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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Tel: 202-418-0719 Fax: 202-418-0748 July 17, 1998 Ms. Aileen Pisciotta Kelley Drye & Warren 1200 19th Street, N.W., Suite 500 Washington, D.C. 20036 Re: Request for Change in Ex Parte Status: Final Analysis Communication Services, Inc., Order and Authorization to Construct, Launch, and Operate Non-Voice, Non- Geostationary Mobile Satellite System, DA 98-616, Application for Clarification and Review, filed May 1, 1998. Dear Ms. Pisciotta: This is in response to your letter dated June 15, 1998 on behalf of Final Analysis Communication Services, Inc. ("Final Analysis"), a non-voice, non-geostationary mobile satellite ("Little LEO") service licensee, requesting a change in the ex parte status of the above-referenced proceeding from restricted to permit-but-disclose. Final Analysis argues that this change in status will enable Final Analysis to correct misinformation and clarify certain technical information in the record. Leo One USA Corporation ("Leo One") and Orbital Communications Corporation ("Orbcomm") opposed this request. After careful consideration, we deny Final Analysis's request. On March 30, 1998, the International Bureau granted, in part, Final Analysis's application to launch and operate a Little LEO satellite system. Final Analysis's application, along with several others, had been granted in the second processing round for Little LEO applications. The Bureau based its licensing decisions on a joint sharing proposal reached by the second round applicants, including Final Analysis, in September 1997. Final Analysis filed an Application for Clarification and Review of its license grant. Leo One and Orbcomm filed oppositions to Final Analysis's filing. The proceeding concerning Final Analysis's application is classified as restricted under the Commission's ex parte rules set forth in Section 1.1208. Section 1.1200(a) of the Commission's rules, however, states that where the public interest so requires, the Commission and its staff retain the discretion to modify the applicable ex parte rules. The rules also provide that the Commission or its staff may determine that a restricted proceeding involves broad policy issues rather than the rights and responsibilities of specific parties and conclude that the proceeding should be conducted in accordance with the rules governing permit-but-disclose proceedings. In your letter, you advocate that this proceeding be changed from a restricted proceeding to permit-but-disclose proceeding for three reasons. First, you state that an oral presentation to the staff would enable Final Analysis to correct and clarify "misinformation" in the pleadings filed by other parties regarding Final Analysis's proposals. You fail, however, to explain how oral communications would be superior to any written information Final Analysis may submit to correct the record. Further, as Orbcomm notes, the ex parte rules governing restricted proceedings do not prevent Final Analysis from engaging in oral presentations with Commission staff. Consistent with the ex parte rules, Final Analysis is free to meet with the staff so long as all of the parties to the proceeding are provided advance notice and an opportunity to attend. Thus, the existing procedures in the ex parte rules provide Final Analysis an opportunity to make an oral presentation to clarify or correct the record while, at the same time, ensuring procedural fairness to all the parties to the proceeding. Second, you argue that new technical information demonstrates that the Bureau erred in denying parts of Final Analysis's system application. You state that an oral discussion is necessary to clarify the underlying assumptions of the technical data contained in Final Analysis's filings. Final Analysis has not persuaded us why oral communications would be superior to written communications to explain the technical studies. As noted above, if Final Analysis prefers to engage the Bureau's staff in a technical discussion, it may do so, as long as the other parties have advance notice and an opportunity to be present. Moreover, should any questions arise concerning the information in Final Analysis's most recent filings, the staff can request additional information, consistent with the Commission's ex parte rules. Third, you contend that the Bureau misunderstood the position of the National Oceanic and Atmospheric Administration ("NOAA") which shares frequencies with Final Analysis's system. You indicate that the ex parte rules prohibit Final Analysis from engaging in an "interactive" discussion of technical issues with the Bureau and that such a discussion would be very helpful. We expect that NOAA will represent its position clearly in its written comments in this proceeding. We are not persuaded that one-on-one discussions between Final Analysis, the Bureau, and NOAA would expedite the resolution of the matter. In summary, we find that the public interest would not be served by changing the ex parte status of this proceeding from restricted to permit-but-disclose. The issues raised in the Final Analysis Application for Clarification and Review involve the specific rights and responsibilities of the five Little LEO licensees and not "issues of broad applicable policy." Unilateral discussions with Final Analysis may affect the other Little LEO licensees because of the unique time-sharing agreement and inherent interrelationship among Little LEO systems operations, thereby compromising the integrity of the Little LEO Second Processing Round. Moreover, we are convinced that, in light of the unique joint sharing agreement reached by the Little LEO licensees, one-on-one discussions would not necessarily advance resolution of pending issues. Rather, if the parties determine that written communications do not suffice, the Commission's rules permit staff to meet with Final Analysis, provided that all parties have advance notice and an opportunity to be present. Accordingly, we deny Final Analysis's request to change the ex parte status of its Little LEO application proceeding. Sincerely, Regina M. Keeney Chief, International Bureau Federal Communications Commission cc: Albert Halprin, Esq. Stephen L. Godman, Esq. Halprin, Temple & Goodman Suite 650 East 1100 New York Avenue, N.W. Washington, D.C. 20005 Robert A. Mazer Albert Shuldiner Vinson & Elkins 1455 Penn. Ave., N.W. Washington, D.C. 20004-1008 Henry Goldberg, Esq. Joseph Godles, Esq. Mary Dent, Esq. Goldberg, Godles, Wiener & Wright 1229 Nineteenth Street, N.W. Washington, D.C. 20036 Mr. Charles Ergen, President E-SAT, Inc. 90 Inverness Circle, East Englewood, CO 80112 Leslie Taylor, Esq. Leslie Taylor Associates, Inc. 6800 Carlynn Court Bethesda, MD 20817-4302 Mr. William T. Hatch Associate Administrator Spectrum Management U.S. Department of Commerce NTIA 14th and Constitution Ave., N.W. Washington, D.C. 20230