Attachment EchoStar-req confi t

EchoStar-req confi t

REQUEST submitted by EchoStar

re

2010-07-28

This document pretains to SAT-AMD-20080213-00043 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD2008021300043_837972

                                             STEPTOE &JOHNSONw
                                                     A TT ORNEYS       AT     LAW

      Pantelis Michalopoulos                                                                          1330 Connecticut Avenue, NWY
      202.429.6494                                                                                     Washington, DC 20036—1795
      pmichalo@steptoe.com                                                                                       Tel 202.429.3000
                                                 FOR INTERNAL 1USE ONLY                                              Fax 2024203902
                                                                                                                          steptoe.com


                                                       NON—PUBLIG

                                                                                              FILED!ACCEPTE
        July 28, 2010

        Marlene H. Dortch, Secretary
                                                                                                      juL 28ications2010
                                                                                                                     Commission
        Federal Communications Commission                                                    \Eggie[a\ g%?;?g?;e‘swetaw
         Office of the Secretary
        455 12th Street, S.W.
        Room TW—A325
        Washington, D.C. 20554

                                   CONFIDENTIAL —— NOT FOR PUBLIC INSPECTION

        Re:       EchoStar Corporation
                  File Nos. SAT—LOA—20020328—00050, SAT—AMD—20051118—00245, SAT—AMD—
                  20080114—00020, SAT—AMD—20080213—00043, Call Sign $2442

         Dear Ms. Dortch:

                       Pursuant to Section 25.164(b) of the Commussion‘s rules, 47 C.F.R. §25.164(b)
        EchoStar Corporation ("EchoStar") hereby submits a copy of the satellite construction contract
        that has been executed with Space Systems/Loral ("SSL")‘ to demonstrate compliance with the
        contract execution milestone set forth in Section 25.164(a) of the Commission‘s rules and its
         authorization to construct a satellite in the 17/24 GHz Broadcasting—Satellite Service ("BSS")
         service to be located at the 107° W.L. orbital location." See Attachment 1. The effective date of
         the contract is July 27, 2010, and the scheduled delivery date of the satellite is April 27, 2014.



                  ‘ The contract with SSL has been entered into by EchoStar Orbital L.L.C. for the benefit
         of its parent, EchoStar.

                2 See Stamp Grant, File Nos. SAT—LOA—20020328—00050, SAT—AMD—20051118—00245,
         SAT—AMD—20080114—00020, SAT—AMD—20080213—00043, Condition 6.a. (granted July 28,
         2009). See also 47 C.F.R. §25.164(b).

                                                   FOR INTERNAL USE oNLy


                                                               NON—PUBLIC


WASHINGTON    +   NEW YORK     +   CHICAGO   +   PHOENIX   +    LOS ANGELES   «+   CENTURY CITY   e   LONDON     +   BRUSSELS     «+   BEIJING


                                                                            STEPTOE &JOHNSONw



Marlene H. Dortch
July 28, 2010
Page 2


              Pursuant to Sections 0.457 and 0.459 of the Commission Rules governing the
submission of confidential materials, 47 C.F.R. §§ 0.457, 0.459, EchoStar respectfully requests
that certain portions of the contract in Attachment 1 be afforded confidential treatment and not
be placed in the Commission‘s public files. In a separate submission, EchoStar is providing the
CornmisBSion with a public, redacted version of this contract and the related materials for the
satellite.

               Specifically, the redacted portions of the contract should be withheld from
disclosure because EchoStar faces substantial competition in the satellite services markets, from
such entities as SES World Skies, Intelsat and others. SS/L similarly faces substantial
competition in the satellite manufacturing market from such entities as Lockheed Martin. If the
information redacted from the contract is released to competitors, both entities would face
substantial competitive harm." This information consists of the price terms and commercially
sensitive non—price terms agreed upon with SS/L for the construction of a 17/24 GHz BSS
satellite for EchoStar. EchoStar would be severely prejudiced in its ability to compete if specific
information regarding SS/L‘s price and critical non—price terms were released to competitors
because such competitors could use it to develop competing services." EchoStar also would be
prejudiced in any future negotiations regarding construction of satellites if pricing information
were available to satellite construction companies. For its part, SS/L would be prejudiced in any
future negotiations regarding construction of satellites if its pricing, technical and insurance—
related information were available to other satellite construction companies or to prospective
purchasers of satellites.

               The redacted portions of the contract also qualify as "commercial or financial
information" that "would customarily be guarded from competitors" regardless of whether or not
such materials are protected from disclosure by a privilege." EchoStar takes significant measures

         3 See Letter from Pantelis Michalopoulos, Counsel to EchoStar, to Marlene H. Dortch,
Secretary, FCC (July 28, 2010).

         * National Parks & Conservation Ass‘n v. Morton, 498 F.2d4 765 (D.C. Cir. 1974).

       ° See In re Application ofMobile Communications Holdings, Inc. for Authority to
Construct the ELLIPSO Elliptical Orbit Mobile Satellite System, 10 FCC Red. 1547, 1548 (Int‘l
Bur. 1994) ("buyers receive a clear competitive advantage if they know the prices that other
buyers have been charged as a result of individual negotiations").

       6 See 47 C.F.R. § 0.457(d); see also Critical Mass Energy Project v. NRC, 975 F.2d 8$71,
879 (D.C. Cir. 1992) ("[WJe conclude that financial or commercial information provided to the
Government on a voluntary basis is ‘confidential‘ for the purpose of Exemption 4 if it is of a
                                                                                  (Continued...)


                                                                             STEPTOE&JOHNSON w



Marlene H. Dortch
July 28, 2010
Page 3


to ensure that this information is not disclosed to the public, and the attached material for which
non—disclosure is sought is not available to the public.

              Finally, denying EchoStar‘s request that this information be kept confidential
would impair the Commission‘s ability to obtain this type of voluntarily disclosed information in
the future. The ability of a government agency to continually obtain confidential information
was behind the legislative purpose in developing exemptions from the Freedom of Information
Act.‘ The U.S. Court of Appeals 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."" The Commission should extend a similar recognition to the enclosed materials.

                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 SS/L. EchoStar further requests that the Commission not release these
redacted materials if its request for confidentiality is denied in whole or in part without first
consulting with EchoStar.




kind that would customarily not be released to the public by the person from whom it was
obtained.").

        " See Critical Mass Energy Project, 975 F.2d at 878 ("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 been betrayed will, in all
likelihood, refuse further cooperation.").

         8 1Id. at 879.


                                                                      STEPTOE &JOHNSONw



 Marlene H. Dortch
 July 28, 2010
 Page 4


                                            Respectfully submitted,


                                                    Is/
 Jeffrey H. Blum                            Pantelis Michalopoulos
 Senior Vice President                      Petra A. Vorwig
 & Deputy General Counsel                   STEPTOE & JOHNSON LLP
 EchoStar Corporation                       1330 Connecticut Avenue, NW
1110 Vermont Avenue, NW, Suite 750
                                            Washington, D.C. 20036
 Washington, D.C. 20005
                                            (202) 429—3000
 (202) 293—0981
                                            Counselfor EchoStar Corporation




 cc: Stephen Duall — International Bureau

 Enclosure



Document Created: 2019-04-09 06:07:06
Document Modified: 2019-04-09 06:07:06

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