[Federal Register Volume 60, Number 71 (Thursday, April 13, 1995)]
[Rules and Regulations]
[Pages 18778-18780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9092]
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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]
BILLING CODE 6712-01-M
