Attachment ViaSat- req confi tr

ViaSat- req confi tr

REQUEST submitted by ViaSat

r

2010-08-16

This document pretains to SAT-AMD-20081203-00220 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD2008120300220_837448

                                                                             FILED/ACCEPTED
                                              BEFORE THE
                                  FEDERAL COMMUNICATIONS COMMISSION               AUG 18 z019
                                        WaAsHINGTON, D.C. 20554                               2e
                                              .                            Federalggqufnicafions Commission
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In the Matter of                                   )                                 e of   the Secretary
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ViaSat, Inc.                                       )   FCC File No, SAT—LOA—20070314—00051,
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                         REQUEST FOR CONFIDENTIAL TREATMENT


                   Pursuant to Sections 0.4'57 and 0.459 of the Commission‘s rules, 47 C.F.R. §§

0.457 & 0.459, ViaSat, Inc. (“ViéSat”) respectfully requests that the Commission withhold from

.public inspection, and accord confidential treatment to the enclosed, unredacted veréions of

Amendment No. 2, dated January 22, 2010, and Amendment No. 3, dated May 17, 2010

(€togeth.er, the "Amendments") td the "Contract between ViaSat, Inc. and Space Systems/Loral,

Inc. for the ViaSat ‘77° Satellite Program," ("Contract‘"). The Contract relates to the

construction of a Commission—authorized satellite that will operate at the 77.3° W.L. orbital

location and provide fixed satellite service ("FSS") using Ka—band frequencies (the "Satellite"),

ViaSat has separately filed today with the Commission redacted versions of the Amendments,

from which the confidential portions have been removed. Those redacted versions are available

for public inspection.




               %FOR INTERNAL USE ONLY


               ‘             NOM~PUBLIG


               In support of this request and pursuant to Section 0.459(b) of the Commission‘s

rules, 47 C.F.R. § 0.459(b), ViaSat provides the following information:




1.     Identification of the Specific Information for Which Confidential Treatment ’Is

       Sought (47 C.F.R. § 0.459(b)(1)). ViaSat respectfully requests that the Commission

       withhold from public inspection, and accord confidential treatment to, the enclosed

       unredacted versions of the Amendments in their entirety ("Confidential Information").




2.     Description of Circumstances Giving Rise To the Submission (47 C.F.R. §

       459(b)(2)). The Confidential Material is being filed voluntarily to supplement the

       records of the above—captioned satellite license files.




3.     Explanation of the Degree to Which the Information Is Commercial or Financial, or

       Contains a Trade Secret or Is Privileged (47 C.F.R. § 0.459(b)(3)). The Confidential

       Material contains sensitive commercidl and fihancial information "which would

       customarily be guarded from competitors," including without limitation (i) descriptions

       of technical work programs; (ii) disclosures of business plans; (ii1) financial terms and

       conditions; and (iv) pricing and financial nonperformance penalties. As explained below,

       public disclosure of this information would place ViaSat at a competitivedisadvantage

       vis—a—vis its competitors, and damage ViaSat‘s position in the marketplace. Notably, the

       Commission has recognized that spacecraft construction agreements, to which the

       Amendments pertain, contain competitively sensitive information, and need to be

       protected. See, eg., GE American Communications, 16 FCC Red 6731 (2001).


Explanation of the Degree to Which tfxe Information Concerns a Service That Is

Subject to Competition (47 C.F.R. § 0.459(b)(4)). The Confidential Material, concerns

the design, development, and construction of the Satellite — which will support, among

other things, broadband satellite service offerings — as well as the financial terms and

conditions relating to the construction of the Satellite. These satellite offerings are

subject to competition from oth.er existing and potential broadband satellite service

offerings, as well as the existing and potential terrestrial broadband offerings, such as

those provided by cable and DSL operators.



Explanation of How Disclosure of the Information Could Result in Substantial

Competitive Harm (47 C.F.R. § 0.459(b)(5)). As noted above, a number of operators

compete, or potentially compete, with ViaSat. If ViaSat‘s competitors were to obtain

access to the Confidential Material, they would unfairly benefit from the time and

resources that ViaSat has expended in designing the Satellit¢ and negotiating the Contract

and the Amendments. The parties have extensively negotiated the terms of the Contract

and the Amendments, including pricing and financial terms and the terms for the

development and construction of the Satell.ite. Further, disclosure ofthis information

could harm ViaSat in future negotiations regarding satellite construction. Moreover,

ViaSat‘s Satellite is a state—of—the—art spacecraft with design elements never before built

for the commercial satellite industry. ViaSat would be severely disadvantaged if its

competitbrs had access to ViaSat‘s unique satellite design, or if they were able to discern

the process by which the Satellite has been developed.


Identification of Any Measures Taken By the Submitting Party to Prevent

Unauthorized Disclosure (47 C.F.R. § 0.459(b)(6)). The Confidential Material is not

normally distributed, circulated, or provided to any party outside of ViaSat or it satellite

manufacturer. Third parties who need access are bound by nondisclosure undertakings.

In addition, the Contract to which the Amendments pertain contains provisions requiring

both parties to maintain the confidentiality of proprietary information, which includes the

terms ofthe Contract and any amendments thereto.




Identification of Whether the Information Is Available to the Public and the Extent

of Any Previous Disclosure of the Information to Third Parties (47 C.F.R. §

0.459(b)(7)). None of the Confidential Material has previously been disclosed to the

public. By the terms of the Contract, ViaSat is bound not to publicly disclose the

business and financial terms of the Contract, including the terms in the Amendments.

Customaflly, the confidential terms in the Amendments would not be released to the

public by ViaSét orits satellite manufacturer, Space Systems/Loral, Inc., and therefore is

covered by Exemption 4 of FOIA.




Justification of the Period During Which the Submitting Party Asserts That

Material Should Not Be Available For Public Disclosure (47 C.F.R. § 0.459(b)(8)).

ViaSat requests that the Confidential Material be treated as confidential for a period of at

least 19 years — the minimum expected service life of the Satellite plus the expected time


  between now and its launch.




  Other Information That ViaSat Believes May Be Useful In Assessing Whether Its

  Request for Confidentiality Should Be Granted (47 C.F.R. § 0.459(b)(9)). As noted

  above, the Commission has recognized that spacecraft construction agreements, such as

  the Contract, contain competitively sensitive information, and need to be protected. The

  confidential information in the Amendments contains the same type of competitively

  sensitive information as in the Contract. Consistent with these policies, the Commiséion

 has adhered to a policy of not authorizing the disclosure of confidential information on

 the mere chance that it might be helpful to a third party, Rather, the Commission insists

  on a showihg that the information is a necessary link in a chain of evidence that will

 resolve an issue before the Commission. See Examination of Current Policy Concerning

  the Treatment of Confidential Information Submitted to the Commission, 13 FCC Red

  24816, 8 (1998). Further, the Confidential Material falls under Exemption 4 of the

 Freedom of Information Act (FOIA), which provides that the public disclosure

. requirement ofthe statute "does not apply to matters that are . . . (4) trade secrets and

  commercial or financial information obtained from a person and privileged or

  confidential." 5 U.S.C. § 552(b)(4). The Confidential Material includes sensitive trade

  secrets and commercial and financial information that squarely fall within Exemption 4,

  insofar as this information is (i) commercial or financial in nature; (ii) obtained by a

  person outside government; and (iii) privileged and confidential. See Washington Post

  Co. v. U.S. Department ofHealth and Human Services, 690 F.2d 525 (D.C. Cir. 1982).


               For these reasons, ViaSat respectfully requests that the Commission withhold

from public inspection, and accord confidential treatment to, the enclosed unredacted

Amendments.




                                              Respectfully submitted,


                                              ViaSat, Inc.




                                                  John P. Janka
                                                  Elizabeth R. Park
                                                  Amanda E. Potter
                                                  LATHAM & WATKINS
                                                  555 Eleventh Street, N. W.
                                                  Suite 1000
                                                  Washington, D.C. 20004—1304
                                                  Phone: (202) 637—2200
                                                  Fax:     (202) 637—2201

August 16, 2010



Document Created: 2019-04-13 23:05:06
Document Modified: 2019-04-13 23:05:06

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