Attachment protective order

This document pretains to SAT-AMD-20031118-00332 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD2003111800332_372120

                                  Federal Communications Commission                               DA 04-1299


                                           Before the
                                Federal Communications Commission
                                      Washington, D.C. 20554

In the Matter of

Inmarsat Ventures Limited                              1
Freedom of Information Act Request                             File Nos. SAT-MOD-200311 18-00333;
Regarding Mobile Satellite Ventures                                      SAT-AMD-20031118-00332;
Subsidiary LLC Ex Parte Proceedings                                      SES-MOD-20031118-01879

Order Adopting Protective Order



                                                  ORDER

Adopted: May 7,2004                                                 Released: May 7,2004

By the Chief, Satellite Division, International Bureau:

         1. On December 16, 2003, Commission staff requested certain information’ from Mobile
Satellite Ventures Subsidiary LLC (“MSV”) regarding pending waiver requests associated with MSV’s
Ancillary Terrestrial Component (“ATC”) application.* In a responsive letter dated December 30,2003,
counsel for MSV submitted further inf~rmation,~   requesting that some of the information be treated as
confidential and providing redacted copies for the public application files.4 MSV alleged that the
redacted information pertaining to the current and projected demand for its satellite services is
commercially sensitive.’ MSV also alleged that disclosure of redacted information pertaining to the



1
 See E-mail from Breck Blalock, Deputy Chief, Policy Division, International Bureau, Federal Communications
Commission, to Bruce D. Jacobs, Counsel for Mobile Satellite Ventures Subsidiary LLC, December 16, 2003.

 File Nos. SAT-MOD-2003 1118-00333 (Modification of space station license (AMSC-1); SAT-AMD-20031118-
00332 (Amendment to application for authority to launch and operate replacement satellite); and SES-MOD-
20031 118-01879 (Modification of blanket license for operation of mobile terminals with MSAT-1 (E980179)); see
also, Policy Branch Information, Public Notice, Mobile Satellite Ventures Subsidiary LLC Ancillary Terrestrial
Component Applications Accepted for Filing, Report No. SPB-200, (rel. Feb. 9,2004).
3
 Letter from Bruce D. Jacobs, Shaw Pittman LLP, counsel to Mobile Satellites Ventures Subsidiary LLC, to
Marlene H. Dortch, Secretary, Federal Communications Commission, dated December 30, 2003 (“MSV December
30 Letter”).

    Id.
5
    Id. at 2-3.


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                                     Federal Communications Commission                                DA 04-1299


projected lifetimes of its current satellites is also commercially sensitive.6

        2. On March 17,2004, Inmarsat Ventures Limited (“Inmarsat”) filed, pursuant to the Freedom
of Information Act (“FOIA”),’ a request to inspect the documents submitted to the Commission by MSV
in the MSV December 30 Letter.’ MSV opposed Inmarsat’s request.’ Inmarsat, together with any other
individuals or entities that subsequently submit a request, pursuant to FOIA, to review these documents
are each hereafter referred to as a “Reviewing Party.”

        3. We conclude that requiring MSV to disclose the redacted information contained in the MSV
December 30,2003 letter to a Reviewing Party pursuant to the terms of a protective order will provide
adequate protection to the confidential information included in the documents, without depriving a
Reviewing Party of a meaningful opportunity to comment, as required by the Administrative Procedure
Act. Consequently, the Division hereby adopts the attached Protective Order in Appendix A. We require
MSV to provide copies of the documents to a Reviewing Party, once that Reviewing Party has executed
and delivered the Acknowledgement of Confidentiality that is part of the Protective Order attached to this
Order.

         4. In the Confidential Information Policy Order,” the Commission decided that, if the
Commission issued a protective order, interested parties generally will be given at least 30 days from the
date the protected material becomes available to file or supplement a petition to deny.” Given the
relatively small amount of information that is becoming available subject to this Order, the comment and
response periods have been shortened.

       5. Accordingly, IT IS ORDERED that Mobile Satellites Ventures Subsidiary LLC IS
REQUIRED to provide to Inmarsat Ventures Limited (and any other Reviewing Party that subsequently
becomes a party to the Protective Order), a copy of the documents submitted to the Commission on
December 30,2003 under the terms of the Protective Order attached to this Order, once Inmarsat
Ventures Limited, or any other Reviewing Party, as appropriate, has executed such Protective Order.

        6. IT IS FURTHER ORDERED that comments in the underlying proceeding, File Nos. SAT-
MOD-2003 1118-00333, SAT-AMD-20031I 18-00332, and SES-MOD-20031 118-01879, with respect to
the information available for disclosure pursuant to this protective order must be filed with the
Commission on or before 21 days from the release of this Order and responses must be filed on or before
28 days from the release of this Order.

6
     id. at 2.
7
     5 U.S.C. 9 522, et. seq.
8
 Freedom of Information Act Request, Mobile Satellite Ventures Subsidiary LLC, filed by Inmarsat Ventures
Limited on March 17, 2004, FOIA 2004-322 (“Inmarsat FOIA Request”).
9
 Letter from Lon C. Levin, Vice President, Mobile Satellite Ventures Subsidiary, to Andrea S. Fischel, Managing
Director, Federal Communications Commission, April 14, 2004 (“MSV FOIA Opposition”).
IO
     Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the
Commission, GEN Docket No. 96-55, Report and Order, 13 FCC Rcd 24816 (1998) (Y“nJidentia1 Information
Policy Order”).
11
     Confidential information Policy Order, 13 FCC Rcd at 24839 (para. 34).


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                               Federal Communications Commission                           DA 04-1299


        7. This Order is issued pursuant to Sections 4(i) and 3 10(d) of the Communications Act of
1934, as amended, 47 U.S.C. $0 154(i) and 310(d), Exception 4 of the Freedom of Information Act, 5
U.S.C. 3 552(b)(4), and authority delegated under Sections 0.51 and 0.261 of the Commission’s rules, 47
C.F.R. $5 0.51, 0.261, and is effective upon its adoption.


                                               FEDERAL COMMUNICATIONS COMMISSION



                                               Thomas S. Tycz
                                               Chief, Satellite Division
                                               International Bureau




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                                     Federal Communications Commission                               DA 04-1299


                                                 APPENDIX A

                                                Protective Order

         1.      Introduction. On December 16, 2003, Commission staff requested certain information’
from Mobile Satellite Ventures Subsidiary LLC (“MSV”) regarding pending waiver requests associated
with MSV’s Ancillary Terrestrial Component (“ATC”) application.2 In a responsive letter dated
December 30,2003, counsel for MSV submitted further inf~rmation,~          requesting that some of the
information be treated as confidential and providing redacted copies for the public application files.4
MSV alleged that the redacted information pertaining to the current and projected demand for its satellite
services is commercially ~ensitive.~   MSV also alleged that disclosure of redacted information pertaining
to the projected lifetimes of its current satellites is also commercially sensitive.6

            2.    On March 17,2004, Inmarsat Ventures Limited (“Inmarsat”) filed, pursuant to the
Freedom of Information Act (I‘FO~Y’),~     a request to inspect the documents submitted to the Commission
by MSV with the MSV December 30 Letter.8 MSV opposed Inmarsat’s request.’ Inmarsat, together with
any other individuals or entities that subsequently submit a request, pursuant to FOIA, to review these
documents are each hereafter referred to as a “Reviewing Party.” Consequently, the Satellite Division
(“Division”) has adopted this Protective Order to ensure that these documents are afforded adequate
protection. This Order reflects the manner in which “Confidential Information,” as that term is defined
herein, is to be treated and is not intended to constitute a resolution of the merits concerning whether any
Confidential Information would be released publicly by the Commission upon proper request under the
Freedom of Information Act or other applicable law or regulation, including 47 C.F.R. 5 0.442.

1
 See E-mail from Breck Blalock, Deputy Chief, Policy Division, International Bureau, Federal Communications
Commission, to Bruce D. Jacobs, Counsel for Mobile Satellite Ventures Subsidiary LLC, December 16,2003.
2
 File Nos. SAT-MOD-20031118-00333 (Modification of space station license (AMSC-1); SAT-AMD-20031118-
00332 (Amendment to application for authority to launch and operate replacement satellite); and SES-MOD-
2003 1118-01879 (Modification of blanket license for operation of mobile terminals with MSAT-1 (E980179)); see
also, Policy Branch Information, Public Notice, Mobile Satellite Ventures Subsidiary LLC Ancillary Terrestrial
Component Applications Accepted for Filing, Report No. SPB-200, (rel. Feb. 9,2004).
3
 Letter from Shaw Pittman LLP, counsel to Mobile Satellites Ventures Subsidiary LLC, to Marlene H. Dortch,
Secretary, Federal Communications Commission, dated December 30, 2003 (“MSV December 30 Letter”).
4
    Id.
5
    Id. at 2-3.
6
    Id. at 2.
7
    5 U.S.C. 9 522, et. seq.
8
    Freedom of Information Act Request, Mobile Satellite Ventures Subsidiary LLC, filed by Inmarsat Ventures
Limited on March 17,2004, FOIA 2004-322 (“InmarsatFOIA Request”).
9
 Letter from Lon C. Levin, Vice President, Mobile Satellite Ventures Subsidiary, to Andrea S. Fischel, Managing
Director, Federal Communications Commission, April 14,2004 (“MSV FOIA Opposition”).


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                                 Federal Communications Commission                            DA 04-1299



        3.      Definitions.     As used herein, capitalized terms, not otherwise defined herein, shall
have the following meanings:

        “Confidential Information” means the information redacted from the documents submitted to the
Commission with MSV’s letter of December 30,2003 or derived therefrom that is not otherwise publicly
available;

          “Counsel” means In-House Counsel and Outside Counsel of Record;

        “In-House Counsel” means the attorney or attorneys employed by the MSV or a Reviewing Party
or who is employed by an affiliated entity and who are actively engaged in the conduct of this
proceeding, provided that, such counsel are not involved in competitive decision-making, i.e., In-House
Counsel’s activities, association, and relationship with a client are not such as to involve such counsel’s
advice and participation in any or all of the client’s business decisions made in light of similar or
corresponding information about a competitor; and

        “Outside Counsel of Record” means the firm(s) of attorneys, or sole practitioner(s), as the case
may be, representing the MSV or a Reviewing Party.

          “Relevant Proceedings” means proceedings that involve: Mobile Satellite Ventures Subsidiary
LLC file numbers SAT-MOD-20031118-00333, SAT-AMD-20031118-00332, SES-MOD-20031118-
01 879.

        4.       Use of Confidential Information. Persons obtaining access to Confidential Information
under this Protective Order shall use the information solely for preparation and the conduct of Relevant
Proceedings as delimited in this paragraph and paragraphs 6 (Permissible Disclosure), 11 (Filings with
the Commission), and 12 (Client Consultation), and any subsequent judicial proceeding arising directly
from these proceedings and, except as provided herein, shall not use such documents or information for
any other purpose, including without limitation business, governmental, or commercial purposes, or in
other administrative, regulatory or judicial proceedings.

        5.      Non-Disclosure of Confidential Information. Except with the prior written consent of
the MSV, or as hereinafter provided under this Protective Order, no Confidential Information may be
disclosed by a Reviewing Party to any person other than the Commission and its staff.

        6.       Permissible Disclosure. Subject to the requirements of paragraph 9 (Proceduresfor
Obtaining Access to ConJidentialInformation), Confidential Information may be reviewed by Counsel.
Subject to the requirements of paragraph 9, Counsel may disclose Confidential Information to: (1)
outside consultants or experts retained for the purpose of assisting Counsel in these proceedings,
provided that, the outside consultants or experts are not involved in the analysis underlying the business
decisions of any competitor of the MSV nor do they participate directly in those business decisions; (2)
paralegals or other employees of such Counsel not described in clause 3 of this paragraph 6 assisting
Counsel in this proceeding; (3) employees of such Counsel involved solely in one or more aspects of
organizing, filing, coding, converting, storing, or retrieving documents or data or designing programs for
handling data connected with these proceedings, or performing other clerical or ministerial functions
with regard to documents connected with these proceedings; and (4) employees of third-party contractors
perfonning one or more of the functions set forth in clause 3 of this paragraph 6 . Individuals who have
obtained access to Confidential Information in accordance with the provisions of this paragraph 6 and
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                                 Federal Communications Commission                              DA 04-1299


paragraph 9 may discuss and share the contents of the Confidential Information with any other person
who has also obtained access in accordance with the provisions of this paragraph 6 and paragraph 9, and
with the Commission and its staff.

        7.       Protection of Conjidential Information. Persons described in paragraph 6 (Permissible
Disclosure) shall have the obligation to ensure that access to Confidential Information is strictly limited
as prescribed in this Protective Order. Such persons shall further have the obligation to ensure that: (1)
Confidential Information are used only as provided in this Protective Order; and (2) the documents are
not duplicated except as necessary for filing at the Commission under seal as provided in paragraph 11
(Filings with the Cornmission)below.

         8.       Prohibited Copying. If, in the judgment of the MSV, the documents contain information
so sensitive that it should not be copied by anyone, the relevant pages of the documents shall bear the
legend “Copying Prohibited,” and no copies of such pages, in any form, shall be made. Application for
relief from this restriction against copying may be made to the Commission, with notice to the MSV.

          9.     Procedures for Obtaining Access to Confidential Information. In all cases where access
to Confidential Information is permitted pursuant to paragraph 6 (Permissible Disclosure), before
reviewing or having access to any Confidential Information, each person seelung such access shall
execute the Acknowledgment of Confidentiality (“Acknowledgment”)(see Appendix B) and file it with
the Division, on behalf of the Commission, and serve it upon the MSV so that the Acknowledgment is
received by MSV at least five business days prior to such person’s reviewing such Confidential
Information. Where the person seeking access is one described in either clause 3 or 4 of paragraph 6, the
Acknowledgment shall be delivered promptly prior to the person’s obtaining access. MSV shall have an
opportunity to object to the disclosure of the documents to any such persons. Any objection must be
filed at the Commission and served on Counsel representing, retaining or employing such person within
three business days after receiving a copy of that person’s Acknowledgment (or where the person seeking
access is one described in either clause 3 or 4 of paragraph 6, such objection shall be filed and served as
promptly as practicable after receipt of the relevant Acknowledgment). Until any such objection is
resolved by the Commission and, if appropriate, any court of competent jurisdiction prior to any
disclosure, and unless such objection is resolved in favor of the person seeking access, persons subject to
an objection from the MSV shall not have access to Confidential Information. Upon receipt of an
Acknowledgment and upon there being no objection to the person seeking access by the MSV, the MSV
shall deliver a copy of the documents to such person.

        10.     Requests for Additional Disclosure. If any person requests disclosure of Confidential
Information outside the terms of this Protective Order, requests will be treated in accordance with
Sections 0.442 and 0.461 of the Commission’s rules.

        11.    Filings with the Commission. Persons described in paragraph 6 (Permissible Disclosure)
may, in any documents that they file in this proceeding, reference Confidential Information, but only if
they comply with the following procedure:

        a. Any portions of the pleadings that contain or disclose Confidential Information must be
physically segregated from the remainder of the pleadings;

        b. The portions of pleadings containing or disclosing Confidential Information must be covered
by a separate letter to the Secretary of the Commission referencing this Protective Order;


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                                 Federal Communications Commission                             DA 04-1299


        c. Each page of any party’s filing that contains or discloses Confidential Information subject to
this order must be clearly marked: “Confidential Information included pursuant to Protective
Order, File No. SAT-MOD-20031118-00333,SAT-AMD-20031118-00332,SES-MOD-20031118-
01879;” and

        d. The confidential portion(s) of the pleading shall be served on the Secretary of the
Commission, the Division, and the MSV. Such confidential portions shall be served under seal, and shall
not be placed in the Commission’s public file. A party filing a pleading containing Confidential
Information shall also file redacted copies of the pleading containing no Confidential Information, which
copies shall be placed in the Commission’s public files. Parties should not provide courtesy copies of
pleadings containing Confidential Information to Commission Staff unless the Division so requests. Any
courtesy copies shall be submitted under seal.

         12.     Client Consultation. Nothing in this order shall prevent or otherwise restrict Counsel
from rendering advice to their clients relating to the conduct of this proceeding and any subsequent
judicial proceeding arising therefrom and, in the course thereof, relying generally on examination of
Confidential Information;provided, however, that in rendering such advice and otherwise communicating
with such client, Counsel shall not disclose Confidential Information.

         13.    No Waiver of Confidentiality. Disclosure of Confidential Information as provided herein
by any person shall not be deemed a waiver by the MSV of any privilege or entitlement to confidential
treatment of such Confidential Information. Reviewing parties, by viewing this material agree: (1) not to
assert any such waiver; (2) not to use Confidential Information to seek disclosure in any other
proceeding; and (3) that accidental disclosure of Confidential Information by the MSV shall not be
deemed a waiver of any privilege or entitlement as long as MSV takes prompt remedial action.

         14.    Subpoena by Courts, Departments or Agencies. If a court, or a federal or state
department or agency issues a subpoena or orders production of the documents or any Confidential
Information that a party has obtained under terms of this Protective Order, such party shall promptly
notify the MSV of the pendency of such subpoena or order. Consistent with the independent authority of
any court, department or agency, such notification must be accomplished such that the MSV has a full
opportunity to oppose such production prior to the production or disclosure of the documents or
Confidential Information.

         15.     Violations of Protective Order. Should a person that has properly obtained access to
Confidential Information under this Protective Order violate any of its terms, that person shall
immediately convey that fact to the Commission and to the MSV. Further, should such violation consist
of improper disclosure of Confidential Information, the violating person shall take all necessary steps to
remedy the improper disclosure. The Commission retains its full authority to fashion appropriate
sanctions for violations of this Protective Order, including but not limited to suspension or disbarment of
Counsel from practice before the Commission, forfeitures, cease and desist orders, and denial of further
access to Confidential Information in this or any other Commission proceeding. Nothing in this
Protective Order shall limit any other rights and remedies available to the MSV at law or in equity
against any person using Confidential Information in a manner not authorized by this Protective Order.

         16.     Termination ofproceeding. The provisions of this Protective Order shall not terminate
at the conclusion of this proceeding. Within two weeks after conclusion of this proceeding and any
administrative or judicial review, persons described by paragraph 6 (Permissible Disclosure) shall
destroy or return to the MSV the documents and all copies of the same. No material whatsoever derived
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                                Federal Communications Commission                             DA 04-1299


from may be retained by any person having access thereto, except Counsel (as described in paragraph 6
(Permissible Disclosure)) may retain, under the continuing strictures of this Protective Order, two copies
of pleadings (one of which may be in electronic format) containing Confidential Information prepared on
behalf of that party. All Counsel shall make certification of compliance herewith and shall deliver the
same to Counsel for the MSV not more than three weeks after conclusion of this proceeding. The
provisions of this paragraph 16 regarding retention of Stamped Confidential Documents and copies of
same shall not be construed to apply to the Commission or its staff.




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                                  Federal Communications Commission                              DA 04-1299


                                               APPENDIX B

                                   Acknowledgment of Confidentiality



         I hereby acknowledge that I have received and read a copy of the foregoing Protective Order in
the above-captioned proceeding, and I understand it. I agree that I am bound by the Protective Order and
that I shall not disclose or use Confidential Information except as allowed by the Protective Order. I
acknowledge that a violation of the Protective Order is a violation of an order of the Federal
Communications Commission.

         Without limiting the foregoing, to the extent that I have any employment, affiliation or role with
any person or entity other than a conventional private law firm (such as, but not limited to, a lobbying or
public interest organization), I acknowledge specifically that my access to any information obtained as a
result of the order is due solely to my capacity as Counsel or consultant to a party or other person
described in paragraph 6 (Permissible Disclosure) of the foregoing Protective Order and that I will not
use such information in any other capacity nor will I disclose such information except as specifically
provided in the Protective Order.

        I hereby certify that I am not involved in “competitive decision-malung” as that term is used in
the definition of In-House Counsel in paragraph 3 (Definitions) of the Protective Order.

         I acknowledge that it is my obligation to ensure that: (1) Confidential Information is used only
as provided in the Protective Order; and (2) the documents are not duplicated except as specifically
permitted by the terms of paragraphs 6 (Permissible Disclosure) and 11 (Filings with the Commission)
of the Protective Order, and I certify that I have verified that there are in place procedures, at my firm or
office, to prevent unauthorized disclosure of Confidential Information.

        Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to
them in the Protective Order.


        Executed at                                        this-day     of                ,-.




                                                           [Name]
                                                           [Position]

                                                           [Address]
                                                           [Telephone]



Document Created: 2004-05-07 12:28:54
Document Modified: 2004-05-07 12:28:54

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