WPCa 2BJZ Courier3|w>fx6X@`7X@HP LaserJet 4M (PCL) (Add) rm 813HL4MPCAD.PRSx  @\U X@26 ZF 3|wHP LaserJet 4M (PCL) (Add) rm 813HL4MPCAD.PRSD  P7jQ\U P(  2%f K"i~'K2^18MSS888S8888SSSSSSSSSS88Jxir{icx{8Aui{x`xoYi{xxxl888SS8JSJSJ8SS..S.SSSS>A.SSxSSJJSJS+SSSSS8SSSSSSSSS.xJxJxJxJxJorJiJiJiJiJ8.8.8.8.{SxSxSxSxS{S{S{S{SxSxJ{SxSxSxS{S`SxIxSxIqIqIrSrS{dgIiSiSgIxSxSxSxSxS{S{S8.SSSS8Sz]SSuSg/g><q*"xxxxWWxxxWWkkxxx,?2?2>,H2H2H2H2H2J2J2!2222!2I822F2>>$?2@>J2:J2J2H2H2YHB$B$C26&6&6&62>$>?2J2J2J2J2J2J2^HH2@,@,@,J2?2J262?2H2<!22!!!WddddddddddddddddddddddddddddddddddddddddddddddddxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHHH222!,))22X222YY2#2222Y#!!442Ydd22==Ld2d2H2;SS88Y!42^x#"ddddHHddd2Hdd4HHYYddd2YYddd Y2!!dddddH=dYHHHHHHHHHH!d2H282YdHdC2!2H,29HNAddHHHHHHHHHHddddd.dHHHHdddddddddddddddddddHHddddddSC=NdHddd+;HHHHddddddHHH2HHdHHdddHHH,HHHH,HHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH!HHH!HHH!HHH!HHHHHHHHHHHHHH=?8=8C,?'A,J2H,!F,C8[8J,C2H,H=92=22?,H,C=H8N===H?J!2HHH=,====I!!2222HJ222HHH=!92,!ddhrZz.lZrrvvnFFZ8ԍrruSee DirecTV, Inc. v F.C.C., No. 961001 (D.C. Cir.). The parties presented oral argument in this case on October 1, 1996.(#r 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 fullCONUS location from  X-acquiring any additional channels at the 110o W.L. orbital location, unless such entities divest  X-their existing interests at other fullCONUS locations." xP` - ԍrruSee DBS Order, Appendix C. The Commission determined that fullCONUS orbital locations were at  xP( -101oĠW.L, 110o W.L. and 119o W.L. (#r Since DIRECTV already had  Xv-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  XH-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  X -stay and has not satisfied the fourfactor test for grant of a stay.M z xPE-ԍrruMCI Opposition at 2.(#rM  X -rru 12.44We will not dismiss MCI's application or hold its application in abeyance until  X -judicial review of the DBS Order has been completed. DIRECTV has not formally requested  X -the Commission or the Court to stay Commission action on MCI's application.H"  xPy- ԍrruWe have stated previously that to qualify for a stay, petitioners must demonstrate that they are likely to  prevail on the merits; that they will suffer irreparable harm if the stay request is not granted; that other  Ninterested parties will not be harmed if the stay is granted; and that the public interest favors grant of the  zP-stay. See e.g. Interactive Video and Data Service (IVDS) Licenses, FCC 96159, released April 10, 1996.(#rH 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.  X4-  rru 13.44 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  X-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,  X-Inc. and Advanced have all filed appeals of the Advanced Order before the United States  X-Court of Appeals for the District of Columbia Circuit.  zPO$- ԍrruAdvanced Communications Corporation et al. v. Federal Communications Commission, Docket Nos. 951551, 951560, 951561 (D.C.Cir.).(#r 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"eN 0*((m"  X-undertakes prior to final resolution of the Advanced Order will be at MCI's risk.  X-rru 14.44On May 6, 1996, the United States Court of Appeals for the District of Columbia  X-upheld the Commission's decision in the Advanced Order. zP4- ԍrru  Advanced Communications Corporation et al. v. Federal Communications Commission, Docket No. 951551, May 6, 1996.(#r 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  X_-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  X -MCI on notice that its DBS satellite construction is entirely at its own risk. " zP- ԍrruSee MCI Telecommunications Corporation Request for Section 319(d) Waiver in the Direct Broadcast Satellite  zP- Service, DA 96173, released February 13, 1996. In this Order, the Commission explicitly stated that  zPj- "expenditures made pursuant to this waiver prior to Commission action on the underlying application are at  zP4- zMCI's own risk, and that grant of this waiver in no way prejudges any action the Commission might take on MCI's application for authority to construct, launch and operate a DBS system."(#rƬ  W < B.rruMCI's Qualifications.   X -rru15.44In order to grant a DBS application, we must find that an applicant is legally and technically qualified to hold a DBS authorization.  Xb- 1.rruLegal Qualifications  X4< (a)rruAlien Ownership.  X-rru16.44MCI proposes to operate its DBS system as a subscription service, on a nonbroadcast, noncommon carrier basis. It asserts that it will not provide service directly to the  X-public within the meaning of the statutory definition of broadcasting, 47 U.S.C. 153(o).T xPd-ԍrruMCI Application at 1.(#rT 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  X}-Ԡ100.11(g),=}j  xP$-  /ԍ The Commission recently adopted technical amendments to rule 100.11 in conformance with changes  xP`%- rrumade in the Telecommunications Act of 1996. See infra n. 56. The Commission removed section  A100.11 paragraphs (d) and (f), and redesignated paragraphs (e) and (g) as paragraphs (d) and (e),  nrespectively. In this order we will refer only to the former designations, to be consistent with the references in the pleadings.f!r= tracks Section 310(b), it asserts that, as to subscription DBS services, this rule"}0*(("  X-has "effectively been mooted" by Commission action since its adoption.T xPy-ԍrruMCI Application at 3.(#rT 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  X-services.X zP-ԍrruMCI Application at 5, citing Subscription Video, 2 FCC Rcd 1001 (1989) ("Subscription Video").(#rƯ 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,  Xv-because subscription DARS ( like subscription DBS) is a nonbroadcast service.$v xP - ^ԍrru"As a noncommon carrier/subscription service, DARS licensees would not be subject to the foreign  zP - ownership restrictions of the Communications Act." MCI Application at 6, citing Establishment of Rules and  zP - Policies for the Digital Audio Radio Satellite Service in the 23102360 MHz Frequency Band, 11 FCC Rcd  xPm -1 (1995) ("DARS NPRM"). (#r  XH-rru17.44In 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  X -foreign ownership beyond the benchmark of 25 percent established in Section 310(b)(4).V  xPE-ԍrruMCI Application at 45.(#rV 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  Xy-public interest.Tyf  xP-ԍrruMCI Application at 5.(#rT 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  X4-broadcasting.T4  xP-ԍrruMCI Application at 5.(#rT  X-rru18.44Echostar 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  X-our rules is in the public interest.R  xP&-ԍrruEchoStar Petition at 12.(#rR It also asserts that News Corp., MCI's proposed partner in"0*((o"  X-the Venture, is itself very likely an alien corporation.Y xPy-ԍrruEchoStar Petition at 2.hh,(#rY Echostar contends that the Commission intended, through its Part 100 rules, to apply alien ownership restrictions to all  X-DBS providers, even those providers not operating as broadcasters or common carriers.P X xP-ԍrruEchoStar Petition at 4.(#rP Echostar contends that the same policy rationale for applying alien ownership restrictions to broadcasters applies as well to a nonbroadcast 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  X -free and fair competition in the provision of global satellite services.R!  xP-ԍrruEchoStar Petition at 78.(#rR  X -rru19.44EchoStar also requests that the Commission investigate whether MCI is in  X -compliance with the anticollusion 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, TeleCommunications, Inc., which might, if they have indeed  X-occurred, violate the Commission's Rules."H"x xP-ԍ Echostar Petition at 14, n.21.H 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  XK-allegations.#K zP-  ԍ See Application of Directsat Corporation and Echostar Communications Corporation, 10 FCC Rcd 88 rru(1995).f!rƻ  X-rru20.44In 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  X-requirements on DBS licenses not specifically required by the Communications Act."M$b  xP -ԍrruMCI Opposition at 4.f!rM 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 nonbroadcast services in the  X-Subscription Video decision.%  xP6%-ԍrruMCI Opposition at 5, citing Subscription Video Services, 62 R.R.2d 389 (1987).f!rƓ MCI states that its qualifications to hold a license are wellestablished, 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"e %0*((O"  X-not governed or precluded by Section 310(b) of the Act or Section 100.11(g) of the rules.M& xPy-ԍrruMCI Opposition at 6.f!rM  X-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, noncommon carrier  X-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  X-rulemaking, rather than as part of the review of MCI's application.'X xP-ԍrruMCI Opposition at 7.(#r  xP^ -rru  ě  X_< (b)rruApplicability of Section 310 of the Communications Act.  X2-rru21.44We 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  X -Section 310(b)(4), applies to MCI's application.0(x  xP - 1ԍrruSection 310(b)(4) provides, in pertinent part, that "[n]o broadcast or common carrier or aeronautical  1en route or aeronautical fixed radio station license shall be granted to or held by . . . any corporation  directly or indirectly controlled by any other corporation. . . of which more than onefourth of the  capital stock is owned of record or voted by aliens, their representatives, or by a foreign government  |or representatives thereof, or by any corporation organized under the laws of a foreign country, if the  mCommission finds that the public interest will be served by the refusal or revocation of such license." 47 U.S.C.  310(b)(4). f!r0 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.  XL< (c)rru Applicability of Part 100 of The Commission's Rules.  X-rru22. 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  X-to MCI's application to provide subscription DBS.L)  xP!-ԍrruSpecifically, the pertinent provisions of Section 100.11 state:(#r  rru44An authorization for operation of a station in the Direct Broadcast Satellite Service shall not be rru44granted to or held by:Ƥ4 rru44(a) Any alien or the representative of any alien.  _rru44(e) Any corporation of which more than one fifth of the capital stock is owned of record or voted  rru44by aliens or their representatives or by a foreign government or representative thereof,"'(0*(('" or by any corporation organized under the laws of a foreign country.Ƥ4  Prru44(g) Any corporation directly or indirectly controlled by any other corporation of which more than  8rru44onefourth of the capital stock is owned of record or voted by aliens, their  representatives, or by a foreign government or representatives thereof, or by any  corporation organized under the laws of a foreign country, if the Commission finds that the public interest will be served by the refusal or revocation of such license. Ƥ4 47 C.F.R.  100.11(g).L In adopting this rule, the Commission" )0*((" intended to impose on DBS applicants and licensees only those requirements that are  X-expressly mandated by the Communications Act.f*\ zP2 - ԍrruInquiry into the development of regulatory policy in regard to Direct Broadcast Satellites for the period  zP - following the 1983 Regional Administrative Radio Conference, Gen. Dkt. No. 80603, 86 FCC2d 719,  xP -750 (1981) (DBS NPRM).f!rf 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 nonbroadcast service not subject to the statutory provisions applicable to broadcasters, including the alien ownership restrictions of Section 310(b). Therefore, the proposed non commoncarrier subscription service also is not subject to the alien ownership restrictions of Section 100.11(g) of the Commission's rules.  X1-rru23. 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  X -individual applicants to shape the character of the service offered."C+  xP+-ԍrruId. f!rC In its NPRM proposing rules for DBS, the Commission therefore stated that it would "impose on DBS services only  X-those requirements that are expressly mandated by the Communications Act."B,L  xP-ԍrruId.f!rB The Commission further explained that rru[t]he appropriate statutory provisions will depend on the specific characteristics of the rruservice each applicant proposes, including the proposed method of financing, whether rruthe service would be offered to the general public, and the degree of control the rruapplicant would exercise over program content. If the proposal falls within any of the rruconventional regulatory classifications for radio services, i.e., broadcast, common carrier,  X-rruor private radio, we will impose the statutory requirements of that service.U- xPe&-ԍrruId. n.64. f!rU  " l-0*((q"Ԍ X-rru24. When the Commission adopted its "interim" DBS rules, of which section  X-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  X-intention to take a flexible regulatory approach and "to impose as few rules as possible."r.\ zP4- }ԍrruInquiry into the Development of Regulatory Policy in Regard to Direct Broadcast Satellites for the  zP- _Period Following the 1983 Regional Administrative Radio Conference, Gen. Dkt. No. 80603, 90  xP-FCC2d 676, 684 (1982) (DBS Report and Order).f!rr As  X-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 nonbroadcast services. The Commission stated that directtohome subscription services would be classified as broadcast services "unless or until the Commission determines otherwise," citing to its proposal in the  X1-DBS NPRM that, until the Commission resolved the legal status of subscription services in  X -future proceedings, the Title III provisions applicable to broadcasting would apply.r/  xP-ԍ See id. at 709, citing 86 FCC2d at 75051 n. 64.r  X -rru25. 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  X -later.;0 | xP-ԍ Id. at 684.; 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  X-and rules the Commission may adopt at a later date"1  xPM-ԍrruId. at 719720 (emphasis added). See also 47 C.F.R.  100.19(a).f!rƐ  Xb-rru26. Subsequently, in its 1986 Subscription Video Services Order, the Commission did adopt such permanent rules, formally reclassifying subscription DBS as a "nonbroadcast"  X4-service..24 zP- !ԍrruSubscription Video Services, 2 FCC2d 1001, 1007 (1987) (Subscription Video Services), aff'd., National  xPK-Association for Better Broadcasting v. FCC, 849 F.2d 665 (D.C. Cir. 1988).(#r. In classifying subscription DBS as a nonbroadcast service, the Commission made  X-clear that "[s]uch a classification would relieve a regulatory burden on the service providers  X-insofar as they would not be subject to statutory restrictions applicable to broadcasters."}3  xP -ԍrruSubscription Video Services, 2 FCC2d at 1007 (emphasis added).f!r} Also, in affirming the Commission's decision, the court of appeals recognized that, as a consequence of the Commission's reclassification of the service, the alien ownership  X-restrictions of Section 310(b) would not apply.4  xP$-ԍrruNational Association for Better Broadcasting v. FCC, 849 F.2d at 666, 680.f!rƉ 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" 40*(("  X-the regulatory categories to which that statutory section is expressly limited.%5  xPy- ԍrruIn its letter dated November 22, 1996 Primestar cites the Commission's inclusion of an alien ownership  rule, 47 C.F.R.  21.4, containing verbatim identical alien ownership restrictions to those found in  the DBS rule, for the proposition that "the Commission has expressly applied foreign ownership  restriction[sic] to multichannel multipoint distribution service ("MMDS" or "wireless cable"), which,  like DBS, typically provides a non commoncarrier, subscription video service." Primestar letter at  5. We note that the Commission Order that Primestar cites to for the origin of rule 21.4 contains just  nine paragraphs of discussion and states only that it is an Order "designed to simplify and improve our  zP- processing of common carrier radio applications." Amendment of Parts 21 and 43 of the Commission's  Rules and Regulations Relative to Various Procedural Requirements for the Domestic Public Radio  zP - Services, 55 FCC2d 744 (1975), cited at Primestar letter at 6 n.12. Primestar fails to cite any Order  in which the Commission has expressed an intent to apply or has applied this or other rules intended  to codify section 310(b) to service providers operating outside of the regulatory classifications to which section 310(b) expressly applies.f!r % We note that in  X-Continental Satellite Corporation,o6  xP-ԍ 10 FCC Rcd 10473 (Int'l. Bur. 1995), cited at Echostar Petition at 5.o cited by Echostar, the applicant merely assumed (mistakenly) that the rule applied to its nonbroadcast, noncommon 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 nonbroadcast, noncommoncarrier DBS, we think the Commission did not.  X1-rru27. Accordingly, because subscription DBS has been classified as a nonbroadcast 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 nonbroadcast 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  X -circumstances, we find it unnecessary to consider application of the ECO standard, which  X-currently is applied only to common carrier services.7 zPU-  ԍ See Market Entry and Regulation of Foreignaffiliated Entities, 11 FCC Rcd 3873, 3943 (1995), recon. Ð xP-rrupending.f!r In the interest of clarity, Section 100.11(g) may be modified in a separate rulemaking proceeding in the future to insure that no  Xb-further confusion occurs. 8zbn xP"-ԍ In its letter dated November 22, 1996, Primestar suggests that "the Commission has recently had  rruample opportunity to review and revise or even eliminate section 100.11, and has instead chosen to  leave this provision in place." Primestar Letter at 2. However, neither the Commission nor any party  #raised the issue presented here with respect to this rule in either of the two rulemakings cited by  Primestar. In one of those proceedings, the Commission, without notice and comment, made merely  technical amendments to certain of its alien ownership rules to conform them to statutory amendments  zP1'- to section 310 of the Communications Act made by the Telecommunications Act of 1996. See In the"1'70*((@'"  Matter of Amendment to Parts 20, 21, 22, 24, 26, 80, 87, 90, 100 and 101 of the Commission's Rules  zPX- @to Implement Section 403 (k) of the telecommunications Act of 1996, FCC 96396 (released October  n9, 1996). Primestar's other citation is to a footnote that merely references rule 100.11 but fails to  zP- |address the issue raised in this application. See Primestar letter at 2 n.4, citing Revision of Rules and  zP-Policies for the Direct Broadcast Satellite Service, 11 FCC Rcd 9712, n. 185 (1995).f!r "b ~80*((,"Ԍ X-ԙrru28. 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 nonbroadcast, noncommon 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  X_-the rule and would serve the public interest.%9_~ xP -  ԍ See generally WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), cert. denied, 409 U.S. 1027  xPV-rru(1972); Northeast Cellular v. FCC, 897 F.2d 1164 (D.C. Cir. 1990).f!r%  X1-rru29. 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.  XK-     X4- 2.rru Technical Qualifications  X-rru30. 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  X-throughout the continental United States.Q: xP_-ԍrruMCI Application at Appendix A1.Q Its first satellite, MCIF1, will commence Phase 1  X-of MCI's proposed service.;f  xP!-ԍrruMCI proposes to launch MCIF1 in the third quarter of 1997. See id. 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  Xe-second satellite, MCIF2, will commence Phase 2 of its operation.<e  xP '-ԍrruMCI proposes to launch MCIF2 during the first or second quarter of 1998. See id. During this phase, both"e <0*((" satellites will operate in dual transponder combined mode, with MCIF1 operating on LHCP polarization and MCIF2 operating on RHCP polarization. Consequently, MCI requests authorization to arrange its satellites within a cluster such that MCIF1 will be located at  X-109.8o W.L. and MCIF2 at 110.2o W.L.  X-rru31. 44Upon 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.  XH-Indeed, we have granted a similar unopposed application.=H zP -ԍrruUnited States Satellite Broadcasting, 8 FCC Rcd 8116 (1993).(#rƁ Consequently, MCI will be  X1-authorized to operate evennumbered channels on its first DBS satellite at 109.8oĠW.L. using right hand circular polarization, and will be authorized to operate oddnumbered channels on  X -its second DBS satellite at 110.2oĠW.L. using lefthand 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.  Xy-rru32. MCI also requests a waiver of our rules to conduct telemetry, tracking, and control functions in the lower end of the 14.014.5 GHz fixedsatellite service (Kuband)  XK-uplink band.[>KZ xPV-ԍrruMCI Application, Appendix A at 14.(#r[ The requested frequencies are assigned for use by Canadian and Mexican fixed  X4-satellites at orbital locations adjacent to MCI's DBS orbital location.\? 4 xP- ԍrruPursuant to the 1988 Trilateral Agreement between the United States, Canada, and Mexico, Canada may use  xP- lC band and Ku band frequencies at 111.1o W.L. and Mexico can use C band and Ku band frequencies at  xP_-109.2o W.L.(#r \ 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  X-Frequency Allocations.@  xPr- ԍrruIn addition, pursuant to Rule of Procedure 25 of the ITU's Radio Regulations Board, if the assigned  frequency concerning space operation functions lies in a frequency band allocated to a service in which the  \space station has no operating function, the ITUBR will make an unfavorable finding regarding conformity with the International Table of Frequency Allocations. (#r While we have permitted nonconforming uses,A^  zPZ"- \ԍrruApplication of Directsat Corporation for Modification of Construction Permit for a Direct Broadcast Satellite  zP$#- System, DA 961514, released September 9, 1996. See also FugroChance, Inc., 10 FCC Rcd 2860 (1995);  zP#-Qualcom, Inc., 4 FCC Rcd 1543 (1989); Geostar Positioning Corp., 4 FCC Rcd 4538 (1989).(#r 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"A0*((" 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  X-should be filed within 30 days from the release of the Order authorizing it to construct, launch and operate its DBS system.  X- C.rruMiscellaneous  X_<rru (a) 44Service To Hawaii and Alaska.  XI-  X2-rru 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  X -entertainment programming to subscribers.    It states that the principal use of its DBS spectrum will be for the provision of DBS service.  X<rru (b)44Timely Payments.  X{-  Xd-rru!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  X-grant.OB xP<-ԍrru 47 C.F.R  100.78(a).O  X<rru (c)44Construction Milestones.  X-  Xh-rru"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  X:-system within six years of grant of authorization.C:X zPC - !ԍrru47 C.F.R.100.19(a). See also, Tempo Satellite, Inc., 1 FCC Rcd 20, 21 (1986); Directsat Corporation, 8 FCC Rcd 7962, 796364 (1993).(#r Moreover, new permittees must complete  X#-construction within four years of its first satellite grant of authorization.PD# xP#-ԍrru47 C.F.R.100.19(b).(#rP 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"BD0*((J"  X-includes an appendix which identifies major construction milestones and progress payments.ZE xPy-ԍrruMCI Application at 7, Appendix B.(#rZ 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.  Xv- rru44  hh, IV. CONCLUSION  XH-rru#36. We find that MCI's DBS authorization is ready for grant in accordance with the provisions of this Order.  X -rru44  hh, V. ORDERING CLAUSES  X -rru$37. Accordingly, IT IS ORDERED that MCI Telecommunications Corporation's Direct Broadcast Satellite authorization is READY FOR GRANT.  X -rru%38. IT IS FURTHER ORDERED that the Petitions to Deny filed by EchoStar Satellite Corporation, Directsat Corporation, Echostar DBS Corporation and DIRECTV ARE DENIED.  XK-rru&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.  X-rru'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. rru rru44  hh,FEDERAL COMMUNICATIONS COMMISSION rru44  hh,Donald H. Gips rru44  hh,Chief, International Bureau  X!-#Xj\  P6G;9XP#