A recently issued Notice of Apparent Liability (NAL), accompanies by a sharp dissent from Commissioner Pai, leaves no doubt that the Commission continues to find new creative and novel ways to bring alleged infractions within the applicable one-year statute of limitations. We have commented on the Commission’s to push the envelope in its interpretation of when the statute begins to run on several prior occasions. The present NAL in question was issued December 11, 2013, against Intelsat License LLC stemming from a license amendment submitted on March 2, 2010, more than forty-three months prior to the NAL. While several portions of the detailed factual background of the NAL have been redacted from public view, in brief, the facts are that Intelsat filed an application in February 2009 to use Ka-band spectrum to operate a new geostationary orbit-like (“GSO-like”) satellite, Galaxy KA. Applications for these satellites under Section 25.158(b) of the Commission’s rules are subject to a “first-come, first-served ‘queue’ approach”; first in-line applications by qualified applicants are granted unless the proposed satellite would cause harmful interference to a satellite already licensed. Among the safeguards to dissuade speculative applications and ensure that space station applicants are “serious and committed” is Section 25.158(c), which prohibits applicants for GSO-like licenses from “transfer[ring], assign[ing], or otherwise permit[ting] any other entity from assuming its place in the queue.”

In February 2010, ViaSat Inc. filed a space station application seeking to use spectrum overlapping the Galaxy KA application. Accordingly, it assumed a position behind Intelsat in the queue. On March 2, 2010, Intelsat amended its application to eliminate the overlap in such a way to allow ViaSat to assume a first in line position. Subsequently, on October 18, 2012, more than thirteen months prior to the Notice, Intelsat withdrew the March 2, 2010, amendment and assumed a place in the queue behind ViaSat. Then, on December 13, 2012, ViaSat withdrew its application, moving Intelsat back to its original first-in line position. Given that the NAL was adopted a year, minus a day, after ViaSat’s withdrawal, ViaSat’s withdrawal and Intelsat’s resumption of its position at the front of the queue apparently caused the one-year statute of limitations to run, at least from the Commission’s perspective.

Several important facts in the NAL are not made available to the public which, if known, might shed a different light on the subject for the public. A careful reading sheds a few details, as the Commission notes that “[a]n applicant’s identity is particularly material” and generally alludes to “undisclosed private transactions between applicants” and “surreptitious transactions.”

The FCC Asserts a Continuing Violation Theory against Intelsat and Seeks the Maximum Forfeiture Amount for a March 2010 Application Amendment