Attachment request

request

OTHER submitted by EchoStar

request

2005-03-08

This document pretains to SAT-AMD-20031203-00345 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD2003120300345_421723

STEPTOE &JOHNSON« atromneys at caw Pancls Michlopoutes 1310 Commecreut Arenve. NY rmamein on INTERNAT USE ONNfefinzen.be 200%60s prichalotsteptoccom Tel2024203000 raczora203002 seproccom RECEIVI March 8, 2005 ED MAR ~ 8 2005 Marlene H. Dortch FadinlCommuniatoosComnisin Secretary . OfceofSremy Federal Communications Commission Rece) The Portals, Room TW—A325 455 12th Street, S.W. MAR 1 o , Washington, D.C. 20554 2005 ntarmat©rancp conripentiat —— Nor ror ruBLiC nsPECPION,.,,, Re: EchoStar Satellite LL.C., File Nos. SAT—LOA—20030827—00186 and SAT—AMD— 20031203—00345, Call Sign 82499 Dear Ms Dortch: Pursuant to Sections 0.457 and 0.459 ofthe Commission Rules governing the submission of confidential materials, 47 C.F.R. §§ 0.457, 0.459, EchoStar Communications Corporation and EchoStar Satellte L.L.C. (‘EchoStar‘),respectfully request that certain portions of the attached contract‘ between EchoStar Orbital Corporation 1P and Lockheed Martin Corporation (*Lockheed") for the construction of a Ka—band satellte to be located at the 97° W.L. orbit location, and materialsrelated to the contract, be afforded confidential treatment and not be placed in the Commission‘s public files. Also attached are the Statement of Work, Product Assurance Plan, Spacecraft Performance Specifications and Comprehensive Test Plan ‘ To the extent the contract and specifications reflect enhanced capabilities not included in any authorization, EchoStar is proceeding with construction of the satellite atits own risk. See 47 CBR.§25.1130. * EchoStar Orbital Corporation II is one hundred percent indirectly owned by EchoStar Communications Corporation, the ultimate parent of EchoStar Satellte L.L.C. (consistent with the relationship between the contracting party for the EchoStar 9 satellite and EchoStar Satellte LLC). washincton + New vok /+ rhornix + tos anories +. tonbon + susseus

STEPTOE &JOHNSONw Marlene H. Dortch March 8, 2005 Page 2 for the satellte, for which EchoStar also requests confidential treatment. This information is being provided to demonstrate that EchoStar has met the contract execution milestone contained in EchoStar‘s Ka—band authorization for the 97° W.L. orbital location Please note that the effective date of the contract is March 8, 2005, and that the scheduleddelivery date ofthe satellite is a number ofmonths before the launch and operation milestone. Accordingly, this documentation establishes that EchoStar has entered into a binding contract for the construction ofa Ka—band satellte thatis scheduled to be delivered in time to meet the remaining milestones set forth in EchoStar‘s space station authorization." In a separate submission, EchoStar is providing the Commission with a public, redacted version of this contract and the related materials for the satellte, and this request for confidential treatment relates only to the portions ofthese materials redacted from the public version." The redactions are indicated by brackets in the public version. The redacted portions ofthe contract and related materials contain information that qualifies as "commercial ofinancial information" that "would customarily be guarded from competitors" regardless of whether or not such materials are protected from disclosure by a privilege. See 47 C.FR. § 0.457(d)sealso Critical Mass Energy Project v. NRC, 975 F2d 871, 879 (D.C. Cir. 1992) (‘[We conclude that financial or commercial information provided to the Government on a voluntary basis is ‘confidential‘ for the purpose of Exemption 4 ifi is ofa * See Stamp Grant, SAT—AMD—20031203—00345, at Condition 2 (granted March 8, 2004) (establishing a contract execution milestone of March 8, 2005). See also 47 C.F.R. §25.164(c) and In the Matter ofAmendment ofthe Commission‘s Space Station Licensing Rules and Policies; Mitigation ofOrbital Debris, FCC 03—102, First Report and Order and Further Notice of Proposed Rulemaking in IB Docket No. 02—34, and First Report and Order in 1B Docket No. 02—54, 18 FCC Red 10760, at { 185 (2003) (requiring that a licensee submit ts satellte construction contract on or before the contract execution milestone.) (*First Space Station Licensing Reform Order") * See Stamp Grant, SAT—AMD—20031203—00345, at Condition 2 (establishing March 8, 2005 as the contract execution milestone, and March 8, 2009 as the launch and operation milestonc). * See Letter from Pantelis Michalopoulos, Counsel to EchoStar, to Marlene H. Dortch, Secretary, FCC, dated March 8, 2005. This redacted version is being provided to the Commission in accordance with the Commission‘s order amending ts space station licensing rules. See First Space Station Licensing Reform Order at § 187.

STEPTOE &JOHNSON« Mariene H. Dortch March 8, 2005 Page3 kind that would customarily not be released to the public by the person from whom it was obtained."). in addition, the redacted portions of the contract contain sensitive information that ifdisclosed could place EchoStar and Lockheed at a competitive disadvantage, including specific information regarding price terms, interest terms, insurance terms and obligations, allocation of Hiability, and termination provisions, and therefore warrant protection under 47 C.F.R. § 0.459. Both EchoStar and Lockheed would be placed at a significant disadvantage if these detailed terms of their contract were revealed to competing service providers, who stand to benefit competitively from any knowledge of the redacted commercial terms included in these materials. In support ofthis request, and pursuant to 47 C.F.R. § 0.459(b), EchoStar hereby states as follows: 1. The information for which confidential treatment is sought is contained in EchoStar‘s submission to demonstrate compliance with itscontract execution milestone and includes specific information regarding the price and other critical non—price terms agreed upon with Lockheed, a satellite contractor. As noted above, EchoStar is filing a redacted version of this contract and related materials, and this request for confidential tratment pertains only to provisions of contract that are redacted from the public version. 2. The information is being submitted, as required under 47 C.ER. §25.164(c), to demonstrate compliance with the contract execution milestone contained in EchoStar‘s Ka—band license for the 97° W.L. orbital location.® 3. This information contains extremely sensitive commercial and financial information that would customarily be kept from competitors. Specifically, the information consists ofthe price terms and commercially sensitive non—price terms agreed upon with Lockheed for the construction ofa Ka—band satellte for EchoStar. EchoStar would be severely prejudiced in its ability to compete if specific information regarding Lockheed‘s price and critical non—price terms were released to © See Stamp Grant, SAT—AMD—20031203—00345, at Condition 2 (establishing a contract execution milestone of March 8, 2005). See also Pirst Space Station Licensing Reform Order at q185

STEPTOE &JOHNSON« Marlene H. Dortch March 8, 2005 Page4 competitors. Moreaver, Lockheed would be prejudiced in any future negotiations regarding construction of satellites if ts pricing, technical and insurance—related information were available to other satelite construction companies or to prospective purchasers ofsatellites—— as a result, Lockheed has requested that EchoStar redact this information. The information for which non—disclosure is sought pertains to Ka—band satellite services, for which numerous competitors have received licenses. EchoStar‘s competiors (as well as the competitors ofLockheed) for Ka— band services stand to benefit competitively from any knowledge ofthe price and critical non—price terms contained in the contract between EchoStar and Lockheed. Disclosure of the information for which non—disclosure is sought could result in substantial harm to EchoStar and Lockheed by revealing to their competitors, the satellite construction industry and the public EchoStar‘s agreed—upon price terms and critical non—price terms for ts satellte system. Such information could be used by the competitors of EchoStar to develop competing service offerings. See In re Application ofMobile Communications Holdings, Inc. for Authority to Construct the ELLIPSO Elliptical Orbit Mobile Satellte System, 10 FCC Red. 1547, 1548 (Int‘I Bur. 1994) (‘buyers receive a clear competitive advantage ifthey know the prices that other buyers have beencharged as a result oindividual negotiations."). Moreover, EchoStar would be prejudiced in any future negotiations regarding construction ofsatellitesif pricing information were available to satellite construction companies. EchoStar takes significant measures to ensure that thisinformation is not disclosed to the public. The attached material for which non—disclosure is sought is not available to the public. EchoStar requests that the attached material be withheld from disclosure for an indefinite period. Disclosure of this information at any time could jeopardize the competitive position of EchoStar and Lockheed. Finally, EchoStar notes that denying its request that this information be kept confidential would impair the Commission‘s ability to obtain this type ofvoluntarily disclosed information in the future, The ability of a government ageney to continually obtain confidential information was

STEPTOE &JOHNSON« Marlene H. Dortch March 8, 2005 PageS behind the legislative purpose in developing exemptions from the Freedom of Information Act. See Critical Mass Energy Project v. NRC, 975 F.2d 871, 878 (D.C. Cir. 1992) ("Where, however, the information is provided to the Government voluntarily, the presumption is that {the Government‘s]interest will be threatened by disclosure as the persons whose confidences have beenbetrayed will in all likelihood, refuse further cooperation."). The U.S. Court ofAppeals for the D.C. Circuit has recognized a "private interest in preserving the confidentiality of information that is provided the Government on a voluntary basis." /d. at 879. The Commission should extend a similar recognition to the enclosed materials. EchoStar requests that the Commission not release these redacted materials ifits request for confidentiality is denied in whole or in part without first consulting with EchoStar. Respectfully submitted, M&MMCK David K. Moskowitz Pantelis Michalopoulos Senior Vice President and General Counsel Steptoe & Johnson LLP EchoStar Satellite Corporation 1330 Connecticut Ave., NW. 5701 South Santa Fe Washington, D.C. 20036 Litleton, CO 80120 (202) 420—3000 (303) 723—1000 Counselfor EchoStar Communications Corp. and EchoStar Sarellte L.L C Enclosures ces Thomas Tyez, International Bureau


Document Created: 2005-03-10 13:19:06
Document Modified: 2005-03-10 13:19:06
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