**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**ORDER**

**Adopted:** January 5, 2004 **Released:** January 15, 2004

By the Commission:

Table of Contents

Heading Paragraph \#

I. INTRODUCTION 1

II\. BACKGROUND 2

III\. discussion 8

A. The Commission's Authority to Auction DBS Licenses 8

1\. The Public Notice 8

2\. Comments 9

3\. Analysis 12

B. Eligibility for the Three Available Western DBS Licenses 22

1\. The Public Notice 22

2\. Comments 23

3\. Analysis 24

IV\. Conclusion 27

V. ORDERING CLAUSE 28

APPENDIX: EX PARTE FILINGS

# INTRODUCTION

1.  On March 3, 2003, we issued a Public Notice announcing an auction of
    four licenses for Direct Broadcast Satellite ("DBS") service
    channels at orbit locations to which the United States is assigned
    by the International Telecommunication Union ("ITU") (Auction No.
    52).[^1] By this Order, we affirm our conclusion in the *Auction No.
    52 Comment Public Notice* that our authority to auction these
    licenses has not been altered by regulatory and statutory actions
    taken since DBS auctions were last held,[^2] and we decline to
    impose eligibility restrictions on the three available licenses to
    operate at the western orbit locations of 175º W.L., 166º W.L., and
    157º W.L. We do not address in this Order the question of whether
    any eligibility restrictions are appropriate for the license to use
    the two available channels at the eastern orbit location of 61.5º
    W.L. but instead defer the resolution of this matter to a subsequent
    order.[^3] Our action today will enable the Commission to proceed
    expeditiously with the auction of the three available DBS licenses
    at the 175º W.L., 166º W.L., and 157º W.L. orbit locations.

# BACKGROUND

2.  Eight orbit positions were assigned to the United States for DBS,
    under the auspices of the ITU, at the 1983 Regional Administrative
    Radio Conference for the Planning in Region 2 of the
    Broadcasting-Satellite Service in the Frequency Band 12.2 -- 12.7
    GHz and Associated Feeder Links in the Frequency Band 17.3 -- 17.8
    GHz. Under this Region 2 Band Plan for Ku-band DBS satellites ("ITU
    Region 2 Band Plan"), which was agreed upon by the nations present,
    the orbit slots assigned to the United States are for coverage of
    the United States.[^4]

3.  The Commission first established DBS service rules in 1982 by
    adopting "interim" rules that were codified in Part 100 of its
    regulations.[^5] In 1995, the Commission adopted new service rules
    for DBS to better reflect the realities of the service as it had
    evolved and to promote certain goals, including the provision of DBS
    service to Alaska and Hawaii. At the same time, the Commission,
    which had been given auction authority in 1993 by the addition of
    Section 309(j) to the Communications Act,[^6] adopted competitive
    bidding rules for the DBS service.[^7] The Commission held the first
    DBS auctions in January 1996.[^8]

4.  On April 11, 2002, WTB, acting under delegated authority,
    streamlined the DBS competitive bidding rules by conforming them
    with the general competitive bidding rules set forth in Part 1 of
    the Commission\'s rules.[^9] On June 13, 2002, the Commission
    released the *Part 100 R&O,* in which it further streamlined the
    regulation of DBS and moved the DBS rules from Part 100 to Part
    25.[^10]

5.  The authority to establish specific procedures for auctions has been
    delegated to WTB.[^11] Pursuant to this authority, WTB's standard
    practice, prior to every auction, is to issue a Public Notice
    seeking comment on the specific procedures to be used in the
    auction, including the design of the auction, mechanisms for
    conducting the auction, and reserve prices or minimum opening bids.
    After considering the comments received, WTB issues a Public Notice
    that announces the procedures that will be used. In the case of
    Auction No. 52, the full Commission issued a public notice (the
    *Auction No. 52 Comment Public Notice)* seeking comment on two
    issues that were more appropriate for a Commission-level (rather
    than Bureau-level) decision. In the interests of administrative
    efficiency, our public notice also sought comment on those auction
    procedures that the Bureau usually handles on delegated authority.

6.  With respect to the two non-procedural issues raised in the *Auction
    No. 52 Comment Public Notice*, the first concerned the
    auctionability of DBS licenses. More specifically, we explained our
    conclusion that the Commission has the authority to auction the DBS
    licenses included in Auction No. 52. In particular, we discussed the
    Commission's 1996 decision to remove FCC regulatory prohibitions on
    the provision of various satellite services beyond the borders of
    the United States[^12] and Congress's enactment of Section 647 of
    the ORBIT Act, which prohibits the Commission from using competitive
    bidding to assign orbit locations or spectrum used "for the
    provision of international or global satellite communications
    services."[^13] The second issue involved DBS eligibility.
    Specifically, we sought comment on a number of questions regarding
    whether eligibility restrictions are warranted for any of the
    licenses to be offered in Auction No. 52. We received four comments
    and two reply comments in response to the *Auction No. 52 Comment
    Public Notice.*[^14]

7.  The *Auction No. 52 Comment Public Notice* also proposed the use of
    a simultaneous multiple round auction design for Auction No. 52, as
    well as upfront payments, minimum opening bids, and other auction
    procedures*.* Pursuant to its delegated authority, WTB will resolve
    all the procedural issues relating to Auction No. 52 on which we
    sought comment in the *Auction No. 52 Comment Public Notice,* will
    adjust the license inventory of Auction No. 52 to reflect our
    resolution of the eligibility issue for three licenses in this
    Order, and will announce a new start date for the auction.

#  discussion

## The Commission's Authority to Auction DBS Licenses

### The Public Notice

8.  In the Auction *No. 52 Comment Public Notice,* we found that the DBS
    licenses that will be included in Auction No. 52 are not subject to
    the auction prohibition of the ORBIT Act because these licenses are
    for the use of DBS assignments that, under the ITU Region 2 Band
    Plan, have coverage patterns that are designed to -- and do in fact
    -- serve the United States almost exclusively.[^15] We further found
    that the Commission's *DISCO I* decision did not change the fact
    that the ITU Region 2 Band Plan provides for service to the United
    States, with only incidental coverage outside the United States,
    from the eight orbit locations assigned to the United States under
    the Plan, and that DBS providers that operate under licenses for
    these eight DBS orbit locations must comply with the technical
    parameters of the ITU Region 2 Band Plan. We also concluded that
    incidental provision of transborder service does not convert an
    otherwise auctionable license into an unauctionable one. We
    concluded that the auctioning of U.S. DBS licenses that comply with
    the ITU Region 2 Band Plan is not inconsistent with the goals of the
    ORBIT Act.[^16]

### Comments

9.  Northpoint filed comments in response to the *Auction No. 52 Comment
    Public Notice* disagreeing with our conclusion that the licenses to
    be included in Auction No. 52 are not subject to the auction
    prohibition of the ORBIT Act.[^17] According to Northpoint, DBS is
    an "international or global satellite communications service" and is
    not merely "incidentally international."[^18] Northpoint points out
    that as a technical matter much of the Pacific rim is in view from
    the western orbit locations scheduled for inclusion in Auction No.
    52 and states that "real companies" have applied to provide
    international DBS service.[^19] Thus, Northpoint argues that "any
    constraint on providing more than 'incidental' DBS service must be
    regulatory rather than technological in nature."[^20] Moreover,
    Northpoint argues that in *DISCO I,* in which the Commission lifted
    its restrictions on the provision of DBS service beyond the borders
    of the United States, the Commission regarded DBS as a "truly"
    international satellite communications service.[^21] Thus, according
    to Northpoint, our conclusion that DBS is not an international or
    global satellite communications service subject to the ORBIT Act
    represents a "dramatic and unexplained reversal" of Commission
    policy.[^22]

10. Northpoint also states that the ITU Region 2 Band Plan does not
    provide an adequate justification of our conclusion because the
    Commission routinely obtains modifications of the Region 2 Band
    Plan. In support of this assertion, Northpoint cites the
    Commission's authorization of the launch of EchoStar 7 and other DBS
    satellites,[^23] and further argues that if the Commission
    "seriously believed that the Region 2 Band Plan defines the limits
    of acceptable DBS service" it could not have accepted for filing SES
    Americom's April 2002 request to provide DBS service to the United
    States and certain British Overseas Territories in the
    Caribbean.[^24] Finally, Northpoint argues that even if the
    Commission were correct in concluding that DBS is not an
    "international or global satellite communications service," the
    ORBIT Act would nevertheless prohibit auctions of DBS licenses
    because DBS relies on spectrum that is "used for the provision of"
    non‑geostationary satellite orbit ("NGSO") fixed‑satellite service
    ("FSS"), which it states is "indubitably" an international or global
    satellite communications service.[^25]

11. The Satellite Broadcasting and Communications Association ("SBCA")
    filed ex parte comments in response to the *Auction No. 52 Comment
    Public Notice* supporting our conclusion that the licenses to be
    included in Auction No. 52 are not subject to Section 647 of the
    ORBIT Act.[^26] The SBCA points out that DBS is a domestic service
    offered to U.S. residents pursuant to a license issued by the FCC.
    Thus, SBCA argues that the harm Congress sought to prevent by
    enacting Section 647 of the ORBIT Act, i.e., a succession of
    auctions in numerous countries to which international satellite
    systems might be subject, is not implicated by the auction of U.S.
    DBS licenses. Moreover, SBCA asserts that Congress has decided that,
    with rare exceptions, auctions are the preferred means of awarding
    licenses to mutually exclusive applicants for authority to use the
    radio frequency spectrum in the United States.

### Analysis

12. We affirm the conclusion we reached in the *Auction No. 52 Comment
    Public Notice* that the Commission has the authority to auction DBS
    licenses for channels at orbit locations assigned to the United
    States under the ITU Region 2 Band Plan because these licenses are
    used to provide a domestic service and therefore are not subject to
    the auction prohibition of the ORBIT Act. Licenses for the use of
    DBS channels and orbit locations assigned to the United States under
    the ITU Region 2 Band Plan, including the licenses slated for
    Auction No. 52, authorize operation in the 12.2-12.7 GHz frequency
    bands and associated feeder-links for service to the United
    States,[^27] and licensees must provide service on those channels
    and orbit locations to the United States.[^28]

13. None of Northpoint's arguments changes the fact that the channels
    and orbit locations we plan to license by auction were assigned to
    the United States because of their coverage of the United States
    alone. Nor do they change the fact that the licenses to be included
    in Auction No. 52 must be used to provide a service delivered almost
    exclusively to U.S. consumers. Rather, Northpoint's basic arguments
    are premised on the assertions that (a) any degree of transborder
    coverage will bring a DBS license under the ORBIT Act's auction
    prohibition, (b) DBS licensees will, under certain scenarios, be
    able to provide a full-fledged international satellite service,
    and (c) any international satellite use of the spectrum by licensees
    in other services within the 12.2 -- 12.7 GHz band strips the FCC of
    its authority to auction any license in an otherwise auctionable
    service within that band. For the reasons set forth below, we find
    that these arguments are without merit.

14. First, we disagree with Northpoint's exceedingly broad reading of
    the ORBIT Act auction prohibition, which would result in a bar on
    the use of the competitive bidding process for any service that
    provided any degree of transborder coverage, no matter how
    insignificant. As we indicated in the *Auction No. 52 Comment Public
    Notice*, it would be unreasonable to conclude that Congress intended
    that the incidental provision of transborder service would convert
    an otherwise auctionable license into an unauctionable one.
    Certainly, the rationale for the prohibition does not suggest such a
    result. As we discussed in the *Auction No. 52 Comment Public
    Notice* and as the SBCA also notes, the concerns Congress identified
    in enacting Section 647 of the ORBIT Act are not implicated by the
    assignment of U.S. DBS licenses through competitive bidding. The
    legislative history of the ORBIT Act auction exemption, which
    consists of a House Commerce Committee Report on an earlier,
    unenacted bill containing an auction exemption identical to that of
    Section 647 of the ORBIT Act,[^29] expresses concern for the effect
    that auctions could have on the viability and availability of global
    and international satellite services.[^30] The Committee indicated
    that an auctions exemption could help such service providers avoid
    financial burdens they might otherwise face if a U.S. auction regime
    precipitated a succession of auctions in numerous countries in which
    the operators might seek to provide service. The auctioning of U.S.
    DBS licenses that comply with the ITU Region 2 Band Plan does not
    raise these concerns because these licenses are for channels
    designed under the Plan to serve the United States.

15. Second, Northpoint's conjectures about the possibility of DBS
    licensees providing a full-fledged international service are flawed.
    For example, visibility of a portion of the Pacific rim from orbit
    locations assigned to the United States does not make service
    provided from these locations an international service.[^31]
    Satellite beams, because of a natural spread in their radiation
    characteristics, will illuminate beyond the borders of a particular
    country. Thus, in order to have full coverage of a national
    territory, coverage of regions beyond those borders is to be
    expected. We agree with Northpoint that treaty obligations of the
    United States under the International Radio Regulations help define
    and limit the scope and nature of DBS. The "coverage" maps referred
    to by Northpoint show areas of the world that are visible from
    certain orbit locations. They do not, however, show the actual
    coverage areas of those orbit positions as defined in the ITU Region
    2 Band Plan. For coverage beyond that described in the ITU Region 2
    Band Plan, a modification to the Plan, including further
    modifications of allocations currently in the Plan, would be
    required. Thus, if a licensee wishes to provide service outside the
    United States, inconsistent with the ITU Region 2 Band Plan, it must
    obtain a modification to the Plan. Obtaining a modification of the
    Region 2 Band Plan, especially for coverage beyond that of the
    original Plan, is a process that has no guarantee of success, as it
    requires the agreement of other administrations that have DBS
    assignments that may be affected by the modification.[^32] An
    increase in interference level as little as 0.25 dB can result in an
    administration not giving its agreement.[^33] Thus, the DBS licenses
    that are slated for auction cannot now be -- nor are they
    anticipated to be -- used to provide any significant degree of
    international service.

16. We also do not agree that in *DISCO I* the Commission deemed DBS to
    be a "truly" international satellite communications service. Rather,
    in *DISCO I,* the Commission concluded that it should not impose
    regulatory barriers on a licensee interested in providing DBS
    service outside the United States. Specifically, *DISCO I* permitted
    DBS licensees to provide both domestic and international service
    without obtaining additional approval from the Commission.[^34]
    While the Commission noted the potential advantages of international
    DBS service, it did not conclude that such service would be anything
    other than incidental to domestic service.[^35] This decision also
    did not change the obligation of DBS licensees proposing to provide
    service outside the United States to submit the appropriate
    submissions to the ITU for modifications to the Region 2 Band Plan.
    We note also that, as a practical matter, in the almost eight years
    that have passed since the adoption of *DISCO I* in 1996, there have
    been only four proposals to provide DBS service beyond the U.S.
    borders using an orbit location assigned to the United States under
    the ITU Region 2 Band Plan, and only two of these proposals have
    been submitted to the ITU.[^36] We also note that currently all
    U.S.-licensed providers of DBS service are providing service only to
    the United States and not to any foreign countries. Their DBS
    signals originate in the United States, under control of the DBS
    provider, are transmitted over U.S.-licensed satellites, and are
    received by individual earth station antennas located at the U.S.
    subscribers' premises. In contrast, many U.S.-licensed FSS
    satellites serve the international market. Signals originating in
    the United States may be transmitted through these FSS satellites to
    foreign points and vice versa. Typically, these services are between
    the United States and points in Central and South America, Europe,
    and the Far East. Thus, our conclusion that DBS service from the
    eight orbit locations assigned to the United States is predominantly
    domestic is consistent with actual service offerings and does not
    represent a departure from *DISCO I*.

17. Northpoint's assertion that the Commission routinely obtains
    modifications of the ITU Region 2 Band Plan is misleading.[^37] The
    Commission has indeed requested modifications of the ITU Region 2
    Band Plan on a number of occasions. However, the cases that
    Northpoint cites do not support its contention that the ITU Region 2
    Band Plan is an insignificant constraint on international DBS
    service. Most of the cases in which the Commission has sought such
    modifications have had nothing to do with the provision of service
    outside the United States. Indeed, as noted above, the Commission
    has sought a modification of the ITU Region 2 Band Plan on behalf of
    a licensee proposing to provide international service from a U.S.
    orbit location in only two instances.[^38] Moreover, in certain
    cases that Northpoint cites, the Commission determined that the
    proposed variances from the technical parameters of the ITU Region 2
    Band Plan would not cause interference to the radiocommunications
    systems of other countries, or that the potential interference of
    the proposed system would be less than that allowed under Appendices
    S30 and S30A.[^39] We also note that SES Americom's application to
    provide DBS service to the United States and the Caribbean would not
    involve the provision of service from an orbit location assigned to
    the United States or a request by the United States to modify the
    ITU Region 2 Band Plan.[^40] Thus, the cases cited by Northpoint do
    not demonstrate, as it suggests, that it is a routine matter for the
    United States to obtain a modification of the ITU Region 2 Band Plan
    on behalf of a U.S.-licensed DBS operator in order for such an
    operator to provide international service, or that the Region 2 Plan
    permits more than incidental service beyond the U.S. borders from
    orbit locations assigned to the United States.[^41]

18. We also disagree with Northpoint's reading of our authorization of
    the EchoStar 7 satellite, of which one of the proposed spot beams is
    to be directed toward Mexico. According to Northpoint, this
    authorization is proof that "\[a\]s of last year . . . the
    Commission was still treating DBS as an international satellite
    service, despite the existence of the Region 2 Band Plan."[^42] It
    is important to note that our observation in this authorization that
    "the Commission permits DBS licensees to provide service in other
    countries," which Northpoint quotes, was made in the context of
    addressing Northpoint's and the National Association of
    Broadcasters' ("NAB") comments on EchoStar's application regarding
    the latter's compliance with the Satellite Home Viewer Improvement
    Act of 1999 ("SHVIA").[^43] Northpoint had argued in its comments
    that if EchoStar\'s purpose in launching EchoStar 7 was to enhance
    EchoStar\'s capacity to provide local broadcast signals into local
    markets pursuant to SHVIA, then the Commission should require
    EchoStar to direct all of its proposed spot beams to locations
    within the United States.[^44] In response, we noted that SHVIA does
    not require DBS operators to use all satellite beams for
    local-into-local service, that Commission policy allows satellite
    operators flexibility in the technical design of their space
    stations to best implement their business plans, and that the
    Commission permits DBS licensees to provide DBS service in other
    countries, in accordance with U.S. treaty obligations, provided the
    satellite operator obtains all necessary approvals from the foreign
    administration.

19. We note also that the EchoStar 7 satellite was designed to provide
    service to the United States, including Alaska and Hawaii, on its
    assigned channels.[^45] The EchoStar 7 satellite included in
    addition a spot beam directed toward Mexico.[^46] EchoStar could not
    technically direct this particular spot beam into the United States
    without causing harmful self-interference into other spot beams in
    its own fleet, and it therefore decided to direct the spot beam
    toward Mexico, where it may be used if EchoStar decides to provide
    service to Mexico and obtains any necessary authority from the
    Mexican Administration to do so.[^47] In sum, in authorizing the
    launch and operation of EchoStar 7, we did not treat DBS as an
    international satellite service.[^48] Rather, we merely disagreed
    with Northpoint's and NAB's suggestion that EchoStar should be
    required to direct all of its proposed spot beams to locations
    within the United States.[^49]

20. Finally, without addressing Northpoint's assertion that NGSO FSS is
    "indubitably" an international or global satellite communications
    service, we disagree with its argument that the ORBIT Act prohibits
    auctions of DBS licenses because DBS relies on spectrum that is
    "used for the provision of" NGSO FSS. Northpoint has already made
    this same argument with respect to the auctioning of Multichannel
    Video Distribution and Data Service ("MVDDS") licenses, and the
    Commission has rejected it.[^50] Thus, Northpoint has previously
    asserted, as it does here, that the ORBIT Act's denial of auction
    authority can be based on the nature of the use made by operators in
    other services of the spectrum to which the applicant seeks access,
    and is not limited to the nature of the use made by the service that
    will be subject to auction. We find this argument unpersuasive, as
    we did in the *MVDDS Second R&O.* As we explained there, we
    interpret the language of the statutory prohibition to focus on
    whether the particular spectrum being "assigned" is "used for"
    international or global satellite communications services.[^51] The
    spectrum licenses at issue here would be "assigned" by competitive
    bidding to licensees only for DBS service provided from U.S. orbit
    locations, which are limited almost exclusively to domestic use.
    Because NGSO FSS and DBS licenses are assigned entirely separately,
    there is no reason to read the ORBIT Act to constrain the DBS
    license assignments merely because NGSO FSS shares the same spectrum
    band.

21. In sum, we continue to believe that Section 647 of the ORBIT Act
    does not prohibit us from using auctions to assign licenses for DBS
    channels at the eight orbit locations assigned to the United States
    under the ITU Region 2 Band Plan, because we find that the DBS
    service authorized under such licenses is not an "international or
    global satellite communications service." Under the technical
    parameters of the ITU Region 2 Band Plan, these licenses are
    designed to provide service almost exclusively to the United States,
    and modifications of the Region 2 Band Plan are not obtained as a
    matter of routine. We may submit a modification, but may not be able
    to get the necessary agreements with other affiliated
    Administrations. Although the Commission removed its own regulatory
    obstacles to the provision of DBS service outside the United States
    from the U.S. orbit locations in *DISCO I,* that decision had no
    effect on DBS operators' obligation to comply with the ITU Region 2
    Band Plan. Therefore, we find that *DISCO I* should not be read to
    mean that the DBS licenses that we intend to assign by competitive
    bidding are to be used to provide an international satellite
    service, or to establish a basis for concluding that the prohibition
    of the ORBIT Act should apply to such U.S.-assigned DBS licenses. We
    therefore conclude that the Commission has the authority to auction
    the DBS licenses included in Auction No. 52, as well as any other
    licenses for DBS channels at the eight orbit locations assigned to
    the United States under the current ITU Region 2 Band Plan that may
    become available in the future.

## Eligibility for the Three Available Western DBS Licenses

### The Public Notice

22. In the Auction *No. 52 Comment Public Notice,* we sought comment on
    various questions regarding possible eligibility restrictions for
    the licenses that were identified for inclusion in Auction No. 52.
    Noting that in several services the Commission has determined that
    an eligibility restriction may be imposed only when there is
    significant likelihood of substantial harm to competition in
    specific markets and when the restriction will be effective in
    eliminating that harm, we sought comment on the use of that standard
    for this service. Observing also that one of the four licenses
    scheduled for auction---the license at the 61.5º W.L.
    location---authorizes the use of only two channels, we sought
    comment on whether this fact warrants any modification of our
    existing open eligibility regime for the DBS service. More
    specifically, we requested comment on whether we should adopt the
    eligibility criteria for this particular license that Rainbow DBS
    had proposed in the application it filed on July 3, 2002, to modify
    its DBS authorization to add these two unassigned channels.[^52] We
    also asked whether the Commission should consider eligibility
    restrictions on particular orbit locations based on entities' market
    position in the provision of terrestrial multichannel video
    programming. Finally, we sought comment on any other
    proposed eligibility requirements for each of the orbit locations,
    including the rationale for any such requirements.[^53]

### Comments

23. Two parties, Rainbow DBS and EchoStar, submitted comments on the
    issue of eligibility restrictions, and both focused their comments
    on the question of whether the Commission should restrict
    eligibility for the license for the two available channels at the
    61.5° W.L. orbit location. Rainbow DBS, the licensee of 11 channels
    at 61.5° W.L., supports the adoption of the three eligibility
    criteria for the 61.5° W.L. license on which the Commission sought
    comment and which, as noted above, Rainbow DBS itself had
    proposed.[^54] EchoStar, which is also the licensee of 11 channels
    at 61.5° W.L., opposes the adoption of Rainbow DBS's proposed
    eligibility restrictions for the 61.5° W.L. license.[^55] No
    commenter addressed with any specificity the question of
    whether eligibility requirements should be considered for any of the
    other three available DBS licenses.

### Analysis

24. We decline to adopt any eligibility restrictions for the three
    available DBS licenses at the 175º W.L., 166º W.L., and 157º W.L.
    orbit locations. In the *Part 100* proceeding, we considered a wide
    range of questions relating to whether ownership restrictions of any
    kind are appropriate for the DBS service, and we concluded that
    generally they were not. Thus, we examined whether we should adopt
    any limits on the ownership of satellites located at more than one
    full-CONUS orbit position; whether we should adopt cable/DBS
    cross-ownership restrictions; and whether we should be concerned
    about non-ownership relationships such as leases of DBS satellite
    transponders.[^56] After careful consideration of the record on
    these issues, we declined to adopt any specific restrictions.[^57]

25. No commenter proposed any eligibility restrictions for the available
    licenses at the 175º W.L., 166º W.L., and 157º W.L. orbit locations.
    This results in a record that lacks information regarding
    circumstances that would cause us to impose eligibility restrictions
    in the DBS service with respect to these three licenses. Therefore,
    based on the record before us, we conclude that there is no reason
    for us to deviate from any of our decisions in the *Part 100 R&O* as
    they apply to these licenses*.*

26. On the other hand, we have received detailed comments presenting a
    number of arguments regarding the issue of whether we should adopt
    eligibility restrictions for the available license at 61.5º W.L. In
    order to avoid delaying a decision on the three western licenses, we
    will address the matter of eligibility for the 61.5º W.L. license in
    a separate order, which we will issue as soon as we resolve the
    relevant issues that have been raised with respect to that license.
    We emphasize that the decision we reach today applies only to the
    three licenses for the available channels at the 175º W.L., 166º
    W.L., and 157º W.L. orbit locations, and we leave open the question
    of whether particular circumstances might warrant different
    eligibility rules for the available license at 61.5º W.L.

#  Conclusion

27. For the reasons stated above, we conclude that the Commission has
    the authority to auction DBS licenses for the use of channels at the
    eight orbit locations to which the United States is assigned under
    the ITU Region 2 Band Plan. We conclude that this authority has not
    been altered or diminished by the Commission's adoption of *DISCO I*
    or the enactment of Section 647 of the ORBIT Act. We also conclude
    that no eligibility restrictions on the available DBS licenses at
    the 175º W.L., 166º W.L., and 157º W.L. orbit locations are
    warranted, and we will maintain our policy of open eligibility for
    these licenses. We reach no conclusions concerning whether we should
    impose any eligibility restrictions on the license for the two
    unassigned channels at the 61.5º W.L. orbit location and defer the
    resolution of that issue to a separate order.

# ORDERING CLAUSE

28. Accordingly, IT IS ORDERED that, pursuant to sections 4(i), 303(r),
    and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 154(i), 303(r), and 309(j), this Order is hereby ADOPTED.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

    **APPENDIX: EX PARTE FILINGS**

    The following ex parte filings have been made:

Letter from Christopher R. Bjornson, Counsel for Rainbow DBS, to Marlene
H. Dortch, Secretary, Federal Communications Commission (dated March 10,
2003)

Letter from Christopher R. Bjornson, Counsel for Rainbow DBS, to Marlene
H. Dortch, Secretary, Federal Communications Commission (dated April 2,
2003)

Letter from Christopher R. Bjornson, Counsel for Rainbow DBS, to Marlene
H. Dortch, Secretary, Federal Communications Commission (dated April 10,
2003)

Letter from Christopher R. Bjornson, Counsel for Rainbow DBS, to Jane
Mago, Federal Communications Commission (dated April 10, 2003)

Letter from Christopher R. Bjornson, Counsel for Rainbow DBS, to Marlene
H. Dortch, Secretary, Federal Communications Commission (dated April 24,
2003)

Letter from Howard J. Symons, Counsel for Rainbow DBS, to Marlene H.
Dortch, Secretary, Federal Communications Commission (dated May 6, 2003)

Letter from Howard J. Symons, Counsel for Rainbow DBS, to Marlene H.
Dortch, Secretary, Federal Communications Commission (dated March 15,
2003)

Letter from Christopher R. Bjornson, Counsel for Rainbow DBS, to Marlene
H. Dortch, Secretary, Federal Communications Commission (dated June 20,
2003)

Letter from Christopher R. Bjornson, Counsel for Rainbow DBS, to Marlene
H. Dortch, Secretary, Federal Communications Commission (dated June 20,
2003)

Letter from Christopher R. Bjornson, Counsel for Rainbow DBS, to Marlene
H. Dortch, Secretary, Federal Communications Commission (dated June 20,
2003)

Letter from Christopher R. Bjornson, Counsel for Rainbow DBS, to Marlene
H. Dortch, Secretary, Federal Communications Commission (dated July 16,
2003)

Letter from Benjamin J. Griffin, Counsel for Rainbow DBS, to Marlene H.
Dortch, Secretary, Federal Communications Commission (dated July 17,
2003)

Letter from Benjamin J. Griffin, Counsel for Rainbow DBS, to Marlene H.
Dortch, Secretary, Federal Communications Commission (dated July 17,
2003)

Letter from Pantelis Michalopoulos, Counsel for EchoStar Satellite
Corporation, to Marlene H. Dortch, Secretary, Federal Communications
Commission (dated July 31, 2003)

Letter from Pantelis Michalopoulos, Counsel for EchoStar Satellite
Corporation, to Marlene H. Dortch, Secretary, Federal Communications
Commission (dated August 1, 2003)

Letter from Pantelis Michalopoulos, Counsel for EchoStar Satellite
Corporation, to Marlene H. Dortch, Secretary, Federal Communications
Commission (dated August 5, 2003)

Letter from Pantelis Michalopoulos, Counsel for EchoStar Satellite
Corporation, to Marlene H. Dortch, Secretary, Federal Communications
Commission (dated August 12, 2003)

Letter from Howard J. Symons, Counsel for Rainbow DBS, to Jane Mago,
Federal Communications Commission (dated August 12, 2003)

Letter from Pantelis Michalopoulos, Counsel for EchoStar Satellite
Corporation, to Marlene H. Dortch, Secretary, Federal Communications
Commission (dated August 13, 2003)

Letter from David R. Goodfriend, Director, Legal and Business Affairs,
EchoStar Satellite Corporation, to Marlene H. Dortch, Secretary, Federal
Communications Commission (dated August 25, 2003)

Letter from David R. Goodfriend, Director, Legal and Business Affairs,
EchoStar Satellite Corporation, to Marlene H. Dortch, Secretary, Federal
Communications Commission (dated August 27, 2003)

Letter from Howard J. Symons, Counsel for Rainbow DBS, to Marlene H.
Dortch, Secretary, Federal Communications Commission (dated October 7,
2003)

Letter from Howard J. Symons, Counsel for Rainbow DBS, to Marlene H.
Dortch, Secretary, Federal Communications Commission (dated October 8,
2003)

Letter from Margaret L. Tobey, Counsel for Satellite Broadcasting and
Communications Association, to Marlene H. Dortch, Secretary, Federal
Communications Commission (dated October 9, 2003)

Letter from Margaret L. Tobey, Counsel for Satellite Broadcasting and
Communications Association, to Marlene H. Dortch, Secretary, Federal
Communications Commission (dated October 9, 2003)

Letter from Margaret L. Tobey, Counsel for Satellite Broadcasting and
Communications Association, to Marlene H. Dortch, Secretary, Federal
Communications Commission (dated October 9, 2003)

Letter from Howard J. Symons, Counsel for Rainbow DBS, to Marlene H.
Dortch, Secretary, Federal Communications Commission (dated October 21,
2003)

[^1]: *Public Notice*, Auction of Direct Broadcast Satellite Service
    Licenses Scheduled for August 6, 2003, Report No. AUC-03-52-A, 18
    FCC Rcd 3478 (2003) (*"Auction No. 52 Comment Public Notice*"*)*.
    The four licenses that were announced for Auction No. 52 are for
    channels at the following four orbit locations: 175º W.L., 166º
    W.L., 157º W.L., and 61.5º W.L. The 175° W.L., 166° W.L., and 157°
    W.L. orbit locations are capable of serving primarily the western
    portion of the United States. The 61.5° W.L. orbit location is
    capable of serving most of the contiguous United States except the
    Pacific Northwest. On June 11, 2003, the Wireless Telecommunications
    Bureau ("WTB") issued a Public Notice announcing that Auction No. 52
    would be delayed pending Commission resolution of the issues we
    address herein. *Public Notice*, Auction of Direct Broadcast
    Satellite Service Licenses (Auction No. 52) Is Postponed, Report No.
    AUC-03-52-B, 18 FCC Rcd 11515 (WTB 2003).

[^2]: These auctions were conducted in 1996. *See infra* note 8.

[^3]: Channels 23 and 24 are available at 61.5º W.L.

[^4]: The ITU Region 2 Band Plan assigns to the United States all of the
    channels at eight orbit locations capable of serving all or a
    portion of the United States. Specifically, these orbit locations
    are: 175° W.L., 166° W.L., 157° W.L., 148° W.L., 119° W.L., 110°
    W.L., 101° W.L., and 61.5° W.L. *See* Appendix 30 and Appendix 30A
    of the International Radio Regulations. Other countries in ITU
    Region 2 (North and South America) were each assigned orbit
    locations or channels to serve their individual countries. *See* ITU
    Radio Regulations Appendix 30 Article 10, Appendix 30A Article 9.
    Another assignment plan exists for countries in Regions 1 and 3. DBS
    is the acronym used in the United States to describe the domestic
    implementation of the satellite service known internationally as the
    broadcasting satellite service ("BSS"), which is subject to the
    International Radio Regulations BSS and feeder-link Plans contained
    in Appendices 30 and 30A of the ITU Radio Regulations.

[^5]: *See* Inquiry into the Development of Regulatory Policy in Regard
    to Direct Broadcast Satellites for the Period Following the 1983
    Regional Administrative Radio Conference, *Report and Order,* 90
    FCC2d 676 (1982*)*, *recon. denied*, 53 RR2d 1637 (1983).

[^6]: 47 U.S.C. § 309(j). *See also* Omnibus Budget Reconciliation Act
    of 1993, Pub. L. No. 103-66, Title VI, § 6002(a), 107 Stat. 312, 387
    (1993). The Balanced Budget Act of 1997 amended Section 309(j) to
    require the Commission to award mutually exclusive applications for
    initial licenses or permits using competitive bidding procedures,
    with very limited exceptions. These exceptions are licenses and
    construction permits for public safety radio services, digital
    television service licenses and permits given to existing
    terrestrial broadcast licensees to replace their analog television
    service licenses, and licenses and construction permits for
    noncommercial educational broadcast stations and public broadcast
    stations under 47 U.S.C. § 397(6). *See* 47 U.S.C. § 309(j)(2); *see
    also* Balanced Budget Act of 1997, Pub. L. No. 105-33, Title III,
    111 Stat. 251 (1997).

[^7]: *See* Revision of Rules and Policies for the Direct Broadcast
    Satellite Service, *Report and Order*, 11 FCC Rcd 9712 (1995) *("DBS
    R&O").*

[^8]: The Commission auctioned construction permits for 28 channels at
    the 110° W.L. orbit location in Auction No. 8 and 24 channels at the
    148° W.L. orbit location in Auction No. 9.

[^9]: Amendment of Parts 1, 21, 22, 24, 25, 26, 27, 73, 74, 80, 90, 95,
    100, and 101 of the Commission Rules --- Competitive Bidding,
    *Order*, 17 FCC Rcd 6534 (2002) (modified by errata, 17 FCC Rcd
    11146 (WTB 2002)).

[^10]: Policies and Rules for the Direct Broadcast Satellite Service,
    *Report and Order*, 17 FCC Rcd 11331 (2002) *("Part 100 R&O").* The
    competitive bidding rules applicable to DBS are now set forth at 47
    C.F.R. §§ 1.2101-1.2113, 25.148(d) & (e).

[^11]: *See* Amendment of Part 1 of the Commission's Rules ---
    Competitive Bidding Procedures, Allocation of Spectrum Below 5 GHz
    Transferred from Federal Government Use, 4660-4685 MHz, *Third
    Report and Order and Second Further Notice of Proposed Rule Making*,
    13 FCC Rcd 374, 448, ¶ 124 (1997). The Commission has directed WTB
    to seek comment on specific mechanisms related to day-to-day auction
    conduct including, for example, the structure of bidding rounds and
    stages, establishment of minimum opening bids or reserve prices,
    minimum accepted bids, initial maximum eligibility for each bidder,
    activity requirements for each stage of the auction, activity rule
    waivers, criteria for determining reductions in eligibility,
    information regarding bid withdrawal and bid removal, stopping
    rules, and information relating to auction delay, suspension or
    cancellation. *Id.* at 448, ¶ 125. *See* *also* Amendment of Part 1
    of the Commission's Rules --- Competitive Bidding Proceeding,
    *Order, Memorandum Opinion and Order, and Notice of Proposed Rule
    Making*, 12 FCC Rcd 5686, 5697, ¶ 16 (1997) (clarifying that
    pursuant to Section 0.131 of the Commission's rules, the Chief of
    the Bureau has delegated authority to implement all of the
    Commission's rules pertaining to auctions procedures).

[^12]: Amendment to the Commission's Regulatory Policies Governing
    Domestic Fixed Satellites and Separate International Satellite
    Systems, *Report and Order,* 11 FCC Rcd 2429 (1996)*("DISCO I")*.

[^13]: Open-Market Reorganization for the Betterment of International
    Telecommunications Act, Pub. L. No. 106‑180, 114 Stat. 48 § 647
    (enacted Mar. 12, 2000), codified at 47 U.S.C. § 765f ("ORBIT Act").
    Section 647 states: "Notwithstanding any other provision of law, the
    Commission shall not have the authority to assign by competitive
    bidding orbital locations or spectrum used for the provision of
    international or global satellite communications services. The
    President shall oppose in the International Telecommunication Union
    and in other bilateral and multilateral fora any assignment by
    competitive bidding of orbital locations or spectrum used for the
    provision of such services."

[^14]: Comments were filed on March 17, 2003, by Northpoint Technology,
    Ltd., and Broadwave USA, Inc. (collectively "Northpoint"), and on
    March 24, 2003, by R/L DBS Company, LLC, EchoStar Satellite
    Corporation ("EchoStar"), and PanAmSat Corporation ("PanAmSat").
    Reply Comments were filed on March 31, 2003, by R/L DBS Company,
    LLC, and EchoStar. R/L DBS Company, LLC, has recently changed its
    name to Rainbow DBS Company LLC; therefore, we will henceforth refer
    to the company as "Rainbow DBS." A number of ex parte filings have
    also been made, which are listed in the Appendix.

[^15]: *Auction No. 52 Comment Public Notice,* 18 FCC Rcd at 3479-80. As
    explained above, the licenses included in Auction No. 52 are for
    unassigned channels at orbit locations in the 12.2-12.7 GHz
    frequency bands and associated feeder-links in the 17.3-17.8 GHz
    bands to which the United States is assigned under the ITU Region 2
    Band Plan.

[^16]: *Id.* at 3480.

[^17]: PanAmSat filed comments arguing that the ORBIT Act precludes
    auctions of fixed-satellite service licenses. *See generally*
    PanAmSat Comments. Because we address only the issue of our
    authority to auction DBS licenses, we do not need to consider
    PanAmSat's comments here.

[^18]: Northpoint Comments at 3-4.

[^19]: *See id.* at 4, *citing* Compass Systems, Inc., Application for
    Authority to Construct a Direct Broadcast Satellite System (filed
    Mar. 20, 2002) (proposing to serve the continental United States,
    Alaska, Hawaii, Canada, Mexico, Australia, New Zealand, and Papua
    New Guinea from orbit locations at 157º W.L. and 166º W.L.); and FCC
    Public Notice, Satellite Applications Accepted for Filing, Report
    No. SAT-00110 (May 17, 2002) (noting that SES Americom sought
    permission "to offer satellite capacity for third party
    direct-to-home services to consumers in the United States and
    certain British Overseas Territories in the Caribbean").

[^20]: Northpoint Comments at 4.

[^21]: *Id.* at 4-6.

[^22]: *Id.* at 2, 6.

[^23]: *Id.* at 7-9.

[^24]: *Id.* at 9.

[^25]: *Id.* at 10.

[^26]: Letter from Margaret L. Tobey, Counsel for Satellite Broadcasting
    and Communications Association, to Marlene H. Dortch, Secretary,
    Federal Communications Commission (dated October 9, 2003); Letter
    from Margaret L. Tobey, Counsel for Satellite Broadcasting and
    Communications Association, to Marlene H. Dortch, Secretary, Federal
    Communications Commission (dated October 9, 2003); and Letter from
    Margaret L. Tobey, Counsel for Satellite Broadcasting and
    Communications Association, to Marlene H. Dortch, Secretary, Federal
    Communications Commission (dated October 9, 2003).

[^27]: We note that in the *Part 100 R&O* the Commission clarified the
    definition of DBS service by referencing the specific frequencies
    used for DBS service. Thus, in defining the DBS service, the
    Commission stated that "\[t\]he following frequencies are available
    for use by the Direct Broadcast Satellite service: 12.2-12.7 GHz."
    *See Part 100 R&O,* 17 FCC Rcd at 11344, ¶ 21, and Appendix B; s*ee
    also* 47 C.F.R. §§ 25.201 and 25.202(a)(7).

[^28]: The ITU rules apportion spectrum and orbit locations for the BSS
    in various geographic regions in certain planned frequency bands.
    The provisions of Appendices 30 and 30A of the International Radio
    Regulations are applicable to the BSS in the frequency bands
    11.7-12.2 GHz (Region 3), 11.7-12.5 GHz (Region 1) and 12.2-12.7 GHz
    (Region 2), and to their associated feeder-links in the bands
    14.5-14.8 GHz (Regions 1 and 3) and 17.3-17.8 GHz (Region 2). The
    Region 2 orbit locations are governed by specific procedures
    contained in the ITU BSS and associated feeder-link Plans, and these
    procedures apply specifically to DBS in the 12.2-12.7 GHz frequency
    band and to a DBS system's associated feeder-links. Other BSS
    allocations are not subject to the provisions of these Plans.

[^29]: *See* Communications Satellite Competition and Privatization Act
    of 1998, H.R. 1872, 105^th^ Cong., 2d Sess. § 649 (1998).

[^30]: Report of Committee on Commerce, Communications Satellite
    Competition and Privatization Act of 1998, H.R. Rep. No. 494, 105
    Cong., 2nd Sess. 64‑65 (1998). *See also* Report on the Activity of
    the Committee on Commerce for the 106^th^ Congress, H.R. Rep.
    106‑1047 at 38. (Jan. 2, 2001) (stating that the bill prohibits the
    Commission from auctioning orbital slots or spectrum assignments for
    global satellite systems).

[^31]: Visibility refers to the area of the earth's surface that is
    visible from the satellite, whereas coverage refers to the area of
    the earth's surface that the satellite antenna beams are capable of
    illuminating. Coverage may be limited by satellite design or for
    regulatory reasons.

[^32]: This process is initiated by the U.S. Administration submitting
    the modification to the ITU or by agreement. Changes to the plan are
    required to be made through a process defined in the International
    Radio Regulations Appendices 30 and 30A. The procedure must follow
    the process described in Articles 4 and 5 of these Appendices.

[^33]: The process requires interaction between the administrations and
    may, if issues are not resolved, require the assistance of the ITU
    Radio Communication Bureau to offer solutions. The process, however,
    may fail to result in an agreement because the entity whose
    agreement being sought is not required to give its agreement in the
    allotted eight year time frame. If no agreement is reached, the
    modification may be lost at the end of the eight year allotted time
    frame to complete the coordination and notification process.
    Further, the Pacific rim areas noted by Northpoint would require
    additional submissions to the ITU beyond that of a Region 2 plan
    modification, as they are not part of the Region 2 Band Plan. These
    areas are located in Region 1 (Russia) and Region 3. For example,
    operation in the 12.2 -- 12.5 GHz band over the territory of Russia
    would require modification of the Region 1 Band Plan.

[^34]: *See DISCO I*, 11 FCC Rcd at 2439-40, ¶ 70 (foreign approval
    required for international operations, consistent with international
    treaties). We note, however, that the Commission would have to
    submit the appropriate modification to the Plan and seek agreement
    to the Region 2 Band Plan.

[^35]: *See id.* at 2439, ¶¶ 66-67.

[^36]: One of these proposals was that of Northpoint's affiliate Compass
    Systems, Inc. ("CSI"), which, on March 20, 2002, filed an
    application for authority to construct a DBS system in which it
    proposed to serve Canada, Mexico, and "the Asia-Pacific region" in
    addition to the United States. Compass Systems, Inc., Application
    for Authority to Construct a Direct Broadcast Satellite System
    (filed Mar. 20, 2002). No Plan modification was submitted to the ITU
    because this application was dismissed as unacceptable for filing by
    the International Bureau ("IB") and WTB on March 3, 2003. Letter
    from Donald Abelson, Chief, International Bureau, and John B.
    Muleta, Chief, Wireless Telecommunications Bureau, to Antoinette
    Cook Bush, Vice President, Compass Systems, Inc. (dated March 3,
    2003). CSI has filed an Application for Review of this dismissal.
    Compass Systems, Inc., Application of Compass Systems, Inc. for
    Authority to Construct an International Direct Broadcast Satellite
    System, Application for Review (filed April 2, 2003). The second
    proposal was made by EchoStar, which has proposed to use one of the
    15 transponders of its EchoStar 7 satellite for service to Mexico.
    *See* EchoStar Satellite Corporation, Application for Minor
    Modification of Direct Broadcast Satellite Authorization, Launch and
    Operating Authority for EchoStar 7, *Order and Authorization,* 17
    FCC Rcd 894 (2002) *("EchoStar 7 Order")*. The third proposal was
    also made by EchoStar and involved a request for modification to the
    BSS Plan for USABSS-3 and 4 that would include coverage to Mexico
    from the 119º W.L. orbit location.  *See* Letter from Richard B.
    Engelman, Chief, Planning and Negotiation Division, International
    Bureau, Federal Communications Commission, to the International
    Telecommunication Union Radiocommunication Bureau (dated November 4,
    1999). EchoStar has since relocated these satellites from the 119º
    W.L. orbit position. The fourth proposal involved a request by
    EchoStar to serve Asian markets from the 175º W.L. orbit location.
    *See* EchoStar Satellite Corporation, Consolidated Request for
    Additional Time to Commence Operation, SAT-MOD-19981125-00089;
    SAT-MOD-19981125-00091; and SAT-MOD-19981125- 00092 (filed November
    25, 1998). We note, however, that EchoStar did not implement this
    proposal and no Plan modification was submitted to the ITU.

[^37]: Northpoint Comments at 7.

[^38]: *See* Letter from Richard B. Engelman, Chief, Planning and
    Negotiation Division, International Bureau, Federal Communications
    Commission, to the International Telecommunication Union
    Radiocommunication Bureau (dated November 4, 1999), in which IB
    filed a request for modification to the BSS Plan for USABSS-3 and 4
    that includes coverage to Mexico from the 119º W.L. orbit location;
    and *EchoStar 7 Order,* 17 FCC Rcd at 897, ¶ 6, in which IB filed a
    request for modification with the ITU to allow EchoStar to use a
    spot beam that covers Mexico from its satellite at the 119º W.L.
    orbit location.

[^39]: *See* DIRECTV Enterprises, Inc., Application for Authority to
    Launch and Operate a Replacement Direct Broadcast Satellite Service
    Space Station, *Order and Authorization,* 14 FCC Rcd 13159, 13161, ¶
    6 (1999) ("Upon reviewing DIRECTV\'s application, we find sufficient
    evidence to determine that DBS-1R will not cause interference to
    other U.S. DBS systems, or to the radiocommunications systems of
    other countries."); DIRECTV Enterprises, Inc., Application for
    Modification of Direct Broadcast Satellite System and for
    Authorization to Relocate DBS-1 Satellite to the 109.8° W.L. Orbital
    Location, *Order and Authorization,* 15 FCC Rcd 6738, 6739, ¶ 5
    (1999) ("DIRECTV has . . . provided analyses demonstrating its
    compliance with the limits contained in Annex 1 to Appendices 30 and
    30A. We have reviewed this information, and we find that the
    potential interference level of DIRECTV\'s modified system is below
    that allowed under Appendices 30 and 30A at the 110° W.L. orbit
    location."). We also note that the Commission has consistently
    advised applicants proposing technical parameters at variance with
    the Region 2 Band Plan that (1) until the Plan is modified to
    include such technical parameters, they may not cause greater
    interference to other DBS or feeder-link assignments, or other
    services or satellite systems, operating in accordance with the ITU
    Radio Regulations, than that which would occur from the current Plan
    assignments; and (2) no protection from interference caused by radio
    stations authorized by other administrations is guaranteed unless
    and until Appendices S30 and S30A Plan procedures are successfully
    and timely completed.

[^40]: *See* SES Americom, Petition for Declaratory Ruling (filed April
    25, 2002); Public Notice, *Satellite Space Applications Accepted for
    Filing,* Report No. SAT-00100 (May 17, 2002). Thus, the Commission's
    acceptance for filing of the SES Americom application does not
    demonstrate that DBS is an international service. To the contrary,
    Gibraltar, through the United Kingdom, must obtain a modification to
    the Region 2 Band Plan before SES Americom may provide its proposed
    service to the United States.

[^41]: We note that in the case of EchoStar 8, SES Americom expressed
    concern that EchoStar did not include in its analyses the United
    Kingdom-filed modification to the Region 2 Band Plan associated with
    SES Americom\'s recent proposal to provide DBS service in the United
    States. The Commission conditioned operation of EchoStar 8 such
    that, until the Region 2 Band Plan and its associated Feeder Link
    Plan are modified to include EchoStar 8\'s parameters, it shall not
    cause greater interference than that which would occur from the
    current USA Plan assignments at 110° W.L. to other DBS or
    feeder-link assignments, or other services or satellite systems,
    operating in accordance with the ITU Radio Regulations. These
    conditions require EchoStar to seek the agreement of any
    Administration having an affected Region 2 Band Plan assignment or
    prior-filed Plan modification, unless and until the Region 2 Band
    Plan and its associated Feeder Link Plan are modified to include
    EchoStar 8\'s parameters. EchoStar Satellite Corporation,
    Application for Minor Modification of Direct Broadcast Satellite
    Authorization, Launch and Operating Authority for EchoStar 8, *Order
    and Authorization,* 17 FCC Rcd 11326, 11328-29, ¶ 7. Thus, even in
    the case of a proposed satellite that will serve only the United
    States, it is not a foregone conclusion that the satellite will be
    able to operate using technical parameters that are at variance with
    the Region 2 Band Plan. This case certainly does not support
    Northpoint's claim that the Region 2 Band Plan is more of a
    procedural hurdle than a substantive constraint on DBS operations.
    *See* Northpoint Comments at 9.

[^42]: Northpoint Comments at 7, *citing* *EchoStar 7 Order,* 17 FCC Rcd
    at 896, ¶ 5.

[^43]: *EchoStar 7 Order,* 17 FCC Rcd at 896, ¶¶ 4-5. *See also* SHVIA,
    Pub. L. No. 106-113, 113 Stat. 1501, 1501A-526 to 1501A-545
    (November 29, 1999), codified at 47 U.S.C. § 338.

[^44]: Petition of Northpoint Technology, Ltd., and Broadwave USA, Inc.,
    to Stay Proceedings Pending Disclosure and Analysis of Data
    Regarding Planned Signals, File Nos. SAT-MOD-20010810-00071 &
    SAT-A/O-20010810-00073 (September 24, 2001), at 3.

[^45]: *EchoStar 7 Order,* 17 FCC Rcd at 896, ¶ 5.

[^46]: *Id.*

[^47]: The United States reached agreement with Mexico and Argentina to
    permit DBS and direct-to-home ("DTH") service to each other's
    territories. Such service may be provided if all necessary
    modifications to the ITU Region 2 Band Plan are obtained. *See*
    Protocol Concerning the Transmission and Reception of Signals from
    Satellites for the Provision of Direct-to-Home Satellite Services in
    the United States of America and United Mexican States (November 8,
    1996), Article VI. *See also* Protocol Concerning the Transmission
    and Reception of Signals from Satellites for the Provision of
    Direct-to-Home Satellite Services and Fixed-Satellite Services in
    the United States of America and the Argentine Republic (June 5,
    1998).

[^48]: Moreover, we conditioned operation of EchoStar 7 such that, until
    the Region 2 Band Plan and its associated Feeder Link Plan are
    modified to include EchoStar 7\'s parameters, it shall not cause
    greater interference than that which would occur from the current
    USA Plan assignments at 119° W.L. to other BSS or feeder-link
    assignments, or other services or satellite systems, operating in
    accordance with the ITU Radio Regulations. Thus, we limited EchoStar
    7's operations to ensure its compliance with the Region 2 Band Plan,
    and we made no assumptions about whether the Band Plan will in fact
    be modified to allow EchoStar 7 to serve Mexico.

[^49]: Northpoint also cites our statement in footnote 216 of the *MVDDS
    Second R&O* to the effect that "in general, the DBS satellites have
    characteristics that require modification to the \[Band\] Plan
    assignments." Northpoint Comments at 7, *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; Amendment of the Commission\'s Rules to Authorize
    Subsidiary Terrestrial Use of the 12.2-12.7 GHz Band by Direct
    Broadcast Satellite Licensees and Their Affiliates; and Applications
    of Broadwave USA, PDC Broadband Corporation, and Satellite
    Receivers, Ltd. to Provide A Fixed Service in the 12.2-12.7 GHz
    Band, *Memorandum Opinion and Order and Second Report and Order*, 17
    FCC Rcd 9614, 9652, ¶ 87 n.216 ("*MVDDS Second Report and Order"*),
    *appeal filed,* Northpoint Technology, Ltd., et al. v. FCC, Nos.
    02-1194 and 02-1195 (D.C. Cir. filed June 21, 2002). The Commission
    made this statement in the context of its discussion of plans for
    correcting any impermissible interference with DBS that MVDDS
    licensees might cause, and the statement had nothing to do with
    modifications of the ITU Region 2 Band Plan for purposes of
    international DBS service. Moreover, Northpoint fails to quote the
    rest of this statement, which reads as follows: "These assignment
    modifications have to be coordinated through the Appendix 30 process
    with other affected assignments and accepted into the Plan before
    they can be protected from the existing and future fixed services.
    Hence, it is more efficient to implement sharing and protection
    guidelines between the fixed service and these modified DBS
    assignments as outlined herein rather than wait for the outcome of
    the ITU coordination process, which is not guaranteed." Thus, the
    Commission stressed in its statement that modifications of the ITU
    Region 2 Band Plan may be difficult to obtain and certainly cannot
    be counted on.

[^50]: *See* *MVDDS Second R&O,* 17 FCC Rcd at 9706-07, ¶¶ 242-244.

[^51]: *Id.* at 9707, ¶ 244.

[^52]: Thus, we requested comment on (1) whether the applicant should be
    an existing permittee at the 61.5º W.L. location; (2) whether the
    channels should be assigned to an applicant that holds no other DBS
    channel resources capable of serving the continental United States;
    and (3) whether the applicant should be required to demonstrate an
    ability to launch in the near future. Rainbow DBS's modification
    application was dismissed on other grounds. *See* Letter from Donald
    Abelson, Chief, International Bureau, and John B. Muleta, Chief,
    Wireless Telecommunications Bureau, to David Deitch, General Counsel
    and Senior Vice President, R/L DBS Company, LLC (dated March 3,
    2003).

[^53]: *Auction No. 52 Comment Public Notice,* 18 FCC Rcd at 3480-81.

[^54]: Rainbow DBS Comments at 3.

[^55]: EchoStar Comments at 2.

[^56]: *See* *Part 100 R&O,* 17 FCC Rcd at 11332, 11379, 11397, 13398,
    ¶¶ 2, 104, 140, 141, 144.

[^57]: *Id.* at 11337, 11396, 11397, ¶¶ 2, 140, 141, 144.