Mobile-Satellite Service at 1610-1626.5 and 2483.5-2500 MHz

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 2

[ET Docket No. 92-28; FCC 95-71]

Mobile-Satellite Service at 1610-1626.5 and 2483.5-2500 MHz

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This Second Report and Order denies five pioneer's preference

requests submitted by Constellation Communications, Inc.

(Constellation), Ellipsat Corporation (Ellipsat), Loral Qualcomm

Satellite Services, Inc. (LQSS), Motorola Satellite Communications,

Inc. (Motorola), and TRW Inc. (TRW). These parties requested a

pioneer's preference for their proposals with regard to non-

geostationary (low-Earth orbit, or LEO) mobile-satellite service (MSS)

systems. In denying the requests, the Commission has determined that

none of these LEO MSS proponents pioneered an innovative new service or

technology.

EFFECTIVE DATE: May 15, 1995.

FOR FURTHER INFORMATION CONTACT: Ray LaForge, Office of Engineering and

Technology, telephone (202) 739-0598.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's

Memorandum Opinion and Order in ET Docket No. 92-28, adopted February

24, 1995 and released March 30, 1995. The complete text of this

Memorandum Opinion and Order is available for inspection and copying

during normal business hours in the FCC Public Reference Center (Room

239), 1919 M Street, NW, Washington, DC. The complete text of this

Memorandum Opinion and Order also may be purchased from the

Commission's duplication contractor, International Transcription

Service, Inc., 2100 M Street, NW, Suite 140, Washington, DC 20036,

(202) 857-3800.

[[Page 18779]]

Summary of Second Report and Order

1. In the Notice of Proposed Rule Making and Tentative Decision, ET

Docket No. 92-28, 7 FCC Rcd 6414, 57 FR 43434 (September 21, 1992), in

this proceeding, we decided not to award a pioneer's preference to any

of the five applicants proposing to establish LEO MSS systems. We were

unable to discern a significant innovation in any of the five proposals

that would warrant a preference grant. In each case, the technology

relied upon to show innovation appeared to have already been used on

existing satellite systems. Further, we found that none of the five

applicants demonstrated, at the time of filing of their applications

for a pioneer's preference, the technical feasibility of their

respective systems. As noted, the Second Report and Order affirmed the

Tentative Decision with respect to each of the five applicants. The

Commission reason for not awarding preferences to these applicants were

as follows.

2. First, Constellation requests a pioneer's preference for its

proposed LEO MSS system, stating that its proposal is innovative

because it would use: (1) Micro-satellites that are designed as an

outgrowth of other satellites that Constellation had pioneered for the

U.S. military; (2) dynamic receivers; and (3) a new launch vehicle that

enables satellites to be launched into orbit in a more cost-efficient

and reliable manner. Constellation proposes a nationwide satellite

service that would, inter alia, serve areas and people who do not

currently have access to any telecommunications service.

3. In the Tentative Decision, we concluded that Constellation's

proposal merely combined existing technologies and did not constitute

innovative achievements. We also noted that Constellation had neither

demonstrated that its micro-satellite and dynamic receiver are unique,

nor provided a technical showing to demonstrate that its design

surpassed the state-of-art in satellite communications technology.

Thus, we concluded that Constellation did not warrant a preference. No

commenting party addressed the tentative denial of Constellation's

request. Accordingly, in the Second R&O, we find no basis in the record

to indicate that an award of a pioneer's preference is warranted and

therefore, deny Constellation's pioneer's preference request.

4. Second, Ellipsat asserts that it was the first applicant for a

LEO system in these bands. Specifically, Ellipsat proposes to operate a

nationwide mobile voice and position determination service via small

low-Earth orbit satellites. Ellipsat requests a pioneer's preference

for its alleged pioneering proposal for a voice and position

determination LEO MSS system that: (1) Would be the first commercial

use of elliptical orbits that optimize coverage over the U.S.; (2)

would provide efficient spectrum use and facilitate sharing and

multiple entry by other licensees by using code division multiple

access (CDMA) spread spectrum technology; and (3) would utilize

``transparent interconnections'' between ground and satellite stations

resulting in a seamless communications network which will provide low-

cost, high-quality voice service. In addition, Ellipsat asserts that it

was the first to apply for a LEO MSS system in the 1.6 and 2.4 GHz

bands.

5. In the Tentative Decision, we concluded that Ellipsat failed to

meet its burden of demonstrating that its proposal is new and

innovative. We found that the techniques Ellipsat proposed to use

already exist in the satellite community and thus do not demonstrate an

innovative contribution. We stated that the elliptical orbits relied

upon by Ellipsat to demonstrate innovation have been used by U.S.

military satellites and the Russian Molnyia satellite system. Further,

we found that Ellipsat had not demonstrated that it had pioneered the

use of ``transparent interconnections'' between ground and satellite

components or CDMA technology. Also, we found that Ellipsat did not

have a significant lead over the other preference applicants in concept

design nor had it performed relevant verifiable experiments. Thus, we

stated that it would be inappropriate to single out Ellipsat for a

preference based on the timing of its submissions.

6. In comments to the Tentative Decision, Ellipsat supports our

decision not to award any pioneer's preferences in this proceeding.

Ellipsat states that if any preferences are awarded, it warrants a

grant since it was the first to propose a LEO satellite system above 1

GHz. Ellipsat did not submit additional information related to its own

proposed system, and no other party commented on the tentative denial

of Ellipsat's request. Accordingly, in the Second R&O, we find no basis

in the record to indicate that an award of a pioneer's preference is

warranted and, therefore, deny Ellipsat's pioneer's preference request.

7. Third, LQSS requests a pioneer's preference for its proposed

enhanced satellite system that it states can provide data and voice

transmission to hand-held portable transceivers and also provide

position determination services. LQSS argues that its proposed system

reflects substantial development of new system architecture and

provides for multiple users and interoperability with the existing

public telephone switched network. Further, it claims that its

satellite system design using eight satellites per circular orbital

plane, spot beams, smooth call hand-off, and a pilot channel for

synchronization with gateway stations is innovative. Further, LQSS

claims that is high system capacity accommodates thousands of voice and

data users simultaneously. LQSS proposes to use CDMA spread spectrum

technology that its Qualcomm subsidiary developed and patented. LQSS

submits that all of these developments constitute innovations that

satisfy the criteria for a pioneer's preference.

8. In the Tentative Decision, we found that LQSS's proposal offers

no contribution to communications technology that is significantly

innovative. No party commented on the tentative denial of LQSS's

request. Accordingly, in the Second R&O, we find no basis in the record

to indicate that an award of a pioneer's preference is warranted and,

therefore, deny LQSS's pioneer's preference request.

9. Fourth, Motorola requests a pioneer's preference for its

proposed LEO MSS system that it contends uses an innovative cellular

design and spot beam technology. Motorola states that in the case of

conventional cellular telephones, a static set of cells serves a large

number of mobile units, whereas in its proposed system, cells would, in

effect, move rapidly over the Earth while mobile units remain

relatively stationary. Motorola claims that the unique elements of its

system are its spectral efficiency and innovative design that includes

the use of intersatellite links, a combination of frequency division

multiple access and time division multiple access techniques, and bi-

directional capabilities.

10. In the Tentative Decision, we concluded that Motorola's

approach does not offer any significant improvements or innovations in

service or technology. We found that Motorola's use of inter-satellite

links and its concept of moving cells and spot beams have been utilized

in earlier satellite systems and are thus not innovative. As we stated

in the Tentative Decision, the U.S. military established inter-

satellite link (crosslink) feasibility in 1976. Further, the technique

of moving cells and spot beams has been utilized by the Department of

Defense on its satellites

[[Page 18780]]

to improve coverage and provide frequency reuse. We also disagree that

Motorola was the first to conceive and design a LEO satellite system

above 1 GHz. From the record, it appears that all of the pioneer's

preference applicants were performing research and developing their

proposals in approximately the same time frame. Motorola's comments do

not persuade us that the above findings were incorrect.

11. Further, we find that even if Motorola's system were

innovative, it still would not meet our pioneer's preference criteria

because Motorola did not demonstrate the technical feasibility of its

proposed system prior to the Notice of Proposed Rule Making and

Tentative Decision in this proceeding. Rather, the information

submitted by Motorola at that time related to major spacecraft and

ground segment systems and did not relate to the subsystem details

necessary to establish technical feasibility.

12. Motorola also argues that we erred when we permitted a group of

experts from other federal agencies to advise us on the merits of the

requests without opening the results of this review to public comment.

Motorola contends that this constituted peer review as contemplated by

us when we established the pioneer's preference rules in Docket 90-217

(see Report and Order GEN Docket 90-217, 6 FCC Rcd 3488, 56 FR 24011

(May 28, 1991)) and that we should have released the results of the

experts' evaluations to the public for comment. However, we disagree

that the review performed by representatives of other government

agencies constituted peer review. These representatives are employees

from other federal government agencies who have expertise in satellite

engineering matters. They were detailed by their agencies to the

Commission and performed duties as Commission staff. The Commission

brought these employees onboard using normal FCC personnel practices.

Further, we follow this course of action routinely when we need

additional resources or expertise in various matters. Here, the purpose

of the work detail was to provide additional analysis by government

experts of the pioneer's preference requests, but not to perform

independent peer review as discussed in the Report and Order in Docket

90-217, (see Report and Order GEN Docket 90-217, 6 FCC Rcd 3488, 56 FR

24011 (May 28, 1991)). Therein, we contemplated soliciting assistance

from either government or non-government experts who would not be

functioning as Commission staff. Thus, there was nothing unfair in the

Commission's use of employees on detail from other Government agencies

to assist in the review of the various proposals. For all of these

reasons, the Second R&O concludes that Motorola is not entitled to a

pioneer's preference and that the procedure used to reach that decision

was appropriate.

13. Finally, TRW requests a pioneer's preference for developing a

LEO MSS system that would use higher orbits to provide position

determination, voice communications, and data services to mobile users.

It claims that its proposed service is a significant and innovative new

use because the provision of co-primary mobile voice and data services

is not currently authorized in the 1.6 and 2.4 GHz bands. TRW states

that its system combines the advantages of LEO and geostationary orbit

(GSO) systems by providing low communications time delay compared to

the delay associated with GSO systems, while using higher elevation

angles than other LEO proponents to minimize obstruction by trees,

buildings, and terrain. Finally, TRW states that its proposed system

will provide inexpensive service to underserved segments of society,

including emergency service providers, farmers, ranchers, truckers, and

automobile, sea, and air travelers.

14. In the Tentative Decision, we concluded that although TRW's LEO

system would take advantage of higher orbits, its proposal was not

sufficiently innovative to warrant a preference. We found that TRW

merely had balanced the relative advantages and disadvantages of LEO

versus GSO systems.

15. In comments to the Tentative Decision, TRW states that we

pursued the most prudent and reasonable course in declining to award

any of the applicants a preference. No other party commented on the

proposed denial of TRW's request. Accordingly, in the Second R&O, we

find no basis in the record to indicate that an award of a pioneer's

preference is warranted and, therefore, deny TRW's pioneer's preference

request.

16. Accordingly, it is ordered, That the pioneer's preference

requests filed by Constellation Communications, Inc., Ellipsat

Corporation, Loral Qualcomm Satellite Services, Inc., Motorola

Satellite Communications, Inc., and TRW Inc. are denied. This action is

taken pursuant to sections 4(i), 303 (c), (f), (g), and (r) of the

Communications Act of 1934, as amended, 47 U.S.C. sections 154(i), 303

(c), (f), (g), and (r).

List of Subjects in 47 CFR Part 2

Radio.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 95-9092 Filed 4-12-95; 8:45 am]

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