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AD 5-30-95, RLSD 6-2-95, FCC 95-135$// //$FCC RECORD ONLY$// FCC RECORD ONLY FCC 95-135 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) ORBITAL COMMUNICATIONS ) File Nos. 22-DSS-MP-90 CORPORATION ) 9-DSS-LA-94 ) 10-DSS-AMEND-94 Authority to Construct, Launch ) and Operate a Non-Voice, ) Non-Geostationary Mobile- ) Satellite Service System ) MEMORANDUM OPINION AND ORDER ON RECONSIDERATION Adopted: March 30, 1995 Released: June 2, 1995 By the Commission: I. Introduction 1. In October 1994, the Commission authorized Orbital Communications Corporation ("ORBCOMM") to construct, launch and operate a non-voice, non-geostationary ("NVNG") mobile- satellite system. Final Analysis Communications Services, Inc. ("FACS") and Volunteers in Technical Assistance ("VITA") ask that we reconsider that decision. For the reasons discussed below, we deny both Petitions for Reconsideration. II. Background 2. ORBCOMM's system is the first NVNG mobile-satellite system to be licensed by the Commission. The other two applicants in the processing round are VITA and STARSYS Global Positioning, Inc. Before we issued ORBCOMM's license, these three applicants reached a "Joint Sharing Agreement" stating that VITA would be able to use the 149.81 - 149.9 MHz frequency band for its Earth-to-space, or uplink, operations. 3. In its Licensing Order, the Commission authorized ORBCOMM to operate in the uplink direction throughout the 148.905 - 149.9 MHz frequency band. This band includes the 90 kHz that the first-round applicants agreed would be available for use by VITA. However, ORBCOMM's system contains a mechanism designed to prevent interference to other users of the band, including VITA and Federal Government users. The mechanism, a "Dynamic Channel Activity Assignment System" (DCAAS), is designed to avoid assigning ORBCOMM's subscriber traffic to uplink channels that are occupied by other users. To accomplish this, the DCAAS will scan ORBCOMM's uplink band approximately every five seconds searching for actively used channels. The system will then assign subscriber traffic to specific frequencies for the next five-second period based on its assessment of the least used frequencies at the time of the previous scan. We found the DCAAS would permit ORBCOMM to operate throughout the 148.905 - 149.9 MHz band without interfering with existing users. 4. In its original application, VITA proposed to use both fixed and mobile earth stations to access its space stations. It proposed to use "fixed" earth stations, intended for permanent installation, in the United States, and mobile "field" stations, described as lap-top, PC-based terminals, throughout the world. VITA amended its system application in April 1994, however, to imply it may use field earth stations in the United States. This created a potential for increased interference into Government operations in the band. On December 13, 1994, the Interdepartment Radio Advisory Committee (IRAC) notified the Commission that it had reached an accord with VITA that could allow VITA to use mobile earth terminals domestically, subject to certain specific operating limits. 5. FACS and four other parties have filed applications in the second processing round of NVNG applications. ORBCOMM also filed an application for license modification, requesting additional frequencies for its system. The comment cycle regarding second-round applications closed in April 1995. III. Discussion A. VITA's Petition 6. In its Petition for Reconsideration, VITA states that ORBCOMM's system will harmfully interfere with VITA's field station uplink transmissions in the 149.81 -149.9 MHz band. Specifically, VITA argues that because its field stations will operate in a very short "burst" transmission mode, ORBCOMM's five-second band sweep will not adequately detect transmissions from these stations. If a VITA subscriber begins uplinking information immediately after the ORBCOMM satellite has detected no activity on the VITA frequency band, the ORBCOMM satellite could assign ORBCOMM traffic to VITA frequencies that would no longer be vacant. VITA alleges this could result in the "collision" of data packets between the two systems for up to five seconds. According to VITA, this will more harmfully impede its operations than those of ORBCOMM. To mitigate this potential interference, VITA asks us to condition ORBCOMM's license on successful frequency coordination with VITA. 7. ORBCOMM says that its DCAAS will operate with sufficient particularity to avoid undue collisions with VITA transmissions. It further states that the Commission, in licensing ORBCOMM to operate across VITA's frequencies, has already considered the impact of its operations on VITA's system proposal, and has found it to be unobjectionable. Finally, ORBCOMM notes that a license condition is unnecessary, because Section 25.142(b)(3) of our rules already requires NVNG licensees to coordinate their systems with each other. 8. VITA replies that ORBCOMM's "paper" claims of protection are not convincing, that the Commission has not previously considered VITA's concerns, and that a separate license condition is necessary because ORBCOMM has not been responsive to VITA's requests for coordination. 9. As an initial matter, we clarify that the Commission did not address the concerns now raised by VITA when it granted ORBCOMM's license. While we did find that ORBCOMM's DCAAS system should adequately protect existing terrestrial services, we did not know the particulars of VITA's domestic earth-station operations because they were not finalized at that time. Now that VITA has completed its system design, and the IRAC has approved VITA's proposed use of field terminals, the Commission, ORBCOMM and others will have the opportunity to assess the interference potential both to and from VITA's field station operations. 10. At the time the parties reached the Joint Sharing Agreement, they agreed that ORBCOMM's DCAAS could adequately protect VITA's operations. However, as discussed above, VITA's original proposal included only fixed earth-stations, as opposed to both fixed and field-earth stations, in the United States. The fixed earth-station transmissions, like those of existing terrestrial users, are likely to be of considerably longer duration than those of mobile NVNG users, and thus more readily identified by the DCAAS scan as unavailable for assignment to other traffic. Thus, our finding that ORBCOMM's DCAAS system would protect existing terrestrial users would have extended to VITA's initial fixed earth-station proposal. The addition of field earth-stations to its system design will complicate this sharing scenario. The shorter, field transmissions now proposed by VITA may be harder to detect and avoid. Accordingly, we agree with VITA that ORBCOMM's DCAAS may not avert all potential collisions among the data packet uplinks of the two systems. Because VITA's operations are confined to 90 kHz of spectrum, it has a limited number of available channels to which to reassign any blocked transmissions. ORBCOMM has a much greater range of available spectrum than does VITA, and is thus more likely to be able to reassign its colliding traffic to a clear channel. Any collisions that do occur are therefore likely to impact VITA's operations more severely than those of ORBCOMM. As the two systems become operational, the parties will likely need to coordinate their operations to permit an acceptable level of service for each. 11. We agree with ORBCOMM, however, that a specific license condition requiring coordination with VITA is unnecessary. Indeed, in our Report and Order establishing technical and service rules for the NVNG mobile-satellite service, we rejected a request that NVNG licenses bear a condition requiring the licensee to negotiate coordination agreements in good faith with subsequent licensees. Both the Commission's rules and longstanding policy make it abundantly apparent that we expect our licensees in this service, as in any other, to coordinate in good faith to resolve conflicts. There is no indication here that the parties have even commenced negotiations, much less reached an impasse. We are confident that the parties will be able to resolve any conflicts that may arise. Should VITA and ORBCOMM reach an impasse in coordination efforts, however, the Commission will impose its own solution. B. The FACS Petition 12. On November 16, 1994, pursuant to a cut-off deadline, FACS and other prospective new entrants filed NVNG applications. On that same date, ORBCOMM filed an application for license modification, requesting additional frequencies for its first-round system. FACS asks that we add a condition to ORBCOMM's license stating that ORBCOMM may not seek to expand its system until after second-round applications for new systems have been processed. FACS argues that allowing ORBCOMM to seek expansion spectrum will run counter to the Commission's expressed intent to promote new NVNG systems. 13. ORBCOMM replies that FACS's Petition is procedurally and substantively defective. ORBCOMM states it would be premature to prohibit it from seeking expansion capacity until we determine how much spectrum is needed to accommodate the new entrants and how much spectrum will be available. ORBCOMM notes further that only one of the first-round applications has been granted. If either of the remaining two is not granted, it argues, additional spectrum will be available to the later filed applications. ORBCOMM also notes additional NVNG spectrum may be allocated at the upcoming World Radiocommunication Conference. ORBCOMM finally alleges that the Commission may not summarily deny it access to NVNG spectrum without either a comparative hearing or some opportunity for general notice and comment. 14. In response, FACS alleges further that ORBCOMM's Application for License Modification is, in substance, a timely-filed Petition for Reconsideration of its license. Thus, FACS argues, the Commission must vacate ORBCOMM's license and treat the original application and the modification request together as a newly filed, second-round application. ORBCOMM replies that it neither explicitly nor implicitly declined its system license. ORBCOMM states that the modification application filed on November 16 represents proposed system enhancements, not a counter-proposal to build a different system. Grant of this modification request is not critical, ORBCOMM states, to the company's commencement of service. Finally, ORBCOMM notes that the timing of its filing was driven solely by the Commission's initiation of a second NVNG processing round, not by the thirty- day time period in which it could reject its authorization. 15. We find FACS's claim that ORBCOMM has declined its license untenable. ORBCOMM says that it did not decline its license. If it had wanted to, it could have done so clearly. It did not. Section 25.156 of our rules, 47 C.F.R.  25.156, describes the manner in which a license must be declined. A licensee wishing to decline a conditional license must file a petition for reconsideration within thirty days of the release date of the grant. That petition must reject the grant as made and explain the reasons why the application should be granted as originally requested. ORBCOMM's November 16 pleading meets only one of these criteria - - the thirty day time limit. This application does not reject the license, nor does it request that the Commission reconsider any action that it has taken. Indeed, ORBCOMM's modification application does not take issue with any condition placed on its license. Rather, ORBCOMM's license modification request seeks the use of new frequencies and additional satellites to expand its authorized system. It looks precisely like the pleading it is styled to be - - an application for license modification. The fact that the cut-off deadline for consideration of new frequencies fell within the thirty days after the grant of ORBCOMM's license has no bearing on whether the company has accepted its original authorization. Absent a clear statement in its modification application, or elsewhere, that ORBCOMM has affirmatively declined the authorization, we will not vacate its license. 16. FACS nonetheless urges us to look to the "substance" of ORBCOMM's action and conclude that ORBCOMM unintentionally declined its license. The facts do not support this conclusion either. In support of this argument, FACS attempts to draw an analogy between a situation in which the Commission protected its procedural rules from abuse by refusing to allow a party to circumvent statutory time limits merely by renaming its pleading (Application of RCA Global Communications, Inc., 68 F.C.C. 2d 1197 (1978)) and the situation at hand, where the Commission is asked to infer that a licensee has inadvertently, but in accord with Commission rules, acted to its own detriment. The rationale for looking to the substance of the transaction at issue is readily apparent in the former case. Parties are obligated to meet our rules, and may not circumvent them by mere semantics. Here, the Commission is asked to find that a party has unintentionally, and to its own detriment, met our rules. Unlike the situation in RCA Global Communications, the Commission in this situation has no interest to protect by such a draconian action. 17. We also agree with ORBCOMM it is too early to determine whether ORBCOMM should be permitted to seek system expansion. If all the pending NVNG applications, including those requesting expansion capacity, can be granted, the relief sought by FACS will be unnecessary. If the pending applications are mutually exclusive, the Commission will have to determine the proper method for selecting among the competing qualified applicants. In the course of that proceeding, which will involve the opportunity for notice and comment by interested parties, it would be appropriate to consider legitimate matters of policy such as those raised by FACS. Because FACS will have ample opportunity to advance its arguments regarding access to NVNG spectrum, we deny FACS's Petition. IV. Ordering Clause 18. Accordingly, IT IS ORDERED that the Petitions for Reconsideration filed by Volunteers in Technical Assistance and by Final Analysis Communications Services, Inc. ARE DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary