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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 In the Matter of ) ) Loral Orion Services, Inc. ) File No. SAT-STA-19990909-00090 ) Petition for Stay Filed by EUTELSAT ) ) ORDER Adopted: October 18, 1999 Released: October 18, 1999 By the Deputy Chief, International Bureau: I. INTRODUCTION 1. By this Order, we deny EUTELSAT's Emergency Motion for Stay, filed on October 12, 1999. EUTELSAT requests the stay of the grant of Special Temporary Authority issued to Loral Orion Services, Inc. (Loral) on October 4, 1999, to launch a satellite to the 15 W.L. orbit location at its own risk and to perform in-orbit testing of that satellite at that location on a non- interference basis. EUTELSAT asks to stay the Special Temporary Authority pending action on its petition for reconsideration of that action. For the reasons discussed below, we conclude that EUTELSAT has not met the legal standard for a stay. II. BACKGROUND A. Procedural History 2. In 1995, under the "separate system" framework in effect prior to DISCO I , the International Bureau (Bureau) granted Loral conditional authority to construct, launch, and operate its Orion 2 satellite at the 12.0 W.L. orbital location. This authority was conditioned upon demonstration of financial qualifications to launch and operate the satellite for one year, and upon completion of consultations with INTELSAT. On August 13, 1999, Loral filed a request for final authority for Orion 2, asserting that it met those two conditions. Loral requested Special Temporary Authority on September 9, 1999, to launch this satellite and to conduct in-orbit tests at the 15 W.L. orbital location, while Loral and EUTELSAT continue coordination discussions with respect to EUTELSAT's satellite at 12.5 W.L. orbit location. We granted Loral Special Temporary Authority on October 4, 1999, emphasizing that Loral would launch its satellite at its own risk. We also stressed that the Special Temporary Authority should not be construed as Commission predisposition regarding Loral's application for final authority at 12.0 W.L. We further indicated that Loral would be required to move this satellite to another location assigned to Loral for a satellite operating in the Orion 2 frequency bands if it does not receive authority to operate at 12.0 W.L. On October 12, 1999, EUTELSAT filed a petition to stay Loral's Special Temporary Authority. B. Standard for Stay 3. EUTELSAT relies on the four-prong test for issuance of a stay set forth in the Virginia Jobbers case, as modified in Holiday Tours. Under this test, a stay is warranted if the moving party can demonstrate that (1) it is likely to prevail on the merits; (2) it will suffer irreparable harm absent a stay; (3) interested parties will not be harmed if the stay is granted; and (4) the public interest would favor a grant of the stay. Upon examination of the motion for stay, we find that EUTELSAT fails to meet all four prongs of the test. III. DISCUSSION A. EUTELSAT Is Not Likely to Prevail on the Merits 4. EUTELSAT maintains that it satisfies the first prong of the Virginia Jobbers test, i.e., that it is likely to prevail on the merits, for two reasons. First, EUTELSAT claims that the Special Temporary Authority is based on inaccurate assumptions. Second, EUTELSAT asserts that the Special Temporary Authority exceeds the Commission's authority under Section 25.113(g) of its rules. For the reasons discussed below, we find neither argument persuasive. 1. Factual Basis for Special Temporary Authority 5. According to EUTELSAT, Loral incorrectly claimed that EUTELSAT had consented to Loral's planned tests at 15§ W.L. EUTELSAT contends it had agreed only to a set of technical parameters to govern tests in the event that other agreements being negotiated by EUTELSAT and Loral concerning commercial operations on Orion 2 were successfully completed. The Bureau, however, did not rely on EUTELSAT's consent in issuing the Special Temporary Authority. Rather, the Bureau granted Special Temporary Authority because the technical agreement between Loral and EUTELSAT showed that in-orbit testing would not cause harmful interference to EUTELSAT. Further, the Bureau required Loral to conduct testing on a non-interference basis to their satellite systems and to terminate operations immediately in the event of interference. Because EUTELSAT has not shown that Loral's Special Temporary Authority was based on improper criteria, it has not shown that it is likely to prevail on the merits of its petition for reconsideration. 2. Legal Authority for Special Temporary Authority 6. EUTELSAT asserts that the Special Temporary Authority violates Section 25.113(g) of the Commission's rules, which states that launch authority must be "applied for and granted" before a space station may be launched into orbit. As an initial matter, if there were a procedural defect in our treatment of Loral's application for final authority, we subsequently cured that defect by acting on Loral's application for final launch authority. In any event, EUTELSAT has not shown, nor could it show, that granting Loral Special Temporary Authority before granting final operating authority in any way affects EUTELSAT's interests. This is because the Special Temporary Authority permits Loral to conduct its testing only on a non-interference basis, and because it does not confer to Loral the right to conduct commercial operations on Orion 2 at any orbit location not currently assigned to Loral. 7. In addition, the Commission clearly has statutory authority to issue Special Temporary Authority to launch and operate a satellite when those temporary operations would be in the public interest. EUTELSAT provides no support for its implicit contention that Section 25.113(g) in any way limits the Commission's power to grant requests for Special Temporary Authority. Indeed, as Loral notes, the Commission has granted Special Temporary Authority to launch a satellite prior to granting final operating authority. EUTELSAT has not provided any reason for treating Loral's Special Temporary Authority request any differently than other such requests. 8. Finally, contrary to EUTELSAT's suggestion, the Bureau already made a determination that grant of launch authority would serve the public interest when it granted Loral's unopposed application for conditional authority in 1995. The conditional grant required Loral to meet two requirements as a condition to receiving its final grant. EUTELSAT does not assert that Loral has not met these conditions. Rather, it suggests that the Commission should deny Loral launch authority because international coordination for Orion 2 has not been completed. We disagree that this constitutes a valid basis on which to deny Loral launch authority. 9. Loral's conditional grant was issued prior to the Commission's adoption of DISCO I in 1996. Under that procedure, operators of satellite systems separate from INTELSAT were permitted to use a two-step demonstration to show that they had the financial resources necessary to construct, launch, and operate a satellite system for one year. A separate system operator often had difficulty getting full financing for its satellite system before it completed INTELSAT consultation, which determined whether and under what circumstances it would be able to provide service. Therefore, the Commission granted separate systems conditional licenses upon a submission of a business plan, and final authority upon a showing of full financing once INTELSAT consultation was completed. 10. Thus, EUTELSAT is mistaken to the extent that it implies that the two-step licensing process applicable to separate system operators prior to DISCO I required an operator to make two separate demonstrations that launching its satellite would be in the public interest. Rather, once a separate system operator has conditional authorization, it needs to show only that it has adequate financing and has completed coordination with INTELSAT. Loral provided that information on August 13, 1999. Because reviewing those demonstrations were bright-line, fact-specific determinations, granting launch authority in the context of Loral's request for Special Temporary Authority rather than Loral's August 13 Letter did not affect EUTELSAT's interests in any way. 11. In any event, the Commission has never conditioned a grant of launch authority on completion of international coordination. Nothing in either the Commission's rules or the international Radio Regulations requires this result. Rather, the rules contemplate that the Commission may limit operations of the satellite to facilitate international coordination and that satellites that are not coordinated in accordance with international rules may operate on a non- interference basis. Accordingly, we conclude that EUTELSAT has not shown that it is likely to prevail on the merits of its petition for reconsideration. B. Irreparable Harm 12. EUTELSAT also has not satisfied the second prong of Virginia Jobbers. EUTELSAT maintains that it will suffer irreparable harm if Loral is permitted to launch its satellite. None of EUTELSAT's contentions on this issue are persuasive. First, EUTELSAT maintains that its pending petition for reconsideration of the grant of launch authority becomes moot if Loral is permitted to launch its satellite. EUTELSAT also asserts that allowing Loral to conduct in-orbit testing at 15 W.L. will "harm" EUTELSAT's "full legal rights" with respect to its operations at 14.8 W.L. Loral replies that other issues raised in EUTELSAT's petition for reconsideration are not mooted by the launch, and that EUTELSAT has not shown any harm resulting solely from the launch. We find Loral's argument more persuasive. The in-orbit testing issues in EUTELSAT's petition for reconsideration are still before us. We also agree with Loral that EUTELSAT is not harmed solely by virtue of the launch. In the Special Temporary Authority, we stated that we were not prejudging any issue regarding Loral's operations at any orbital location by permitting Loral to launch, and so EUTELSAT has no basis for assuming that the launch might cause it irreparable harm. Furthermore, Loral and EUTELSAT have agreed to technical parameters for any in orbit testing of the Orion 2 satellite at 15 W.L. that may take place in the future. Although the parties disagree as to whether EUTELSAT consented to these in-orbit tests themselves, it is clear that these tests will not result in any harmful interference to EUTELSAT, as long as the tests are conducted within the agreed parameters. Thus, EUTELSAT has no basis for asserting that the in-orbit tests will cause irreparable harm. 13. EUTELSAT also contends that permitting Loral to launch Orion 2 could upset the negotiating relationship between EUTELSAT and Loral. Assuming for the sake of argument that upsetting a negotiating relationship can constitute irreparable harm under any circumstances, we find that it does not constitute irreparable harm in this case. To satisfy the irreparable harm factor of the Virginia Jobbers test, courts and the Commission require the alleged harm to be "both certain and great; actual and not theoretical." EUTELSAT's concerns regarding its negotiating relationship with Loral are at best speculative, and so cannot be considered irreparable harm. 14. Finally, EUTELSAT asserts that the Special Temporary Authority prejudges EUTELSAT's opposition to Loral's application for final authority, because EUTELSAT claims that Loral will "insist" that it be allowed to operate Orion 2 once it has launched it. This assertion is speculative, and so cannot support a claim of irreparable harm. Merely observing that Loral may raise a particular argument in the future does not by itself provide a basis for even speculating whether the Bureau would find that argument persuasive. Furthermore, because the October 4 Special Temporary Authority stated explicitly that any launch was solely at Loral's own risk, EUTELSAT has no basis to assume that we have prejudged Loral's application for final operating authority, or that we will allow Loral to provide commercial service because it "insists." C. Grant Of The Stay Will Harm Loral And May Harm Third Parties 15. Further, we find that EUTELSAT has not met the third prong of Virginia Jobbers. Contrary to EUTELSAT's assertion, Loral contends that if the stay were granted, it would be subject to financial launch penalties of $10 million or more, and additional costs if the launch were delayed. We are not convinced by EUTELSAT that Loral would be able to recoup all of these penalties and costs. Finally, Loral explains that should the launch not take place due to a stay, there would be significant operational and safety risks. For these reasons, EUTELSAT has failed to demonstrate that Loral would not be harmed by a stay, as required by Virginia Jobbers. D. The Public Interest Will Not Be Served By Grant Of The Stay 16. Finally, we find that EUTELSAT has not met the fourth prong of Virginia Jobbers. It has not shown that the public interest will be served by the grant of the stay. EUTELSAT's motion refers, in part, to the need for a stay to avoid "substantially upsetting the current negotiating relationship between the parties" with respect to discussions concerning commercial and other matters. It does not serve the public interest for parties to invoke the Commission's processes, as EUTELSAT has done here, simply to retain or to gain an alleged advantage in commercial negotiations. This is particularly so where the action of which stay is sought is legal and proper in all respects, as demonstrated above. Finally, because launches must be scheduled months, if not years, in advance, it would be contrary to the public interest to require coordination to be completed before launches may be scheduled. This could significantly delay service to the public. Rather, imposing operating conditions on the satellite after it is launched, including, in extreme cases, a requirement that the satellite cannot operate at all, will ensure that the satellite does not cause harmful interference to other satellites while coordination is being completed. IV. ORDERING CLAUSES 17. Accordingly, IT IS ORDERED that the Emergency Motion for Stay filed by EUTELSAT on October 4, 1999 IS DENIED. 18. This Order is issued pursuant to Section 0.261 of the Commission's rules on delegated authority, 47 C.F.R.  0.261, and is effective upon release. Petitions for reconsideration under Section 1.106 or applications for review under Section 1.115 of the Commission's rules, 47 C.F.R.  1.106, 1.115, may be filed within 30 days of the date of the release of this Order. (See 47 C.F.R.  1.4(b)(2).) FEDERAL COMMUNICATIONS COMMISSION Anna Gomez Deputy Chief, International Bureau