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 Federal  Communications  Commission  DA  04-  4056 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 ECHOSTAR  SATELLITE  LLC  (f/  k/  a  EchoStar  Satellite  Corporation) 


 Application  for  Authority  to  Construct,  Launch  and  Operate  a  Geostationary  Satellite  in  the  Fixed 
 Satellite  Service  Using  the  Extended  Ku-  Band  Frequencies  at  the  101  W.  L.  Orbital 
 Location 


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 ORDER  ON  RECONSIDERATION 
 Adopted:  December  27,  2004  Released:  December  27,  2004 
 By  the  Chief,  International  Bureau: 
 I.  INTRODUCTION 
 1.  By  this  Order,  we  deny  EchoStar  Satellite  LLCs  (EchoStar)  Petition  for  Reconsideration  of  the  Satellite  Divisions  (Division)  dismissal  of  EchoStars  application  to  construct,  launch,  and  operate  a 


 geostationary  satellite  in  the  Fixed  Satellite  Service  (FSS)  using  the  extended  Ku-  band  at  the  101  W.  L.  orbital  location.  We  are  persuaded  that  the  Divisions  dismissal  on  the  ground  that  EchoStars  filings  were 
 incomplete  and  internally  inconsistent  was  correct. 
 II.  BACKGROUND 
 2.  In  August  2003,  EchoStar  filed  an  application  to  construct,  launch,  and  operate  a  satellite  at  the  101  W.  L.  orbital  location  that  would  provide  Fixed-  Satellite  Service  (FSS)  in  the  10.70-  10.75  GHz 


 and  11.20-  11.  45  GHz  (downlink)  and  the  12.75-  13.00  GHz  and  13.15-  13.20  GHz  (uplink)  frequencies.  1  In  November  2003,  EchoStar  filed  an  amendment  to  its  application  outlining  two  system  upgrades.  2  On 
 February  9,  2004,  the  Division  dismissed  EchoStars  application.  3  The  Division  found  that  EchoStars 
 1  Application  of  EchoStar  Satellite  Corporation  for  Authority  to  Construct,  Launch,  and  Operate  a  Geostationary 
 Satellite  in  the  Fixed  Satellite  Service  Using  the  Allotted  Extended  Ku-  band  Frequencies  at  the  101  W.  L.  Orbital  Location,  File  No.  SAT-  LOA-  20038027-  00179,  Call  Sign  S2492  (Application). 


 2  Amendment  to  Application  of  EchoStar  Satellite  Corporation  for  Authority  to  Construct,  Launch  and  Operate  a 
 Geostationary  Satellite  in  the  Fixed  Satellite  Service  Using  the  Allotted  Extended  Ku-  band  Frequencies  at  the  101  W.  L.  Orbital  Location,  File  No.  SAT-  AMD-  2003111126-  00343,  Call  Sign  S2492  (November  26,  2003) 


 (Amendment).  3 
 See  Letter  to  David  K.  Moskowitz,  Senior  Vice  President  and  General  Counsel,  EchoStar  Satellite  Corporation,  from  Thomas  S.  Tycz,  Chief,  Satellite  Division,  International  Bureau,  Federal  Communications  Commission,  19 


 (continued....) 
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 amended  application  was  not  in  compliance  with  Section  25.114(  c)  of  the  Commissions  rules,  4  which  requires  all  space  station  applicants  to  submit  all  applicable  items  of  information  listed  in  its  subsections, 
 and  Section  25.112(  a)(  1)  of  the  Commissions  rules,  5  which  provides  that  an  application  will  be  unacceptable  for  filing  if  the  application  is  defective  with  respect  to  completeness  of  answers  to 
 questions,  informational  showings,  internal  inconsistencies,  execution,  or  other  matters  of  a  formal  character. 


 3.  Among  other  things,  Section  25.114(  c)(  4)  requires  that  each  application  contain  information  identifying  which  antenna  beams  are  connected  or  switchable  to  each  transponder  and 
 tracking,  telemetry,  and  control  (TT&  C)  function.  6  In  its  Amendment,  EchoStar  added  the  ability  to  switch  the  satellite  receive  beam  to  a  pair  of  independently  steerable  uplink  spot  beams  and  the  ability  to 
 switch  downlink  transmissions  from  the  single  large  coverage  beam  to  a  total  of  nine  fixed  spot  beams.  7  The  Division  found  that  EchoStar  failed  to  provide  technical  information  to  indicate  which  transponders 
 would  be  connected  to  which  spot  beams  in  either  the  uplink  or  downlink  direction.  8 
 4.  The  Division  also  found  that  EchoStar  made  inconsistent  frequency  assignment  requests  in  its  November  2003  Amendment.  In  both  the  Application  and  the  Amendment,  EchoStar  stated  that  it 


 was  requesting  authority  to  operate  in  the  10.70-  10.  75  GHz  and  11.20-  11.  45  GHz  frequency  bands  and  the  12.75-  13.00  GHz  and  13.15-  13.20  GHz  frequency  bands.  The  Channel  Frequency  Plan  outlined  in 
 Table  A.  4-  1  of  Section  A.  4  of  the  Attachment  to  the  Amendment,  however,  indicated  that  two  transponders  would  operate  in  the  10.9515-  10.  9785  GHz  and  10.9615-  10.9885  GHz  frequency  bands, 
 which  were  not  requested  in  either  the  Application  or  Amendment.  Moreover,  the  Channel  Frequency  Plan  showed  no  transponders  operating  in  the  10.70-  10.75  GHz  band  that  was  requested  in  both  the 
 Application  and  Amendment.  Further,  in  Section  II  of  the  Amendment,  where  EchoStar  described  the  proposed  changes  to  the  Application,  it  mentioned  neither  the  addition  of  new  frequency  bands,  nor  the 
 deletion  of  previously  requested  bands.  9  Rather,  the  Amendment  cited  only  changes  in  the  uplink  service 


 (...  continued  from  previous  page) 
 FCC  Rcd  2216  (Intl.  Bur.,  Sat.  Div.,  2004)  (EchoStar  Dismissal  Letter).  We  note  that,  on  February  9,  2004,  after  the  dismissal  of  EchoStars  Application  and  Amendment,  another  entity,  Mobile  Satellite  Ventures  (MSV),  filed  an 


 amendment  to  its  pending  application  for  its  next  generation  MSS  system,  requesting  an  additional  50  megahertz  of  spectrum  in  each  direction  for  FSS  feeder  links  to  operate  in  the  10.70-  10.  75  GHz  and  13.15-  13.20  GHz  frequency 
 bands.  See  Mobile  Satellite  Ventures  Subsidiary  LLC,  Amendment  to  Application  for  Authority  to  Launch  and  Operate  a  Replacement  L-  band  Mobile  Satellite  Service  Satellite  at  101  W.  L.,  File  No.  SAT-  AMD-  20040209-00014 
 (February  9,  2004)  (MSV  Amendment);  Mobile  Satellite  Ventures  Subsidiary  LLC  Amendment  to  Application  for  Authority  to  Launch  and  Operate  a  Replacement  L-  band  Mobile  Satellite  Service  Satellite  at  101 
 W.  L.,  Order,  DA  04-  2985  (released  Sept.  15,  2004)  (MSV  Reinstatement  Order)  (A  detailed  history  of  MSVs  filings  in  this  matter  is  provided  in  the  MSV  Reinstatement  Order.) 
 4  47  C.  F.  R.    25.114(  c). 
 5  47  C.  F.  R.    25.112(  a)(  1). 
 6  We  note  that  the  EchoStar  Dismissal  Letter  cites  Section  25.  114(  c)(  5)  as  the  subsection  that  contains  the  relevant 
 informational  requirements.  This  section  of  the  Commissions  rules  was  amended  in  2003,  and  the  relevant  informational  requirements  are  now  contained  in  Section  25.  114(  c)(  4)(  iii).  See  Amendment  of  the  Commissions 


 Space  Station  Licensing  Rules  and  Policies,  Third  Report  and  Order  and  Second  Further  Notice  of  Proposed  Rulemaking,  18  FCC  Rcd  13486,  13522  (2003). 
 7  Amendment,  Attachment  A,  Section  A.  1,  at  1. 
 8  We  note  that  EchoStar  could  have  requested  a  waiver  of  the  specific  Section  25.  114(  c)(  4)  requirement  and  made  an 
 appropriate  waiver  showing.  However,  EchoStar  failed  to  do  so.  9 
 Amendment  at  3. 
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 area,  the  resulting  receive  antenna  gain  decreases  and  downlink  budget  modifications,  and  the  addition  of  spot  beams  in  both  the  uplink  and  downlink  transmission  paths.  10 
 5.  The  Division  further  found  that  EchoStar  did  not  mention  new  frequencies  in  Section  A.  1  of  the  Technical  Annex  to  the  Amendment,  where  it  further  described  the  proposed  technical  changes.  11 
 In  the  Amendment,  EchoStar  stated  that  none  of  the  changes  made  to  the  design  of  the  EchoStar-  101  W  satellite  would  increase  interference  to  any  other  user  of  the  spectrum  and  that  the  changes  involved 
 increased  flexibility,  increased  spectrum  efficiency,  or  both.  EchoStar  also  stated  that  the  satellite  would  use  the  11.2-  11.45  GHz  and  a  portion  of  the  10.7-  10.  75  GHz  band  for  downlink  transmissions,  but  did  not 
 mention  any  use  of  the  10.95-  11.0  GHz  frequency  band.  12  Moreover,  in  Section  A.  24  of  the  Amendment,  EchoStar  stated  that  the  power  flux  density  limits  of  Section  25.208  of  the  Commissions  rules  were 
 sufficient  to  protect  Fixed  Service  operations  in  the  10.7-  10.95  GHz  frequency  band.  13  Given  these  inconsistencies,  the  Division  was  unable  to  determine  precisely  which  frequency  assignments  EchoStar 
 was  seeking.  14 
 6.  EchoStar  filed  a  Petition  for  Reconsideration  of  the  dismissal  of  its  amended  application.  15  Mobile  Satellite  Ventures  Subsidiary  LLC  (MSV)  filed  an  Opposition  to  EchoStars  Petition.  16  EchoStar 


 filed  a  Reply  to  the  Opposition.  17 
 III.  DISCUSSION 
 A.  Positions  of  the  Parties 
 7.  In  its  Petition,  EchoStar  argues  that  the  Division  should  not  have  dismissed  its  amended  application  because  it  was  substantially  complete  as  filed.  18  EchoStar  contends  that  its  failure  to  identify 


 which  antenna  beams  are  connected  or  switchable  to  each  transponder  and  TT&  C  function  does  not  render  its  amended  application  incomplete  because  this  defect  can  be  corrected  without  prejudice  to 
 anyone.  19  EchoStar  further  asserts  that  the  discrepancy  in  the  requested  frequency  assignments  was  a  typographical  error  that  could  have  been  resolved  by  looking  at  the  application  as  a  whole.  20  EchoStar 
 states  that  its  amended  application,  when  viewed  as  a  whole,  indicates  clearly  that  it  did  not  intend  to  change  its  requested  frequency  assignments  with  the  filing  of  the  Amendment,  but  instead  intended  to  use 
 the  frequencies  specified  in  its  Application.  21  In  addition,  EchoStar  states  that  the  Division  improperly 
 10  Id. 
 11  See  EchoStar  Dismissal  Letter,  19  FCC  Rcd  at  2218. 
 12  Amendment  at  3. 
 13  Amendment,  Attachment  A,  Section  A.  24,  at  26. 
 14  See  EchoStar  Dismissal  Letter,  19  FCC  Rcd  at  2218. 
 15  Petition  for  Reconsideration,  filed  March  10,  2004  by  EchoStar  Satellite  L.  L.  C.  (EchoStar  Petition). 
 16  Opposition  to  Petition  for  Reconsideration,  filed  March  24,  2004  by  Mobile  Satellite  Ventures  Subsidiary  LLC 
 (MSV  Opposition).  17 
 Reply  to  Opposition  to  Petition  for  Reconsideration,  filed  April  5,  2004  by  EchoStar  Satellite  L.  L.  C.  (EchoStar  Reply). 


 18  EchoStar  Petition  at  2-  4. 
 19  Id.  at  8,  citing  Salzer  v.  FCC,  778  F.  2d  869,  872  n.  7  (D.  C.  Cir.  1985). 
 20  Id. 
 21  Id.  at  7. 
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 applied  a  letter-  perfect  standard  in  reviewing  the  subject  amended  application,  rather  than  the  substantially  complete  standard.  22 
 8.  In  its  Opposition,  MSV,  which  has  a  pending  application  to  operate  a  satellite  in,  among  other  bands,  the  10.70-  10.  75/  13.15-  13.  20  GHz  bands  at  the  101  W.  L.  orbit  location,  23  notes  that  it  agrees 
 that  satellite  applications  should  be  held  to  a  substantially  complete,  rather  than  a  letter  perfect,  standard.  24  MSV  contends,  however,  that  EchoStars  amended  application  was  not  substantially  complete 
 because  it  was  impossible  to  determine  with  certainty  which  frequencies  EchoStar  was  applying  for,  as  well  as  the  manner  in  which  its  transponders  and  antenna  beams  were  to  be  connected.  25  Moreover,  MSV 
 asserts  that  the  inconsistencies  and  omissions  in  EchoStars  amended  application  were  not  minor,  26  as  EchoStar  claims,  and  states  that  it  is  essential  that  frequencies  are  accurately  specified  in  applications  so 
 that  potential  applicants  have  unambiguous  notice  as  to  which  frequencies  are  available  for  assignment.  27  In  addition,  MSV  notes  that,  if  the  Bureau  were  to  adopt  a  policy  requesting  applicants  to  clarify 
 ambiguous  information,  as  EchoStar  asserts  the  Division  should  have  done  with  it,  it  would  disserve  the  public  interest  in  an  expedited  satellite  licensing  process.  28  Further,  MSV  notes  that  such  a  policy  would 
 be  counter  to  the  Commissions  first-  come,  first-  served  satellite  licensing  framework,  the  primary  goal  of  which  is  to  expedite  satellite  licensing.  29 


 B.  Substantially  Complete  Standard 
 9.  We  reject  EchoStars  contention  that  the  Division  applied  a  letter-  perfect  standard  in  reviewing  its  amended  application.  In  the  First  Space  Station  Reform  Order,  the  Commission  specifically 


 rejected  the  letter-  perfect  standard,  deciding  instead  to  continue  to  require  applications  to  be  substantially  complete  when  filed.  30  The  Commission  defined  substantially  complete  as  providing 
 the  information  which  is  required  by  the  Commissions  rules.  31  It  explained  that  requiring  satellite 
 22  Id.  at  2-  5,  citing  Amendment  of  the  Commissions  Space  Station  Licensing  Rules  and  Policies,  Notice  of 
 Proposed  Rulemaking,  17  FCC  Rcd  3847,  3875-  76    84  (2002)  (Space  Station  Reform  NPRM);  Amendment  of  the  Commissions  Space  Station  Licensing  Rules  and  Policies,  First  Report  and  Order  and  Further  Notice  of  Proposed 


 Rulemaking,  18  FCC  Rcd  10760,  10852    244  (2003)  (First  Space  Station  Reform  Order);  and  Amendment  of  the  Rules  Concerning  Cut-  Off  Procedures  for  FM  and  TV  Broadcast  Stations,  Report  and  Order,  MM  Docket  No.  84-750, 
 FCC  85-  125,  50  Fed.  Reg.  19936  (May  13,  1985).  23 
 See  MSV  Amendment.  24 
 MSV  Opposition  at  5.  25 
 Id.  26 
 Id.  at  6,  citing  Applications  of  Mobile  Phone  of  Texas,  Inc.  For  Authority  to  Construct  Additional  Facilities  in  the  Public  Land  Mobile  Service  on  Frequency  152.09  MHz  for  Station  KLF902  at  Palo  Pinto,  Texas,  and  MCI 


 Airsignal,  Inc.  For  Authority  to  Construct  Additional  Facilities  in  the  Public  Land  Mobile  Service  on  Frequency  152.15  MHz  for  Station  KKG411  at  Weatherford,  Texas,  Memorandum  Opinion  Opinion  and  Order,  5  FCC  Rcd 
 3459,  3460  n.  14  (Com.  Car.  Bur.  1990)  (Mobile  Phone  Order).  27 
 MSV  Opposition  at  6.  28 
 Id.  29 
 Id.  at  7-  8,  citing  Applications  of  PanAmSat  Licensee  Corp.  For  Authority  to  Construct,  Launch,  and  Operate  a  Hybrid  Satellite  System  in  its  Separate  International  Communications  Satellite  System,  Order  on  Reconsideration, 


 18  FCC  Rcd  23916,  23917    6  (2003).  30 
 First  Space  Station  Reform  Order,  18  FCC  Rcd  at  10852    244,  citing  Space  Station  Reform  NPRM,  17  FCC  Rcd  at  3875    84. 


 31  First  Space  Station  Reform  Order,  18  FCC  Rcd  at  10852    244,  citing  Space  Station  Reform  NPRM,  17  FCC  Rcd 
 at  3878    93. 
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 applications  to  be  substantially  complete  when  filed  is  an  important  part  of  its  satellite  licensing  procedures.  In  the  First  Space  Station  Reform  Order,  the  Commission  adopted  procedures  and  rules 
 establishing  satellite  licensees  operating  rights  clearly  and  quickly,  and  as  a  result,  allowed  licensees  to  provide  service  to  the  public  much  sooner  than  might  be  possible  under  its  previous  licensing 
 procedures.  32  Finding  defective  applications  acceptable  for  filing  is  not  consistent  with  the  rules  and  policies  adopted  by  the  Commission  in  the  First  Space  Station  Reform  Order  and  only  serves  to  create 
 uncertainty  and  inefficiencies  in  the  licensing  process.  More  importantly,  the  Commission  explained  that  the  policy  against  accepting  applications  that  do  not  meet  the  substantially  complete  standard  is  necessary 
 to  discourage  speculation,  33  and  was  needed  to  ensure  that  those  licensees  ready  and  willing  to  proceed  with  their  satellite  construction  plans  could  do  so.  34 


 10.  It  was  never  intended  that  any  single  error  in  the  information  required  to  be  provided,  no  matter  how  minor,  would  be  the  basis  for  a  dismissal.  Thus,  for  example,  an  application  which  refers  to  a 
 proposed  band  use  at  5.925-  6.425  MHz  (instead  of  the  intended  5925-  6425  MHz  or  5.925-  6.425  GHz)  would  be  recognized  immediately  as  a  typographical  error.  Under  our  substantially  complete  test,  this 
 type  of  error,  standing  alone,  would  not  constitute  a  sufficient  basis  for  dismissal,  as  would  be  the  case  with  a  letter  perfect  standard.  However,  the  errors  in  EchoStars  amended  application  cannot  be 
 dismissed  as  typographical  errors.  For  example,  EchoStar  failed  to  disclose  which  antenna  beams  are  connected  or  switchable  to  each  transponder  and  TT&  C  function,  which  is  information  that  applicants  are 
 required  to  provide  under  Section  25.114  of  the  Commissions  rules. 
 C.  Completeness  of  EchoStars  Application 
 11.  We  disagree  that  EchoStars  amended  application  met  the  Commissions  substantially  complete  standard.  First,  we  find  no  merit  in  EchoStars  assertion  that  its  failure  to  provide  information 


 to  identify  which  antenna  beams  are  connected  or  switchable  to  each  transponder  and  TT&  C  function  is  a  minor  error  and  is  not  the  kind  of  defect  that  should  render  an  application  less  than  substantially 
 complete.  35  EchoStar  contends  that  this  information  is  of  little  importance  at  this  stage  of  the  satellite  proposal  because  it  will  inevitably  be  shared  with  other  licensees  in  the  coordination  process.  36  However, 
 Section  25.114(  c)  of  the  Commissions  rules  clearly  and  explicitly  requires  all  space  station  applicants  to  submit  with  their  application  items  of  information,  including  the  identification  of  which  antenna  beams 
 are  connected  or  switchable  to  each  transponder  and  TT&  C  function.  37  This  information  allows  the  Commission,  existing  operators  and  potential  applicants  to  identify  which  frequencies  and  locations  are 
 impacted  by  the  pending  application,  which  ones  are  available  and  the  extent  to  which  the  proposed  frequency  uses  and  locations  require  coordination.  EchoStars  failure  to  provide  this  required  information 
 rendered  its  application  substantially  incomplete  and  therefore  defective. 
 12.  Second,  we  reject  EchoStars  argument  that  the  discrepancies  in  the  requested  frequency  assignments  in  its  amended  application  were  not  of  such  magnitude  as  to  render  its  application 


 substantially  incomplete.  This  frequency  information  is  required  to  be  filed  because,  inter  alia,  it  is  one  of  the  essential  technical  parameters  that  is  used  to  determine  whether  an  application  is  mutually-exclusive 
 with  a  previously  filed  application.  Nor  is  it  the  responsibility  of  the  agency,  as  EchoStar 
 32  First  Space  Station  Reform  Order,  18  FCC  Rcd  at  10765-  66    4. 
 33  Id.  at  10852    244. 
 34  See  id.  at  10805-  06    112. 
 35  EchoStar  Reply  at  8-  9. 
 36  Id.  at  9. 
 37  47  C.  F.  R.    25.114(  c)(  4)(  iii). 
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 suggests,  to  select  for  an  applicant  the  desired  frequencies  from  among  differing  frequencies  provided  in  an  application.  As  the  Court  in  Salzer  explained,  "[  I]  t  is  not  the  agency's  task  to  select  for  an  applicant 
 the  type  of  operation  that  will  minimize  impermissible  interference."  38  Moreover,  even  if  EchoStars  application  did  not  have  frequency  discrepancies,  it  would  still  be  substantially  incomplete  because  it  did 
 not  include  antenna  beam  and  TT&  C  information  required  by  Section  25.  114. 
 13.  Third,  allowing  EchoStar  to  cure  its  deficiencies  is  not  in  the  public  interest  or  the  interest  of  private  parties.  The  Commission  explained  in  the  First  Space  Station  Reform  Order  that  requiring 


 applications  to  include  all  the  information  called  for  by  the  Commissions  rules  helps  to  ensure  that  the  applicant  is  ready  and  willing  to  construct  the  satellite  it  proposes  in  its  application.  39  Under  the  first-come, 
 first-  served  filing-  date  priority  procedure  now  in  place  for  satellite  applications  such  as  EchoStars,  the  Commission  will  grant  the  first  application  in  the  processing  queue  if  the  applicant  is  qualified  and 
 grant  would  not  cause  interference  to  a  previously  licensed  satellite.  40  Allowing  applicants  to  cure  applications  after  they  are  filed  could  adversely  impact  other  applicants  filing  complete  applications  that 
 are  second-  in-  line  to  the  first  application.  Moreover,  allowing  applicants  to  cure  defects,  of  the  type  noted  herein,  after  filing  could  encourage  applicants  to  file  incomplete,  internally  inconsistent,  or 
 otherwise  defective  applications  to  receive  first-  in-  line  status.  This  is  patently  inconsistent  with  the  rationale  underlying  the  first-  come,  first-  served  procedure,  which  is  designed  to  expedite  service  to  the 
 public. 
 D.  Consistency  with  Precedent 
 14.  We  are  not  persuaded  by  EchoStars  argument  that  the  dismissal  of  its  amended  application  as  incomplete  is  inconsistent  with  previous  practices.  Since  the  First  Space  Station  Reform 


 Order  was  adopted,  the  Bureau  has  strictly  enforced  its  Part  25  rules,  which  require  the  Bureau  to  return  as  unacceptable  any  application  that  is  defective  with  respect  to  completeness  of  answers  to  questions, 
 informational  showings,  [or]  internal  inconsistencies.  41  Indeed,  the  Bureau  has  returned  19  applications  as  defective  since  it  reaffirmed  this  policy  in  the  First  Space  Station  Reform  Order.  42  These  actions 
 followed  the  Commissions  policy  of  dismissing  applications  that  do  not  contain  information  that  is  clearly  required  by  the  Commissions  rules.  In  those  unusual  instances  where  the  Commissions  satellite 
 information  requirements  have  not  been  clearly  set  forth  in  a  Commission  rule,  Order  or  Public  Notice,  we  issue  Public  Notices  to  clarify  the  rules,  but  do  not  dismiss  applications  that  do  not  contain  the 
 relevant  information  if  they  were  filed  before  the  release  of  the  Public  Notice.  43  Thus,  contrary  to 
 38  Salzer,  778  F.  2d  at  877. 


 39  See  First  Space  Station  Reform  Order,  18  FCC  Rcd  at  10852    244  (requiring  substantially  complete  is  one  of 
 many  necessary  safeguards  to  help  protect  against  speculative  satellite  applications).  40 
 See  First  Space  Station  Reform  Order,  18  FCC  Rcd  at  10792    71-  73.  41 
 47  C.  F.  R.    25.112(  a)(  1).  42 
 See,  e.  g.,  Letter  from  Thomas  S.  Tycz,  Chief,  Satellite  Division,  Intl.  Bur.,  FCC  to  Mr.  Vicente  Rubio  Carreton,  Hispamar  Satellites,  S.  A.  (Feb.  24,  2004);  Letter  from  Thomas  S.  Tycz,  Chief,  Satellite  Division,  Intl.  Bur.,  FCC  to 


 Mr.  Lon  C.  Levin,  Mobile  Satellite  Ventures  Subsidiary  LLC  (April  23,  2004);  Letter  from  Thomas  S.  Tycz,  Chief,  Satellite  Division,  Intl.  Bur.,  FCC  to  Mr.  Koichiro  Matsufuji,  Space  Communications  Corporation  (April  22,  2004); 
 Letter  from  Thomas  S.  Tycz,  Chief,  Satellite  Division,  Intl.  Bur.,  FCC  to  David  K.  Moskowitz,  EchoStar  Satellite  Corp.  (Dec.  8,  2003);  Letter  from  Thomas  S.  Tycz,  Chief,  Satellite  Division,  Intl.  Bur.,  FCC  to  Kalpak  Gude, 
 PanAmSat  Licensee  Corp.  (Oct.  22,  2003).  43 
 See  International  Bureau  Satellite  Division  Information:  Clarification  of  47  C.  F.  R.    25.140(  b)(  2)  Space  Station  Application  Interference  Analysis,  Public  Notice,  19  FCC  Rcd  10652  (2004);  International  Bureau  Clarifies  Direct 


 Broadcast  Satellite  Space  Station  Application  Processing  Rules,  Public  Notice,  19  FCC  Rcd  1346  (2004)  (DBS 
 (continued....) 
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 EchoStars  assertion,  the  Division  has  followed  the  Commissions  policy  of  dismissing  applications  that  do  not  comply  with  its  rules.  44 
 15.  Nevertheless,  EchoStar  cites  two  instances  in  which  the  Division  requested  missing  information  from  applicants,  rather  than  dismiss  an  application.  45  One  of  these  was  in  February  2004, 
 when  the  Bureau  requested  EchoStar  to  supply  information  relating  to  three  EchoStar  direct  broadcast  satellite  (DBS)  applications  that  were  filed  in  June  2003.  46  In  requesting  this  information,  the  Bureau 
 recognized  that  the  First  Space  Station  Reform  Order  specifically  exempted  DBS  from  its  purview.  47  Indeed,  to  clarify  that  the  Bureau  would  hold  DBS  applicants  to  the  same  standard  as  those  applicants 
 covered  by  the  First  Space  Station  Reform  Order,  it  issued  a  Public  Notice  48  in  January  2004  reminding  DBS  applicants  that  they  are  subject  to  Part  25s  application  filing  requirements.  Because  of  apparent 
 confusion  regarding  Bureau  policy  with  respect  to  DBS  applicants,  the  Bureau  noted  in  the  Public  Notice  that  DBS  applications  which  were  filed  before  the  release  of  the  Public  Notice  that  did  not  meet  the  filing 
 requirements  would  not  be  dismissed  but  would  be  subject  to  a  Commission  letter  requesting  the  required  information.  49  Consequently,  the  Bureau  sent  EchoStar  a  letter  asking  for  additional  information  on  three 
 DBS  applications,  all  of  which  were  filed  before  it  issued  the  DBS  Public  Notice. 
 16.  EchoStar  also  argues  that  the  Division's  treatment  of  an  application  filed  by  Loral  Skynet  Network  Services,  Inc.  (Loral)  to  modify  a  licensed  earth  station  to  add  a  foreign  satellite  as  a  new  point 


 of  communication  is  inconsistent  with  the  dismissal  of  Echostar's  amended  application.  We  disagree.  Lorals  application  was  substantially  complete  when  filed,  in  that  Loral  provided  all  the  information 
 required  by  the  Commission's  rules.  The  staff  did  not  provide  Loral  an  opportunity  to  supply  additional  information  that  was  omitted  from  its  application,  but  rather  asked  Loral  to  clarify  and  to  reformat  certain 


 (...  continued  from  previous  page) 
 Public  Notice);  International  Bureau  Satellite  Division  Information:  Clarification  of  47  C.  F.  R.    25.  140(  b)(  2)  Interference  Analysis,  Public  Notice,  18  FCC  Rcd  25099  (2003). 


 44  In  this  regard,  EchoStars  reliance  on  Salzer  v.  FCC,  778  F.  2d  869  (D.  C.  Cir.  1985),  is  inapposite.  Salzer 
 involved,  in  part,  applications  filed  with  the  Commission  to  construct  and  operate  a  low  power  television  station.  The  applications  were  rejected  by  the  Commission,  under  the  applicable  letter-  perfect  standard,  for  not  satisfying 


 its  specific  acceptability  criteria  for  such  applications.  778  F.  2d  at  871-  73.  The  court  indicated  that  the  Commission  cannot  reasonably  expect  applications  to  be  letter-  perfect  when  its  instructions  for  those  applications  are  ambiguous. 
 Id.  at  875.  Since  the  Commission  had  failed  to  provide  adequate  notice  as  to  how  certain  information  should  be  filed  with  the  agency,  the  Salzer  court  held  that  the  Commission  was  not  entitled  to  reject  the  applications  on  the 
 ground  that  they  failed  to  meet  these  informational  requirements.  Id.  No  such  Public  Notice  infirmity  exists  in  the  instant  case. 
 45  EchoStar  Reply  at  5-  6,  citing  Letter  from  Thomas  S.  Tycz,  Chief,  Satellite  Division,  Intl.  Bur.,  FCC  to  David  K. 
 Moskowitz,  EchoStar  Satellite  Corp.  (Feb.  12,  2004)  (February  12  th  EchoStar  Letter),  and  Letter  from  William  Howden,  Chief,  Systems  Analysis  Branch,  Satellite  Division,  Intl.  Bur.,  FCC  to  Mr.  Stan  Edinger,  Manager-Government 


 Relations,  Loral  Skynet  Network  Services,  Inc.  (Dec.  11,  2003)  (December  11  th  Loral  Letter).  In  any  event,  if  the  Division  failed  to  dismiss  an  incomplete  application,  it  is  a  well-  settled  principle  of  administrative  law 
 that  the  fact  that  an  agency  made  an  error  in  one  instance  does  not  require  the  agency  to  repeat  the  error.  See  Southeast  Telephone,  Inc.  v.  FCC,  No.  99-  1164,  1999  WL  1215855  (D.  C.  Cir.  Nov.  24,  1999)  (unpublished 
 opinion)  (stating  that  an  agency  need  not  repeat  in  a  later  case  an  error  made  in  a  prior  case);  see  also  Daniel  R.  Goodman,  Receiver;  Dr.  Robert  Chan,  Order,  16  FCC  Rcd  11153,  11154    5  (2001);  and  Nathan  Sherman 
 Enterprises,  Inc.  et  al.,  Order,  16  FCC  Rcd  11150,  11151-  52    6  (2001).  46 
 February  12  th  EchoStar  Letter.  47 
 Id.  48 
 See  DBS  Public  Notice.  49 
 See  February  12  th  EchoStar  Letter. 
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 information  contained  in  the  application.  50  For  example,  the  earth  station  sought  to  communicate  with  a  satellite  that  contains  two  payloads  (C-  and  Ku-  bands)  that  are  licensed  by  two  different  administrations 
 (Tonga  and  China).  The  satellite  itself  has  three  different  commonly  used  names,  i.  e.,  Tongasat  C  and  Telstar  18  for  the  C-  band  payload  and  Apstar  V  for  the  Ku-  band.  To  assist  in  processing  the  application, 
 the  letter  requested  that  Loral  clarify  the  relationship  between  the  names  and  satellite  payloads  of  the  spacecraft,  among  other  things.  51  The  Division  later  dismissed  Loral's  application  because  Loral  failed  to 
 respond  sufficiently  to  that  information  request  --  not  because  its  application  was  not  "substantially  complete"  when  filed.  52  In  contrast,  EchoStars  application  did  not  contain  all  of  the  information  required 
 by  the  Commissions  rules  and  thus  was  not  substantially  complete  when  filed. 
 IV.  CONCLUSION  AND  ORDERING  CLAUSE 
 17.  Therefore,  we  find  that  the  Division  properly  dismissed  EchoStars  amended  application  as  incomplete  and  internally  inconsistent,  in  accordance  with  Sections  25.114(  c)  and  25.112(  a)(  1)  of  the 


 Commissions  rules.  53  Thus,  we  affirm  the  Divisions  decision  in  the  EchoStar  Dismissal  Letter. 


 50  See  Letter  from  William  Howden,  Chief,  Systems  Analysis  Branch,  Satellite  Division  to  Stan  Edinger,  Manager-Government 
 Relations.  Loral  Skynet  Network  Services,  Inc.  (Oct.  16,  2004)  (October  16th  Loral  Letter).  Where  an  application  is  substantially  complete,  but  the  reviewing  staff  has  questions  regarding  the  information,  they  may  ask 


 the  applicant  to  provide  additional  information.  See  47  C.  F.  R.    25.  111(  a).  51 
 Additionally,  the  application  listed  all  of  the  ninety-  plus  emission  designators  for  transmissions  from  the  earth  station.  Division  staff  therefore  requested  Loral  to  provide  only  the  emission  designators  for  the  least  interfering 


 carrier  and  for  the  most  interfering  carrier.  Finally,  Division  staff  requested  that  Loral  provide  additional  information  to  support  its  assertion  in  the  application  that  Tonga  provides  effective  competitive  opportunities  for 
 U.  S.  satellite  operators  to  provide  analogous  services  in  Tonga,  and  to  reformat  certain  information  contained  in  the  application  for  ease  of  staff  review. 


 52  See  December  11  th  Loral  Letter.  The  December  11  Letter  incorrectly  referred  to  Loral's  failure  to  supply 
 "missing"  information  required  by  the  Commission's  DISCO  II  Order.  Amendment  of  the  Commission's  Regulatory  Policies  to  Allow  Non-  U.  S.  Licensed  Satellites  Providing  Domestic  and  International  Service  in  the  United  States, 


 Report  and  Order,  IB  Docket  No.  96-  111,  12  FCC  Rcd  24094  (1997)  (DISCO  II).  In  DISCO  II,  the  Commission  adopted  a  rule  requiring  U.  S.  earth  station  applicants  seeking  to  access  a  foreign  satellite  to  attach,  in  certain 
 situations,  an  exhibit  to  their  applications  demonstrating  that  U.  S.  satellite  operators  have  effective  competitive  opportunities  to  provide  analogous  services  in  the  foreign  satellite's  home  market  (the  "ECO-  Sat"  test).  47  C.  F.  R.   
 25.  137(  a).  To  this  end,  Loral  attached  an  exhibit  to  its  application  stating  that  Tonga's  satellite  market  is  open  to  U.  S.  satellite  operators.  Because  the  Commission's  rules  do  not  require  the  applicant  to  provide  specific 
 documentation  to  affirm  market  access,  this  exhibit  was  sufficient  for  purposes  of  the  Commission's  information  rules.  Nevertheless,  the  staff  requested  additional  information  pursuant  to  47  C.  F.  R.    25.  111(  a)  because  it  was  not 
 clear  whether  Loral  had  adequately  shown  that  Tonga's  satellite  market  is  open  to  U.  S.  satellite  operators.  53 
 47  C.  F.  R.    25.  114(  c),  25.  112(  a)(  1). 
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 18.  Accordingly,  IT  IS  ORDERED,  pursuant  to  Sections  4(  i),  301,  302,  303(  r),  308,  310,  and  405  of  the  Communications  Act,  as  amended,  47  U.  S.  C.    154(  i),  301,  302,  303(  r),  308,  309,  310,  405 
 and  Sections  1.106  of  the  Commissions  rules,  47  C.  F.  R.    1.106,  that  the  petition  for  reconsideration  filed  by  EchoStar  Satellite  L.  L.  C.  on  March  17,  2004  IS  HEREBY  DENIED. 


 FEDERAL  COMMUNICATIONS  COMMISSION 
 Donald  Abelson  Chief 
 International  Bureau 
9