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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 96-1793 In re Application of MCI Telecommunications Corporation For Authority To Construct, Launch and Operate a Direct Broadcast Satellite System at 110o W.L. File No. 73-SAT-P/L-96 ORDER Adopted: December 5, 1996 Released: December 6, 1996 By the Chief, International Bureau: I. INTRODUCTION 1. By this Order, we find that MCI Telecommunications Corporation's ("MCI") Direct Broadcast Satellite ("DBS") authorization is ready for grant. We also deny the petitions to deny MCI's application for an initial system construction and launch authorization in the DBS service filed by EchoStar Satellite Corporation, Directsat Corporation and Echostar DBS Corporation (collectively "Echostar") and DIRECTV, Inc. ("DIRECTV"). We also deny the Request by PRIMESTAR Partners L.P. ("PRIMESTAR") to condition Commission action on the outcome of any appeals taken from the Commission's order in Advanced Communications Corporation. II. BACKGROUND 2. On December 15, 1995, the Commission adopted rules by which to conduct auctions for two DBS authorizations: one for 28 channels at orbital location 110o W.L., and one for 24 channels at 148o W.L. On December 21, 1995, the Commission announced that it would conduct auctions for these DBS authorizations. On January 19, 1996 MCI paid $12 million up front to participate in the auction pursuant to the Commission's DBS auction rules. On January 24 and 25, 1996, the Commission conducted the DBS auctions. MCI submitted the winning bid for the 28 channels at 110o W.L. A. MCI Application 3. MCI is a publicly-traded U.S. corporation and is the second largest U.S. carrier of long distance telecommunications services. It holds domestic common carrier microwave licenses, international facility authorizations, cable landing licenses, and other miscellaneous licenses and authorizations. It also provides a broad spectrum of domestic and international voice and data communications services. 4. As proposed, MCI's DBS system will deliver subscription digital television and other entertainment programming, and will provide the capability to offer video, audio and data services to small receive antennas connected to both televisions and personal computers. MCI's satellites will transmit via a shaped CONUS beam over the contiguous 48 United States, with extensions of the shaped beam providing service to Alaska and Puerto Rico. In addition, MCI proposes a dedicated spot beam to provide service to Hawaii. 5. MCI proposes a two-satellite system, with 32 transponders on each satellite. MCI expects to launch its first satellite in the third quarter of 1997 and begin operations in the first half of 1998. It will launch its second satellite in the first or second quarter of 1998, at which time both satellites will operate in dual transponder combined mode, thereby allowing the first satellite to deliver even-numbered channels and the second satellite to deliver odd-numbered channels. MCI proposes to transmit to eighteen-inch receive dishes, although Florida and parts of the Gulf Coast may require 24-inch dishes to achieve a signal availability of 99.7%. 6. MCI states that it will manage and control the DBS system, and will perform, either directly or through a qualified contractor under its supervision and control, tracking, telemetry and control ("TT&C") operations. 7. MCI apparently intends to form a joint venture ("Venture") with the News Corporation Limited to provide DBS and other permissible services. MCI anticipates that the Venture will be granted a contractual right to use all transponder capacity available under the license, and that affiliates of the Venture will provide programming to consumers and businesses. It also asserts that the Venture and each of its affiliates will be contractually obligated to MCI to conduct its programming and other operations at all times in conformity with the Commission's rules, and MCI will retain all rights under the contracts necessary to fulfill its obligations as a licensee. 8. One important prospective change is that MCI and British Telecommunications plc ("BT"), a British company, announced on November 1, 1996, that BT would acquire up to a one hundred percent ownership interest in MCI. In response to this announcement, several entities filed informal requests that action be deferred on MCI's application, at least until MCI files an amendment to its DBS authorization application reflecting its proposed change in ownership or files a transfer of control application. In addition, in a joint letter to Chairman Hundt three senior Executive Branch officials requested that any action taken on MCI's pending application "expressly preserve the right of the Executive Branch to make recommendations to you on matters of trade policy, foreign policy or national security in the event that MCI seeks to transfer control of any DBS licensee or assign any DBS license." 9. Subsequent to the Commission's receipt of these letters, on December 2, 1996, MCI and BT filed with the Commission various applications for transfer of control and approval of their proposed merger. MCI and BT specifically requested "consent to the transfer of control to BT" of the DBS license "if received" by MCI. At the same time MCI filed a letter that reported its DBS transfer of control application as an amendment to its DBS authorization application, pursuant to 47 C.F.R.  1.65(a). The fact that MCI filed a transfer of control application in anticipation of our finding that its DBS authorization is ready for grant does not constitute a persuasive reason to delay action on MCI's DBS authorization application, which has been pending for several months. In finding that MCI's DBS authorization is ready for grant, this order does not prejudge or predetermine any of the recently filed transfer of control applications by MCI and BT, including the transfer of control application filed with respect to the DBS authorization. The transfer of control applications will be put on public notice and the Commission will seek comments and reply comments. The Commission will closely review each of these transfer of control applications, including the application relating to MCI's DBS authorization, for compliance with all relevant provisions of the Communications Act and the Commission's Rules. The Commission will also consider and accord appropriate deference to any recommendations made by the Executive Branch, with respect to all such transfer of control applications, that relate to trade policy, foreign policy or national security. Under these circumstances, and as discussed below, at this time there is no basis upon which to withhold a grant of this license. 10. Echostar petitions the Commission to deny MCI's application because MCI has alien ownership in excess of the benchmark set forth in the Commission's rules, according to Echostar. DIRECTV, another DBS permittee, opposes MCI's application to the extent that it is based on an invalid auction of DBS frequencies formerly held by Advanced Communications Corporation. PRIMESTAR requests that the Commission condition any grant of MCI's application on the outcome of court appeals taken from its decision in the Advanced Order. III. DISCUSSION A. Validity of Auction. Arguments Raised By DirecTV and Primestar 11. On April 1, 1996, DIRECTV filed a petition to deny MCI's application or, in the alternative, to hold MCI's application in abeyance pending judicial review of DIRECTV's appeal of the Commission's DBS Order. Specifically, DIRECTV argues that the Commission improperly imposed a spectrum limitation in its DBS auction rules that prohibited entities with an attributable interest in channels at one full-CONUS location from acquiring any additional channels at the 110o W.L. orbital location, unless such entities divest their existing interests at other full-CONUS locations. Since DIRECTV already had channels at the 101o W.L. orbital location, it argues that the Commission's spectrum limitation effectively rendered DIRECTV ineligible to apply for the DBS channels being auctioned at 110o W.L. MCI asserts that DIRECTV's petition is, in essence, merely a request for a stay of grant of its application pending appeal, and argues that DIRECTV has not applied for such a stay and has not satisfied the four-factor test for grant of a stay. 12. We will not dismiss MCI's application or hold its application in abeyance until judicial review of the DBS Order has been completed. DIRECTV has not formally requested the Commission or the Court to stay Commission action on MCI's application. In any event, DIRECTV has failed to make the required showing that grant of a stay pending judicial review is warranted. DIRECTV's bare assertion that processing MCI's application before completion of appellate review would waste Commission resources does not justify dismissing or delaying consideration of MCI's application. 13. In response to the Commission's Public Notice of March 1, 1996, that MCI's application had been accepted for filing, PRIMESTAR submitted a letter requesting that any MCI authorization be conditioned on the outcome of court appeals of the Advanced Order. PRIMESTAR opposed the Commission's decision to reclaim the DBS orbital slots and channels assigned to Advanced Communications Corporation. PRIMESTAR, Tempo DBS, Inc. and Advanced have all filed appeals of the Advanced Order before the United States Court of Appeals for the District of Columbia Circuit. PRIMESTAR argues that the Commission must condition its action here upon the outcome of these appeals and any further proceedings at the Commission that might be required by the Court's decision. PRIMESTAR also asserts that the Commission must place MCI on notice that any satellite construction it undertakes prior to final resolution of the Advanced Order will be at MCI's risk. 14. On May 6, 1996, the United States Court of Appeals for the District of Columbia upheld the Commission's decision in the Advanced Order. On September 24, 1996, Advanced Communications Corporation filed a petition for certiorari in the United States Supreme Court seeking to overturn the Commission's decision. While PRIMESTAR requests that we condition any MCI authorization on the outcome of this appeal, we see no reason to explicitly do that here. Since an appeal of the Advanced Order is pending, all parties are put on notice that the Court could, as in any other case, modify the action that we may take. Consequently, we will deny PRIMESTAR's request. In addition, we note that, in granting MCI's waiver of Section 319(d) of the Communications Act, the Commission has already put MCI on notice that its DBS satellite construction is entirely at its own risk. B. MCI's Qualifications. 15. In order to grant a DBS application, we must find that an applicant is legally and technically qualified to hold a DBS authorization. 1. Legal Qualifications (a) Alien Ownership. 16. MCI proposes to operate its DBS system as a subscription service, on a non- broadcast, non-common carrier basis. It asserts that it will not provide service directly to the public within the meaning of the statutory definition of broadcasting, 47 U.S.C. 153(o). Accordingly, it contends that it is not subject to Section 310(b) of the Communications Act, which restricts alien ownership or control of common carrier or broadcast licensees. Although MCI acknowledges that the Commission's DBS rule relating to foreign ownership, Section 100.11(g), tracks Section 310(b), it asserts that, as to subscription DBS services, this rule has "effectively been mooted" by Commission action since its adoption. Specifically, MCI argues that the restrictions imposed by Section 310(b) of the Act, which were codified in Section 100.11(g) of the Commission's rules, no longer apply to its proposed service in light of the Commission's subsequent decision that subscription DBS services are not broadcast services. In further support of its position, MCI points out that the Commission did not propose to apply Section 310(b) of the Act to the digital audio radio satellite (DARS) service, because subscription DARS ( like subscription DBS) is a non-broadcast service. 17. In the alternative, MCI argues that if we apply Section 100.11, we should find, pursuant to Section 100.11(g), that the public interest will not be served by refusing to grant MCI's application. MCI asserts that the Commission should extend the findings it has made under Section 310(b)(4) in recent years to any analysis of MCI's application it may conduct pursuant to Section 100.11(g) of its rules. MCI notes that it has, as a common carrier provider of telephone services, won Commission approval of applications to increase its foreign ownership beyond the benchmark of 25 percent established in Section 310(b)(4). MCI points out that, with respect to these common carrier applications, the Commission has approved up to 35 percent foreign ownership of MCI's corporate parent as consistent with the public interest. MCI contends that there have been no material changes in the factors that the Commission relied on in approving 35 percent foreign ownership of MCI, and that this DBS application and the prior common carrier applications are alike in that neither involve broadcasting. 18. Echostar argues in its petition that the Commission should deny MCI's application because MCI's alien ownership exceeds the 25 percent benchmark set forth in Section 100.11 of the Commission's rules and the public interest would be served by refusing to grant MCI's authorization application. At a minimum, it asserts that the Commission should defer action on MCI's application until MCI makes a showing that grant of a waiver of Section 100.11 of our rules is in the public interest. It also asserts that News Corp., MCI's proposed partner in the Venture, is itself very likely an alien corporation. Echostar contends that the Commission intended, through its Part 100 rules, to apply alien ownership restrictions to all DBS providers, even those providers not operating as broadcasters or common carriers. Echostar contends that the same policy rationale for applying alien ownership restrictions to broadcasters applies as well to a non-broadcast subscription provider like MCI because a subscription provider will, like a broadcaster, retain some degree of control over program content. Echostar urges the Commission to apply the effective competitive opportunities ("ECO") test as part of our public interest determination under 47 C.F.R.  100.11(g) to determine whether a waiver of the DBS alien ownership limits is justified. Echostar argues that application of the ECO test in this context will serve the Commission's goal of ensuring free and fair competition in the provision of global satellite services. 19. EchoStar also requests that the Commission investigate whether MCI is in compliance with the anti-collusion rules set forth in the Commission's DBS Order. It bases this request entirely on press reports which, it states, "suggest discussions between MCI and News Corp. and another bidder, Tele-Communications, Inc., which might, if they have indeed occurred, violate the Commission's Rules." We have stated previously that this Commission has no rules or policies that regulate the content of press releases issued by permittees. Similarly, press reports do not constitute evidence sufficient to warrant investigation into these allegations. 20. In response to Echostar's arguments regarding alien ownership restrictions, MCI contends, first, that Section 100.11(g) is not applicable to subscription DBS service operators because, in adopting the rule, "the Commission never intended to impose any regulatory requirements on DBS licenses not specifically required by the Communications Act." MCI also points out that over the years the regulation of DBS has been modified as a consequence of the reclassification of subscription DBS services as non-broadcast services in the Subscription Video decision. MCI states that its qualifications to hold a license are well- established, that it does not propose to offer a broadcast service, and that the Commission, therefore, has the requisite information to make a determination that grant of its application is not governed or precluded by Section 310(b) of the Act or Section 100.11(g) of the rules. As a final matter, MCI argues that the Commission's ECO test for international common carriers should not be applied to subscription DBS or other domestic, non-common carrier services, and that the affiliation tests adopted in the Foreign Carrier Entry Order should not be applied to DBS. MCI contends that these issues would need to be addressed instead in a rulemaking, rather than as part of the review of MCI's application. (b) Applicability of Section 310 of the Communications Act. 21. We agree with MCI that Section 310(b) of the Communications Act does not apply here. By its terms, Section 310(b) applies only to common carrier, broadcast, aeronautical en route, or aeronautical fixed radio station licenses. As discussed below, because MCI proposes to offer a subscription DBS service, its DBS license will not fall under any of the 310(b) regulatory classifications. Consequently, none of the provisions of Section 310(b), including Section 310(b)(4), applies to MCI's application. However, as discussed above and below, the Commission will consider all comments and public interest issues surrounding the proposed change in ownership of MCI as part of its separate and independent review of MCI's pending transfer of control applications. (c) Applicability of Part 100 of The Commission's Rules. 22. Section 100.11(g) of the Commission's rules, which was imported nearly verbatim from the text of section 310(b)(4) of the Communications Act, also does not apply to MCI's application to provide subscription DBS. In adopting this rule, the Commission intended to impose on DBS applicants and licensees only those requirements that are expressly mandated by the Communications Act. In other words, Section 100.11(g) of the rules was intended to impose on DBS licensees those requirements mandated by Section 310(b) of the Act. The Commission has made clear that subscription DBS is a non-broadcast service not subject to the statutory provisions applicable to broadcasters, including the alien ownership restrictions of Section 310(b). Therefore, the proposed non common-carrier subscription service also is not subject to the alien ownership restrictions of Section 100.11(g) of the Commission's rules. 23. The Commission decisions implementing regulatory policies for DBS, including rule Section 100.11(g), demonstrate that the Commission did not intend to impose regulatory requirements on DBS licensees unless specifically required by the Communications Act. When the Commission first proposed rules for DBS in 1981 it stated that it was seeking to apply an "open and flexible approach" to regulating DBS to "allow the business judgments of individual applicants to shape the character of the service offered." In its NPRM proposing rules for DBS, the Commission therefore stated that it would "impose on DBS services only those requirements that are expressly mandated by the Communications Act." The Commission further explained that [t]he appropriate statutory provisions will depend on the specific characteristics of the service each applicant proposes, including the proposed method of financing, whether the service would be offered to the general public, and the degree of control the applicant would exercise over program content. If the proposal falls within any of the conventional regulatory classifications for radio services, i.e., broadcast, common carrier, or private radio, we will impose the statutory requirements of that service. 24. When the Commission adopted its "interim" DBS rules, of which section 100.11(g) was a part, the Commission adhered to its NPRM proposal to impose on these services only those requirements mandated by statute. The Commission thus restated its intention to take a flexible regulatory approach and "to impose as few rules as possible." As it had proposed in the NPRM, the Commission also stated that subscription DBS services would be treated as broadcast services until the Commission resolved in subsequent proceedings whether such services could be classified as non-broadcast services. The Commission stated that direct-to-home subscription services would be classified as broadcast services "unless or until the Commission determines otherwise," citing to its proposal in the DBS NPRM that, until the Commission resolved the legal status of subscription services in future proceedings, the Title III provisions applicable to broadcasting would apply. 25. In adopting its interim rules, the Commission also recognized that all DBS licensees would be subject to any such permanent regulations that might be implemented later. The DBS rules thus specifically provide for such an eventuality, stating that "[a]ll licenses shall be subject to the policies set forth in the Report and Order and with any policies and rules the Commission may adopt at a later date" 26. Subsequently, in its 1986 Subscription Video Services Order, the Commission did adopt such permanent rules, formally re-classifying subscription DBS as a "non-broadcast" service. In classifying subscription DBS as a non-broadcast service, the Commission made clear that "[s]uch a classification would relieve a regulatory burden on the service providers insofar as they would not be subject to statutory restrictions applicable to broadcasters." Also, in affirming the Commission's decision, the court of appeals recognized that, as a consequence of the Commission's re-classification of the service, the alien ownership restrictions of Section 310(b) would not apply. We are unaware of, and no party has cited, any case in which the Commission has applied a Commission rule intended to codify the alien ownership restriction provisions of section 310(b), to service providers operating outside of the regulatory categories to which that statutory section is expressly limited. We note that in Continental Satellite Corporation, cited by Echostar, the applicant merely assumed (mistakenly) that the rule applied to its non-broadcast, non-common carrier DBS application and in reaching a decision, the Chief of the International Bureau, likewise, assumed that the rule applied. As clarified above, that assumption was incorrect in that the rule only applies to DBS operators who operate broadcast or common carrier services. Accordingly, in the absence of any express discussion indicating that the Commission intended to do so with respect to non-broadcast, non-common-carrier DBS, we think the Commission did not. 27. Accordingly, because subscription DBS has been classified as a non-broadcast service, we conclude that neither Section 310(b) of the Act nor section 100.11 of the Commission's rules, which codifies the statutory provision, is applicable to MCI's proposed service. Because we interpret Section 100.11(g) of the rules as inapplicable to subscription DBS as a non-broadcast service, it is therefore unnecessary to apply the public interest standard of the section 310(b)(4) portion of the rule or to waive the rule. Under these circumstances, we find it unnecessary to consider application of the ECO standard, which currently is applied only to common carrier services. In the interest of clarity, Section 100.11(g) may be modified in a separate rulemaking proceeding in the future to insure that no further confusion occurs. 28. In any event, to the extent that the fact that the language of Section 100.11(g) literally applies to all DBS services is read as a basis for concluding that the rule applies despite the Commission's intent in adopting it that it not apply, we would grant a waiver in this case. As discussed above, we find ample evidence that the Commission intended the rule to impose only those requirements expressly mandated by statute and thus not to apply to non-broadcast, non-common carrier DBS. Accordingly, waiver of the rule in the specific circumstances here where it was not intended to apply would not undermine the purpose of the rule and would serve the public interest. 29. We wish to emphasize, again, that this order does not prejudge, in any way, any of the applications MCI has filed to transfer control of its licenses and authorizations, including its DBS authorization, to BT. Each of the MCI transfer of control applications will be independently and intensively reviewed by Commission, following an opportunity for submission of comments and reply comments, for compliance with section 310(d) of the Communications Act and all other applicable statutes and rules. Our determination in this order is that the application for DBS authorization filed by MCI, not BT, is ready for grant, upon payment within five days by MCI, not BT, of the balance due on its auction bid. As discussed above, there is no reason to further delay action on the instant DBS authorization application by MCI. 2. Technical Qualifications 30. MCI proposes to use two high power satellites which, in combined transponder operation, will produce a minimum equivalent isotropically radiated power (EIRP) of 50 dBW throughout the continental United States. Its first satellite, MCI-F1, will commence Phase 1 of MCI's proposed service. MCI asserts that during this initial phase, the satellite will operate in single transponder mode with each of 32 transponders providing separate programming. Approximately half of the transponders will operate with left hand circular polarization (LHCP) and the remainder with right hand circular polarization (RHCP). MCI's second satellite, MCI-F2, will commence Phase 2 of its operation. During this phase, both satellites will operate in dual transponder combined mode, with MCI-F1 operating on LHCP polarization and MCI-F2 operating on RHCP polarization. Consequently, MCI requests authorization to arrange its satellites within a cluster such that MCI-F1 will be located at 109.8o W.L. and MCI-F2 at 110.2o W.L. 31. Upon the submission of the balance of the amount bid by MCI, we will grant MCI's request to employ senses of polarization opposite to those indicated in the ITU Region 2 Plan. None of the commenters raised any objections to this aspect of MCI's application. Indeed, we have granted a similar unopposed application. Consequently, MCI will be authorized to operate even-numbered channels on its first DBS satellite at 109.8o W.L. using right hand circular polarization, and will be authorized to operate odd-numbered channels on its second DBS satellite at 110.2o W.L. using left-hand circular polarization. Grant of the requested modification will be conditioned on successful coordination with other DBS permittee at that location (United States Satellite Broadcasting and Directsat Corporation) and successful modification of the ITU Region 2 BSS Plan in accordance with Appendices 30 and 30A of the ITU Regulations. 32. MCI also requests a waiver of our rules to conduct telemetry, tracking, and control functions in the lower end of the 14.0-14.5 GHz fixed-satellite service (Ku-band) uplink band. The requested frequencies are assigned for use by Canadian and Mexican fixed satellites at orbital locations adjacent to MCI's DBS orbital location. MCI has not indicated it has attempted to coordinate these TT&C operations with either Canada or Mexico. Use of this band for TT&C for the Broadcast Satellite Service does not conform to the U.S. Table of Frequency Allocations. While we have permitted non-conforming uses, we encourage licensees to conduct TT&C operations in bands allocated to space operations or in bands in which the applicant's satellites would normally operate. In any event, MCI has not provided sufficient information on which to base grant of a waiver of the U.S. Table of Frequency Allocations. Accordingly, upon final grant of MCI's authority to construct, launch and operate its DBS system, we will dismiss without prejudice MCI's waiver request pending its submission of a more complete description of its TT&C functions. MCI's TT&C submission should be filed within 30 days from the release of the Order authorizing it to construct, launch and operate its DBS system. C. Miscellaneous (a) Service To Hawaii and Alaska. 33. The DBS Order requires that new permittees provide DBS service to Alaska and Hawaii, and that all transponder capacity be used solely for DBS service no later than the fifth year of its license term. MCI states that it will provide DBS service to the contiguous 48 states, Alaska, Hawaii, and Puerto Rico, and will provide digital television and other entertainment programming to subscribers. It states that the principal use of its DBS spectrum will be for the provision of DBS service. (b) Timely Payments. 34. Our auction rules require a down payment of 20 percent of the winning bid within 10 business days of the announcement of winning bidders. The Wireless Telecommunications Bureau announced the winners of the DBS auction by Public Notice dated January 29, 1996. MCI paid $124.5 million at the close of the auction on January 25, 1996. It paid an additional $2 million on January 26, 1996, twelve calendar days prior to the required due date. MCI is required to submit the balance of the amount bid within five business days of the date of the Commission's Public Notice indicating that the DBS authorization is ready for grant. (c) Construction Milestones. 35. Our rules require that DBS permittees complete contracting for satellite construction within one year of grant of authorization, and that they begin operating a DBS system within six years of grant of authorization. Moreover, new permittees must complete construction within four years of its first satellite grant of authorization. We note that MCI has sought and received a Section 319(d) waiver so that it might proceed with system construction entirely at its own risk. MCI asserts that on February 26, 1996, it entered into a contract with Space Systems/Loral, Inc. for the construction of its satellites. Its application includes an appendix which identifies major construction milestones and progress payments. MCI expects that both satellites will be operational in the first half of 1998, four years earlier than required under the Commission's rules. Upon grant, MCI's authorization to construct, launch and operate a DBS satellite will be conditioned upon the timely completion of the above referenced milestones. IV. CONCLUSION 36. We find that MCI's DBS authorization is ready for grant in accordance with the provisions of this Order. V. ORDERING CLAUSES 37. Accordingly, IT IS ORDERED that MCI Telecommunications Corporation's Direct Broadcast Satellite authorization is READY FOR GRANT. 38. IT IS FURTHER ORDERED that the Petitions to Deny filed by EchoStar Satellite Corporation, Directsat Corporation, Echostar DBS Corporation and DIRECTV ARE DENIED. 39. IT IS FURTHER ORDERED that the Request by PRIMESTAR Partners, L.P. to condition Commission action upon the outcome of judicial review IS DENIED. 40. IT IS FURTHER ORDERED that MCI shall submit the balance of the amount bid within five business days of the Commission issuing a Public Notice indicating that its DBS authorization is ready for grant. FEDERAL COMMUNICATIONS COMMISSION Donald H. Gips Chief, International Bureau