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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 ) ) Telesat Canada ) Request for Declaratory Ruling or Petition for ) Waiver on Earth Stations' Use of ANIK E1 and ) ANIK E2 Satellite Capacity to Provide Basic ) File No. 116-SAT-STA-98 Telecommunications Service in the United States ) ) ORDER Adopted: December 8, 1999 Released: December 9, 1999 By the Chief, International Bureau: I. INTRODUCTION 1. In this Order, we add Telesat Canada's (Telesat's) ANIK E1 and ANIK E2 satellites, located at the 111.1§ W.L. and 107.3§ W.L. orbit locations, respectively, to the "Permitted Space Station" list. The Permitted Space Station list denotes all satellites with which U.S. earth stations with "routinely" authorized technical parameters are permitted to communicate without additional Commission action, provided that those communications fall within the same technical parameters and conditions established in the earth stations' licenses. The Commission recently established the "Permitted Space Station" list in the DISCO II First Reconsideration Order. This list is intended to streamline the process by which foreign- licensed satellites can access the U.S. market, and as a result, stimulate competition in the United States, provide consumers more alternatives in choosing communications providers and services, reduce prices, and facilitate technological innovation. ANIK E1 and ANIK E2 are the first non- U.S. satellites to be placed on the Permitted Space Station list. II. BACKGROUND 2. The Commission's DISCO II Order adopted a framework under which the Commission would consider requests for non-U.S. satellite systems to serve the United States. To implement this framework, the Commission, among other things, established a procedure by which a service provider in the United States could request immediate access to a foreign in-orbit satellite that would serve the U.S. market. This procedure requires a U.S. earth station operator seeking to communicate with a non-U.S. space station to file an earth station application for an initial license or a modification to an existing earth station license that specifically lists the foreign satellite as a permitted "point of communication." To determine whether the non-U.S. satellite complies with all applicable Commission requirements, the earth station application must be accompanied by the same detailed information about the non-U.S. space station and its operations that the Commission requires U.S. space station applicants to provide. Specifically, each application must contain the information required in Section 25.114 of the Commission's rules, which governs applications for space station authorizations. 3. On April 27, 1998, Telesat requested that the Commission issue a declaratory ruling or grant a petition for waiver of the Commission's earth station licensing procedures to permit U.S. earth stations to access the Canadian ANIK E1 and ANIK E2 satellites without requiring earth station licensees to file modification applications to add these satellites as authorized points of communication. Telesat notes that many U.S. earth station licenses permit licensees to communicate with "ALSAT," meaning "all U.S.-licensed satellites." Telesat requests us to broaden the scope of "ALSAT" to include the ANIK E1 and ANIK E2 satellites. 4. In the DISCO II First Reconsideration Order, the Commission specified a new procedure by which non-U.S. fixed-satellites operating in the conventional C- and Ku-bands may serve the U.S. market. Under this procedure, once a non-U.S. space station is permitted to access the U.S. market, it is placed on the "Permitted Space Station" list upon the applicant's request. This list will include all satellites with which U.S. earth stations with routinely- authorized technical parameters are permitted to communicate without additional Commission action, provided that those communications fall within the same technical parameters and conditions established in the earth stations' original licenses. The Permitted Space Station list will be maintained on our website, and will also be available via fax or e-mail. 5. In the DISCO II First Reconsideration Order, the Commission did not address issues specific to ANIK E1 and ANIK E2, but said we would address them in a separate proceeding. We act on Telesat's petition regarding ANIK E1 and ANIK E2 in this Order. GE American Communications, Inc. (GE Americom) filed an opposition to Telesat's petition to include ANIK E1 and ANIK E2 in any "ALSAT"-like designation. JFL Communications, Inc. (JFL) filed comments supporting Telesat's petition. Telesat filed a reply to GE Americom's opposition. III. DISCUSSION A. General Framework 6. In DISCO II, the Commission set forth the public interest analysis applicable in evaluating applications to use non-U.S. licensed space stations to provide satellite service in the United States. This analysis considers the effect on competition in the United States, spectrum availability, eligibility and operating (e.g., technical) requirements, and national security, law enforcement, foreign policy, and trade concerns. We evaluate the ANIK E1 and ANIK E2 requests under this framework. B. Competition Considerations 7. In DISCO II, the Commission established a rebuttable presumption in favor of entry by non-U.S. satellites licensed by World Trade Organization (WTO) Members to provide services covered by the U.S. commitments under the WTO Agreement on Basic Telecommunications Services (WTO Basic Telecom Agreement). These commitments included fixed-satellite service, except for direct-to-home (DTH) service. The Commission concluded that the market access commitments made by WTO Members under the WTO Basic Telecom Agreement will help ensure the presence and advancement of competition in the satellite services market and yield the benefits of a competitive marketplace to consumers in the United States and other countries. In this case, the presumption in favor of entry is applicable to Telesat, because Canada is a WTO Member, and Telesat will use ANIK E1 and ANIK E2 to provide fixed-satellite services, excluding DTH services, in the conventional C- and Ku-bands. No commenter in this proceeding has presented any arguments to rebut this presumption. 8. Nevertheless, GE Americom opposes treating ANIK E1 and ANIK E2 as "ALSAT" because it claims that Canada has not sufficiently opened its market to entry by foreign space station operators. GE Americom maintains that Telesat is the only authorized fixed-satellite service provider in Canada. Although GE Americom notes that Telesat's monopoly is scheduled to end on March 1, 2000, it claims that Industry Canada had proposed to require all new entrants into the Canadian market to serve all of Canada, including Northern Canada. GE Americom argues further that this "All Canada" requirement would be an unreasonable barrier to entry by non-Canadian providers into the Canadian market, and so would tend to perpetuate Telesat's monopoly in the Canadian market. 9. In DISCO II, the Commission adopted the presumption in favor of entry in lieu of the "Effective Competitive Opportunities for Satellites" test ("ECO-Sat test") it had originally proposed in the DISCO II Notice of Proposed Rulemaking. The ECO-Sat test requires parties to demonstrate that U.S.-licensed satellite systems have effective competitive opportunities in foreign markets. The Commission adopted a presumption in favor of entry for WTO-Member satellites providing WTO-covered services, after concluding that market access commitments made by WTO Members under the WTO Basic Telecom Agreement and the general procompetitive obligations of WTO Members under the General Agreement on Trade in Services (GATS) would enhance competition in the U.S. satellite services market. GE Americom is, in effect, requesting us to conduct an ECO-Sat test, and to ignore the presumption in favor of entry that the Commission adopted in DISCO II and that is applicable here. Moreover, we note that subsequent to the close of the pleading cycle in this proceeding, Industry Canada adopted a policy framework for evaluating the provision of fixed satellite services in the Canadian market that does not include an "All Canada" requirement. We find, therefore, that under the DISCO II presumption in favor of entry, GE Americom has failed to meet its burden to demonstrate competitive harm in the United States. We thus find that granting Telesat entry into the U.S. satellite market will further competition in the United States. C. Spectrum Availability 10. In DISCO II, the Commission determined that, given the scarcity of orbit and spectrum resources, it would consider spectrum availability as a factor in determining whether to allow a foreign satellite to serve the United States. This is consistent with the Chairman's Note to the WTO Basic Telecom Agreement, which states that WTO Members may exercise their domestic spectrum/frequency management policies when considering foreign entry. 11. In this case, the ANIK E1 and ANIK E2 satellites are located at orbital positions agreed to in a trilateral agreement among the United States, Canada, and Mexico. Consequently, the Commission has not licensed satellites at these locations. Allowing the ANIK E1 and E2 satellites to serve the United States from their respective orbit locations will not affect operations of any U.S.-licensed satellites nor contravene the Commission's spectrum/frequency management policies. D. Eligibility Requirements 1. Legal and Financial Qualifications 12. In DISCO II, the Commission stated it would require non-U.S. space station operators to meet the same technical, legal, and financial qualifications that U.S.-licensed space station operators must meet to obtain a license. In this case, we need not, however, require Telesat to demonstrate its financial qualifications to construct and launch satellites, because ANIK E1 and ANIK E2 are already in orbit. 13. With respect to legal qualifications, Telesat states that it will abide by the Commission's rules and policies regarding the provision of satellite services in the United States. Nothing in the record questions this representation. Accordingly, we conclude that Telesat has adequately demonstrated its legal and financial qualifications. 2. Technical Qualifications 14. The Commission's satellite licensing policy is predicated upon two-degree orbital spacing between geostationary satellites. This policy permits the maximum use of the geostationary satellite orbit. Applicants must demonstrate that they comply with the Commission's technical requirements, designed to permit two-degree orbital spacing, before being authorized to provide service in the United States. The Commission may license satellites that are not two-degree compliant (or earth stations seeking to access such), but only when the applicants can demonstrate that their operations will cause no harmful interference to existing compliant satellite operations. Further, non-conforming operations are authorized conditioned upon a licensee accommodating future satellite networks serving the United States that are two-degree compliant. 15. Telesat states that it has completed coordination internationally for the ANIK E1 and ANIK E2 satellites. Accordingly, Telesat is not required to submit technical information for ANIK E1 and ANIK E2. Based on the information exchanged with Canada during the coordination, we can determine that the ANIK E1 and ANIK E2 satellites will not cause harmful interference to U.S.-licensed satellites, the nearest of which is more than two degrees away. Absent the more detailed technical information required by Section 25.114 of the Commission's rules, however, we cannot determine whether these satellites can operate interference-free in a two-degree spacing environment. Accordingly, consistent with our treatment of U.S.-licensed systems, we permit ALSAT-designated earth stations to communicate with the ANIK E1 and ANIK E2 satellites to provide service in the United States, on a non-interference basis relative to two-degree-compliant satellite systems currently in operation. 16. Further, the ANIK E1 and ANIK E2 satellites are located at orbital positions subject to a trilateral agreement among the United States, Canada, and Mexico. Based on that agreement, we do not expect these satellites to cause harmful interference to any U.S. or foreign licensed satellite network now serving the United States. In the future, however, should the Commission authorize access to the U.S. market by a satellite that is two-degree-compliant, and is located within two degrees of the ANIK E1 or ANIK E2 satellites, Telesat would be expected to coordinate in good faith with the licensee of that satellite. If a coordination agreement is not reached, the operation of U.S. earth stations communicating with the ANIK E1 or ANIK E2 satellites must be on a non-interference basis relative to U.S. services provided by the compliant satellite. 17. Finally, Telesat recognizes that earth stations accessing ANIK E1 with a Ku-band uplink originating in the United States must "use a sufficiently large antenna" to comply with the input power density requirements of Section 25.212(c) of the Commission's rules. Section 25.212(c) establishes a minimum antenna diameter of 1.2 meters for routine licensing of Ku-band earth stations operating within certain power density requirements. Because only routinely licensed antennas are permitted to access space stations on the "Permitted List," smaller antennas cannot automatically access ANIK E1 without further Commission action. To ensure that there is no confusion in this regard, we will include in the Permitted List entry for ANIK E1 a condition that requires earth stations to comply with Section 25.212(c), including the 1.2-meter minimum size standard, in order to access ANIK E1. E. Other Issues 18. As described above, under DISCO II, national security, law enforcement, foreign policy, and trade concerns are included in the public interest analysis. No party objected to the authorization we grant today on these grounds. IV. ORDERING CLAUSES 19. Accordingly, IT IS ORDERED that, pursuant to Sections 303(r), 308, 309, and 310 of the Communications Act of 1934, as amended, 47 U.S.C.  303(r), 308, 309, 310, and Sections 25.121(a) and 25.137(c) of the Commission's rules, 47 C.F.R.  25.121(a), 25.137(c), each earth station with "ALSAT" designated as a point of communication, IS GRANTED authority to provide Fixed Satellite Services (FSS), excluding FSS Direct-to-Home services, to, from, or within the United States, by accessing the ANIK E1 and ANIK E2 satellites, located at the 111.1 W.L. and 107.3 W.L. orbit locations, respectively, the subject to the conditions set forth in its earth station license and in this Order above. 21. IT IS FURTHER ORDERED that the ANIK E1 and ANIK E2 satellites, together with the conditions set forth in this Order, SHALL BE PLACED on the "Permitted Space Station" list. 22. IT IS FURTHER ORDERED that this authorization does not authorize Telesat to provide any Direct-to-Home (DTH) service, Direct Broadcast Satellite (DBS) service, or Digital Audio Radio Service (DARS) to, from, or within the United States. 23. IT IS FURTHER ORDERED that access to ANIK E1 and ANIK E2 shall be in compliance with the satellite coordination agreements reached between the United States and Canada regarding the operations of ANIK E1 and ANIK E2. 24. IT IS FURTHER ORDERED that operations over the ANIK E1 and ANIK E2 satellite networks shall not cause harmful interference to, nor shall operators accessing these satellite networks claim protection from, U.S. services provided by U.S.-authorized satellite networks that are compliant with the Commission's two-degree spacing rules. 25. IT IS FURTHER ORDERED that operations over the ANIK E1 and ANIK E2 satellite networks shall not cause harmful interference to, nor shall operators accessing these satellite networks claim protection from, U.S.-authorized services provided over non-U.S.- authorized satellite networks that are compliant with the Commission's two-degree spacing rules. 26. IT IS FURTHER ORDERED that operations over and access to the ANIK E1 and ANIK E2 satellite networks shall cease immediately upon notification of harmful interference. Complaints of all radio interference shall be forwarded to the Commission in writing. 27. IT IS FURTHER ORDERED that this Order is issued pursuant to Sections 0.261 and 25.137 of the Commission's rules on delegations of authority, 47 C.F.R.  0.261, 25.137. This Order SHALL BE effective upon the date that the rule revisions adopted in the DISCO II First Reconsideration Order, FCC 99-325, take effect. 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 effective date of this Order. FEDERAL COMMUNICATIONS COMMISSION Donald Abelson Chief, International Bureau