[Federal Register Volume 69, Number 38 (Thursday, February 26, 2004)]
[Notices]
[Pages 8965-8966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4267]



[[Page 8965]]

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FEDERAL COMMUNICATIONS COMMISSION

[FCC 04-8]


Auction of Direct Broadcast Satellite Licenses

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: The Commission affirms that its authority to auction licenses 
for Direct Broadcast Satellite service channels at orbit locations to 
which the United States is assigned by the International 
Telecommunication Union has not been altered by regulatory and 
statutory actions taken since DBS auctions were last held in 1996. The 
Commission also declines to impose eligibility restrictions on the 
three available DBS licenses to operate at the western orbit locations 
of 175[deg] W.L., 166[deg] W.L., and 157[deg] W.L. This action will 
enable the Commission to proceed expeditiously with the auction of 
these three DBS licenses.

DATES: Effective February 26, 2004.

FOR FURTHER INFORMATION CONTACT: Diane Conley, Auctions and Spectrum 
Access Division, Wireless Telecommunications Bureau, (202) 418-0786; 
Douglas Webbink, International Bureau, (202) 418-1494.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Auction of Direct Broadcast Satellite Licenses Order (``DBS Order''), 
released on January 15, 2004. The complete text of the DBS Order as 
well as related Commission documents are available for public 
inspection and copying during regular business hours at the FCC 
Reference Information Center, Portals II, 445 12th Street, SW., Room 
CY-A257, Washington, DC 20554. The DBS Order and related Commission 
documents may also be purchased from the Commission's duplicating 
contractor, Qualex International, Portals II, 445 12th Street, SW., 
Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 
202-863-2898, or via e-mail [email protected]. When ordering documents 
from Qualex, please provide the appropriate FCC document number (for 
example, FCC 04-8 for the DBS Order). The DBS Order and related 
documents are also available on the Internet at the Commission's Web 
site: http://wireless.fcc.gov/auctions/52/.

I. Introduction

    1. In the DBS Order, the Commission affirms that its authority to 
auction licenses for Direct Broadcast Satellite (``DBS'') service 
channels at orbit locations to which the United States is assigned by 
the International Telecommunication Union (``ITU'') has not been 
altered by regulatory and statutory actions taken since DBS auctions 
were last held in 1996. The Commission also declines to impose 
eligibility restrictions on the three available DBS licenses to operate 
at the western orbit locations of 175[deg] W.L., 166[deg] W.L., and 
157[deg] W.L. The Commission does not address in the DBS Order the 
question of whether any eligibility restrictions are appropriate for 
the license to use the two available channels at the eastern orbit 
location of 61.5[deg] W.L. but instead defers the resolution of this 
matter to a subsequent order.

II. Background

    2. Eight orbit positions were assigned to the United States for 
DBS, under the auspices of the ITU, at the 1983 Regional Administrative 
Radio Conference for the Planning in Region 2 of the Broadcasting-
Satellite Service in the Frequency Band 12.2-12.7 GHz and Associated 
Feeder Links in the Frequency Band 17.3-17.8 GHz. Under this Region 2 
Band Plan for Ku-band DBS satellites (``ITU Region 2 Band Plan''), 
which was agreed upon by the nations present, the orbit slots assigned 
to the United States are for coverage of the United States.
    3. The Commission first adopted competitive bidding rules for the 
DBS service in 1995. Revision of Rules and Policies for the Direct 
Broadcast Satellite Service, Report and Order, 60 FR 65587, December 
20, 1995. In 2002, the Commission released Policies and Rules for the 
Direct Broadcast Satellite Service, Report and Order (``Part 100 
R&O''), 67 FR 51110, August 7, 2002, in which it streamlined the 
regulation of DBS and moved the DBS rules from part 100 to part 25.
    4. On March 3, 2003, the Commission issued a public notice 
announcing an auction of DBS licenses (the Auction No. 52 Comment 
Public Notice, 68 FR 12906, March 18, 2003), in which it sought comment 
on its conclusion that the Commission has the authority to auction the 
DBS licenses included in Auction No. 52 and on a number of questions 
regarding whether eligibility restrictions are warranted for any of the 
licenses to be offered in Auction No. 52.
    5. Pursuant to its delegated authority, the Wireless 
Telecommunications Bureau will resolve all the procedural issues 
relating to Auction No. 52 on which the Commission sought comment in 
the Auction No. 52 Comment Public Notice will adjust the license 
inventory of Auction No. 52 to reflect the Commission's resolution of 
the eligibility issue for three licenses in the DBS Order, and will 
announce a new start date for the auction.

III. Discussion

A. The Commission's Authority To Auction DBS Licenses

    6. The Commission concludes that it has the authority to auction 
the DBS licenses included in Auction No. 52, as well as any other 
licenses for DBS channels at the eight orbit locations assigned to the 
United States under the current ITU Region 2 Band Plan that may become 
available in the future. The Commission concludes that section 647 of 
the Open-Market Reorganization for the Betterment of International 
Telecommunications Act (``ORBIT Act''), 47 U.S.C. 765f, which prohibits 
the use of competitive bidding to assign orbit locations or spectrum 
used ``for the provision of international or global satellite 
communications services,'' does not prohibit the use of auctions to 
assign licenses for DBS channels at the eight orbit locations assigned 
to the United States under the ITU Region 2 Band Plan. This is because 
the Commission finds that the DBS service authorized under such 
licenses is not an ``international or global satellite communications 
service.'' Under the technical parameters of the ITU Region 2 Band 
Plan, these licenses are designed to provide service almost exclusively 
to the United States, and they must be used to provide a service 
delivered almost exclusively to U.S. consumers.
    7. The Commission does not read the ORBIT Act auction prohibition 
to bar the use of the competitive bidding process for any service that 
provides incidental transborder service. Moreover, visibility of areas 
outside the United States from orbit locations assigned to the United 
States does not make service provided from these locations an 
international service. For coverage beyond that described in the ITU 
Region 2 Band Plan, a modification to the Plan, including further 
modifications of allocations currently in the Plan, would be required, 
and modifications of the ITU Region 2 Band Plan are not obtained as a 
matter of routine. The Commission also disagrees with the argument that 
the ORBIT Act prohibits auctions of DBS licenses because DBS service is 
provided on spectrum that is used for the provision of non-
geostationary satellite orbit fixed-satellite service.
    8. The Commission also concludes that, although it removed its own 
regulatory obstacles to the provision of DBS service outside the United 
States

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from the U.S. orbit locations in Amendment to the Commission's 
Regulatory Policies Governing Domestic Fixed Satellites and Separate 
International Satellite Systems, Report and Order (``DISCO I''), 11 FCC 
Rcd 2429 (1996), that decision had no effect on DBS operators' 
obligation to comply with the ITU Region 2 Band Plan. Therefore, the 
Commission finds that DISCO I should not be read to mean that the DBS 
licenses that it intends to assign by competitive bidding are to be 
used to provide an international satellite service, or to establish a 
basis for concluding that the auction prohibition of the ORBIT Act 
should apply to such U.S.-assigned DBS licenses. The Commission's 
conclusion that DBS service from the eight orbit locations assigned to 
the United States is predominantly domestic is consistent with actual 
service offerings and does not represent a departure from DISCO I.

B. Eligibility for the Three Available Western DBS Licenses

    9. The Commission declines to adopt any eligibility restrictions 
for the three available DBS licenses at the 175[deg] W.L., 166[deg] 
W.L., and 157[deg] W.L. orbit locations. In the part 100 proceeding, it 
considered a wide range of questions relating to whether ownership 
restrictions of any kind are appropriate for the DBS service, and it 
concluded that generally they were not.
    10. No commenter proposed any eligibility restrictions for the 
available licenses at the 175[deg] W.L., 166[deg] W.L., and 157[deg] 
W.L. orbit locations. This results in a record that lacks information 
regarding circumstances that would cause the Commission to impose 
eligibility restrictions in the DBS service with respect to these three 
licenses. Therefore, based on the record before it, the Commission 
concludes that there is no reason for it to deviate from any of its 
decisions in the Part 100 R&O as they apply to these licenses.
    11. On the other hand, the Commission has received detailed 
comments presenting a number of arguments regarding the issue of 
whether it should adopt eligibility restrictions for the available 
license at 61.5[deg] W.L. The Commission will address the matter of 
eligibility for the 61.5[deg] W.L. license in a separate order, which 
it will issue as soon as it resolves the relevant issues that have been 
raised with respect to that license.

IV. Conclusion

    12. For the reasons stated above, the Commission concludes that it 
has the authority to auction DBS licenses for the use of channels at 
the eight orbit locations to which the United States is assigned under 
the ITU Region 2 Band Plan, and that this authority has not been 
altered or diminished by the Commission's adoption of DISCO I or the 
enactment of section 647 of the ORBIT Act. The Commission also 
concludes that no eligibility restrictions on the available DBS 
licenses at the 175[deg] W.L., 166[deg] W.L., and 157[deg] W.L. orbit 
locations are warranted, and it will maintain its policy of open 
eligibility for these licenses. The Commission reaches no conclusions 
concerning whether it should impose any eligibility restrictions on the 
license for the two unassigned channels at the 61.5[deg] W.L. orbit 
location and defers the resolution of that issue to a separate order.

V. Ordering Clause

    13. Accordingly, it is ordered that, pursuant to sections 4(i), 
303(r), and 309(j) of the Communications Act of 1934, as amended, 47 
U.S.C. 154(i), 303(r), and 309(j), the DBS Order is hereby adopted.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 04-4267 Filed 2-25-04; 8:45 am]
BILLING CODE 6712-01-P