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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* DA 96-1128 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of the Applications of ) ) TELQUEST VENTURES, L.L.C. ) ) For a License for a Fixed-Satellite Transmit/ ) Receive Earth Station to Communicate with a ) Canadian DBS Satellite to be located at ) 91 Degrees W.L. and for Blanket License Authority ) to Construct and Operate One Million Receive-Only ) Earth Stations for use with a Canadian DBS Satellite ) to be Located at 91 Degrees W.L. ) ) and ) ) WESTERN TELECOMMUNICATIONS, INC. ) ) For a License for a Fixed-Satellite Transmit/Receive ) Earth Station to Communicate with Transponders ) on a Canadian DBS Satellite to be located at ) 82 Degrees W.L. ) File Nos. 758-DSE-P/L-96 759-DSE-L-96 File No. 844-DSE-P/L-96 REPORT AND ORDER Adopted: July 15, 1996 Released: July 15, 1996 By the Acting Chief, International Bureau: Introduction 1.By this Order we dismiss, without prejudice, the earth station applications of Telquest Ventures, L.L.C. ("Telquest") and Western Tele-Communications, Inc. ("WTCI") to provide Direct Broadcast Satellite ("DBS") Service using Canadian satellites. WTCI and Telquest propose to provide DBS service using transponders on satellites to be located in Canadian DBS orbital locations at 82§ W.L. and 91§ W.L., respectively. Since Canada has not yet issued licenses for satellites at these orbital locations we dismiss, without prejudice, the applications as premature. Background 2.Telquest seeks authority to construct and operate a fixed transmit/receive earth station in Sedalia, Colorado to uplink and receive U.S. and Canadian DBS programming using 22 transponders on a Canadian satellite to be located at 91§ W.L. Telquest also requests a blanket license for one million receive-only earth stations to offer its DBS service to residential and business customers. WTCI seeks authority to provide U.S. DBS service by uplinking U.S. programming from its existing earth station facilities in Littleton, Colorado using 27 transponders on a Canadian satellite to be located at 82§ W.L. According to the applicants, the remaining transponders on both satellites would be used by a Canadian operator to serve Canada. Both satellites are being built by WTCI and would be sold to a Canadian corporation, Telesat Canada, which is seeking the satellite licenses from the Canadian Government. 3.WTCI and Telquest maintain that grant of their requests will serve the public interest. WTCI asserts that prompt authorization would allow it to launch a high power DBS service within six months and bring immediate competition to the U.S. DBS market. Telquest states that its proposed service will allow wireless cable operators to compete in the video programming market by providing nationwide television programming that can be integrated with local programming. Cable Telecommunications Association ("CATA"), which filed in support of both applications, asserts that grant of the applications will permit small and rural cable television systems to have affordable access to a technology that will allow them to compete with other providers of video programming. Numerous small businesses also filed letters supporting Telquest's application. 4.DIRECTV, Inc. filed a petition to deny both applications. Echostar Satellite Corporation and Echostar DBS Corporation filed a joint petition to deny both applications, as did MCI Telecommunications Corporation (MCI) and News Corporation Limited (NewsCorp). United States Satellite Broadcasting Company ("USSB") filed a petition to deny against only WTCI's application. AlphaStar Television Network, Inc., and the State of Hawaii filed comments opposing both applications, while AT&T Corp. filed comments opposing Telquest's application. 5.Petitioners assert that the earth station applications are premature since Canada has not issued licenses for satellites to be located at 82§ W.L. and 91§ W.L. EchoStar and USSB have requested that the Commission deny or dismiss the applications until such action is taken by the Canadian government. Petitioners argue further that even if the licenses for the satellites were to be issued, the applications should be denied. They contend that there is a sufficient number of U.S.-licensed DBS satellites to serve the U.S. market. They also note that Canada severely restricts the manner in which U.S. programming may be provided to and U.S. satellites may be used to provide service in Canada. Petitioners also argue that grant of WTCI's application could adversely impact competition in the U.S. multichannel video programming distribution ("MVPD") market because WTCI's parent corporation, Tele-Communications, Inc. ("TCI"), has a substantial market position through its cable and DBS holdings. 6.The U.S. Trade Representative, Department of State, Department of Commerce, and Department of Justice filed a joint letter with the Commission ("Executive Branch letter") recommending that we treat the applications as premature given that Canada has not yet licensed the satellites. The Executive Branch highlighted four concerns with regard to the applications. 7.First, the Executive Branch expressed concerns that grant of WTCI and Telquest's applications could impact U.S. obligations under international agreements. Second, the Executive Branch noted that Canada's content restrictions serve to discriminate against U.S. and other foreign programmers and service providers by mandating a minimum amount of Canadian content in television, cable, and DTH broadcasting. Third, the Executive Branch asserts that Canada maintains restrictions over the use of non-Canadian satellites for the distribution of telephony and broadcasting services to Canada and would therefore not permit a U.S.-licensed satellite to provide DTH service to Canada. Finally, the Executive Branch raised the concern that WTCI's proposal might implicate competition issues in the U.S. market. 8.On July 11, 1996, Telquest filed a Motion requesting that the Commission defer action on its application to give Telquest an opportunity to respond to the issues raised in the Executive Branch's letter. Telquest requests that we wait an additional two weeks before issuing a decision. On July 12, 1996, WTCI filed a letter in response stating that it would not object to a "brief deferral" of Commission action on its application because its launch window has been postponed until December. Discussion 9.WTCI and Telquest have applied for earth station licenses for communication with satellites that have not yet been licensed by any administration. For the reasons discussed below, we find that these applications are premature. Consistent with Commission precedent, we dismiss these applications without prejudice. Telquest and WTCI may properly file their earth station applications with the Commission if and when the space stations with which they intend to communicate are licensed. 10. We generally do not act on earth station applications unless the space station with which the earth station intends to communicate has been licensed. The purpose of this practice is to deter premature filings and not to expend Commission resources in maintaining premature files pending the outcome of uncertain licensing decisions. In addition, the Commission has no wish to encourage applicants to file competing premature applications in the hope of obtaining earth station authorizations from this administration for the purpose of influencing the space station licensing decisions of foreign administrations. It has thus generally been our practice, when the space station in question has not yet been authorized, to return the earth station application without prejudice to refiling when the space station is actually authorized. 11. In this case, Canada has not licensed the satellites the applicants seek to use, and indeed it has been brought to our attention that a different Canadian company, PowerDIRECTV, has contacted the Canadian government regarding its intention to file a competing application for the 91§ W.L. orbit location. For its part, Telesat Canada confirms only that the applications have received the "support" of Canada's Minister of Industry, subject to certain conditions. We therefore agree with the Executive Branch and several petitioners that the earth station applications are premature, and we dismiss the applications without prejudice to refile. 12. Because we dismiss the applications on procedural grounds, we need not address any substantive issues raised by the pleadings and by the Executive Branch letter at this time. Therefore, we dismiss the petitions to deny to the extent they raise issues not disposed of in this decision. For the same reason, we see no reason to grant Telquest additional time in which to respond to the Executive Branch letter. Accordingly, we also dismiss Telquest's motion for a two week deferral of action. Nevertheless, we wish to make clear that if the satellites are ultimately licensed and the parties refile their earth station applications, we would take into serious consideration the concerns raised by the Executive Branch and would encourage the parties to address those concerns. Conclusion 13. For these reasons, we dismiss, without prejudice, the applications of WTCI and Telquest as premature. Ordering Clauses 14. Accordingly, IT IS ORDERED that the applications of Western Tele-Communications, Inc. and Telquest Ventures, L.L.C. ARE DISMISSED without prejudice. 15. IT IS FURTHER ORDERED that the Petitions to Deny or Dismiss filed by EchoStar DBS Corporation, EchoStar Satellite Corporation, and the United States Satellite Broadcasting Company and the Consolidated Petition to Deny of MCI Telecommunications, Inc. and the News Corporation, Limited ARE GRANTED, IN PART, AND DISMISSED IN PART. The Petition to Deny, filed by DIRECTV, Inc. IS DISMISSED. FEDERAL COMMUNICATIONS COMMISSION Donald H. Gips Acting Bureau Chief