Attachment DIRECTV - req confi

DIRECTV - req confi

REQUEST submitted by DIRECTV

Request for Confidential Trtment Construction Contract

2013-07-12

This document pretains to SAT-AMD-20120420-00071 for Amended Filing on a Satellite Space Stations filing.

IBFS_SATAMD2012042000071_1006041

WG                WILTSHIRE                                                                       FILED/AccEPTED
                  & GRANNIS ur
                                                                                                       JVI 12 2013
                                                                                              Federal Commun
                                                                                                             ications Comm
                                                                                                                              ission
                                                                                                     Office of the Se
                                                                                                                      cretary
                             NON-PUBLIC

                                                                        CONFIDENTIAL TREATMENT REQUESTED
                   FOR INTERNAL
                                USE onLy

                                                       July 12, 2013


BY HAND DELIVERY

Marlene H. Dortch
Secretary
Federal Communications Commission
445 Twelfth Street, S.W.
Washington, DC 20554

           Re:      DIRECTYV Enterprises, LLC
                    IBFS File Nos. SAT—LOA—20120316—00051 and SAT—AMD—20120420—00071
                    (Call Sign $2861)

Dear Ms. Dortch:

        Pursuant to Section 25.164(c) of the Commission‘s rules and Paragraph 6a of the
authorization issued in the above referenced proceedings,‘ DIRECTV Enterprises, LLC
("DIRECTV") hereby submits a non—redacted copy ofits contract for construction of the
DIRECTV KU—79W satellite (the "Contract") by Orbital Sciences Corporation ("OSC").
DIRECTV respectfully requests that, pursuant to Sections 0.457 and 0.459 of the Commission‘s
rules, 47 C.F.R. §§ 0.457 and 0.459, the Commission withhold from public inspection and
accord confidential treatment to redacted portions of the Contract, submitted for the International
Bureau‘s consideration in connection with DIRECTV‘s demonstration of milestone compliance.
This document contains sensitive trade secrets, and commercial and financial information that
fall within Exemption 4 of the Freedom of Information Act ("FOIA")."

        Exemption 4 of FOIA provides that the public disclosure requirement of the statute "does
not apply to matters that are . . . (4) trade secrets and commercial or financial information
obtained from a person and privileged or confidential."" DIRECTV is voluntarily providing this
trade secret and commercial and financial information "of a kind that would not customarily be


     See Stamp Grant, IBFS File Nos. SAT—LOA—20120316—00051 and SAT—AMD—20120420—00071, Condition 6a
     (granted July 12, 2012). See also 47 C.F.R. §25.164(c).

2    5 U.S.C. § 552(b)(4).
3
     1d.                                                            NON—PUBLIC

                                                           FOR INTERNAL USE onLy
    1200 18TH STREET, NW | SUITE 1200 | WASHINGTON, DC 20036 | TEL 202—730—1300 | FAX 202—730—1301 | WILTSHIREGRANNIS.COM


 WILTSHIRE & GRANNIS LLP

 Marlene H. Dortch
 July 12, 2013
 Page 2 of 5

 released to the public‘ in order to demonstrate compliance with a regulatory requirement;
 therefore, this information is "confidential" under Exemption 4 of FOIA.* Moreover, DIRECTV
 would suffer substantial competitive harm if the Contract were disclosed."

      In support of this request and pursuant to Section 0.459(b) of the Commission‘s rules,°
 DIRECTV hereby states as follows:

 1.       IDENTIFICATION OF THE SPECIFIC INFORMATION FOR WHICH CONFIDENTIAL
          TREATMENT Is SoucHt‘

         DIRECTV seeks confidential treatment of those portions of the Contract that were
redacted from the version that is being publicly filed concurrently herewith. These portions of the
Contract reflect key economic terms and technological attributes of the satellite and therefore
should be treated in their entirety as a trade secret. In the context of FOIA, a trade secret is
defined as "as secret, commercially valuable plan, formula, process, or device that is used for the
making, preparing, compounding, or processing of trade commodities and that can be said to be
the end product of either innovation or substantial effort."* The parties have extensively
negotiated the terms of the Contract, which reflects the design of a state—of—the—art satellite and the
confidential commercial and financial terms for its procurement.

2.        DESCRIPTION OF CIRCUMSTANCEsS Givinc RisE To THE SUBMISSION®


        DIRECTV is submitting the Contract to the Commission as required by rule and by
licensing condition in order to demonstrate compliance with the first performance milestone,
which would also result in reduction of DIRECTV‘s performance bond. DIRECTV is also
submitting a redacted version of this document for the public record.




*     See Critical Mass Energy Project v. NRC, 975 F.2d §871, 879 (D.C. Cir. 1992).

°     See National Parks and Conservation Ass‘n v. Morton, 498 F.2d 765 (D.C. Cir. 1974).
6     47 CFR. § 0.459(b).

7     47 C.F.R. § 0.459(b)(1).

8     Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983); see also AT&T
      Information Systems, Inc. v. GSA, 627 F. Supp. 1396, 1401 n.9 (D.D.C. 1986).

°     47 C.F.R. § 0.459(b)(2).


WILTSHIRE & GRANNIS LLP


Marlene H. Dortch
July 12, 2013
Page 3 of 5

3.       EXPLANATION OF THE DEGREE TO WHICH THE INFORMATION Is COMMERCIAL OR
         FINANCIAL, OR CONTAINS A TRADE SECRET OR Is PrivilLEcrp"

        The Contract contains highly sensitive, confidential, and proprietary commercial and
technical information, including trade secrets regarding the construction of satellite spacecraft.
The Contract also contains highly sensitive, confidential and proprietary commercial and
financial information regarding the prices, terms and conditions upon which DIRECTV and OSC
enter into satellite manufacturing arrangements with customers and suppliers. DIRECTV and
OSC treat such information as highly confidential and do not disclose it to third parties. As such,
the information qualifies as material that "would customarily be guarded from competitors.""‘
The redacted information contained in the Contract would not customarily be released by the
persons from whom they are obtained and are therefore covered by Exemption 4 of FOIA when,
as here, it is submitted by such persons to the Government.

4,       EXPLANATION OF THE DEGREE TO WHICH THE INFORMATION CONCERNS A SERVICE
                                              2
         THAT Is SUBJECT To COMPETITION®

         Confidential information in the Contract concerns highly competitive markets in which
both DIRECTV and OSC participate. The Contract contains trade secrets and confidential
information that is commercially sensitive within the satellite manufacturing industry. The
satellite manufacturing industry is extremely competitive, with the current global supply of
satellite manufacturing capacity greatly exceeding the actual demand for satellite construction
services. Similarly, DIRECTV competes in the satellite services and MVPD marketplaces and
faces competition from other satellite operators as well as terrestrial and satellite MVPD
competitors. Such competitors to DIRECTV include DISH Network, Intelsat S.A., and SES S.A.

5.       ExPLANATION oOF How DISCLOSURE OF THE INFORMATION COULD RESULT IN
         SUBSTANTIAL COMPETITIVE Harm"

         OSC is a major manufacturer of satellite and aerospace systems. OSC maintains a
competitive edge vis—a—vis other satellite manufactures by offering customers the benefits of its
experience and expert technical design capability. OSC also competes in the highly competitive
satellite manufacturing market based on the cost advantages ofits economies of scale. Release
of the technical, cost or pricing information contained in the Contract could compromise OSC‘s
competitive edge in the satellite manufacturing market, resulting in substantial competitive harm
to OSC. Similarly, this information would enable DIRECTV‘s competitors to unfairly benefit


9    47 C.F.R. §0.459(b)(3).

1    47 C.F.R. § 0.457.

"    47 C.F.R. § 0.459(b)(4).

3    47 C.F.R. § 0.459(b)(5).


WILTSHIRE & GRANNIS LLP


Marlene H. Dortch
July 12, 2013
Page 4 of 5

from the time and resources that DIRECTV has expended in designing and negotiating for
construction of advanced satellites.

6.       IDENTIFICATION OF An¥y MEASURES TAKEN BY THE SUBMITTING PARTY TO PREVENT
         UnNnAUTHORIZED Discrosure"

        DIRECTV and OSC do not permit the dissemination of the Contract to non—employees
without the execution of a confidentiality agreement. Furthermore, OSC requires its satellite
customers to request confidential treatment as a part of any submission of a satellite construction
contract to government agencies, such as the Commission. In addition, the Contract contains
technical data potentially subject to the U.S. Government‘s International Traffic in Arms
Regulations ("ITAR")."" As such, its dissemination to non—U.S. citizens or companies without
prior approval may be a violation of federal law.

7.       IDENTIFICATION OF WHETHER THE INFORMATION ISs AVAILABLE TO THE PUBLIC AND
         THE EXxTENT OF Any PREvIOUS DISCLOSURE OF THE INFORMATION To THIRD
         ParTiEs‘"
        The Contract is not available to the public and, to the best of DIRECTV‘s knowledge, has
not been disseminated to non—DIRECTV or non—OSC personnel without the execution of a
confidentiality agreement (except for the redacted version being submitted to the Commission).
Accordingly, DIRECTV requests that the Commission accord the information covered by this
Request confidential treatment under Sections 0.457 and 0.459 of the Commission‘s rules.




*    47 C.F.R. § 0.459(b)(6).

5    See 22 C.F.R. § 120.10.
16 47 C.F.R. §0.459(b)(7).


WILTSHIRE & GRANNIS LLP


Marlene H. Dortch
July 12, 2013
Page 5 of 5

8.       JUSTIFICATION OF THE PERIOD DURING WHICH THE SUBMITTING PARTY AsSERTS
         THAT MATERIAL SHOULD NOT BE AVAILABLE FOR PUBLIC DISCLOSURE""

        DIRECTV requests that the Contract be withheld from public disclosure for at least five
years. Release of this information prior to that time would cause substantial competitive harm to
DIRECTV and OSC. This period matches the nondisclosure commitment of the parties to the
agreement," ° which is market evidence of the time period necessary to protect the confidentiality
of competitively sensitive proprietary information contained therein. Therefore, DIRECTV‘s
request for ongoing confidential treatment is reasonable.

                                      ve                   #              ¥e




        For the foregoing reasons, DIRECTV respectfully requests that the redacted portions of
the Contract be granted confidential status and be withheld from public inspection. If
confidential treatment is not granted for all or any part of this confidential material, DIRECTV
requests that all non—redacted copies of the Contract be returned to DIRECTV.

         If you have any questions, please do not hesitate to contact undersigned counsel.

                                                       Respectfully submitted,

                                                                *




                                                       ;Jliam M. Wilitshire
                                                       Counselfor DIRECTY Enterprises, LLC



Enclosure




7    47 C.F.R. § 0.459(b)(8).

8    See Contract at Article 20.1 (Proprietary Information).



Document Created: 2013-08-02 15:47:11
Document Modified: 2013-08-02 15:47:11

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