Preview
FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020
NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021
EXHIBIT C
FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020
NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021
Federal Communications Commission FCC 03-15
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Flexibility for Delivery of Communications by )
Mobile Satellite Service Providers in the 2 GHz ) IB Docket No. 01-185
Band, the L-Band, and the 1.6/2.4 GHz Bands; )
)
Review of the Spectrum Sharing Plan Among )
Non-Geostationary Satellite Orbit Mobile Satellite ) IB Docket No. 02-364
Service Systems in the 1.6/2.4 GHz Bands )
)
REPORT AND ORDER
AND NOTICE OF PROPOSED RULEMAKING
Adopted: January 29, 2003 Released: February 10, 2003
Comment date [30 days after Federal Register publication]
Reply Comment date [45 days after Federal Register publication]
By the Commission: Chairman Powell, Commissioners Abernathy and Adelstein issuing separate
statements; Commissioner Copps approving in part, dissenting in part and issuing a
statement
TABLE OF CONTENTS
Heading Paragraph No.
I. INTRODUCTION.................................................................................................................................. 1
II. BACKGROUND.................................................................................................................................... 6
A. ATC Concept ................................................................................................................................... 7
B. Flexibility Notice ........................................................................................................................... 15
C. Other Proceedings.......................................................................................................................... 17
III. DISCUSSION ...................................................................................................................................... 18
A. MSS ATC Primary Proposal.......................................................................................................... 19
1. Proposed ATC Use of the Frequency Spectrum...................................................................... 19
2. Operational Benefits................................................................................................................ 23
3. Protecting the Public ............................................................................................................... 28
4. Strengthening Competition...................................................................................................... 30
B. Alternative Proposals ..................................................................................................................... 46
1. Same-Band, Separate-Operator Sharing.................................................................................. 47
2. Separate-Band, Separate-Operator Sharing............................................................................. 56
3. Secondary Terrestrial Service ................................................................................................. 59
4. Conclusion............................................................................................................................... 65
C. MSS ATC Service Rules ............................................................................................................... 66
1. “Ancillary” Service ................................................................................................................. 67
1
FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020
NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021
Federal Communications Commission FCC 03-15
2. Substantial Satellite Service .................................................................................................... 72
a. Geographic Coverage ....................................................................................................... 73
b. Coverage Continuity ......................................................................................................... 78
c. Commercial Availability................................................................................................... 85
3. Integrated Service Offering ..................................................................................................... 87
4. In-Band Operation................................................................................................................... 89
5. Central Data Switching ........................................................................................................... 94
6. Other Proposed Requirements................................................................................................. 98
D. Technical Requirements and Rules for Terrestrial Operations .................................................... 103
1. 2 GHz MSS Band .................................................................................................................. 105
a. Intra-Service Sharing ...................................................................................................... 110
b. Inter-Service Sharing ...................................................................................................... 115
c. Conclusion ...................................................................................................................... 127
2. L-Band................................................................................................................................... 128
a. Intra-Service Sharing – Protection of Adjacent Channel and Adjacent Beam MSS
Operations....................................................................................................................... 130
(i) Effect of ATC Operations on Inmarsat Satellites..................................................... 132
(ii) Effect of ATC Base Stations on Inmarsat MES ....................................................... 148
(iii) Effect of ATC on Airborne Inmarsat Terminals ...................................................... 158
(iv) Other Inmarsat Arguments ....................................................................................... 162
b. Inter-service Sharing – Protection of Adjacent Service Systems.................................... 170
(i) Systems Operating Within the 1525-1559 MHz and 1626.5-1660.5 MHz
Bands of the L-Band Spectrum ................................................................................ 171
(ii) Systems Operating Within the 1626.5-1660.5 MHz Portion of the L-Band
Spectrum................................................................................................................... 175
(iii) Systems Operating Within the 1525-1559 MHz Band Portion of the L-Band
Spectrum................................................................................................................... 176
(iv) Systems Operating Adjacent to the 1626.5-1660.5 MHz Portion of the L-
Band ......................................................................................................................... 178
(v) Systems Operating Adjacent to the 1525-1559 MHz Band ..................................... 179
c. Technical and Operational Provisions for L-Band ATC ................................................ 185
3. Big LEO Systems .................................................................................................................. 189
a. Protection of In-band Systems in the 1610-1626.5 MHz Band ...................................... 194
b. Protection of Systems Operating in Bands Adjacent to 1610-1626.5 MHz ................... 197
c. Protection of Systems Operating in and Near the 2483.5-2500 MHz Band ................... 201
E. Statutory Considerations.............................................................................................................. 207
1. Section 303(y) ....................................................................................................................... 207
a. Investment Incentives ..................................................................................................... 209
b. Consistency with International Agreements ................................................................... 212
(i) L-Band...................................................................................................................... 212
(ii) Other Bands.............................................................................................................. 216
2. Section 309(j) ........................................................................................................................ 219
a. Section 309(j)(1) ............................................................................................................. 220
b. Section 309(j)(3) ............................................................................................................. 227
c. Other Matters .................................................................................................................. 230
3. Section 332 ............................................................................................................................ 231
F. Modification of Table of Allocations .......................................................................................... 235
G. Licensing Requirements............................................................................................................... 237
1. Modification of MSS Space-Station Authorizations ............................................................. 237
2. Foreign-Licensed MSS Providers ......................................................................................... 242
2
FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020
NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021
Federal Communications Commission FCC 03-15
3. MSS ATC Handset Earth Station Licensing ......................................................................... 246
4. Construction Prior to MSS Operation ................................................................................... 249
H. Administrative Procedures........................................................................................................... 251
1. Further Delay Unwarranted in the 2 GHz MSS Bands ......................................................... 254
2. Further Delay Unwarranted in the Big LEO Bands .............................................................. 259
IV. NOTICE OF PROPOSED RULEMAKING ...................................................................................... 261
A. Background.................................................................................................................................. 262
B. Big LEO CDMA Spectrum Proposals ......................................................................................... 265
C. Comment Dates............................................................................................................................ 274
V. PROCEDURAL MATTERS.............................................................................................................. 278
VI. ORDERING CLAUSES..................................................................................................................... 282
Appendix A: List of Commenting Parties
Appendix B: Rules
Appendix C1: 2 GHz MSS Band Technical Analysis
Appendix C2: L-Band Technical Analysis
Appendix C3: Big LEO Band Technical Analysis
Appendix D: Final Regulatory Flexibility Act Certification
Appendix E: Initial Regulatory Flexibility Act Analysis
Appendix F: Big LEO Bandplan
I. INTRODUCTION
1. Today we decide to permit flexibility in the delivery of communications by Mobile Satellite
Service (MSS) providers that operate in three sets of radio frequency bands: the 2 GHz MSS band,1 the L-
band2 and the Big LEO bands.3 Specifically, we permit MSS licensees to integrate ancillary terrestrial
components (ATCs) into their MSS networks. Flexibility in this context differs from a so-called
“flexible-use” allocation in which licensees can provide any service that appears in the U.S. Table of
Allocations for the band either individually or in combination with other allocated services. We decide
here to permit MSS operators to seek authority to integrate ATCs into their networks for the purpose of
enhancing their ability to offer high-quality, affordable mobile services on land, in the air and over the
oceans without using any additional spectrum resources beyond spectrum already allocated and
authorized by the Commission for MSS in these bands. We will authorize MSS ATC subject to
1
The term “2 GHz MSS band” is used in this Order to refer to the 1990-2025 MHz uplink (Earth-to-space
transmissions) and 2165-2200 MHz downlink (space-to-Earth transmissions) frequencies, originally allocated to
MSS in the United States. See U.S. Table of Frequency Allocations, 47 C.F.R. § 2.106 (2002) (providing a precise
frequency allocation list and stating various encumbrances on particular sub-bands). A companion item to today’s
decision alters the 2 GHz MSS band to 2000-2020 MHz for uplink transmissions and 2180-2200 MHz for downlink
transmissions. See Amendment of Part 2 of the Commission’s Rules to Allocate Spectrum Below 3 GHz for Mobile
and Fixed Services to Support the Introduction of New Advanced Wireless Services, including Third Generation
Wireless Systems, ET Docket No.00-258, Third Report and Order, Third Notice of Proposed Rulemaking, and
Second Memorandum Opinion and Order, FCC 03-16 (adopted Jan. 30, 2003) (AWS Third Report and Order).
2
The “L-band” is a general designation for frequencies from 1 to 2 GHz. In the United States, the Commission has
allocated L-band spectrum for MSS downlinks in the 1525-1544 MHz and 1545-1559 MHz bands and for MSS
uplinks in the 1626.5-1645.5 MHz and 1646.5-1660.5 MHz bands. See 47 C.F.R. § 2.106.
3
The term “Big LEO bands” is used in this Order to refer to the 1.6/2.4 GHz bands. In general, the Big LEO MSS
systems rely on uplinks within the 1610-1626.5 MHz band and downlinks in the 2483.5-2500 MHz band.
3
FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020
NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021
Federal Communications Commission FCC 03-15
conditions that ensure that the added terrestrial component remains ancillary to the principal MSS
offering. We do not intend, nor will we permit, the terrestrial component to become a stand-alone
service. We believe that permitting MSS ATCs in this manner should: (1) increase the efficiency of
spectrum use through MSS network integration and terrestrial reuse and permit better coverage in areas
that MSS providers could not otherwise serve; (2) reduce costs, eliminate inefficiencies and enhance
operational ability in MSS systems; (3) provide additional communications that may enhance public
protection; and (4) strengthen competition in the markets served by MSS.4
2. Our decision today balances the traditional goals of effective and efficient use of spectrum
with preserving the optimal amount of spectrum for the provision of international satellite services. In
this instance, we find that grant of ATC appears to best balance these competing public interest goals.
Specifically, based on the record and our detailed technical analyses, we find that granting shared usage
of the same MSS frequency band to separate MSS and terrestrial operators would likely compromise the
effectiveness of both systems, particularly satellites already operating in the L-band and Big LEO band.
In this case, making limited terrestrial authority available to licensed MSS operators in the form of ATC
better serves the public interest than the more limited and technically difficult prospect of attempting to
share the MSS spectrum, which would pose an unacceptable risk of harmful interference to the existing
and planned operations of licensed MSS operators. At bottom, the Commission must choose between two
alternatives. We could either prohibit MSS licensees from deploying MSS ATC in order to preserve, on
principal, the initial service and operational rules for MSS. Or we could grant additional authority to the
MSS incumbents to improve their services and efficient use of spectrum at the cost of giving the
incumbents more operational authority than they had originally sought. Forced to choose, we believe
granting, rather than withholding, access to spectrum resources represents the better course.
3. Consistent with this Order and the rules we adopt today, 2 GHz MSS, L-band and Big LEO
operators may seek authority to integrate ATCs into existing and planned systems. We will authorize
MSS licensees to implement ATCs, provided that the MSS licensee: (1) has launched and operates its
own satellite facilities; (2) provides substantial satellite service to the public; (3) provides integrated ATC;
(4) observes existing satellite geographic coverage requirements; and (5) limits ATC operations only to
the authorized satellite footprint.5 As explained below, observing certain space-segment requirements
constitutes the provision of substantial satellite service to the public and should ensure that MSS remains
4
For an overview of historical and current MSS operations, see generally, e.g., Establishing Rules and Policies for
Use of Spectrum for Mobile Satellite Services in Upper and Lower L-Band, Report and Order, 17 FCC Rcd 2704,
2708-13, ¶ 11-20 (2002) (discussing technical innovations in MSS, reviewing some of the “strides made in
spectrum-efficient MSS technologies” within the L-band and noting that “MSS systems are particularly well suited
for providing mobile communication services to areas that are not being adequately served by terrestrial radio
facilities”).
5
As we have repeatedly indicated, we intend to authorize ATC only as an ancillary service to the provision of the
principal service, MSS. We have established a number of gating requirements to ensure that ATC may only operate
after the provision of MSS has commenced and during the period in which MSS continues to operate. See infra §§
III(C)(2)-(4); see also infra App. B. While it is impossible to anticipate or imagine every possible way in which it
might be possible to “game” our rules by providing ATC without also simultaneously providing MSS and while we
do not expect our licensees to make such attempts, we do not intend to allow such “gaming.” For example, even if
an MSS licensee were to enter an agreement to lease some or all of the access to its authorized MSS spectrum to a
terrestrial licensee, such spectrum could only be used if its usage met the requirements to ensure it remained
ancillary to MSS and were used in conjunction with MSS operations, i.e., that it met all of our gating requirements.
The purpose of our grant of ATC authority is to provide satellite licensees flexibility in providing satellite services
that will benefit consumers, not to allow licensees to profit by selling access to their spectrum for a terrestrial-only
service.
4
FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020
NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021
Federal Communications Commission FCC 03-15
first and foremost a satellite service. For planned, licensed MSS systems, licensees may seek ATC
authorization prior to launch and operation, but shall not provide ATCs prior to meeting the above
criteria, and must have complied with MSS implementation milestones imposed on licensees at the time
of seeking authority.
4. To prevent harmful interference and achieve other important public interest goals, we limit
ATC deployments to certain “core” spectrum within each MSS licensee’s respective spectrum
assignments. These core spectrum requirements vary by band due to the unique characteristics of each
MSS system’s spectrum assignment. In the 2 GHz MSS band, ATC is confined to each MSS operator’s
“Selected Assignment.” In the L-band, ATC is confined to each operator’s variable spectrum assignment
acquired pursuant to the 1996 Mexico City Memorandum of Understanding and related Operating
Agreements (Mexico City MoU). In the Big LEO band, ATC is confined to no more than 5.5 megahertz
in each direction of transmission per licensee. We implement this decision through the addition of a
footnote to the U.S. Table of Frequency Allocations in section 2.106 of our Rules.6 We also establish
procedures for the authorization of MSS ATC operations consistent with the terms and conditions of this
Order.
5. Finally, we initiate a new rulemaking in response to a petition for rulemaking filed by Iridium
Satellite LLC (Iridium).7 In its petition, Iridium requests that we revise our current rules to require MSS
systems operating in the 1615.5-1621.35 MHz band to use time division/frequency division multiple
access (TDMA/FDMA) technology,8 rather than code division multiple access (CDMA) technology.9 In
effect, Iridium requests that we make 5.85 megahertz of MSS spectrum currently used by Globalstar L.P.
(Globalstar), which uses CDMA technology, available to Iridium, which uses TDMA/FDMA technology.
We tentatively conclude that a rebalancing of spectrum in the Big LEO band would serve the public
interest and seek comment on the proposal in Iridium’s petition and on various alternative uses for the Big
LEO spectrum, including whether we should reallocate spectrum for unlicensed services, an additional
commercial mobile radio service (CMRS) licensee or other services, or initiate a second processing round
by which we could authorize new MSS entry.
II. BACKGROUND
6. We initiated this proceeding to consider the proposals of two MSS operators, ICO Global
Communications (Holdings) Ltd. (ICO) and the Mobile Satellite Ventures Subsidiary LLC (MSV), to
6
47 C.F.R. § 2.106; see infra App. B. This footnote to the allocation table allows MSS licensees to implement
MSS ATC pursuant to rules and policies adopted in this Order.
7
Petition for Rulemaking of Iridium Satellite LLC (filed, July 26, 2002) (Iridium Petition) (included in the record
of IB Docket No. 02-364).
8
TDMA is a transmission technique in which users of the same frequency band are provided alternating time slots
for their transmissions in the system, thereby avoiding mutual interference.
9
CDMA is a transmission technique in which the signal occupies a bandwidth larger than that needed to contain the
information being transmitted. The signal is spread over a wide bandwidth, the power is dispersed, and a code is
used to send and retrieve the information. The spreading, the variation in the code, and other technical parameters
permit a number of users to operate on the same frequency simultaneously without causing mutual harmful
interference.
5
FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020
NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021
Federal Communications Commission FCC 03-15
integrate ATCs into their MSS networks using assigned MSS frequencies.10 ICO is one of five systems
currently authorized to provide 2 GHz MSS in the United States.11 ICO submitted its proposal in ex parte
filings in Docket No. 99-81,12 in which we promulgated service rules for operators in the 2 GHz MSS
band.13 MSV is currently licensed to provide MSS in the L-band.14 MSV submitted its proposal in the
10
Flexibility for Delivery of Communications by Mobile Satellite Service Providers in the 2 GHz Band, the L-Band,
and the 1.6/2.4 GHz Band, IB Docket No. 01-185, Notice of Proposed Rulemaking, 16 FCC Rcd 15532 (2001)
(Flexibility Notice). During the course of this proceeding, New ICO Global Communications (Holdings) Ltd.
(referred to in the Flexibility Notice) merged with ICO Global Ltd. to form ICO Global Communications (Holdings)
Ltd. (referred to in this Order as “ICO”). See Letter from Cheryl A. Tritt to Magalie Roman Salas, Secretary,
Federal Communications Commission, File Nos. SAT-T/C-20000531-00097 and SATAMD-20000612-00107
(December 13, 2001). Also during the course of this proceeding, Motient Services, Inc. (Motient), the U.S.-licensed
L-band MSS operator, and TMI Communications and Company, Limited Partnership (TMI), a Canadian-licensed L-
band MSS provider, combined their MSS systems into a jointly-owned subsidiary, MSV. See Motient Services Inc.
and TMI Communications and Company, LP/Mobile Satellite Ventures Subsidiary LLC, Order and Authorization,
16 FCC Rcd 20469 (Int’l Bur. 2001). Due to the substantial commonality of interest among Motient, TMI and
MSV, we will refer to the three parties collectively as MSV in this Order unless otherwise indicated.
11
See The Boeing Company, Order and Authorization, 16 FCC Rcd 13691 (Int’l Bur. 2001) (Boeing 2 GHz MSS
License); Celsat America, Inc., Order and Authorization, 16 FCC Rcd 13712 (Int’l Bur. 2001) (Celsat 2 GHz MSS
License); Constellation Communications Holdings, Inc., Order and Authorization, 16 FCC Rcd 13724 (Int’l
Bur./OET 2001) (Constellation 2 GHz MSS License), authorization declared null and void, Mobile Communications
Holdings, Inc. and ICO Global Communications (Holdings) Limited for Transfer of Control; Constellation
Communications Holdings, Inc. and ICO Global Communications (Holdings) Limited for Transfer of Control,
Memorandum Opinion and Order, DA 03-285 (Int’l Bur., rel., Jan. 30, 2003) (Constellation/MCHI Nullification
Order); Globalstar, L.P., Order and Authorization, 16 FCC Rcd 13739 (Int’l Bur./OET 2001) (Globalstar 2 GHz
MSS License), authorization declared null and void, Globalstar, L.P., for Modification of License for a Mobile-
Satellite Service System in the 2 GHz Band, Memorandum Opinion and Order, DA No. 03-328 (Int’l Bur., rel., Jan.
30, 2003) (Globalstar Nullification Order); ICO Services Limited, Order, 16 FCC Rcd 13762 (Int’l Bur./OET 2001)
(ICO 2 GHz MSS Order); Iridium LLC, Order and Authorization, 16 FCC Rcd 13778 (Int’l Bur. 2001) (Iridium 2
GHz MSS License); Mobile Communications Holdings, Inc., Order and Authorization, 16 FCC Rcd 13794 (Int’l
Bur./OET 2001) (MCHI 2 GHz MSS License), authorization declared null and void, Constellation/MCHI
Nullification Order, DA 03-285; TMI Communications and Company, Limited Partnership, Order, 16 FCC Rcd
13808 (Int’l Bur. 2001) (TMI 2 GHz MSS Order).
12
Letter from Lawrence H. Williams and Suzanne Hutchings, ICO Global Communications (Holdings) Ltd., to
Chairman Michael K. Powell, Federal Communications Commission, IB Docket No. 99-81 (filed Mar. 8, 2001)
(ICO Mar. 8 Ex Parte Letter); see also Letter from Cheryl A. Tritt, Counsel to ICO Services Limited to Magalie
Roman Salas, Secretary, Federal Communications Commission, IB Docket 99-81 (April 20, 2001) (ICO April 20,
2001 Ex Parte Letter).
13
See Establishment of Policies and Service Rules for the Mobile Satellite Service in the 2 GHz Band, IB Docket
No. 99-81, Report and Order, 15 FCC Rcd 16127 (2000) (2 GHz MSS Rules Order).
14
In 1989, the Commission authorized Motient’s predecessor in interest, American Mobile Satellite Corporation, to
construct, launch and operate an MSS system in the upper L-band. Amendment of Parts 2, 22 and 25 of the
Commission's Rules to Allocate Spectrum for and to Establish Other Rules and Policies Pertaining to the Use of
Radio Frequencies in a Land Mobile Satellite Service for the Provision of Various Common Carrier Services, GEN
Docket No. 88-1234, Memorandum Opinion, Order and Authorization, 4 FCC Rcd 6041 (1989) (MSV License),
tentative decision on remand, 6 FCC Rcd 4900 (1991), final decision on remand, 7 FCC Rcd 266 (1992), aff’d sub
nom. Aeronautical Radio, Inc. v. FCC, 983 F.2d 275 (D.C. Cir. 1993). Beginning in 1999, the Commission granted
TMI blanket authority to provide MSS to mobile terminals located in the United States. See Satcom Systems,
Inc./TMI Communications and Company, L.P., Order and Authorization, 14 FCC Rcd 20798 (1999), aff’d sub nom.
AMSC Subsidiary Corp. v. FCC, 216 F.3d 1154 (D.C. Cir. 2000), modified, Order and Authorization, 15 FCC Rcd
(continued….)
6
FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020
NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021
Federal Communications Commission FCC 03-15
context of an application for authority to launch and operate a next generation L-band satellite system.15
Other MSS licensees subsequently proposed similar plans.16
A. ATC Concept
7. The various proposals for ATC are conceptually different and would rely on different
techniques to increase spectrum efficiency by carrying more communications traffic within the same
licensed MSS spectrum.
8. MSV, a geostationary MSS operator, would take advantage of the geographic areas that are
not served by specific MSS channels because of intra-system interference concerns.17 These areas are a
necessary product of the frequency and geographic intra-system sharing that occurs within their multi-
beam satellite systems. By way of background, MSV's next generation system uses satellites that can
produce a large number of relatively small “spot-beams” on the surface of the earth. These spot-beams
can be small enough to provide satellite coverage to an area on the earth’s surface 400 to 500 km across.
Figure 1 demonstrates a sample frequency reuse plan for a geostationary MSS system.
(Continued from previous page)
24467 (Sat. Radiocomm. Div., Int’l Bur. 2000); see also TMI Communications and Company, L.P., Order and
Authorization, 15 FCC Rcd 18117 (Sat. Radiocomm. Div., Int’l Bur. 2000).
15
Application of Motient Services Inc., File Nos. SAT-LOA-19980702-00066, SAT-AMD-20001214-00171 &
SAT-AMD-20010302. See Public Notice, Report No. SAT-00066 at 2 (rel. Mar. 19, 2001) (MSV Application).
MSV later indicated that it would seek to use the same ATC network with its current-generation MSS system. See
Letter from Carson E. Agnew, President and Chief Operating Officer, and Peter D. Karabinis, Chief Technical
Officer, Mobile Satellite Ventures, to Marlene H. Dortch, Secretary, Federal Communications Commission, IB
Docket 01-185 at 1 (filed, Dec. 16, 2002) (MSV Dec. 16, 2002 Ex Parte Letter).
16
See, e.g., Globalstar Comments at 2-20; Letter from Cheryl A. Tritt, Counsel, ICO Global Communications
(Holdings) Ltd. to William F. Canton, Acting Secretary, Federal Communications, IB Docket 01-185 at 6-10 (filed
Mar. 8, 2001) (ICO Mar. 8, 2001 Ex Parte Letter).
17
Letter from David S. Konczal, Counsel, Mobile Satellite Ventures Subsidiary, LLC to Marlene Dortch, Secretary,
Federal Communications Commission, IB Docket No. 01-185 at 4-6 (filed Jan. 11, 2002) (MSV Jan. 11, 2002 Ex
Parte Letter).
7
FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020
NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021
Federal Communications Commission FCC 03-15
Figure 1: Example of a Seven-Fold Frequency Reuse Plan
F5 F6 F4 F1 F7 F3
F4 F1 F7 F3 F2 F5
F3 F2 F5 F6 F4 F1
F5 F6 F4 F1 F7 F3
This diagram demonstrates frequency reuse. Here, a spot-beam operating on frequency F1 is
surrounded by spot-beams operating on one of six other frequencies (F2 to F7). The distance
between spot-beams operating on F1 is sufficient to prevent communications in one F1 beam from
causing significant amounts of interference into the closest other spot beam that operates on the
same F1 frequency. Because a total of seven frequencies are used in this example, the figure
shows a “seven-fold” frequency reuse plan. Frequency reuse plans involving different numbers of
frequencies are possible.
9. In the context of MSS, deploying this type of frequency reuse plan leaves areas on the surface
of the Earth in which the MSS system is not using a specific MSS frequency, such as frequency F1 as
shown in the diagram. The idea behind MSV's ATC is that a terrestrially based communication can occur
on frequency F1 in those areas in which the satellite is not using frequency F1 provided that sufficient
discrimination exists between the terrestrial transmitters and the MSS satellite beams that use the same
frequency. Figure 2 demonstrates a sample frequency reuse plan for a geostationary MSS ATC system.18
18
This sample MSS ATC diagram is based on the proposal of MSV. For additional information on MSV’s
proposal, see MSV Jan. 10, 2002 Ex Parte Letter at 18-19.
8
FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020
NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021
Federal Communications Commission FCC 03-15
Figure 2: Example of Possible Additional Frequency Reuse through ATC
F5 F6 F4 F1 F7 F3
F4 F1 F7 F3 F2 F5
F3 F2 F5 F6 F4 F1
F5 F6 F4 F1 F7 F3
After deployment of MSS ATC, a spot-beam operating on frequency F1 is surrounded by spot-
beams operating on one of six other frequencies (F2 to F7) and terrestrial cells also operating on
F1. The distance between spot-beams operating on F1 and the terrestrial cells, which also operate
on F1, is sufficient to prevent harmful interference from occurring in the F1 MSS beams.
10. ATC implementation for the non-geostationary orbit (NGSO) MSS systems, such as that of
Globalstar and ICO tend to be more complex both because the NGSO satellites move with respect to the
Earth’s surface and because multiple MSS satellites may be visible at one time. Like the GSO systems,
however, the NGSO use multi-beam antennas and assign selected MSS frequencies to selected satellite
antenna coverage beams.
11. Globalstar, for example, would assign separate frequencies to MSS and ATC operations
varying the assignments on a timed basis.19 The ATC services that are planned for urban areas would
cause co-frequency MSS services to be unavailable in areas of the United States where the satellite beam
coverage included a co-frequency ATC city. These restricted frequency MSS areas would vary as the
satellites move in orbit and as the coverage areas change. Globalstar also indicates that by assigning
some frequencies to ATC in selected cities while assigning different frequencies to the MSS operations
would reduce the loss of MSS coverage area. They also indicate that MSS operators could reserve some
spectrum for MSS-only operations.
12. ICO, an NGSO MSS service provider, plans to control the amount of bandwidth assigned to
both the MSS system and the ATC based upon traffic load.20 According to ICO, this concept allows reuse
of the MSS spectrum by the ATC in urban areas, while still allowing the satellite to utilize the same
spectrum to provide service in rural areas.
13. While MSS ATC systems could operate on unused frequencies within a satellite beam, MSS
ATC operators will choose in some cases to operate on some frequencies that are being used within the
satellite beam. As a conceptual matter, MSS ATC will generally operate by using certain MSS channels
or spectrum on a terrestrial basis over a limited geographic area, such as an urban market. Since the
satellite signal generally would be very weak as compared to signals from nearby terrestrial base stations
19
See Globalstar Supplemental Comments at 5.
20
ICO Mar. 8, 2002 Ex Parte Letter, App. B at 2-3.
9
FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020
NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021
Federal Communications Commission FCC 03-15
on the same channel, the channel can be used to provide terrestrial service in place of the satellite service
in this geographic area. In areas away from the terrestrial base station (perhaps 20 kilometers or more),
the signal from the MSS satellite would be much greater than the signal from the terrestrial transmitter on
the same channel, and the user would receive the signal from the MSS satellite. There might be a zone on
some channels where neither the terrestrial or satellite signal is able to overcome the interference from the
other signal, although satellite signals on other channels still would be available for use.
14. The principal proponents of MSS ATC – MSV, ICO and Globalstar – ask that we permit
them to re-use their assigned MSS frequencies to operate terrestrial base stations for the purpose of
extending their communications services to urban areas and in buildings where the satellite signal is
attenuated. They intend that the terrestrial services offered would be ancillary in nature with MSS
remaining their primary service offering.21 They state that ATC will allow them to more efficiently and
dynamically use the spectrum resources assigned to their systems and add that permitting ATC in urban
areas will increase their customer base so that they can offer lower-cost services generally.22 They also
contend that a larger customer base will result in economies of scale that will reduce handset
manufacturing costs, permitting production of more affordable handsets. They state that if they are
permitted to offer ancillary terrestrial services to overcome technical difficulties in penetrating urban
areas, they will have a better opportunity for successful development of commercial MSS systems that
will serve rural and unserved markets and will be able to use their licensed satellite spectrum more
efficiently. In the Flexibility Notice, we incorporated by reference both the ICO and MSV proposals.23
B. Flexibility Notice
15. In the Flexibility Notice, we stated that the potential long-term benefits of MSS merit
consideration of approaches to achieve flexibility in the delivery of communications by MSS operators.24
We asked whether and how we might bring flexibility to MSS spectrum either by: (1) permitting 2 GHz
and L-band MSS operators to provide service in areas where the MSS signals are attenuated by
integrating terrestrial operations with their networks using assigned MSS frequencies, as has been
proposed by two operators, or (2) opening up portions of the 2 GHz and L-bands for any operator to
provide a terrestrial service that could either be offered in conjunction with MSS or as an alternative
mobile service.25 In addition, we sought comment on whether we should consider permitting terrestrial
operations in the Big LEO bands due to the similarity between these systems and 2 GHz MSS
operations.26
16. On March 6, 2002, we asked for additional technical discussion concerning a way to
implement the alternative proposal discussed in the Flexibility Notice, which would open portions of the
21
MSV Application at 6-9; ICO Mar. 8, 2002 Ex Parte Letter at 1, 6-10.
22
MSV Application at 12-13; ICO Mar. 8, 2002 Ex Parte Letter at 11-13.
23
Flexibility Notice, 16 FCC Rcd at 15534, ¶ 5 & n.7.
24
Id. at 15533, ¶ 2.
25
Id. at 15533, ¶ 3.
26
Id. at 15533, ¶ 4.
10
FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020
NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021
Federal Communications Commission FCC 03-15
MSS bands for any operator to provide a terrestrial service.27 We sought comment concerning whether,
from a purely technical point of view, MSS operations in the 2 GHz MSS, L- and Big LEO bands could
be “severed” from terrestrial operations in each band. Specifically, we asked commenters to elaborate on
their earlier discussion of whether it would be “technically feasible for one operator to provide terrestrial
services and another operator to provide satellite services in the same MSS band.”28
C. Other Proceedings
17. We note that we do not reach decisions here on issues raised in the Flexibility Notice
c
Related Content
in Suffolk County
Ruling
Meda, Bharath vs. American Honda Motor Co., Inc.
Aug 05, 2024 |
S-CV-0052515
S-CV-0052515 Meda, Bharath vs. American Honda Motor Co., Inc.
NOTE: No party has paid advance jury fees pursuant to CCP § 631.
Trial Date & Length: 01/12/26 5 day Jury Trial
(Please contact Master Calendar (916) 408-6061 on the business day
prior to the scheduled trial date to find courtroom availability.)
Civil Trial Conference: 01/02/26
(heard at 8:30 am in Dept. 3)
Mandatory Settlement Conference: 12/19/25
(heard at 8:30am; report to Jury Services)
NO APPEARANCE REQUIRED UNLESS REQUESTED BY PARTY BY 3PM ON
THE THURSDAY PRIOR TO HEARING DATE. REQUESTS FOR
APPEARANCE MUST BE FAXED TO THE CIVIL DEPARTMENT, ATTN: CMC
CLERK AT (916) 408-6275, AND TO ALL OPPOSING ATTORNEYS AND
PARTIES WITHOUT ATTORNEYS BY 3:00 PM THE THURSDAY PRIOR TO
THE CASE MANAGEMENT DATE. SEE LOCAL RULE 20.1.7.
Ruling
BRANDON BROOKS VS GOL 5 PROPERTIES, LLC., A LIMITED LIABILITY COMPANY, ET AL.
Jul 26, 2024 |
23BBCV02845
Case Number:
23BBCV02845
Hearing Date:
July 26, 2024
Dept:
A LOS ANGELES SUPERIOR COURT
NORTH CENTRAL DISTRICT - BURBANK
DEPARTMENT A
TENTATIVE RULING
JULY 26, 2024
DEMURRER & MOTION TO STRIKE
Los Angeles Superior Court Case # 23BBCV02845
MP:
Hami Golbar, Fred Golbar, and Gol 5 Properties, LLC (Defendants)
RP:
Brandon Brooks
(Plaintiff)
NOTICE:
The Court is not requesting oral argument on this matter. The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested. Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the partys intention to appear and argue. The tentative ruling will become the ruling of the court if no argument is received.
Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.
ALLEGATIONS:
Brandon Brooks (Plaintiff) brings this action against Hami Golbar, Fred Golbar, and Gol 5 Properties, LLC (collectively Defendants)
associated with an apartment Plaintiff rented from Defendants (the Subject Property).
Plaintiff alleges Defendants failed to remedy a number of deficient conditions at the Subject Property.
The Court previously sustained Defendants demurrer to various causes of action and Plaintiff has subsequently filed a First Amended Complaint (FAC).
Plaintiffs FAC contains 12 causes of action for: (1) Breach of Contract, (2) Statutory Breach of the Warranty of Habitability (Civil Code §§1941, 1941.1, And 1942.4), (3) Violation of Civil Code §1942.4, (4) Violation of Civil Code §1942.5, (5) Tortious Breach of the Warranty of Habitability, (6) Violation of Business & Professions Code §17200, et seq., (7) Private Nuisance, (8) Negligence, (9) Intentional Infliction of Emotional Distress (IIED), (10) Breach of the Covenant of Good Faith & Fair Dealing, (11) Violation of LAMC 45.33, and (12) Violation of Civil Code § 789.3(a)
As before, Defendants now generally demur to the causes of action for Private Nuisance and IIED on grounds that Plaintiff fails to allege sufficient facts. Defendants also move to strike Plaintiffs request for punitive damages. Plaintiff opposes and Defendants reply.
ANALYSIS:
I.
LEGAL STANDARD
The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a);
Blank v. Kirwan
(1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (
Hahn v. Mirda
(2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (
Id.
)
A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (
Blank v. Kirwan, supra,
39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiffs allegations must be accepted as true for the purpose of ruling on the demurrer. (
Del E. Webb Corp. v. Structural Materials Co.
(1981) 123 Cal. App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (
Blank
,
supra
, 39 Cal. 3d at 318.)
Pursuant to Code of Civil Procedure (C.C.P.) §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (
Schifando v. City of Los Angeles
(2003) 31 Cal. 4th 1074, 1082.)
Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, [t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.)
The court may also [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (C.C.P. § 436 (b).)
II.
MERITS
Meet and Confer
C.C.P. §§ 430.41(a) and 435.5(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review the Court finds the meet and confer requirements were met. (Mantovani Decl. ¶ 4.)
Facts
Plaintiffs FAC contains an overarching facts section, which is incorporated by reference into each of his 12 causes of action.
Plaintiff alleges that shortly after commencing tenancy, someone stole his parking spot (FAC. ¶ 30.) Plaintiff also alleges that his vehicle was vandalized after his parking spot was reassigned. (FAC ¶ 31.) Plaintiff alleges that the Subject Property had its gas service interrupted for a prolonged period of time for repairs. (FAC ¶ 34.) Plaintiff states that this interruption caused him to experience severe health symptoms because he could not use his fireplace and other gas appliances. (FAC ¶ 36.) Plaintiff alleges that the gas remains turned off for the building. (FAC ¶ 37.)
Plaintiff also alleges that Defendants did not provide the necessary accommodations after he was furloughed during the Covid-19 pandemic. (FAC ¶ 40.) Instead, Plaintiff alleges he was served with a 3-day notice to quit which was followed by two unlawful detainer suits. (FAC ¶ 39.)
Plaintiffs FAC also contains a list of alleged defective conditions of the Subject Property which include infestations, extensive water damage, and unsafe/unsanitary common areas. (FAC ¶ 28.) Plaintiff does not provide any further allegations as to the nature of these defects or when they occurred. (
Id
.) Plaintiff alleges that he has contacted Defendants with respect to these defects several times, but the problems persist. (FAC ¶ 43.) Plaintiff alleges he was forced to hire his own pest and mold inspection companies. (FAC ¶ 52.)
Seventh COA Private Nuisance Sustained without Leave to Amend
To establish an action for private nuisance, (1) the plaintiff must prove an interference with his use and enjoyment of his property; (2) the invasion of the plaintiffs interest in the use and enjoyment of the land must be substantial, that is, that it causes the plaintiff to suffer substantial actual damage; (3) the interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land. (
Mendez v. Rancho Valencia Resort Partners, LLC
(2016) 3 Cal.App.5th 248, 262-263, [citations, italics, brackets, and quotation marks omitted].)
The Court previously sustained the demurrer to this cause of action with leave to amend. The Court relied on the reasoning in
El Escorial Owners Assn. v. DLC Plastering, Inc.
which held Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim. (
El Escorial Owners Assn. v. DLC Plastering, Inc.
(2007) 154 Cal.App.4th 1337, 1349.) The Court also cited
Melton v. Boustred
,
which
found that a demurrer is properly sustained where a nuisance claim is merely a clone of the negligence claim. (
Melton v. Boustred
(2010) 183 Cal.App.4th 521, 542.)
The Court found Plaintiffs arguments that his cause of action was not duplicative to be unpersuasive. Plaintiff argued that his nuisance cause of action differed from his negligence cause of action because it alleged both intentional and negligent behavior of Defendants. This argument is virtually unchanged in Plaintiffs current opposition. Likewise, the Court remains unpersuaded. The Courts previous ruling made clear that Plaintiff must allege facts specific to his nuisance claim if he wished it to survive demurrer. A review of the FAC shows that no such allegations are present.
Plaintiff has added allegations that he had a possessory interest in the Subject Property. (FAC ¶ 125.) While this is an element of a private nuisance action, it does not speak to any specific behavior of Defendants in creating a nuisance.
Plaintiff also has added a list of alleged actions by the Defendant to this cause of action. (FAC ¶ 128.) They are as follows:
a.
Failing to address hazardous gas leaks and exposure risks;
b.
Allowing infestations of vermin and pests to persist;
c.
Neglecting to remedy mold, mildew, and extensive water damage;
d.
Failing to replace essential safety features, such as the fireplace pilot exchanger;
e.
Providing inadequate heating and improper ventilation;
f.
Ignoring ongoing plumbing issues and unsafe or unsanitary common areas;
g.
Failing to maintain the safety and security of the Plaintiff's designated parking space, resulting in vandalism of Plaintiff's vehicle.
(FAC ¶ 128.)
The Court does not find these allegations are specific to Plaintiffs nuisance claim, particularly in light of the allegations in the cause of action for Negligence. In that cause of action Plaintiff alleges the Defendant negligently allow the following conditions:
(1) mold and/or mildew; (2) water damage; (3) lack of effective waterproofing and weather protection; (4) lack of or decrease in unit services; (5) failure to timely replace the fireplace pilot exchanger; (6) inadequate heating devices; (7) gas exposure; (8) improper ventilation; (9) outgrown vegetation and unkept landscaping; and (10) inoperable central air condition, rendering the Subject Property substandard and untenantable as alleged herein.
(FAC ¶ 143.)
The Court notes that the vast majority of the conditions resulting from Defendants alleged negligence overlap with those resulting from Defendants alleged intentional behavior. All of the allegations in FAC paragraph 128 are attributable to either intentional acts or negligence and none of the allegations are accompanied by specific facts indicating intentional behavior. Further, to the extent that Plaintiffs negligence action does not explicitly mention the parking situation, the Court notes the FAC contains no allegations that this situation arose from Defendants intentional actions. Plaintiff merely alleges that he complained of the parking situation and Defendants response was markedly deficient. (FAC ¶ 31.)
The Court finds the additional allegations upon amendment are insufficient to set Plaintiffs claim of Private Nuisance apart from his claim of Negligence. As Plaintiff has had previous opportunity to allege additional facts speaking specifically to nuisance and has failed to do so, the Court finds it improbable that further amendment would cure this deficiency.
Accordingly, the demurrer to the cause of action for Private Nuisance is SUSTAINED without leave to amend.
Ninth COA IIED Sustained with Leave to Amend
The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (
Wilson v. Hynek
(2012) 207 Cal.App.4th 999, 1009, [citation and ellipses omitted].)
The Court previously sustained the demurrer to this cause of action, finding Plaintiff had not sufficiently pled intentional conduct. Specifically, the Court focused on the Defendants alleged refusal to remediate, given that courts have preciously found IIED claims proper in situations where a landlord has outright refused to remediate habitability issues. (
Burnett v. Chimney Sweep
(2004) 123 Cal.App.4th 1057.) The Court found that the facts alleged in the Complaint did not indicate a complete refusal to remediate. Plaintiff alleged he emailed about various conditions on October 20, 2021, July 14, 2022, August 26, 2022, April 12, 2023, and April 13, 2023. (Compl. ¶ 41.) At the same time, Plaintiff alleged that Defendants responses have been inconsistent and inadequate, allowing the infestation and unsanitary conditions to persist. (Compl. ¶ 52.) The Court found this latter allegation indicated that some remediation had taken place but that it was insufficient to remedy Plaintiffs concerns. The Court notes that such insufficient response was not akin to an intentional refusal to remediate.
Upon amendment Plaintiff has removed the above referenced allegation that Defendants response was inconsistent and inadequate. Instead, Plaintiff now pleads that,
&[d]espite Plaintiffs continual appeals regarding the aforementioned infestations and substandard conditions within the subject property, Defendants have completely ignored each of these requests&
(FAC ¶ 54.)
First the Court notes that there are no specific allegations as to which requests have been responded to and which have been ignored. From Plaintiffs FAC it is clear that he has complained on multiple occasions to Defendants about various conditions at the Subject Property. (See FAC ¶ 24, 45, 188.) Regardless, Plaintiff only alleges that Defendants were not responsive to an email in early April (FAC ¶ 45) and an email on April 27, 2023 (FAC ¶ 47.) This leaves the prior year and half of complaints, including emails specifically identified in paragraph 24, unaccounted for.
Further, there is a complete lack of particularity in identifying the subject of these complaints. It appears from Plaintiffs FAC that his complaints regarding the parking situation received some sort of response, as he alleges that Defendants response was markedly deficient. (FAC ¶ 29.) This indicates that Defendants were responding at least in some capacity to some of Plaintiffs complaints. Further, Plaintiffs allegations that Defendants were unresponsive to the April emails is equally indicative of negligence as it is intentional behavior. If Plaintiff wishes to state a claim for IIED based on Defendants intentional refusal to remediate, it is incumbent upon him to allege facts showing such refusal occurred.
Lastly, Plaintiffs substituting of inconsistent and inadequate for the allegation that he was completely ignored does little to assuage concerns regarding the sham pleading doctrine. The sham pleading doctrine generally prohibits a plaintiff from amending a complaint to omit harmful allegations from prior pleadings, without explanation. (
Deveny v. Entropin, Inc.
(2006) 139 Cal.App.4th 408, 425.) Under the sham pleading doctrine, [a] plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict facts pleaded in the original complaint, or by suppressing facts which prove the pleaded facts false. (
Cantu v. Resolution Trust Corporation
(1992) 4 Cal.App.4th 857, 877-878.) Here, Plaintiff has added no allegations which explain his previous contention that Defendants response was inadequate rather than an outright refusal to remediate. Plaintiffs amendment is not so much an addition of facts as a substituting of language.
Despite the above, the Court finds the FAC contains sufficient information such that the Court believes sufficient facts can be pled to support the claim if they exist. Although Plaintiff has failed to sufficiently articulate these as of yet, it remains possible he could do so. Accordingly, the demurrer to this cause of action is SUSTAINED with 20 days leave to amend.
Motion to Strike
Defendants seek to strike Plaintiffs request for punitive damages and all references to Defendants conduct as malicious oppressive despicable or outrageous. (See FAC ¶¶ 93, 99, 100, 101, 115, 167, 1280 182.) The Court notes that Plaintiffs punitive damages claims are, at least in part, derived from the IIED cause of action. Given the Court has sustained the demurrer to that cause of action with leave to amend, Defendants motion strike punitive damages is MOOT.
---
RULING
:
In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the courts records.
ORDER
Hami Golbar, Fred Golbar, and Gol 5 Properties, LLC
s Demurrer and Motion to Strike
came on regularly for hearing on July 26, 2024 with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:
THE DEMURRER TO THE SEVENTH CAUSE OF ACTION IS SUSTAINED WITHOUT LEAVE TO AMEND.
THE DEMURRER TO THE NINTH CAUSE OF ACTION IS SUSTAINED WITH 20 DAYS LEAVE TO AMEND.
THE MOTION TO STRIKE IS MOOT.
CASE MANAGEMENT CONFERENCE SET FOR AUGUST 27, 2024 IS ADVANCED AND CONTINUED ON THE COURTS MOTION TO NOVEMBER 12, 2024 AT 9:00 AM
UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT GOL 5 TO GIVE NOTICE.
IT IS SO ORDERED.
DATE: July 26, 2024 _______________________________
F.M. TAVELMAN, Judge
Superior Court of California
County of Los Angeles
Ruling
The Golden 1 Credit Union vs. Carter, Jermaine et al
Aug 05, 2024 |
S-CV-0052507
S-CV-0052507 The Golden 1 Credit Union vs. Carter, Jermaine et al
No appearance required. CMC is continued to 10/28/24 at 2pm in Dept. 6.
Complaint is not at issue - Need responsive pleading, default or dismissal as to
Defendant(s): Carter, Jermaine; The State of California
Ruling
TAJIRIAN vs AVIV CONSTRUCTION, INC, et al.
Jul 25, 2024 |
Civil Unlimited (Other Breach of Contract/Warr...) |
23CV055586
23CV055586: TAJIRIAN vs AVIV CONSTRUCTION, INC, et al.
07/25/2024 Hearing on Motion for Stay of Proceedings filed by Aviv Construction, Inc
(Defendant) in Department 17
Tentative Ruling - 07/24/2024 Frank Roesch
The Hearing on Motion for Stay of Proceedings filed by Aviv Construction, Inc (Defendant)
scheduled for 07/25/2024 is continued to 08/22/2024 at 03:30 PM in Department 17 at Rene C.
Davidson Courthouse .
Defendant Aviv Construction, Inc.’s (“Defendant”) Motion to Compel Arbitration and Stay
Proceedings is CONTINUED to Thursday August 22, 2024 at 3:30 p.m. in Department 17.
Defendant’s motion to compel arbitration and stay proceedings was served on Plaintiff Armen
Tajirian (“Plaintiff”) on July 18, 2024, which would have deprived Plaintiff of proper notice.
Moving and supporting papers are to be served on the opposing party sixteen (16) court days
prior to the date set for hearing. (Code Civ. Proc., § 1005, subd. (b).)
Defendant’s motion filed on July 18, 2024 for a hearing set for July 25, 2024 only provides
Plaintiff with four court days notice prior to the hearing and insufficient time to file a timely
opposition, which is to be filed nine (9) court days before the hearing date. (Code Civ. Proc., §
1005, subd. (b).)
Defendant is ordered to file and serve an amended notice of motion reflecting the new August
22, 2024 date that will provide Plaintiff with the proper statutorily required time to respond.
(Code Civ. Proc., § 1005, subd. (b).)
If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, the
Tentative Ruling will become the order of the court.
HOW DO I CONTEST A TENTATIVE RULING?
THROUGH ECOURT
Notify the Court and all the other parties no later than 4:00 PM one court day before the
scheduled hearing, and briefly identify the issues you wish to argue through the following steps:
1. Log into eCourt Public Portal
2. Case Search
3. Enter the Case Number and select “Search”
4. Select the Case Name
5. Select the Tentative Rulings Tab
6. Select “Click to Contest this Ruling”
7. Enter your Name and Reason for Contesting
8. Select “Proceed”
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
23CV055586: TAJIRIAN vs AVIV CONSTRUCTION, INC, et al.
07/25/2024 Hearing on Motion for Stay of Proceedings filed by Aviv Construction, Inc
(Defendant) in Department 17
BY EMAIL
Send an email to the DEPARTMENT CLERK and all the other parties no later than 4:00 PM one
court day before the scheduled hearing. This will permit the department clerk to send invitations
to counsel to appear remotely.
BOTH ECOURT AND EMAIL notices are required.
Ruling
LIANG, et al. vs TRUCK INSURANCE EXCHANGE, et al.
Jul 25, 2024 |
Civil Unlimited (Negligent Breach of Contract/...) |
24CV063297
24CV063297: LIANG, et al. vs TRUCK INSURANCE EXCHANGE, et al.
07/25/2024 Hearing on Demurrer to Plaintiffs’ First Amended Complaint; filed by Greg
Norris Insurance Agency, Inc. (Defendant) in Department 17
Tentative Ruling - 07/22/2024 Frank Roesch
The Demurrer filed by Greg Norris Insurance Agency, Inc. on 06/27/2024 is Overruled.
Defendant Greg Norris Insurance Agency, Inc. (“Norris”) Demurrer to Plaintiffs’ First Amended
Complaint (“FAC”), which raises only the issue of the statute of limitations, is OVERRULED.
(Code Civ. Proc., § 430.10, subd. (e).)
Here, factual allegations in the FAC, not in the original Complaint, state material facts to show
that Aguinaga did not suffer actual injury at the time that Truck, Insurance Exchange (“Truck”)
denied coverage of the incident on October 18, 2021, because no lawsuit had been filed against
her, she had not incurred any defense costs, and no judgment had been entered against her at that
time. (FAC ¶¶ 21-22.) Therefore, unlike the cited cases in which the denial of coverage triggers
accrual of a bad faith cause of action because the denial results in a discrete halt in payments or
an immediate change in the insured’s benefits, the denial in this case affected only prospective
events (as opposed to past or existing events), and therefore did not result in quantifiable
damages (which at the time of denial would have been uncertain at best) at the time of Truck’s
denials, before Aguinaga was sued.
The court previously sustained demurrers filed by various defendants on the basis of the statute
of limitations because the original Complaint did not allege material facts that clearly established
when Aguinaga suffered her injury. Likewise, the basis of Plaintiffs’ argument was not as clearly
articulated in their Opposition to demurrers to the original Complaint.
Here, by contrast, the FAC affirmatively states facts alleging Aguinaga suffered her injury as a
result of Truck’s denial and additionally alleges facts to demonstrate that no injury was sustained
prior to Plaintiffs’ lawsuit.
On demurrer, because the court must “accept as true even the most improbable alleged facts,
[and does] not concern [itself] with the plaintiff’s ability to prove its factual allegations” (Gray v.
Dignity Health (2021) 70 Cal.App.5th 225, 236, fn. 10), where the FAC alleges material facts to
indicate that Aguinaga did not suffer any injury at the time of Truck’s pre-suit denials of
coverage (FAC ¶¶ 21-22), and those facts, though omitted from the original Complaint do not
contradict with any prior allegations, Norris’ demurrer, which was brought solely on statute of
limitations grounds, must be overruled. (Code Civ. Proc., § 430.10, subd. (e).)
Demurrer – Legal Standard
A demurrer tests whether the complaint, unconnected with extraneous matters, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) On demurrer, the court accepts
properly pleaded facts as true, but not contentions or conclusions of law or fact. (Czajkowski v.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
24CV063297: LIANG, et al. vs TRUCK INSURANCE EXCHANGE, et al.
07/25/2024 Hearing on Demurrer to Plaintiffs’ First Amended Complaint; filed by Greg
Norris Insurance Agency, Inc. (Defendant) in Department 17
Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173.) “Because a demurrer tests only the
legal sufficiency of the pleading, we accept as true even the most improbable alleged facts, and
we do not concern ourselves with the plaintiff's ability to prove its factual allegations.” (Gray,
supra, 70 Cal.App.5th at p. 236, fn. 10.)
“[I]t is difficult for demurrers based on the statute of limitations to succeed because (1) trial and
appellate courts treat the demurrer as admitting all material facts properly pleaded and (2)
resolution of the statute of limitations issue can involve questions of fact. Furthermore, when the
relevant facts are not clear such that the cause of action might be, but is not necessarily, time-
barred, the demurrer will be overruled. [Citation.] Thus, for a demurrer based on the statute of
limitations to be sustained, the untimeliness of the lawsuit must clearly and affirmatively appear
on the face of the complaint and matters judicially noticed.” (Schmier v. City of Berkeley (2022)
76 Cal.App.5th 549, 554 (internal citations omitted).)
“A demurrer based on a statute of limitations will not lie where the action may be, but is not
necessarily, barred.” (Raja Development Company v. Napa Sanitary District (2022) 85
Cal.App.5th 85, 92.) In order for the statute of limitations to be raised by demurrer, the defect
must clearly and affirmatively appear on the face of the complaint; it is not enough that the
complaint shows that the action may be barred. (Ibid.)
DISCUSSION
Norris demurrers to the FAC’s third cause of action for negligence on the sole basis that it is time
barred. (Code Civ. Proc., § 335.1.) Norris’ demurrer limits its argument on demurrer to the
statute of limitations. (Demurrer p. 2: 8-14.)
Here, the FAC (unlike the original Complaint) makes clear its allegation that no injury or
damage was suffered by Aguinaga prior to Plaintiffs’ filing of their Complaint. (FAC ¶ 21.) As
the FAC alleges that damages were first sustained by Aguinaga when Plaintiffs filed their lawsuit
against her on October 4, 2022 (FAC ¶ 22), the court must accept this fact as true. (Gray, supra,
70 Cal.App.5th at p. 236, fn. 10 [the court must accept as true even the most improbable alleged
facts, and does not concern itself with the plaintiff’s ability to prove its factual allegations]),
Norris’ demurrer, which raises only the statute of limitations and does not discuss the issues of
duty or breach, is overruled. (Code Civ. Proc., § 430.10, subd. (e); Demurrer p.2:8-14.)
If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, the
Tentative Ruling will become the order of the court.
HOW DO I CONTEST A TENTATIVE RULING?
THROUGH ECOURT
Notify the Court and all the other parties no later than 4:00 PM one court day before the
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
24CV063297: LIANG, et al. vs TRUCK INSURANCE EXCHANGE, et al.
07/25/2024 Hearing on Demurrer to Plaintiffs’ First Amended Complaint; filed by Greg
Norris Insurance Agency, Inc. (Defendant) in Department 17
scheduled hearing, and briefly identify the issues you wish to argue through the following steps:
1. Log into eCourt Public Portal
2. Case Search
3. Enter the Case Number and select “Search”
4. Select the Case Name
5. Select the Tentative Rulings Tab
6. Select “Click to Contest this Ruling”
7. Enter your Name and Reason for Contesting
8. Select “Proceed”
BY EMAIL
Send an email to the DEPARTMENT CLERK and all the other parties no later than 4:00 PM one
court day before the scheduled hearing. This will permit the department clerk to send invitations
to counsel to appear remotely.
BOTH ECOURT AND EMAIL notices are required.
Ruling
ELIAS CHAHWAN VS. JOHN COMPAGNO ET AL
Jul 26, 2024 |
CGC23608344
Matter on the Law & Motion calendar for Friday, July 26, 2024, Line 9. DEFENDANT JOHN COMPAGNO's MOTION FOR SUMMARY JUDGMENT. Transferred to be heard in Department 501 at 9:30 a.m. on August 7, 2024. That department handles all real property cases per SF Local Rule 8.10A1. =(302/RCE)
Ruling
FIRST UTAH BANK VS JOHN RENZULLI, III, ET AL.
Jul 25, 2024 |
23TRCV02840
Case Number:
23TRCV02840
Hearing Date:
July 25, 2024
Dept:
8
Tentative Ruling¿
HEARING DATE: July 25, 2024
CASE NUMBER: 23TRCV02840
CASE NAME: First Utah Bank vs. Chicken Bone Effects, Inc., et al.
MOVING PARTY: Plaintiff, First Utah Bank
RESPONDING PARTY: Defendants, Chicken Bone Effects, Inc. and John Renzulli III
TRIAL DATE: Not Set.
MOTION: (1) Motion for Summary Judgment, or in the alternative, Summary Adjudication
Tentative Rulings: (1) GRANTED.
I. BACKGROUND
A. Factual On August 29, 2024, Plaintiff, First Utah Bank (Plaintiff) filed a complaint against Defendant, Chicken Bone Effects, Inc. (CBE) and John Renzulli III (Renzulli), and DOES 1 through 20. The complaint alleges causes of action for: (1) Breach of Contract; (2) Breach of Guaranty; (3) Common Count (Money Lent); and (4) Recovery of Personal Property. The complaint alleges that prior to the filing of this current action, SLIM Capital, LLC entered into written Equipment Finance Agreement (the Agreement) with CBE whereby SLIM Capital, LLC agreed to finance CBEs purchase of certain equipment from a vendor selected by CBE. (Complaint, ¶ 8.) In consideration therefore, Plaintiff contends that CBE obligated itself to make certain specified monthly payments to SLIM Capital, LLC, which obligation was absolute and unconditional. (Complaint, ¶ 8.) Plaintiff asserts that SLIM Capital, LLC subsequently assigned the Agreement to Plaintiff. (Complaint, ¶ 8.) Plaintiff notes that it remains the holder of the agreement and has performed all of the obligations which it was required to perform under the Agreement. (Complaint, ¶ 9.) Plaintiff alleges that CBE defaulted on the agreement when it failed to make the payments pursuant to the Agreement. (Complaint, ¶ 10.) As a result of CBEs default, Plaintiff alleges it accelerated the balance due under the Agreement and made demand on CBE for immediate payment of the accelerated balance. (Complaint, ¶ 11.) Plaintiff contends the accelerated balance due under the agreement at the time it filed its complaint was $73,972.77, plus interest thereon at the contract rate of 10% per annum from May 2, 2023. (Complaint, ¶ 12.) Plaintiff further asserts that the accelerated balance has not been paid. (Complaint, ¶ 12.) Plaintiff alleges that the agreement provides that CBE shall pay the attorneys fees and costs incurred by Plaintiff in enforcing its rights thereunder. (Complaint, ¶ 13.) Plaintiff now files a Motion for Summary Judgment or in the alternative, Motion for Summary Adjudication.
B. Procedural On April 18, 2024, Plaintiff filed a Motion for Summary Judgment, or in the alternative, Summary Adjudication. To date, no opposition has been filed. II. REQUEST FOR JUDICIAL NOTICE With Plaintiffs moving papers, Plaintiff also requested this Court take judicial notice of the following documents: 1. Complaint filed in this action by Plaintiff FIRST UTAH BANK on August 29, 2023. (Exhibit F to the Table of Exhibits.) 2. Answers to the Complaint filed in this action on January 10, 2024 by Defendants CHICKEN BONE EFFECTS, INC. and JOHN RENZULLI III. (Exhibit G to the Table of Exhibits.) This Court GRANTS this request and takes judicial notice of the above documents. III. ANALYSIS A. Legal Standard The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc.(2006) 39 Cal.4th 384, 389.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) B. Discussion Plaintiff moves for summary judgment on the grounds that it argues the first and second causes of action: (1) have been established by undisputed facts; (2) that there are no material issues of fact with respect to Defendants liability on Plaintiffs first and second causes of action tat remain to be determined; (3) that Defendants have not established any defense to Plaintiffs first and second causes of action; and (4) that Plaintiff is entitled to judgment against Defendants on the first and second causes of action in the principal amount of $52,240.41, pre-judgment interest in the amount of $6,544.56, attorneys fees to be determined by noticed motion, and court costs. Further, Plaintiff moves for summary judgment as to the third cause of action on the grounds that: (1) Plaintiffs third cause of action for common count of money lent against Defendants have been established by undisputed facts; (2) that no material issue of fact with respect to Defendants liability on Plaintiffs third cause of action remains to be determined; (3) that Defendants have not established any defense to Plaintiffs third cause of action; and (4) that Plaintiff is entitled to judgment against Defendants on the third cause of action in the principal amount of $52,240.41, pre-judgment interest in the amount of $6,544.56, attorneys fees to be determined by noticed motion, and court costs. First and Second Causes of Action for Breach of Contract and Breach of Guaranty Plaintiff first argues that undisputed facts establish Plaintiffs first and second causes of action. To state a cause of action for breach of contract, Plaintiff must be able to establish (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) If a breach of contract claim is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference. (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) In some circumstances, a plaintiff may also plead the legal effect of the contract rather than its precise language. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) Here, Plaintiff argues that each element of its first and second cause of action against Defendants CBE and Renzulli for breach of the Agreement and Guaranty are established by undisputed facts. First, Plaintiff argues that the Agreement and Guaranty were executed by Plaintiffs assignor and Defendants, which were later assigned to Plaintiff. (Plaintiffs SSUMF 1, 3.) In support of this, Plaintiff refers to the declaration of Don Rudy (Rudy Decl.), who is the VP, Asset Management Group and custodian of records for the finance agreement for First Utah Bank. (Rudy Decl., ¶¶ 1-2.) Rudy notes that on August 1, 2019, SLIM Capital, LLC entered into a written Equipment Finance Agreement No. 2586 (the Agreement) with Defendant, CBE whereby SLIM Capital, LLC agreed to finance CBEs purchase of certain equipment from a vendor selected by CBE. (Rudy Decl., ¶ 3.) Rudy contends Plaintiff subsequently changed the account number to 8313011606. (Rudy Decl., ¶ 3.) As consideration therefore, Rudy contends that CBE obligated itself to make certain specified monthly payments to SLIM Capital, LLC, which obligation was absolute and unconditional. (Rudy Decl., ¶ 3.) Rudy asserts that Plaintiff entered into an agreement to purchase the Agreement from SLIM Capital, LLC and the account number for that transaction is 8313011606. Rudy attached the copy of the Agreement as Exhibit A, and attached the assignment as Exhibit B. (Rudy Decl., ¶ 3, Exhibits A, B.) Based on the evidence presented by Plaintiff, the Court finds that Plaintiff has carried its initial burden in showing that a contract and assignment between the parties existed. Next, Plaintiff argues that it remains the holder of the Agreement and Guaranty and has performed all other obligations required of it. (Plaintiffs SSUMF 4, 5.) Rudys declaration asserts that Plaintiff has performed all things it was required to perform under the Agreement and Guaranty, and still remains the holder of the Agreement and Guaranty. (Rudy Decl., ¶¶ 6-7.) Plaintiffs Exhibit D contains the Continuing Guaranty of Indebtedness that appears to have the signature of Renzulli. The Court notes that the continuing guaranty of indebtedness appears to have been sent from Renzulli to SLIM Capital, LLC, not directly to Plaintiff. Third, Plaintiff contends that Defendants breached the Agreement and Guaranty by failing to make the payments that were required thereunder. (Plaintiffs SSUMF 6.) Rudys declaration states that CBE and Renzulli defaulted on the Agreement and Guaranty by failing to make the payment that was due on June 1, 2023, and all subsequent payments thereafter. (Rudy Decl., ¶ 8.) Plaintiff has included, in its Table of Exhibits, Exhibit E Statement of Account, which evidences the past due amounts in the account linked to Defendants. As such, this Court finds that Plaintiff has carried its initial burden that Defendants have breached the contract and guaranty. Lastly, this Court finds that Plaintiff has also carried its initial burden in showing that it has suffered damages as a result of the alleged breach. Based on the above, this Court tentatively holds that Plaintiff has carried its initial burden in showing that undisputed facts establish Plaintiffs first and second causes of action. This Court notes that after a moving party has carried its initial burden, the burden then shifts to the opposing party to show that disputed issues of material fact exist. However, Defendants here have failed to file an opposition brief. Thus, they have failed to carry their shifted burden. On these grounds, the Court tentatively GRANTS Plaintiffs motion for summary judgment. Defendants may present oral argument as to why they have failed to respond to the motion. Third Cause of Action for Money Lent Plaintiff also argues that the undisputed facts establish Plaintiffs Third Cause of Action for Money Lent. The required elements of a claim for money lent are (1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment. A cause of action for money had and received is stated if it is alleged the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff. (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460, citation and quotation marks omitted.) Here, Plaintiff argues that each element of Plaintiffs third cause of action against Defendant, for money lent, is established by the undisputed facts. First, Plaintiff argues that Defendants became indebted after Plaintiff paid the vendor for the equipment that Defendants purchased. (Plaintiffs SSUMF 13.) Rudy contends that CBE and Renzulli became indebted to Plaintiff after Plaintiff paid the vendor for the equipment that CBE leased. (Rudy Decl., ¶¶ 3-4.) Plaintiff also attached the UCC-1 filing with the California Secretary of State, showing that Plaintiff perfected its security interest in the Equipment. (Exhibit C.) Next, Plaintiff argues that Defendants failed to pay Plaintiff for all amounts due as agreed for leasing the Equipment. (Plaintiffs SSUMF 14-16.) Rudy notes that as a result of Defendants default under the Agreement and Guaranty, the outstanding balance due is $52,240.41. (Rudy Decl., ¶ 9, Exhibit E.) Rudy further asserts that despite demand, no part of the outstanding balance has been paid and Defendants have failed to deliver the Equipment to Plaintiff. (Rudy Decl., ¶ 10.) Further, Rudy notes that interest on the balance from and after May 1, 2023, the date of the last payment, through July 25, 2024, the hearing date for the current motion, pursuant to the statutory rate of 10% totals $6,544.56. (Rudy Decl., ¶ 11, Exhibit E.) As such, Plaintiff contends that as of the motion hearing date, the total amount due, including interest, is $58,784.97. (Rudy Decl., ¶ 12, Exhibit E.) Based on the above, this Court tentatively holds that Plaintiff has carried its initial burden in showing that undisputed facts establish Plaintiffs third cause of action. Again, because this Court found that Plaintiff carried its burden, the burden would then shift to Defendants. However, because Defendants here have failed to file an opposition brief, they have failed to carry their shifted burden. On these grounds, the Court tentatively GRANTS Plaintiffs motion for summary judgment, subject to any oral argument by Defendants at the hearing as to why they have failed to respond to the motion. IV. CONCLUSION
For the foregoing reasons, this Courts tentative ruling is to GRANT Plaintiffs Motion for Summary Judgment. Plaintiff is ordered to give notice.
Ruling
JOHNSON, ET AL VS. PARENT, ETAL
Jul 22, 2024 |
CVCV21-0197618
JOHNSON, ET AL VS. PARENT, ETAL
Case Number: CVCV21-0197618
This matter is on calendar for review regarding status of arbitration. The Court ordered this matter to arbitration
on February 5, 2024. Neither side appeared for the prior hearing on May 3, 2024. The Court notes that
Substitutions of Attorney have been filed on behalf of Plaintiffs. An appearance is necessary on today’s
calendar to discuss the status of arbitration.
Preview
FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021 EXHIBIT C FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021 Federal Communications Commission FCC 03-15 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Flexibility for Delivery of Communications by ) Mobile Satellite Service Providers in the 2 GHz ) IB Docket No. 01-185 Band, the L-Band, and the 1.6/2.4 GHz Bands; ) ) Review of the Spectrum Sharing Plan Among ) Non-Geostationary Satellite Orbit Mobile Satellite ) IB Docket No. 02-364 Service Systems in the 1.6/2.4 GHz Bands ) ) REPORT AND ORDER AND NOTICE OF PROPOSED RULEMAKING Adopted: January 29, 2003 Released: February 10, 2003 Comment date [30 days after Federal Register publication] Reply Comment date [45 days after Federal Register publication] By the Commission: Chairman Powell, Commissioners Abernathy and Adelstein issuing separate statements; Commissioner Copps approving in part, dissenting in part and issuing a statement TABLE OF CONTENTS Heading Paragraph No. I. INTRODUCTION.................................................................................................................................. 1 II. BACKGROUND.................................................................................................................................... 6 A. ATC Concept ................................................................................................................................... 7 B. Flexibility Notice ........................................................................................................................... 15 C. Other Proceedings.......................................................................................................................... 17 III. DISCUSSION ...................................................................................................................................... 18 A. MSS ATC Primary Proposal.......................................................................................................... 19 1. Proposed ATC Use of the Frequency Spectrum...................................................................... 19 2. Operational Benefits................................................................................................................ 23 3. Protecting the Public ............................................................................................................... 28 4. Strengthening Competition...................................................................................................... 30 B. Alternative Proposals ..................................................................................................................... 46 1. Same-Band, Separate-Operator Sharing.................................................................................. 47 2. Separate-Band, Separate-Operator Sharing............................................................................. 56 3. Secondary Terrestrial Service ................................................................................................. 59 4. Conclusion............................................................................................................................... 65 C. MSS ATC Service Rules ............................................................................................................... 66 1. “Ancillary” Service ................................................................................................................. 67 1 FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021 Federal Communications Commission FCC 03-15 2. Substantial Satellite Service .................................................................................................... 72 a. Geographic Coverage ....................................................................................................... 73 b. Coverage Continuity ......................................................................................................... 78 c. Commercial Availability................................................................................................... 85 3. Integrated Service Offering ..................................................................................................... 87 4. In-Band Operation................................................................................................................... 89 5. Central Data Switching ........................................................................................................... 94 6. Other Proposed Requirements................................................................................................. 98 D. Technical Requirements and Rules for Terrestrial Operations .................................................... 103 1. 2 GHz MSS Band .................................................................................................................. 105 a. Intra-Service Sharing ...................................................................................................... 110 b. Inter-Service Sharing ...................................................................................................... 115 c. Conclusion ...................................................................................................................... 127 2. L-Band................................................................................................................................... 128 a. Intra-Service Sharing – Protection of Adjacent Channel and Adjacent Beam MSS Operations....................................................................................................................... 130 (i) Effect of ATC Operations on Inmarsat Satellites..................................................... 132 (ii) Effect of ATC Base Stations on Inmarsat MES ....................................................... 148 (iii) Effect of ATC on Airborne Inmarsat Terminals ...................................................... 158 (iv) Other Inmarsat Arguments ....................................................................................... 162 b. Inter-service Sharing – Protection of Adjacent Service Systems.................................... 170 (i) Systems Operating Within the 1525-1559 MHz and 1626.5-1660.5 MHz Bands of the L-Band Spectrum ................................................................................ 171 (ii) Systems Operating Within the 1626.5-1660.5 MHz Portion of the L-Band Spectrum................................................................................................................... 175 (iii) Systems Operating Within the 1525-1559 MHz Band Portion of the L-Band Spectrum................................................................................................................... 176 (iv) Systems Operating Adjacent to the 1626.5-1660.5 MHz Portion of the L- Band ......................................................................................................................... 178 (v) Systems Operating Adjacent to the 1525-1559 MHz Band ..................................... 179 c. Technical and Operational Provisions for L-Band ATC ................................................ 185 3. Big LEO Systems .................................................................................................................. 189 a. Protection of In-band Systems in the 1610-1626.5 MHz Band ...................................... 194 b. Protection of Systems Operating in Bands Adjacent to 1610-1626.5 MHz ................... 197 c. Protection of Systems Operating in and Near the 2483.5-2500 MHz Band ................... 201 E. Statutory Considerations.............................................................................................................. 207 1. Section 303(y) ....................................................................................................................... 207 a. Investment Incentives ..................................................................................................... 209 b. Consistency with International Agreements ................................................................... 212 (i) L-Band...................................................................................................................... 212 (ii) Other Bands.............................................................................................................. 216 2. Section 309(j) ........................................................................................................................ 219 a. Section 309(j)(1) ............................................................................................................. 220 b. Section 309(j)(3) ............................................................................................................. 227 c. Other Matters .................................................................................................................. 230 3. Section 332 ............................................................................................................................ 231 F. Modification of Table of Allocations .......................................................................................... 235 G. Licensing Requirements............................................................................................................... 237 1. Modification of MSS Space-Station Authorizations ............................................................. 237 2. Foreign-Licensed MSS Providers ......................................................................................... 242 2 FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021 Federal Communications Commission FCC 03-15 3. MSS ATC Handset Earth Station Licensing ......................................................................... 246 4. Construction Prior to MSS Operation ................................................................................... 249 H. Administrative Procedures........................................................................................................... 251 1. Further Delay Unwarranted in the 2 GHz MSS Bands ......................................................... 254 2. Further Delay Unwarranted in the Big LEO Bands .............................................................. 259 IV. NOTICE OF PROPOSED RULEMAKING ...................................................................................... 261 A. Background.................................................................................................................................. 262 B. Big LEO CDMA Spectrum Proposals ......................................................................................... 265 C. Comment Dates............................................................................................................................ 274 V. PROCEDURAL MATTERS.............................................................................................................. 278 VI. ORDERING CLAUSES..................................................................................................................... 282 Appendix A: List of Commenting Parties Appendix B: Rules Appendix C1: 2 GHz MSS Band Technical Analysis Appendix C2: L-Band Technical Analysis Appendix C3: Big LEO Band Technical Analysis Appendix D: Final Regulatory Flexibility Act Certification Appendix E: Initial Regulatory Flexibility Act Analysis Appendix F: Big LEO Bandplan I. INTRODUCTION 1. Today we decide to permit flexibility in the delivery of communications by Mobile Satellite Service (MSS) providers that operate in three sets of radio frequency bands: the 2 GHz MSS band,1 the L- band2 and the Big LEO bands.3 Specifically, we permit MSS licensees to integrate ancillary terrestrial components (ATCs) into their MSS networks. Flexibility in this context differs from a so-called “flexible-use” allocation in which licensees can provide any service that appears in the U.S. Table of Allocations for the band either individually or in combination with other allocated services. We decide here to permit MSS operators to seek authority to integrate ATCs into their networks for the purpose of enhancing their ability to offer high-quality, affordable mobile services on land, in the air and over the oceans without using any additional spectrum resources beyond spectrum already allocated and authorized by the Commission for MSS in these bands. We will authorize MSS ATC subject to 1 The term “2 GHz MSS band” is used in this Order to refer to the 1990-2025 MHz uplink (Earth-to-space transmissions) and 2165-2200 MHz downlink (space-to-Earth transmissions) frequencies, originally allocated to MSS in the United States. See U.S. Table of Frequency Allocations, 47 C.F.R. § 2.106 (2002) (providing a precise frequency allocation list and stating various encumbrances on particular sub-bands). A companion item to today’s decision alters the 2 GHz MSS band to 2000-2020 MHz for uplink transmissions and 2180-2200 MHz for downlink transmissions. See Amendment of Part 2 of the Commission’s Rules to Allocate Spectrum Below 3 GHz for Mobile and Fixed Services to Support the Introduction of New Advanced Wireless Services, including Third Generation Wireless Systems, ET Docket No.00-258, Third Report and Order, Third Notice of Proposed Rulemaking, and Second Memorandum Opinion and Order, FCC 03-16 (adopted Jan. 30, 2003) (AWS Third Report and Order). 2 The “L-band” is a general designation for frequencies from 1 to 2 GHz. In the United States, the Commission has allocated L-band spectrum for MSS downlinks in the 1525-1544 MHz and 1545-1559 MHz bands and for MSS uplinks in the 1626.5-1645.5 MHz and 1646.5-1660.5 MHz bands. See 47 C.F.R. § 2.106. 3 The term “Big LEO bands” is used in this Order to refer to the 1.6/2.4 GHz bands. In general, the Big LEO MSS systems rely on uplinks within the 1610-1626.5 MHz band and downlinks in the 2483.5-2500 MHz band. 3 FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021 Federal Communications Commission FCC 03-15 conditions that ensure that the added terrestrial component remains ancillary to the principal MSS offering. We do not intend, nor will we permit, the terrestrial component to become a stand-alone service. We believe that permitting MSS ATCs in this manner should: (1) increase the efficiency of spectrum use through MSS network integration and terrestrial reuse and permit better coverage in areas that MSS providers could not otherwise serve; (2) reduce costs, eliminate inefficiencies and enhance operational ability in MSS systems; (3) provide additional communications that may enhance public protection; and (4) strengthen competition in the markets served by MSS.4 2. Our decision today balances the traditional goals of effective and efficient use of spectrum with preserving the optimal amount of spectrum for the provision of international satellite services. In this instance, we find that grant of ATC appears to best balance these competing public interest goals. Specifically, based on the record and our detailed technical analyses, we find that granting shared usage of the same MSS frequency band to separate MSS and terrestrial operators would likely compromise the effectiveness of both systems, particularly satellites already operating in the L-band and Big LEO band. In this case, making limited terrestrial authority available to licensed MSS operators in the form of ATC better serves the public interest than the more limited and technically difficult prospect of attempting to share the MSS spectrum, which would pose an unacceptable risk of harmful interference to the existing and planned operations of licensed MSS operators. At bottom, the Commission must choose between two alternatives. We could either prohibit MSS licensees from deploying MSS ATC in order to preserve, on principal, the initial service and operational rules for MSS. Or we could grant additional authority to the MSS incumbents to improve their services and efficient use of spectrum at the cost of giving the incumbents more operational authority than they had originally sought. Forced to choose, we believe granting, rather than withholding, access to spectrum resources represents the better course. 3. Consistent with this Order and the rules we adopt today, 2 GHz MSS, L-band and Big LEO operators may seek authority to integrate ATCs into existing and planned systems. We will authorize MSS licensees to implement ATCs, provided that the MSS licensee: (1) has launched and operates its own satellite facilities; (2) provides substantial satellite service to the public; (3) provides integrated ATC; (4) observes existing satellite geographic coverage requirements; and (5) limits ATC operations only to the authorized satellite footprint.5 As explained below, observing certain space-segment requirements constitutes the provision of substantial satellite service to the public and should ensure that MSS remains 4 For an overview of historical and current MSS operations, see generally, e.g., Establishing Rules and Policies for Use of Spectrum for Mobile Satellite Services in Upper and Lower L-Band, Report and Order, 17 FCC Rcd 2704, 2708-13, ¶ 11-20 (2002) (discussing technical innovations in MSS, reviewing some of the “strides made in spectrum-efficient MSS technologies” within the L-band and noting that “MSS systems are particularly well suited for providing mobile communication services to areas that are not being adequately served by terrestrial radio facilities”). 5 As we have repeatedly indicated, we intend to authorize ATC only as an ancillary service to the provision of the principal service, MSS. We have established a number of gating requirements to ensure that ATC may only operate after the provision of MSS has commenced and during the period in which MSS continues to operate. See infra §§ III(C)(2)-(4); see also infra App. B. While it is impossible to anticipate or imagine every possible way in which it might be possible to “game” our rules by providing ATC without also simultaneously providing MSS and while we do not expect our licensees to make such attempts, we do not intend to allow such “gaming.” For example, even if an MSS licensee were to enter an agreement to lease some or all of the access to its authorized MSS spectrum to a terrestrial licensee, such spectrum could only be used if its usage met the requirements to ensure it remained ancillary to MSS and were used in conjunction with MSS operations, i.e., that it met all of our gating requirements. The purpose of our grant of ATC authority is to provide satellite licensees flexibility in providing satellite services that will benefit consumers, not to allow licensees to profit by selling access to their spectrum for a terrestrial-only service. 4 FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021 Federal Communications Commission FCC 03-15 first and foremost a satellite service. For planned, licensed MSS systems, licensees may seek ATC authorization prior to launch and operation, but shall not provide ATCs prior to meeting the above criteria, and must have complied with MSS implementation milestones imposed on licensees at the time of seeking authority. 4. To prevent harmful interference and achieve other important public interest goals, we limit ATC deployments to certain “core” spectrum within each MSS licensee’s respective spectrum assignments. These core spectrum requirements vary by band due to the unique characteristics of each MSS system’s spectrum assignment. In the 2 GHz MSS band, ATC is confined to each MSS operator’s “Selected Assignment.” In the L-band, ATC is confined to each operator’s variable spectrum assignment acquired pursuant to the 1996 Mexico City Memorandum of Understanding and related Operating Agreements (Mexico City MoU). In the Big LEO band, ATC is confined to no more than 5.5 megahertz in each direction of transmission per licensee. We implement this decision through the addition of a footnote to the U.S. Table of Frequency Allocations in section 2.106 of our Rules.6 We also establish procedures for the authorization of MSS ATC operations consistent with the terms and conditions of this Order. 5. Finally, we initiate a new rulemaking in response to a petition for rulemaking filed by Iridium Satellite LLC (Iridium).7 In its petition, Iridium requests that we revise our current rules to require MSS systems operating in the 1615.5-1621.35 MHz band to use time division/frequency division multiple access (TDMA/FDMA) technology,8 rather than code division multiple access (CDMA) technology.9 In effect, Iridium requests that we make 5.85 megahertz of MSS spectrum currently used by Globalstar L.P. (Globalstar), which uses CDMA technology, available to Iridium, which uses TDMA/FDMA technology. We tentatively conclude that a rebalancing of spectrum in the Big LEO band would serve the public interest and seek comment on the proposal in Iridium’s petition and on various alternative uses for the Big LEO spectrum, including whether we should reallocate spectrum for unlicensed services, an additional commercial mobile radio service (CMRS) licensee or other services, or initiate a second processing round by which we could authorize new MSS entry. II. BACKGROUND 6. We initiated this proceeding to consider the proposals of two MSS operators, ICO Global Communications (Holdings) Ltd. (ICO) and the Mobile Satellite Ventures Subsidiary LLC (MSV), to 6 47 C.F.R. § 2.106; see infra App. B. This footnote to the allocation table allows MSS licensees to implement MSS ATC pursuant to rules and policies adopted in this Order. 7 Petition for Rulemaking of Iridium Satellite LLC (filed, July 26, 2002) (Iridium Petition) (included in the record of IB Docket No. 02-364). 8 TDMA is a transmission technique in which users of the same frequency band are provided alternating time slots for their transmissions in the system, thereby avoiding mutual interference. 9 CDMA is a transmission technique in which the signal occupies a bandwidth larger than that needed to contain the information being transmitted. The signal is spread over a wide bandwidth, the power is dispersed, and a code is used to send and retrieve the information. The spreading, the variation in the code, and other technical parameters permit a number of users to operate on the same frequency simultaneously without causing mutual harmful interference. 5 FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021 Federal Communications Commission FCC 03-15 integrate ATCs into their MSS networks using assigned MSS frequencies.10 ICO is one of five systems currently authorized to provide 2 GHz MSS in the United States.11 ICO submitted its proposal in ex parte filings in Docket No. 99-81,12 in which we promulgated service rules for operators in the 2 GHz MSS band.13 MSV is currently licensed to provide MSS in the L-band.14 MSV submitted its proposal in the 10 Flexibility for Delivery of Communications by Mobile Satellite Service Providers in the 2 GHz Band, the L-Band, and the 1.6/2.4 GHz Band, IB Docket No. 01-185, Notice of Proposed Rulemaking, 16 FCC Rcd 15532 (2001) (Flexibility Notice). During the course of this proceeding, New ICO Global Communications (Holdings) Ltd. (referred to in the Flexibility Notice) merged with ICO Global Ltd. to form ICO Global Communications (Holdings) Ltd. (referred to in this Order as “ICO”). See Letter from Cheryl A. Tritt to Magalie Roman Salas, Secretary, Federal Communications Commission, File Nos. SAT-T/C-20000531-00097 and SATAMD-20000612-00107 (December 13, 2001). Also during the course of this proceeding, Motient Services, Inc. (Motient), the U.S.-licensed L-band MSS operator, and TMI Communications and Company, Limited Partnership (TMI), a Canadian-licensed L- band MSS provider, combined their MSS systems into a jointly-owned subsidiary, MSV. See Motient Services Inc. and TMI Communications and Company, LP/Mobile Satellite Ventures Subsidiary LLC, Order and Authorization, 16 FCC Rcd 20469 (Int’l Bur. 2001). Due to the substantial commonality of interest among Motient, TMI and MSV, we will refer to the three parties collectively as MSV in this Order unless otherwise indicated. 11 See The Boeing Company, Order and Authorization, 16 FCC Rcd 13691 (Int’l Bur. 2001) (Boeing 2 GHz MSS License); Celsat America, Inc., Order and Authorization, 16 FCC Rcd 13712 (Int’l Bur. 2001) (Celsat 2 GHz MSS License); Constellation Communications Holdings, Inc., Order and Authorization, 16 FCC Rcd 13724 (Int’l Bur./OET 2001) (Constellation 2 GHz MSS License), authorization declared null and void, Mobile Communications Holdings, Inc. and ICO Global Communications (Holdings) Limited for Transfer of Control; Constellation Communications Holdings, Inc. and ICO Global Communications (Holdings) Limited for Transfer of Control, Memorandum Opinion and Order, DA 03-285 (Int’l Bur., rel., Jan. 30, 2003) (Constellation/MCHI Nullification Order); Globalstar, L.P., Order and Authorization, 16 FCC Rcd 13739 (Int’l Bur./OET 2001) (Globalstar 2 GHz MSS License), authorization declared null and void, Globalstar, L.P., for Modification of License for a Mobile- Satellite Service System in the 2 GHz Band, Memorandum Opinion and Order, DA No. 03-328 (Int’l Bur., rel., Jan. 30, 2003) (Globalstar Nullification Order); ICO Services Limited, Order, 16 FCC Rcd 13762 (Int’l Bur./OET 2001) (ICO 2 GHz MSS Order); Iridium LLC, Order and Authorization, 16 FCC Rcd 13778 (Int’l Bur. 2001) (Iridium 2 GHz MSS License); Mobile Communications Holdings, Inc., Order and Authorization, 16 FCC Rcd 13794 (Int’l Bur./OET 2001) (MCHI 2 GHz MSS License), authorization declared null and void, Constellation/MCHI Nullification Order, DA 03-285; TMI Communications and Company, Limited Partnership, Order, 16 FCC Rcd 13808 (Int’l Bur. 2001) (TMI 2 GHz MSS Order). 12 Letter from Lawrence H. Williams and Suzanne Hutchings, ICO Global Communications (Holdings) Ltd., to Chairman Michael K. Powell, Federal Communications Commission, IB Docket No. 99-81 (filed Mar. 8, 2001) (ICO Mar. 8 Ex Parte Letter); see also Letter from Cheryl A. Tritt, Counsel to ICO Services Limited to Magalie Roman Salas, Secretary, Federal Communications Commission, IB Docket 99-81 (April 20, 2001) (ICO April 20, 2001 Ex Parte Letter). 13 See Establishment of Policies and Service Rules for the Mobile Satellite Service in the 2 GHz Band, IB Docket No. 99-81, Report and Order, 15 FCC Rcd 16127 (2000) (2 GHz MSS Rules Order). 14 In 1989, the Commission authorized Motient’s predecessor in interest, American Mobile Satellite Corporation, to construct, launch and operate an MSS system in the upper L-band. Amendment of Parts 2, 22 and 25 of the Commission's Rules to Allocate Spectrum for and to Establish Other Rules and Policies Pertaining to the Use of Radio Frequencies in a Land Mobile Satellite Service for the Provision of Various Common Carrier Services, GEN Docket No. 88-1234, Memorandum Opinion, Order and Authorization, 4 FCC Rcd 6041 (1989) (MSV License), tentative decision on remand, 6 FCC Rcd 4900 (1991), final decision on remand, 7 FCC Rcd 266 (1992), aff’d sub nom. Aeronautical Radio, Inc. v. FCC, 983 F.2d 275 (D.C. Cir. 1993). Beginning in 1999, the Commission granted TMI blanket authority to provide MSS to mobile terminals located in the United States. See Satcom Systems, Inc./TMI Communications and Company, L.P., Order and Authorization, 14 FCC Rcd 20798 (1999), aff’d sub nom. AMSC Subsidiary Corp. v. FCC, 216 F.3d 1154 (D.C. Cir. 2000), modified, Order and Authorization, 15 FCC Rcd (continued….) 6 FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021 Federal Communications Commission FCC 03-15 context of an application for authority to launch and operate a next generation L-band satellite system.15 Other MSS licensees subsequently proposed similar plans.16 A. ATC Concept 7. The various proposals for ATC are conceptually different and would rely on different techniques to increase spectrum efficiency by carrying more communications traffic within the same licensed MSS spectrum. 8. MSV, a geostationary MSS operator, would take advantage of the geographic areas that are not served by specific MSS channels because of intra-system interference concerns.17 These areas are a necessary product of the frequency and geographic intra-system sharing that occurs within their multi- beam satellite systems. By way of background, MSV's next generation system uses satellites that can produce a large number of relatively small “spot-beams” on the surface of the earth. These spot-beams can be small enough to provide satellite coverage to an area on the earth’s surface 400 to 500 km across. Figure 1 demonstrates a sample frequency reuse plan for a geostationary MSS system. (Continued from previous page) 24467 (Sat. Radiocomm. Div., Int’l Bur. 2000); see also TMI Communications and Company, L.P., Order and Authorization, 15 FCC Rcd 18117 (Sat. Radiocomm. Div., Int’l Bur. 2000). 15 Application of Motient Services Inc., File Nos. SAT-LOA-19980702-00066, SAT-AMD-20001214-00171 & SAT-AMD-20010302. See Public Notice, Report No. SAT-00066 at 2 (rel. Mar. 19, 2001) (MSV Application). MSV later indicated that it would seek to use the same ATC network with its current-generation MSS system. See Letter from Carson E. Agnew, President and Chief Operating Officer, and Peter D. Karabinis, Chief Technical Officer, Mobile Satellite Ventures, to Marlene H. Dortch, Secretary, Federal Communications Commission, IB Docket 01-185 at 1 (filed, Dec. 16, 2002) (MSV Dec. 16, 2002 Ex Parte Letter). 16 See, e.g., Globalstar Comments at 2-20; Letter from Cheryl A. Tritt, Counsel, ICO Global Communications (Holdings) Ltd. to William F. Canton, Acting Secretary, Federal Communications, IB Docket 01-185 at 6-10 (filed Mar. 8, 2001) (ICO Mar. 8, 2001 Ex Parte Letter). 17 Letter from David S. Konczal, Counsel, Mobile Satellite Ventures Subsidiary, LLC to Marlene Dortch, Secretary, Federal Communications Commission, IB Docket No. 01-185 at 4-6 (filed Jan. 11, 2002) (MSV Jan. 11, 2002 Ex Parte Letter). 7 FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021 Federal Communications Commission FCC 03-15 Figure 1: Example of a Seven-Fold Frequency Reuse Plan F5 F6 F4 F1 F7 F3 F4 F1 F7 F3 F2 F5 F3 F2 F5 F6 F4 F1 F5 F6 F4 F1 F7 F3 This diagram demonstrates frequency reuse. Here, a spot-beam operating on frequency F1 is surrounded by spot-beams operating on one of six other frequencies (F2 to F7). The distance between spot-beams operating on F1 is sufficient to prevent communications in one F1 beam from causing significant amounts of interference into the closest other spot beam that operates on the same F1 frequency. Because a total of seven frequencies are used in this example, the figure shows a “seven-fold” frequency reuse plan. Frequency reuse plans involving different numbers of frequencies are possible. 9. In the context of MSS, deploying this type of frequency reuse plan leaves areas on the surface of the Earth in which the MSS system is not using a specific MSS frequency, such as frequency F1 as shown in the diagram. The idea behind MSV's ATC is that a terrestrially based communication can occur on frequency F1 in those areas in which the satellite is not using frequency F1 provided that sufficient discrimination exists between the terrestrial transmitters and the MSS satellite beams that use the same frequency. Figure 2 demonstrates a sample frequency reuse plan for a geostationary MSS ATC system.18 18 This sample MSS ATC diagram is based on the proposal of MSV. For additional information on MSV’s proposal, see MSV Jan. 10, 2002 Ex Parte Letter at 18-19. 8 FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021 Federal Communications Commission FCC 03-15 Figure 2: Example of Possible Additional Frequency Reuse through ATC F5 F6 F4 F1 F7 F3 F4 F1 F7 F3 F2 F5 F3 F2 F5 F6 F4 F1 F5 F6 F4 F1 F7 F3 After deployment of MSS ATC, a spot-beam operating on frequency F1 is surrounded by spot- beams operating on one of six other frequencies (F2 to F7) and terrestrial cells also operating on F1. The distance between spot-beams operating on F1 and the terrestrial cells, which also operate on F1, is sufficient to prevent harmful interference from occurring in the F1 MSS beams. 10. ATC implementation for the non-geostationary orbit (NGSO) MSS systems, such as that of Globalstar and ICO tend to be more complex both because the NGSO satellites move with respect to the Earth’s surface and because multiple MSS satellites may be visible at one time. Like the GSO systems, however, the NGSO use multi-beam antennas and assign selected MSS frequencies to selected satellite antenna coverage beams. 11. Globalstar, for example, would assign separate frequencies to MSS and ATC operations varying the assignments on a timed basis.19 The ATC services that are planned for urban areas would cause co-frequency MSS services to be unavailable in areas of the United States where the satellite beam coverage included a co-frequency ATC city. These restricted frequency MSS areas would vary as the satellites move in orbit and as the coverage areas change. Globalstar also indicates that by assigning some frequencies to ATC in selected cities while assigning different frequencies to the MSS operations would reduce the loss of MSS coverage area. They also indicate that MSS operators could reserve some spectrum for MSS-only operations. 12. ICO, an NGSO MSS service provider, plans to control the amount of bandwidth assigned to both the MSS system and the ATC based upon traffic load.20 According to ICO, this concept allows reuse of the MSS spectrum by the ATC in urban areas, while still allowing the satellite to utilize the same spectrum to provide service in rural areas. 13. While MSS ATC systems could operate on unused frequencies within a satellite beam, MSS ATC operators will choose in some cases to operate on some frequencies that are being used within the satellite beam. As a conceptual matter, MSS ATC will generally operate by using certain MSS channels or spectrum on a terrestrial basis over a limited geographic area, such as an urban market. Since the satellite signal generally would be very weak as compared to signals from nearby terrestrial base stations 19 See Globalstar Supplemental Comments at 5. 20 ICO Mar. 8, 2002 Ex Parte Letter, App. B at 2-3. 9 FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021 Federal Communications Commission FCC 03-15 on the same channel, the channel can be used to provide terrestrial service in place of the satellite service in this geographic area. In areas away from the terrestrial base station (perhaps 20 kilometers or more), the signal from the MSS satellite would be much greater than the signal from the terrestrial transmitter on the same channel, and the user would receive the signal from the MSS satellite. There might be a zone on some channels where neither the terrestrial or satellite signal is able to overcome the interference from the other signal, although satellite signals on other channels still would be available for use. 14. The principal proponents of MSS ATC – MSV, ICO and Globalstar – ask that we permit them to re-use their assigned MSS frequencies to operate terrestrial base stations for the purpose of extending their communications services to urban areas and in buildings where the satellite signal is attenuated. They intend that the terrestrial services offered would be ancillary in nature with MSS remaining their primary service offering.21 They state that ATC will allow them to more efficiently and dynamically use the spectrum resources assigned to their systems and add that permitting ATC in urban areas will increase their customer base so that they can offer lower-cost services generally.22 They also contend that a larger customer base will result in economies of scale that will reduce handset manufacturing costs, permitting production of more affordable handsets. They state that if they are permitted to offer ancillary terrestrial services to overcome technical difficulties in penetrating urban areas, they will have a better opportunity for successful development of commercial MSS systems that will serve rural and unserved markets and will be able to use their licensed satellite spectrum more efficiently. In the Flexibility Notice, we incorporated by reference both the ICO and MSV proposals.23 B. Flexibility Notice 15. In the Flexibility Notice, we stated that the potential long-term benefits of MSS merit consideration of approaches to achieve flexibility in the delivery of communications by MSS operators.24 We asked whether and how we might bring flexibility to MSS spectrum either by: (1) permitting 2 GHz and L-band MSS operators to provide service in areas where the MSS signals are attenuated by integrating terrestrial operations with their networks using assigned MSS frequencies, as has been proposed by two operators, or (2) opening up portions of the 2 GHz and L-bands for any operator to provide a terrestrial service that could either be offered in conjunction with MSS or as an alternative mobile service.25 In addition, we sought comment on whether we should consider permitting terrestrial operations in the Big LEO bands due to the similarity between these systems and 2 GHz MSS operations.26 16. On March 6, 2002, we asked for additional technical discussion concerning a way to implement the alternative proposal discussed in the Flexibility Notice, which would open portions of the 21 MSV Application at 6-9; ICO Mar. 8, 2002 Ex Parte Letter at 1, 6-10. 22 MSV Application at 12-13; ICO Mar. 8, 2002 Ex Parte Letter at 11-13. 23 Flexibility Notice, 16 FCC Rcd at 15534, ¶ 5 & n.7. 24 Id. at 15533, ¶ 2. 25 Id. at 15533, ¶ 3. 26 Id. at 15533, ¶ 4. 10 FILED: NEW YORK COUNTY CLERK 05/19/2021 11:59 PM INDEX NO. 652342/2020 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 05/19/2021 Federal Communications Commission FCC 03-15 MSS bands for any operator to provide a terrestrial service.27 We sought comment concerning whether, from a purely technical point of view, MSS operations in the 2 GHz MSS, L- and Big LEO bands could be “severed” from terrestrial operations in each band. Specifically, we asked commenters to elaborate on their earlier discussion of whether it would be “technically feasible for one operator to provide terrestrial services and another operator to provide satellite services in the same MSS band.”28 C. Other Proceedings 17. We note that we do not reach decisions here on issues raised in the Flexibility Notice c