Venture
    Between AT&T Corp. and British Telecommunications, plc*, IB Docket
    No. 98-212, FCC 99-313 (rel. October 29, 1999).

[^143]: It is not clear that general law enforcement issues legitimately
    rise to the level of "essential security." For the purposes of this
    Statement, however, I assume that the term subsumes the law
    enforcement concerns raised by the FBI. Surprisingly, the FBI also
    invokes the GATS exception for issues related to "any obligations
    under the U.N. Charter to maintain international peace and
    security." FBI Reply to Opposition at 7 (filed April 27, 1999). The
    application of that exception here seems, at best, aggressive.

[^144]: *Amendment of the Commission's Regulatory Policies to Allow
    Non-U.S. Licensed Space Stations to Provide Domestic and
    International Service in the United States,* Report and Order*, 12
    FCC Rcd 24094, ¶ 179 (1997)("DISCO II");* Ironically, "we
    emphasize\[d\] . . . that we expect national security, law
    enforcement, foreign policy and trade policy concerns to be raised
    in very rare circumstances. Contrary to the fears of some
    commenters, the scope of the concerns that the Executive Branch will
    raise in the context \[of transfers\] . . . is narrow and
    well-defined." *Id.* at ¶ 180.

[^145]: The FBI asserts that it did not "become aware" of TMI's
    application "until the fall of 1998." FBI's Reply to Opposition at 3
    (filed April 27, 1999). Even after discovery, the Bureau waited
    another six months to file anything at the Commission. In this
    regard, the FBI noted Title III's lack of a notice provision for
    other governmental entities (Section 214 contains such a provision).
    The distinct lack of such a provision further undercuts any
    Commission deference to these filings under Title III. Indeed, there
    appears to be no statutory basis for treating the FBI different than
    any other party to a Title III application.

[^146]: In this regard, I note that the application has been found to
    satisfy our requirements under the Communications assistance for Law
    Enforcement Act (CALEA). Order ¶ 61.

[^147]: *See Amendment of Parts 2 and 25 to Implement the Global Mobile
    Personal Communications by Satellite (GMPCS) Memorandum of
    Understanding and Arrangements and Petition of the National
    Telecommunications and Information Administration to Amend Part 25
    of the Commission's Rules to Establish Emissions Limits for Mobile
    and Portable Earth Stations Operating in the 1610-1660.5 MHz Band*,
    Notice of Proposed Rulemaking, FCC 99-37 (rel. March 5, 1999).

[^148]: Order at ¶ 57.

[^149]: Appendix A, Agreement at § 11.2.

[^150]: Separate Statement of Commissioner Harold Furchtgott-Roth, in
    Re: Applications for Consent to the Transfer and Control of Licenses
    and Section 214 Authorization from Tele-Communications, Inc.,
    Transferor, to AT&T Corp., Transferee, CS Docket No. 98-178 (Feb.
    18, 1999).

[^151]: Just as in AT&T/BT, I understand that here the incorporation of
    the side agreement was made an explicit condition of the withdrawal
    of the government parties' objections. I continue to urge the
    Commission to work with the other governmental parties to remove
    such provisions from any future side agreements.