Attachment 1994Constellation Op

This document pretains to SAT-A/O-19901107-00066 for Authority to Operate on a Satellite Space Stations filing.

IBFS_SATAO1990110700066_1081794

RECEIVED BEFORE THE NoV 2 8 1994 FEDERAL COMMUNICATIONS COMMISSION . Washington, D.C. 20554 | M%%%WM In the Matter of NN n n n N N yz MOBILE COMMUNICATIONS File Nos. DS 91(6) HOLDINGS, INC. 18—DSS—P—91 (18) O For Application to Construct the ELLIPSO®" Elliptical Orbit aecew E ypy 5 0 1994 Mobile Satellite System To: Chief, International Bureau e n c e a c i r mieEsg pDIMvISSHION i TY ADIO Br ITION_ TO T ENTIAL I DO? ATELL\TE g OPPOST REQUES FOR CONFID NT CONSTELLATION COMMUNICATIONS, INC. ("Constellation"), by its attorneys, pursuant to §1.45(a) of the Commission‘s Rules, hereby opposes the November 16, 1994 request for confidentiality of fin— ancial documents ("Request"), as supplemented on November 18, 1994 ("Supplement"), filed by Mobile Communications Holdings, Inc. ("MCHI") concerning its above—captioned Application. For the reasons which follow, Constellation urges that confidentiali— ty should be denied and the documents for which confidentiality has been requested should either be returned to MCHI and be given no consideration by the Commission or should be made available for public inspection pursuant to §0.457(e) of the Rules. In the Report and Order in CC Docket No. 92—166 (Mobile Sat— ellite Service) ("R&O"), 76 RR 2d 202, 214 (1994), the Commission directed each Big LEO applicant, including MCHI, to file, by November 16, 1994, materials demonstrating its financial qualifi— cations "to build and launch all satellites for which it has app— lied... and to operate its system for one year after launch of the first satellite in it constellation". This requirement is

firmly grounded in the Commission‘s statutory authority under §319(a) of the Communications Act of 1934, as amended (the "Act"), 47 U.S.C. §319(a), to require the filing of specified "facts...as to the... financial...ability of the applicant to construct and operate the station...." While MCHI‘s November 16, 1994 Amendment to its Application paid lip service to the R&O‘s financial qualifications informa— tional requirement by including "all financial information in Exhibit 3" (Request at (3), MCHI originally asked (Request at «4) that the entire Exhibit be shielded from the public and from the other Big LEO applicants and be "reviewed in confidence by the Commission and returned to MCHI after the Commission has satis— fied itself that these materials demonstrate the applicant‘s financial qualifications". In its Supplement (at 1), MCHI now requests confidentiality only for five letters from Exhibit 3 which allegedly help demonstrate its financial qualifications. In the alternative, MCHI requests permission to "redact certain language from these items before disclosure". It is well established that an applicant‘s financial infor— mation will be disclosed when it is "relevant to a significant and material question of fact arising in a Commission proceed— ing". Knoxville Broadcasting Corp., 87 FCC 24 1103, 1105 (1981) . A fortiori, full disclosure is necessary where, as here, what is at issue is an applicant‘s basic financial qualifications as set forth in its amended Application. Here, all other Big LEO appli— cants have submitted similar financial information in response to the R&O‘s directive, and it would be patently inequitable and

contrary to administrative due process for the Commission to: (1) adjudicate the probity and adequacy of MCHI‘s financial documen— tation in secret without revealing the basis for its conclusions; and (2) prohibit the other Big LEO applicants and the public from assisting the Commission‘s examination of MCHI‘s financial quali— fications by inspecting and critiquing MCHI‘s showing, just as MCHI will do with their documentation. See Melody Music, Inc. v. FCC, 345 F.2d 730 (D.C. Cir. 1965) (similarly situated applica— tions must be processed under the same procedural and substantive standards) . Moreover, MCHI‘s Request does not comply with the estab— lished standards for non—disclosure of financial information under §0.459 of the Rules and §552(b) (4) of the Freedom of Infor— mation Act, 5 U.S.C. §552(b) (4) . Specifically, MCHI must demon— strate that "disclosure would be likely to, inter alia, cause the party submitting those materials substantial competitive harm". New York Telephone Co., 5 FCC Red 874 (1990). More must be suppiied than generalized allegations of competitive harm —— or MCHI‘s claim of "sensitive commercial and financial information" (Request at (2). See National Exchange Carrier Ass‘n, 5 FCC Red 7184, 7184 (1990) . Likewise, the suggestion in the Supplement that only limited access to MCHI‘s financial information should be allowed is faulty. Limiting access to the other Big LEO applicants is unwieldy, and, again, it would result in prohibited preferential treatment of MCHI‘s application, because the proposed limitations would exclude the general public and other interested parties

from examining MCHI‘s financial qualifications and commenting thereon. Finally, Constellation submits that MCHI‘s fallback request for the right to redact its documents if they are not accorded confidentiality should be rejected as untimely under the R&O‘s November 16, 1994 filing deadline. Whatever MCHI financial documents are not accorded confidentiality should be made avail— able for public inspection, or should be returned without redac— tion privileges, for the redaction process would give MCHI an additional opportunity to reshape its financial showing which the other Big LEO applicants will not have. See Melody Music, Inc. v. FECC, supra. WHEREFORE, in light of the foregoing, Constellation respect— fully asks the Commission to deny MCHI‘s request for confidenti— ality and either return the five documents at issue to MCHI without consideration or make them available for public inspec— tion. Respectfully submitted, CONSTELLATION COMMUNICATIONS, INC. BAtcaGe Robert A. Mazer Jerold L. Jacobs ROSENMAN & COLIN 1300 — 19th Street, N.W. Suite 200 Washington, D.C. 20036 (202) 463—4645 Its Attorneys Dated : November 28, 1994

CERTIFICATE OF SERVICE I, Yvonne Corbett, a secretary in the law offices of Rosenman & Colin, do hereby certify that a true and correct copy of the foregoing "Opposition to Request for Confidentiality" was sent by first—class mail, postage prepaid, or hand—delivered, this 28th day of November, 1994, to each of the following: * Ms. Karen Brinkmann Special Assistant Office of the Chairman Federal Communications Commission 1919 M Street, N.W., Room 814 Washington, D.C. 20554 Scott Blake Harris, Chief International Bureau Federal Communications Commission 1919 M Street, N.W. Room 658 Washington, D.C. 20554 William E. Kennard, Esq. General Counsel Federal Communications Commission 1919 M Street, N.W. Room 614B Washington, D.C. 20554 Thomas S. Tycz, Chief Satellite & Radiocommunication Division International Bureau Federal Communications Commission 2025 M Street, N.W. Room 6010 Washington, D.C. 20554 Cecily C. Holiday, Deputy Chief Satellite & Radiocommunication Division International Bureau Federal Communications Commission 2025 M Street, N.W. Room 6324 Washington, D.C. 20554 Fern Jarmulnek, Chief Satellite Policy Branch International Bureau Federal Communications Commission 2025 M Street, N.W. Room 6112 Washington, D.C. 20554

Jill Abeshouse Stern, Esq. Shaw, Pittman, Potts & Trowbridge 2300 N Street, N.W. Washington, D.C. 20037 Philip L. Malet, Esq. Alfred M. Manmlet, Esq. Steptoe & Johnson 1330 Connecticut Avenue, N.W. Washington, D.C. 20036 Barry Lambergman, Esq. Fletcher, Heald & Hildreth, P.L.C. 1300 North 17th Street llith Floor Rosslyn, Virginia 22209 Norman R. Leventhal, Esq. Raul R. Rodriquez, Esq. Leventhal, Senter & Lerman 2000 K Street, N.W. Suite 600 Washington, D.C. 20006 Bruce D. Jacobs, Esq. Glenn S. Richards, Esq. Fisher Wayland Cooper Leader & Zaragoza L.L.P. 2001 Pennsylvania Avenue, N.W. Suite 400 Washington, D.C. 20006—1851 Lon C. Levin, Vice President American Mobile Satellite Corp. 10802 Parkridge Boulevard Reston, Virginia 22091 Leslie Taylor, Esq. Leslie Taylor Associates 6800 Carlynn Court Bethesda, Maryland 20817—4302 John T. Scott, III, Esq. William Wallace, Esq. Crowell & Moring 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004—2505 Dale Gallimore, Esq. Counsel Loral Qualcomm 7375 Executive Place, Suite 101 Seabrook, Maryland 20706

Gerald Hellman, Vice President Policy and International Programs Mobile Communications Holdings, Inc. 1120 1l9th Street, N.W. Washington, D.C. 20036 Yvonne Corbett * Hand Delivery


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Document Modified: 2015-03-26 11:23:57
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