**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | ET Docket No. 02-305         |
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| Amendment of Parts 2, 25, and 87 | ** | RM-10331                     |
| of the Commission\'s Rules to    |    |                              |
| Implement Decisions from World   | *  |                              |
| Radiocommunication Conferences   | *) |                              |
| Concerning Frequency Bands       | ** |                              |
| Between 28 MHz and 36 GHz and to |    |                              |
| Otherwise Update the Rules in    | *  |                              |
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| Amendment of Parts 2 and 25 of   |    |                              |
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**ORDER ON RECONSIDERATION**

**Adopted:** May 3, 2006 **Released:** May 8, 2006

By the Commission:

# I. introduction

1.  In this Order on Reconsideration, we deny a Petition for Partial
    Reconsideration

    (Petition) filed by AirTV Limited (AirTV) in response to the
    Commission's *S-Band Allocation Order*, which, *inter alia*, deleted
    the unused Broadcasting Satellite Service (BSS) allocation from the
    band 2500-2690 MHz and removed a related footnote from the Table of
    Frequency Allocations (Table).[^1] We continue to believe that the
    decision in the *S-Band Allocation Order* is necessary to prevent
    terrestrial licensees in the band 2500-2690 MHz from incurring the
    costs of mitigating the interference expected from BSS systems, such
    as the one proposed by AirTV.

**II. BACKGROUND**

2.  In the *S-Band Allocation Order*, the Commission deleted the unused
    BSS allocation from the band 2500-2690 MHz, concluding that such
    operations would create added interference mitigation costs for
    terrestrial services in the band.[^2] Added as an adjunct to
    Instructional Television Fixed Service (ITFS) use of this band, the
    BSS allocation was limited by footnote NG101 to "community
    reception" of educational television programming and public service
    information. The Commission's deletion of the BSS allocation from
    the band 2500-2690 MHz was based on the finding that BSS operations
    in the band 2500-2690 MHz would increase costs for terrestrial
    services due to the need to mitigate interference caused by BSS
    operations. In conjunction with the deletion of this unused
    allocation, the Commission also deleted from the Table footnote
    NG101.[^3]

3.  AirTV had opposed the Commission's proposal to delete the BSS
    allocation in the 2520-2670 MHz portion of the 2500-2690 MHz band in
    its comments on the *Notice of Proposed Rulemaking* in this
    proceeding and instead had urged the Commission to expand the scope
    of the BSS allocation by eliminating footnote NG101 from the
    Table.[^4] The Commission nonetheless deleted the BSS allocation at
    2500-2690 MHz and footnote NG101, agreeing with commenters such as
    The Boeing Company and the Wireless Communications Association
    International, Inc., (WCA) that supported the deletion. AirTV had
    earlier filed proposals in Canada and Brunei Darussalam to provide a
    satellite-based Direct-to-Aircraft (DTA) system using the 2535-2655
    MHz portion of the band 2520-2670 MHz in order to deliver a
    video/broadband service to airline passengers.[^5] The Commission
    was unconvinced that AirTV's DTA system would not cause interference
    to U.S. terrestrial services in the 2520-2670 MHz portion of the
    band, and found that such a system would increase costs for
    terrestrial services due to the need for interference
    mitigation.[^6] The Commission also rejected AirTV's claim that the
    World Trade Organization's (WTO's) General Agreement on Trade in
    Services (GATS) constrained the Commission's ability to limit
    satellite authorizations in cases where incumbent operators could
    face potential interference.[^7]

4.  On January 22, 2004, AirTV filed its Petition seeking reinstatement
    of the BSS allocation in the band 2520-2670 MHz and expansion of the
    BSS allocation in that band through deletion of footnote NG101.[^8]
    On February 9, 2004, we released a public notice seeking comment on
    AirTV's Petition.[^9] WCA filed an opposition (Opposition) to
    AirTV's Petition on March 3, 2004. In addition, both AirTV and WCA
    submitted additional pleadings in the record.[^10]

    III. **PLEADINGS**

5.  In its Petition, AirTV contends that, in deleting the BSS
    allocation, the Commission based its decision on the incorrect
    conclusion that BSS systems such as AirTV's proposed system would
    increase costs for terrestrial services due to the need to mitigate
    interference from BSS systems, and thus that the Commission's
    decision does not serve the public interest.[^11] AirTV also claims
    that it did not have to demonstrate that BSS systems would not cause
    interference to terrestrial systems. Instead, it asserts that any
    modification or deletion of the BSS allocation should occur only
    after an affirmative showing that BSS co-existence with
    co-frequency/co-primary terrestrial services is not feasible, and
    further asserts that U.S. terrestrial system licensees at 2520-2670
    MHz should have been required to demonstrate that BSS and
    terrestrial systems could not operate simultaneously in the band
    before the Commission deleted the allocation.[^12] In the
    alternative, AirTV also asserts that it demonstrated in its Comments
    and Reply Comments in response to the *Notice* that AirTV's system
    would not cause interference to terrestrial systems, and that the
    material it submitted with its Petition demonstrates AirTV's system
    would not cause interference to terrestrial systems.[^13] In the
    study included with its Petition, AirTV assumed that the elevation
    angles from terrestrial receiving antennas to the AirTV satellite at
    86° West Longitude only range from 20 to 50 degrees, that the
    maximum gain of base station and customer premises equipment
    receiving antennas is 16 dB and 2 dB, respectively, and that an
    interference-to-noise (I/N) ratio -6dB or less would result in no
    harmful interference to a third generation (3G) terrestrial
    system.[^14] AirTV also reprises its argument that deletion of the
    BSS allocation would contravene the United States' obligations under
    the WTO's GATS.[^15] AirTV contends that, as an alternative to
    deletion of the BSS allocation, the Commission should consider
    whether individual BSS applications would be expected to cause
    interference to terrestrial systems and address the appropriate
    remedy on a case-by-case basis.[^16]

6.  In its Opposition, WCA argues that the Commission's decision was
    both procedurally proper and appropriate.[^17] It contends that
    AirTV's attempt to retain the BSS allocation while removing footnote
    NG101 would increase the nature and scope of services permitted in
    the band 2500-2690 MHz beyond what was contemplated in this
    rulemaking without proper notice.[^18] WCA further asserts that if
    AirTV had chosen to use "the proper procedural vehicle" to expand
    the BSS allocation to cover the service it intends to provide --
    such as a petition for waiver pursuant to Section 2.106 of the
    Commission's Rules[^19] -- then it would have been incumbent on
    AirTV to show that its system would be compatible with existing
    terrestrial uses in the band.[^20] WCA also challenges, on both
    procedural and substantive grounds, the study that AirTV submitted
    with its Petition. WCA asserts that the Commission should disregard
    that filing as untimely and should dismiss AirTV's Petition,
    pursuant to Section 1.429(b) of the Commission's Rules, as
    containing no facts that were new or previously unknown to
    AirTV.[^21] WCA also disputes the technical assumptions relied upon
    by AirTV. WCA asserts that the I/N ratio needed to protect
    terrestrial systems from harmful interference is less than -10 dB,
    rather than less than -6 dB (which AirTV contends is sufficient) and
    asserts that AirTV's proposed DTA system would cause harmful
    interference to U.S. terrestrial systems.[^22] According to WCA, the
    study AirTV submitted with its Petition fails to demonstrate that
    AirTV's proposed system would not cause harmful interference to
    terrestrial systems, because the study is based on parameters for
    IMT-2000 base stations and customer premises equipment antennas
    rather than considering the characteristics of the receiving
    antennas deployed in existing BRS and EBS terrestrial systems.[^23]
    Furthermore, WCA asserts that the United States' non-discrimination
    obligations under the WTO's GATS do not apply to the BSS. It also
    claims that the deletion of the satellite service allocation does
    not discriminate against foreign satellite system applicants because
    the decision applies to all potential entrants, both foreign and
    domestic.[^24]

7.  In response to WCA's Opposition, AirTV reiterates its position that
    the BSS allocation should be reinstated without footnote NG101.[^25]
    It also claims that its filings were procedurally proper, disagrees
    with WCA's technical discussion, maintains its position that the
    Commission erred in its decision and that WCA did not refute these
    arguments, and counters claims of Administrative Procedure Act (APA)
    violations that would arise were we to adopt the AirTV
    position.[^26] AirTV further contends for the first time that
    Section 7 of the Communications Act of 1934, as amended,[^27]
    required parties that supported the Commission's deletion of the BSS
    allocation at 2500-2690 MHz to demonstrate that the BSS was
    inconsistent with the public interest.[^28] Specifically, AirTV
    argues that Section 7 states that parties opposing a new technology
    or service must demonstrate that such proposal is inconsistent with
    the public interest, and that because AirTV's proposed system would
    provide new global DTA broadband services to the public, Section 7
    imposes a burden of proof on parties supporting deletion of the BSS
    allocation.[^29] In its *Ex Parte* comments, filed April 23, 2004,
    and May 18, 2004, WCA restates its assertion that AirTV's system
    would cause interference to terrestrial systems in the United
    States.[^30]

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IV. **DISCUSSION**

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8.  Pursuant to Section 1.429(a) of the Commission's rules, 47 C.F.R. §
    1.429(a), any interested party may petition for reconsideration of a
    final action in a Commission proceeding. Section 1.429(b) states
    that a petition for reconsideration which relies on facts which have
    not previously been presented to the Commission will be granted only
    if (1) the facts relied on relate to events which have changed since
    the last opportunity to present them to the Commission; (2) the
    facts relied on were unknown to the petitioner until after his last
    opportunity to present them to the Commission, and he could not
    through the exercise of ordinary diligence have learned of the facts
    in question prior to such an opportunity; or (3) the Commission
    determines that consideration of the facts relied on is required in
    the public interest.[^31]

9.  We first reject AirTV's apparent position that it bore no
    responsibility for demonstrating in the record that BSS systems,
    such as its proposed DTA system, would not cause interference to
    terrestrial systems. We distinguish between a burden of proof, which
    AirTV mistakenly believes that we imposed upon it in the *S-Band
    Allocation Order*, and the burden of persuasion that is an integral
    part of any rulemaking proceeding. In the *Notice*, the Commission
    sought comment on the proposed deletion of an unused BSS allocation,
    and the record that was subsequently developed included pleadings
    setting forth reasons why we should adopt or reject the
    proposal.[^32] Because the Commission must make a rational
    connection between the facts found and the choice made, and provide
    a reasoned analysis to support its determination -- and because in
    this case the comments contained conflicting stances -- any
    interested party had a responsibility to weigh in with substantive
    and persuasive arguments in order to support its position.[^33]
    Thus, it was incumbent upon AirTV to offer substantive and
    persuasive comments that could counter both our tentative conclusion
    and other parties' pleadings that supported the proposed deletion of
    the allocation. In addition, however, we also now agree with WCA
    that AirTV's suggestion in its comments that the Commission should
    retain the BSS allocation, but without footnote NG101, was an
    inappropriate filing and amounts to the equivalent of a waiver
    request or a petition for further rulemaking. As such, it was
    incumbent on AirTV to show that its proposed DTA system would not
    interfere with terrestrial systems.

10. In the *S-Band Allocation Order*, the Commission made the
    determination that deleting the BSS/FSS allocation would serve the
    public interest by preventing the potential disruption of EBS and
    BRS across the country, as well as by avoiding imposing high costs
    on terrestrial licensees to mitigate harmful interference from BSS
    and FSS services to terrestrial services.[^34] A review of the
    record on reconsideration gives us no reason to alter our
    conclusion. We do not find persuasive AirTV's argument that we
    should overturn our decision on the grounds that its proposed system
    would not produce "unacceptable interference" to terrestrial systems
    because it would operate with power flux density (PFD) levels 10 dB
    below the PFD levels specified in International Telecommunication
    Union (ITU) Table 21‑4.[^35] As the final product of a consultative
    process that involved input from a variety of working groups, ITU
    Table 21-4 sets forth maximum PFD levels at the Earth's surface
    produced by emissions from a satellite that are intended to promote
    sharing between BSS and terrestrial services in the band 2500-2690
    MHz.[^36] We note, however, that other parties that have studied the
    potential for BSS interference to terrestrial systems in the band
    have discussed the possible interference mitigation measures that
    may be necessary with shared operations in the band. For example, in
    a liaison statement from ITU-R Study Groups Working Party (WP) 6S to
    WP 8F that AirTV did not cite, WP 6S indicates that all BSS systems,
    even if operated at PFD levels 10 dB below the levels specified in
    ITU Table 21-4 as AirTV proposed, will reduce the coverage area of
    terrestrial systems in the band 2630-2655 MHz.[^37] Similarly, the
    United Kingdom, within the framework of the European Conference of
    Postal and Telecommunications Administrations Electronic
    Communications Committee Project Team 1 (CEPT ECC/PT1), found that
    BSS systems, even if operated at the lower PFD levels proposed by
    AirTV, will result in reduced coverage area for terrestrial systems
    using the band 2630-2655 MHz.[^38] Even one of the Draft
    Recommendations cited by AirTV in support of its Petition expressly
    assumes that terrestrial stations will be employing mitigation
    techniques to counteract BSS systems' interference.[^39] All these
    studies predict the additional interference mitigation costs for
    terrestrial systems subjected to BSS interference would include, for
    example, the need to install additional base stations in order to
    restore any lost coverage area.[^40] Furthermore, because the
    studies by WP 6S and the United Kingdom only consider BSS systems'
    interference potential to IMT-2000 terrestrial systems, the
    potential impact to existing BRS and EBS systems in the United
    States is actually greater than the impact predicted in those
    studies. This is due to the fact that existing BRS and EBS systems
    use receiving antennas with higher gain than the receiving antennas
    typically employed in IMT-2000 systems.[^41]

11. A closer examination of AirTV's proposed system gives us additional
    reason to conclude that it would impose interference mitigation
    burdens on incumbent terrestrial service operators. When we compare
    the I/N ratios AirTV purports its system would produce with the
    ratios reported in the WP 6S and United Kingdom studies, we find
    that AirTV's I/N ratios closely approximate the I/N ratios that the
    WP 6S and the United Kingdom materials indicate will result in
    reduced coverage area and increased interference mitigation costs
    for terrestrial systems.[^42] Furthermore, the interference study
    that accompanied AirTV's Petition does not evaluate the interference
    potential of its proposed satellites at 55° West Longitude and 96°
    West Longitude, and does not compute the I/N ratios for elevation
    angles below 20º for its proposed satellite at 86° West Longitude,
    where the interference potential from AirTV's proposed system to
    terrestrial systems is greatest.[^43] Satellite signals received at
    elevation angles below 20° have the greatest potential to cause
    harmful interference to terrestrial systems because the gain of the
    receiving antennas in these terrestrial systems increases as the
    elevation angle decreases below this angle. In this regard, the
    potential for interference from AirTV's system is most prevalent
    where AirTV's satellite signals would be received by terrestrial
    systems' receiving antennas at elevation angles less than 20°, as
    WCA asserts, in Alaska and Hawaii, but also in portions of the
    Continental United States, including locations in Arizona,
    California, Nevada, Oregon, Washington, Idaho, Montana, North and
    South Dakota, Wyoming, Colorado, and Utah.[^44] An evaluation of the
    interference potential of AirTV's proposed system at elevation
    angles less than 20° shows that it would produce I/N ratios that
    exceed -6dB, which all parties have indicated will affect
    terrestrial operations in the band.[^45]

12. For the foregoing reasons, we continue to believe that the
    Commission properly and rationally concluded that BSS systems will
    affect the coverage area and introduce potential interference
    mitigation costs for terrestrial systems. Although AirTV may plan to
    operate a system that generates PFD levels "significantly below" the
    maximum levels in Table 21-4 of the ITU Radio Regulations,[^46] that
    in itself does not mean that such operations will not have a
    significant effect on terrestrial users in the band. While Table
    21-4 and the studies we discuss, above, set forth ways in which the
    band may be shared, it is a different matter to conclude that such
    shared use best serves the public interest here. In balancing the
    effect of such burdens on terrestrial licensees against the
    currently unused BSS allocation, the prospect of interference to
    terrestrial licensees that would affect their planning and
    deployment of systems weighs strongly against reinstating the unused
    BSS allocation. Accordingly, we continue to believe that it best
    serves the public interest to remove the allocation.

13. Because we have determined that BSS systems will impose interference
    mitigation costs that we find unacceptable for terrestrial systems,
    we also reject AirTV's suggestion that the Commission could consider
    individual BSS applications on a case-by-case basis as impractical.
    This is especially relevant in light of the Commission's decisions
    to reband and add a mobile allocation to the band 2500-2690 MHz that
    are anticipated to promote increased mobile use in these
    frequencies. Our restructuring of the band, with the enhanced
    flexibility targeted to facilitate new mobile and wireless broadband
    applications, is likely to make it more, rather than less, difficult
    to avoid interference from BSS systems to terrestrial systems.
    Moreover, based on our evaluation of AirTV's proposed system, as
    discussed above, we conclude that a BSS system will have minimal
    likelihood of success in overcoming these interference challenges.
    Were we to implement AirTV's suggestion to examine specific BSS
    system proposals on a case-by-case basis and address the appropriate
    terrestrial mitigation remedy for the interference such BSS systems
    would be expected to cause to terrestrial systems, we would
    introduce complexity, uncertainty, and the likelihood of increased
    costs for terrestrial operators in the band 2500-2690 MHz to build
    their systems with capabilities for mitigating possible interference
    from BSS operations. In exchange, we would introduce the prospect
    that, under certain circumstances that would have not been clearly
    demonstrated as of yet, it might be possible, at some point in the
    future, to deploy a BSS operation in the band that would not impose
    unacceptable interference mitigation costs on existing terrestrial
    systems.

14. We also find AirTV's other arguments unpersuasive. We reject the
    argument that, in order to delete the unused BSS allocation, we need
    an affirmative showing from terrestrial licensees in the band that
    the BSS cannot coexist with existing terrestrial services.[^47] Our
    election in the *MVDDS* proceeding to require such an analysis does
    not mandate such an analysis every time we consider adding a new
    service. In addition, this is a case in which the Commission
    deleted, rather than added, a service allocation from a frequency
    band. Furthermore, the respective services contemplated by the
    parties would both involve ubiquitous mobile receivers. Given the
    challenges inherent in arranging compatible uses of such receivers,
    we see no point in requiring or reviewing further technical studies.
    The sharing scenario proposed is, in this case, not practicable.
    Consequently, we see no purpose in maintaining an allocation for BSS
    when we are not in a position to adequately protect BSS earth
    stations from interference.

15. AirTV also contends for the first time, at this late date, that
    Section 7 of the Communications Act of 1934, as amended, requires
    parties that oppose the introduction of a new service in the band
    (and thus support the Commission's deletion of the BSS allocation in
    the band 2500-2690 MHz) to demonstrate that the BSS was inconsistent
    with the public interest.[^48] As an initial matter, we note that
    that portion of the Act has been characterized as a broad policy
    statement reflecting congressional delegation on policy matters to
    the Commission\'s discretion.[^49] Furthermore, even if Section 7
    should be read to apply to the instant situation involving the
    deletion of an unused allocation, we nevertheless find that our
    decision is consistent with the provision's intent. Specifically,
    because we think that the BRS/EBS band, as recently restructured,
    holds great potential for the development of new services and
    technologies, it was consistent with the public interest for us to
    remove an allocation for a service (in this case, the BSS) that was
    not presently being offered and that, if deployed, could impose
    limitations on the rapid and robust deployment of new BRS and EBS
    technologies. Thus, our decision serves to encourage the provision
    of new technologies and services to the public, in furtherance of
    Section 7's broad and general policies.

16. We maintain our conclusion that deletion of the BSS allocation was
    not violative of international requirements, notwithstanding AirTV's
    arguments to the contrary.[^50] We note that the U.S. Schedule of
    Specific Commitments to the WTO Basic Telecommunications Agreement
    includes an exemption from most-favored-nation obligations for the
    Direct-to-Home Fixed-Satellite Service (DTH-FSS), Direct Broadcast
    Satellite (DBS) service, and Digital Audio Radio Service
    (DARS).[^51] Under this exemption, the U.S. is not required to
    extend most-favored-nation treatment for these satellite services in
    evaluating coordination requests from foreign administrations for
    applications to transmit into the territory of the U.S. by non-U.S.
    satellite systems. In addition, nothing in the U.S. Schedule of
    Specific Commitments or in the Commission's decision implementing
    the WTO decision, however, limits the exempted satellite services to
    a specific frequency band, in particular the DBS frequency
    band.[^52] For this reason, the exemption applies to all signals
    transmitted or retransmitted by satellites that are intended for
    direct reception by the general public. Thus, we reject AirTV's
    assertion that, because BSS systems at 2500-2690 MHz are not part of
    the Commission's definition of DBS services in Section 25.201, the
    Commission's deletion of the BSS allocation from the band 2500-2690
    MHz was precluded by the commitments the U.S. has under the WTO's
    GATS.[^53] In addition, as we previously determined, under the WTO's
    GATS, the U.S. may also limit new satellite authorizations when
    incumbent operations face potential interference.[^54] Furthermore,
    we agree with WCA's assertion that the Commission's decision to
    delete the BSS allocation does not discriminate against foreign
    licensees, because the decision affects both domestic and foreign
    systems in a non-discriminatory fashion.[^55] This conforms to the
    WTO's GATS non-discrimination policies.

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V.  **CONCLUSION**

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17. Having reexamined our allocation decision, we remain convinced that
    it was properly decided based on interference mitigation concerns.
    We continue to believe, for the reasons discussed above, that
    simultaneous operation of BSS and terrestrial systems at 2520-2670
    MHz would require parties to address matters of technical
    compatibility in order to make use of the band. Thus, we continue to
    find that the public interest is served by our deletion of the
    unused BSS allocation, and that our decision will prevent
    terrestrial licensees from incurring the costs of evaluating and
    mitigating the interference that any proposed BSS deployment --
    including the AirTV system examined herein -- would be expected to
    cause to terrestrial systems.

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VI. **PROCEDURAL MATTERS**

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18. A Regulatory Flexibility Act analysis or certification, *see
    generally* 5 U.S.C. §§ 604-605, is not required because this order
    does not promulgate or revise any rules.

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VII. **ORDERING CLAUSES**

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19. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 303(r),
    and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 303(r), and 405, and Section 1.429 of the Commission's
    Rules, 47 C.F.R. § 1.429, the Petition for Partial Reconsideration
    filed by AirTV Limited, is DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

[^1]: *See* Amendment of Parts 2, 25, and 87 of the Commission's Rules
    to Implement Decisions from World Radiocommunication Conferences
    Concerning Frequency Bands Between 28 MHz and 36 GHz and to
    Otherwise Update the Rules in this Frequency Range, ET Docket No.
    02-305, *Notice of Proposed Rulemaking*, 17 FCC Rcd 19756, 19772-74
    (2002); *Report and Order*, 18 FCC Rcd 23426, 23445 (2003) (*S-Band
    Allocation Order*).

[^2]: *See S-Band Allocation Order*, 18 FCC Rcd at 23445, ¶¶ 41-47. The
    band 2500-2690 MHz is currently used for fixed services by the
    Educational Broadband Service (EBS) and Broadband Radio Service
    (BRS). In 2004, the Commission fundamentally restructured the rules
    for this band to greatly enhance the ability of licensees and new
    entrants to provide ubiquitous wireless broadband services to all
    Americans. *See* Amendment of Parts 1, 21, 73, 74 and 101 of the
    Commission's Rules to Facilitate the Provision of Fixed and Mobile
    Broadband Access, Educational and Other Advanced Services in the
    2150-2162 and 2500-2690 MHz Bands, WT Docket No. 03-66, *Report and
    Order and Further Notice of Proposed Rulemaking*, 19 FCC Rcd 14165,
    14169 (2004). Before the 2004 *Order*, EBS and BRS were known as the
    Instructional Television Fixed Service (ITFS) and the Multipoint
    Distribution Service (MDS), respectively. The Commission added an
    allocation for mobile, except aeronautical mobile, service to the
    band 2500-2690 MHz in 2001. *See* Amendment of Part 2 of the
    Commission's Rules to Allocate Spectrum Below 3 GHz for Mobile and
    Fixed Services to Support the Introduction of New Advanced Wireless
    Services, including Third Generation Wireless Systems, ET Docket No.
    00-258, *First Report and Order and Memorandum Opinion and Order*,
    16 FCC Rcd 17222 (2001). The *S-Band Allocation Order* also removed
    the unused Fixed Satellite Service (FSS) allocation from the band.
    That portion of the decision was not subject to reconsideration
    filings.

[^3]: *S-Band Allocation Order*, 18 FCC Rcd at 23445, ¶ 47.

[^4]: *See Notice of Proposed Rulemaking* (*Notice*) in ET Docket No.
    02-305, 17 FCC Rcd at 19773, ¶ 52. We note that, while the
    Commission had proposed to delete the BSS and FSS allocations in the
    entire 2500-2690 MHz band, AirTV had opposed deletion of the BSS
    allocation only in the 2520-2670 MHz portion of the band. *See*
    AirTV Comments at 7-8 and 11, and AirTV Reply Comments at 2.

[^5]: *See* AirTV Petition at 1-2 and AirTV Comments at 4. In 1997,
    AirTV filed a request with Industry Canada for seven
    geostationary-satellite orbit (GSO) locations using BSS S-band
    frequencies at 86º West Longitude, 96º West Longitude, 55º West
    Longitude, 12º West Longitude, 13.5º West Longitude, 170º East
    Longitude, and 180º East Longitude. In addition, AirTV filed a
    request with the Administration of Brunei Darussalam for two GSO
    locations using BSS S-band frequencies at 64º East Longitude and 96º
    East Longitude. *See* AirTV Comments at 4, n.5.

[^6]: *See S-Band Allocation* Order, 18 FCC Rcd at 23445, ¶ 47.

[^7]: *Id*.

[^8]: AirTV states that it limited its request for reinstatement of the
    BSS allocation to the band 2520-2670 MHz in order to conform to the
    international allocation in Article 5 of the International
    Telecommunications Union (ITU) Radio Regulations. *See* AirTV
    Petition at 2, n.4.

[^9]: *See* Petitions for Reconsideration and Clarification of Action in
    Rulemaking Proceedings, *Public Notice* (Report No. 2645), 69 Fed.
    Reg. 7484 (Feb. 17, 2004).

[^10]: Although AirTV captioned its March 17, 2004, document a "Reply,"
    we note that it was not submitted within 10 days after the time for
    filing oppositions had expired. *See* 47 C.F.R. § 1.429(g). The
    deadline for WCA's Opposition to AirTV's Petition was March 3, 2004,
    so this made March 15, 2004, the deadline for AirTV's Reply Comments
    to WCA's Opposition. AirTV's pleading was received on March 17,
    2004, two days after the reply filing deadline. Because WCA's
    Certificate of Service states its Opposition was served on AirTV by
    hand-delivery, the additional time contemplated by Section 1.4(h) of
    our Rules for mail-delivery is not applicable. Accordingly, Reply
    Comments were due March 15, 2004. Moreover, AirTV did not file a
    request for acceptance of a late-filed Reply as required by Section
    1.46(b) of the Commission's Rules, 47 C.F.R. § 1.46(b). Thus, we
    will refer to this pleading, as well as the April 23, 2004, and May
    18, 2004, filings by WCA, as *Ex Parte* Comments.

[^11]: *See* AirTV Petition at 3-5, 7.

[^12]: *Id.* at 5-6.

[^13]: *Id*. at 4-6.

[^14]: *See* AirTV Petition, Attachment 1, Feasibility of Co-Frequency
    Sharing Between BSS Systems and Terrestrial Systems in the Band
    2535-2655 MHz, at 7-8.

[^15]: *See* AirTV Petition at 7-9. The GATS represents a set of
    multilateral rules and commitments covering government measures that
    relate to trade in services.

[^16]: *Id.* at 6-7.

[^17]: WCA Opposition at 7.

[^18]: 47 U.S.C. § 303. *See* WCA Opposition at 5-6.

[^19]: 47 C.F.R. § 2.106.

[^20]: *See* WCA Opposition at 9. Similarly, WCA argues that the
    Commission properly acted within its authority under Section 303 of
    the Communications Act of 1934, as amended, 47 U.S.C. § 303, when it
    removed the BSS allocation from the band. WCA Opposition at 7.

[^21]: *Id.* at 10-11 (citing Section 1.429(b) of the Commission's
    Rules, 47 C.F.R. § 1.429(b)).

[^22]: *See* WCA Opposition at 12-13.

[^23]: *See* WCA Opposition at 11. IMT-2000 (International Mobile
    Telecommunications for the year 2000) is the term the International
    Telecommunication Union (ITU) uses to describe its global standard
    for next-generation wireless networks. *See* H. Newton, *Newton's
    Telecom Dictionary, 21^st^ Edition*, CMP Books, March 2005, p. 423.

[^24]: *See* WCA Opposition at 15-16.

[^25]: *See* AirTV March 17, 2004, *Ex Parte* Comments at 7-8.

[^26]: *Id.* at 2-10.

[^27]: 47 U.S.C. § 157(a).

[^28]: *See* AirTV March 17, 2004, *Ex Parte* Comments at 7.

[^29]: *Id*.

[^30]: *See* WCA *Ex Parte* Comments (filed April 23, 2004) at 1-2. *See
    also* WCA *Ex Parte* Comments (filed May 18, 2004) at 1.

[^31]: *See* 47 C.F.R. § 1.429(b).

[^32]: *See S-Band Allocation Notice*, 17 FCC Rcd at 19772-74, ¶¶ 50-52.

[^33]: *See, e.g.*, Motor Vehicle Mfg. Assn. v. State Farm Mut. Auto
    Ins., 463 U.S. 29 (1983).

[^34]: Under Section 303 of the Communications Act of 1934, as amended,
    47 U.S.C. § 303, the Commission has the authority to assign bands of
    frequencies to the various classes of radio stations and to make
    such regulations as it may deem necessary to prevent interference
    between stations. Based on the Commission's determination that
    operation of BSS systems at 2500-2690 MHz would impose substantial
    interference mitigation costs on terrestrial systems, deletion of
    the BSS allocation was consistent with the broad authority the
    Commission has under Section 303. *See* 47 U.S.C. §§ 303(c), 303(f).
    *See also S-Band Allocation Order*, 18 FCC Rcd at 23445 ("\[W\]e
    find that such a system would increase costs for terrestrial
    services due to the need to mitigate interference caused by AirTV's
    system.").

[^35]: *See* AirTV Petition at 4. *See also* AirTV Comments at 7 and
    AirTV Reply Comments at 2-4.

[^36]: *See* ITU Radio Regulations, Article 21, Section V, at 256.

[^37]: *See* *Liaison Statement to WP 8F From WP 6S A Methodology To
    Assess Interference From BSS (Sound) Into Terrestrial IMT-2000
    Systems Intending To Use The Band 2630-2655 MHz*, Document 8F/909-E,
    March 27, 2003, at 14-16.

[^38]: *See* *Determination of Threshold Values for BSS (Sound)
    Satellites in the 2630-2655 MHz Band,* Delayed Contribution Document
    8F/771-E, September 18, 2002, at 36.

[^39]: *See* AirTV Reply Comments at 3, n.4. *See also* ITU-R Working
    Party 8F, WG Spectrum, Preliminary Draft New Recommendation,
    *Methodology to assess interference between IMT-2000 and BSS (Sound)
    systems in the 2630-2655 MHz band*, Document 8F/TEMP/293-E, June 4,
    2002. The example calculations of BSS systems' interference
    potential included in this Draft Recommendation are not conclusive
    regarding the interference potential of AirTV's proposed DTA system
    because they only examine the BSS interference potential at
    latitudes from 15º N to 60º N, and significant portions of Alaska,
    where, as noted *infra*, the interference potential of AirTV's
    system is more prevalent, lie north of 60º N latitude. The other
    Draft Recommendation cited by AirTV merely proposes BSS PFD levels
    in the band 2535-2655 MHz that closely mirror the PFD levels
    specified in ITU Table 21-4. In addition, this Draft Recommendation
    sets forth the interference mitigation measures, including deploying
    improved side-lobe discrimination receiving antennas, employing
    orbital avoidance by planned stations, and using frequency offset,
    that terrestrial stations would need to employ to mitigate potential
    BSS interference. *See* ITU-R Study Group 9, Draft New
    Recommendation ITU-R F.\[FS-BSS 2.6 GHz\], *Power-flux density
    threshold levels between systems in the broadcasting-satellite
    service (sound) in geostationary and non-geostationary satellite
    orbits for space-to-Earth transmissions and the fixed service in the
    band 2535-2655 MHz*, Document 9/118(Rev.1)-E, May 15, 2002.

[^40]: Although AirTV claims that additional studies from ITU working
    groups, Industry Canada, and AirTV have addressed the compatibility
    of BSS systems with 3G terrestrial wireless services in the band
    2520-2670 MHz, and thus demonstrate its proposed DTA system would
    not produce unacceptable interference to U.S. terrestrial systems,
    including those using second generation technology, AirTV did not
    include any studies with its pleadings that show its proposed system
    would not interfere with existing first generation terrestrial
    systems in the band. In addition, AirTV did not identify any ITU
    studies that demonstrate its proposed system would not interfere
    with existing terrestrial systems. *See* AirTV Petition at 3-4. We
    further note that the Industry Canada study referenced by AirTV is
    an internal study that is not publicly available.

[^41]: According to WCA, most BRS and EBS licensees have no plans to
    deploy any IMT-2000 equipment. *See* WCA Opposition at 11, and
    Declaration of Harry W. Perlow, attached to WCA Opposition, at 1.
    Because the interference study AirTV included with its Petition
    assumes only IMT-2000 equipment is deployed in existing terrestrial
    systems, we agree with WCA that the study does not accurately
    portray the interference potential of AirTV's proposed system to
    existing terrestrial systems.

[^42]: *See* AirTV March 17, 2004, *Ex Parte*, Attachment 1, Technical
    Statement at 6-7. *See also* notes Error: Reference source not found
    and Error: Reference source not found, *supra*.

[^43]: Contrary to AirTV's assertion in its Petition that, over the
    United States, the elevation angles to AirTV's proposed satellite at
    86° West Longitude range from 20° to 50°, we note that the elevation
    angles to this satellite are less than 20° from locations in
    portions of Alaska and Hawaii, as are the elevation angles to
    AirTV's proposed satellite at 96° West Longitude. Similarly, we also
    find that the elevation angles to AirTV's proposed satellite at 55º
    West Longitude are less than 20° from locations in Arizona,
    California, Nevada, Oregon, Washington, Idaho, Montana, North and
    South Dakota, Wyoming, Colorado, and Utah. *See* AirTV Petition,
    Attachment 1, Feasibility of Co-Frequency Sharing Between BSS
    Systems and Terrestrial Systems in the Band 2535-2655 MHz, at 8;
    AirTV March 17, 2004, *Ex Parte* Comments, Attachment 1, Technical
    Statement, at 6-7.

[^44]: *See* WCA *Ex Parte* Comments (filed May 18, 2004) at 1. *See
    also* note Error: Reference source not found, *supra*.

[^45]: *See* WCA Opposition at 12-13.

[^46]: *See* AirTV Petition at 5.

[^47]: AirTV argues that because the Commission had previously required,
    in a separate proceeding, a sharing feasibility analysis before
    adding a new service to a spectrum band, the Commission should in
    the instant situation require a technical showing from the
    terrestrial services that co-existence is not possible. *See* AirTV
    Petition at 5-6 (citing Amendment of Parts 2 and 25 of the
    Commission's Rules to Permit Operation of NGSO FSS Systems
    Co-Frequency with GSO and Terrestrial Systems in the Ku-Band
    Frequency Range, ET Docket No. 98-206, *Fourth Memorandum Opinion
    and Order*, 18 FCC Rcd 8428 (2003) (*MVDDS Order*)).

[^48]: 47 U.S.C. § 157. *See* AirTV March 17, 2004, *Ex Parte* Comments
    at 7. Section 7, 47 U.S.C. § 157(a), provides that "\[i\]t shall be
    the policy of the United States to encourage the provision of new
    technologies and services to the public. Any person or party (other
    than the Commission) who opposes a new technology or service
    proposed to be permitted under this Act shall have the burden to
    demonstrate that such proposal is inconsistent with the public
    interest."

[^49]: *Alenco Communications Inc., v. FCC*, 201 F.3d 608 at 615,
    n.3 (5th Cir., 2000) (stating that the provisions of Section 7 of
    the Act are "merely a broad statement of policy conferring
    substantial discretion on the Commission to determine how best to
    provide for new technologies and services").

[^50]: *See* AirTV Petition at 7-9.

[^51]: *See* The United States of America Schedule of Specific
    Commitments, Supplement 2, at 3. The U.S. Schedule of Specific
    Commitments may be viewed on the World Trade Organization's web site
    at
    \<http://www.wto.org/english/tratop_e/serv_e/serv_commitments_e.htm#commit_exempt\>.
    This site may also be accessed through a link on the International
    Bureau Home Page at the Commission's web site at \<www.fcc.gov/ib\>.

[^52]: *See* The United States of America Schedule of Specific
    Commitments, Supplement 2, at 3. *See also* Amendment of the
    Commission's Regulatory Policies to Allow Non-U.S. Licensed Space
    Stations to Provide Domestic and International Satellite Service in
    the United States, IB Docket No. 96-111, *Further Notice of Proposed
    Rulemaking*, 12 FCC Rcd 14220, 14228-29 (1997) (*WTO Implementation
    Further Notice of Proposed Rulemaking)*; *id*., *Report and Order*,
    12 FCC Rcd 24094, 24135 (1997) (*WTO Implementation Order*).

[^53]: *See* AirTV Petition at 7-9.

[^54]: *See S-Band Allocation Order*, 18 FCC Rcd at 23445, ¶ 47. *See
    also* GATS Annex 1B, Annex on Telecommunications, at 315.

[^55]: *See* WCA Opposition at 16.