July 23, 1999
The Honorable William E. Kennard Dear Chairman Kennard: I am writing to express my hope and expectation that the Federal Communications Commission will act promptly on the pending applications to communicate with the satellites of New Skies Satellites N.V. Moreover, I trust that the Commission’s decision will be based on the law and properly presented evidence, not on the basis of unsupported and conclusory allegations and political arguments about what legislation Congress may enact in the future. In recent days, I have become aware of correspondence addressed to the Commission by some of my colleagues in the House and Senate making factual claims about New Skies that have not been subjected to cross-examination or other scrutiny on the record, as they should be in a proceeding such as this. These allegations have been coupled with predictions about congressional action that are evidently intended to dissuade the Commission from adhering to current law. It would be unfair, capricious, and inappropriate for the Commission to act (or fail to act) on these highly questionable bases. Indeed, these communications have been so pointed as to raise questions concerning whether the Pillsbury case and its progeny might be implicated. Although I do not want to engage in the same sort of argument at length, a few simple and uncontroverted facts cast strong doubt on the claims being made by New Skies’ opponents. First, New Skies -- unlike Intelsat -- is a private commercial company with no intergovernmental privileges and immunities. Second, its fleet consists of five satellites, one of which, I understand, is nearing the end of its useful life. By contrast, PanAmSat has 19 satellites at present and has announced plans to launch six additional ones next year, which will make it by far the largest satellite operator in the world. Under these circumstances, it hardly seems that New Skies would be in any position to hinder or distort competition in the United States market. Indeed, to the best of my knowledge, every user of satellite services that has participated in the Commission’s proceeding has urged that New Skies promptly be granted unconditional market access. Although it is not surprising that competitors would want to keep New Skies out of their market, the logic of excluding an additional competitor on so-called "pro-competitive" grounds eludes me. The satellite users’ position is the most credible evidence that granting New Skies’ petition will promote, not hinder, competition in the marketplace. When a party comes before an agency to seek operating authority or any other official action, that party is entitled at a minimum to have the applicable statutes, rules, procedures, and precedents applied fairly and even-handedly. New Skies is entitled to no less in this case. Moreover, while advocates of any pending legislation may understandably argue that passage and a Presidential signature are imminent, experience teaches us differently. The same argument could well have been made about satellite legislation in the 105th Congress, and at this moment there is no telling what the 106th Congress may do on this issue. Relying on such predictions of congressional action is a prescription for agency paralysis. Meanwhile, New Skies has a business to run, and its temporary authority expires at the end of this month. If the Commission determines that the pending applications for permanent authority comply with current statutory and regulatory requirements, the applications should be approved without conditions. Thank you for your consideration. Sincerely, JOHN D. DINGELL cc: Commissioner Susan Ness
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