Attachment 20299 Opposition to

This document pretains to SAT-LOA-19941116-00088 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA1994111600088_973533

onlrass Before the ;{‘-;'"'""FJEDERAL COMMUNICATIONS COMMISSION f Washington, D.C. 20554 In the Matter of & FINAL ANALYSIS COMMUNICATION File Nos. 25—SAT—P/LA—95 SERVICES, INC. 76—SAT—AMEND—95 79—SAT—AMEND—96 Order and Authorization to Construct, Launch 151—SAT—AMEND—96 and Operate a Non—Voice, Non—Geostationary 7—SAT—AMEND—97 Mobile Satellite System in the 148—150.05 MHz, 400.15—401 MHz, and 137—138 MHz bands OPPOSITION TO REQUEST FOR NON—DISCLOSURE Leo One USA Corporation ("Leo One USA"), by its attorneys, hereby submits this opposition to the request for non—disclosure of Final Analysis Communication Services, Inc. ("Final Analysis"). For the reasons detailed below, Leo One USA asks that the Commission deny the Final Analysis request and provide Final Analysis with the option to withdraw its filingor refile the 3 °0 material in the public record. a S &5 Cap P 1. Introduction o nmk o Bo On January 12, 1999, Final Analysis submitted to the Commission § Re(&st for Non—Disclosure of certain information it characterized as commercially and techgcallyccsénsitive material." The Final Analysis Request seeks confidential treatment of a letter by General Dynamics Information Systems ("General Dynamics"), a company which has "recently entered into a strategic relationship with Final Analysis" including an equity investment.* U Letter from Aileen A. Pisciotta to Ms. Magalie Salas dated January 12, 1999 and Letter from Aileen A. Pisciotta to Ms. Regina Keeney dated January 12, 1999 (jointly referred to herein as "Final Analysis Request.") ¥ Final Analysis Request at 2.

L2 Final Analysis offers the General Dynamics letter in support of the company‘s Application for Clarification and Review of its Non—Voice Non—Geostationary Mobile Satellite Service ("NVNG MSS" or "Little LEO") license.4 The Final Analysis Application for Review seeks to overturn the decision of the International Bureau to deny certain proposed system modifications sought by Final Analysis due to the Bureau‘s determination that grant of such modifications would increase interference to other users of the same bands.* Nearly one year after the Bureau‘s decision, Final Analysis submits the General Dynamics letter which Final Analysis claims concludes Final Analysis‘ proposed system expansion to 32 satellites will "pose no threat of increased potential interference to other commercial or government band users."* The confidential treatment Final Analysis seeks in its Request is based on its claim that the letter "contains commercially sensitive information regarding the strategic business arrangements between General Dynamics and Final Analysis as well as proprietary technical information regarding the operation, design, and implementation ofthe command and data handling space processors being designed by General Dynamics for the Final Analysis system."* 3 Application for Clarification and Review, File No. 25—SAT—P/LA—95, dated May 1, 1998 (referred to herein as "Application for Review"). 4 See Final Analysis Communication Services, Inc., 13 FCC Red 6618 Order and Authorization (1998). + Final Analysis Request at 2. & Id. at 3—4.

—3 II. The Final Analysis Request Does Not Satisfy the Test for Non—Disclosure Under the ECC‘s Rules. The Final Analysis Request fails to provide with sufficient specificity the need for confidential treatment. Section 0.459 of the Commission‘s Rules" requires that requests for confidential treatment include a statement of reasons for withholding the material from public inspection. The Commission‘s Rules explicitly note that casual requests, such as this Final Analysis Request, will not be considered.£ Final Analysis merely states disclosure will be "competitively injurious to Final Analysis and General Dynamics" but provides no clear statement why this is proprietary information or what competitive harm would flow from disclosure.*" The International Bureau, however, has explicitly stated it will not accept unsupported statements that information is "sensitive" or "confidential" as sufficient grounds for granting confidential treatment under Section 0.459.! The Final Analysis Request also fails to demonstrate that the General Dynamics letter constitutes a trade secret or sensitive commercial, financial or technical information that would be eligible for nondisclospre under Section 0.459. It appears from the Final Analysis Request that Final Analysis is concerned about disclosure of terms of its relationship with General Dynamics. It is difficult to understand how information on that topic could be relevant to the docketed proceeding which is focused on technical issues and in particular the level ofinterference that would be caused by Final Analysis‘ proposed system modifications. Leo One USA assumes that afiy proprietary L 47 C.F.R. § 0.459. & 47 C.F.R. § 0.459(c). See AT&T Corp., 11 FCC Red 2425 (Int‘l Bur. 1996). * Final Analysis Request at 4. 1 AT&T Corp., 11 FCC Red at 2426.

—4_ financial information concerning the relationship between these companies is irrelevant and could be redacted from the document, which could then be made publicly available. With regard to any concern Final Analysis may have about release of technical information, the Commission‘s Rules and past precedent do not support wholesale nondisclosure of this type of information, especially when the information submitted is offered because it will supposedly resolve factual disagreements among the parties. Any request for confidential treatment of information "must demonstrate by a preponderance of the evidence that nondisclosure is consistent with the provisions of the Freedom of Information Act ("FOIA")."The Commission has found disclosure appropriate when "the information is a necessary link in a chain of evidence that will resolve a public interest issue."* The Commission has noted that when the material at issue is relevant to "a significant and material question of fact," disclosure is required "to assure a fair adjudication of the open factual issue and a just resolution of the public interest question."* This is precisely the situation presented by the Final Analysis Request. The General Dynamics letter potentially lies at the heart of a contentious disagreement among the parties. Final Analysis has certainly portrayed the General Dynamics letter as central to resolution of its Application for Review. As a party that opposed that Application for Review, Leo One USA has a direct interest in any new material being presented to the Commuission on that subject. Leo One USA‘s opposition to the Application for Review was based on its concern that Final Analysis‘ proposed system modifications will cause increased interference to Leo One USA‘s V N.Y. Telephone Co., 5 FCC Red 874 (1990). 4 Classical Radiofor Connecticut, Inc., 69 FCC 24 1517, 1520 n. 4 (1978). 1¥ Knoxville Broadcasting Corp., 87 FCC 24 1103, 1105 (1981).

—5 Little LEO system. Leo One USA has submitted numerous technical analyses to support its views and to highlight inaccuracies and inconsistencies in Final Analysis‘ submissions. It would fly in the face of Commission precedent to deny Leo One USA access to a new analysis that is central to the controversy, the resolution of which will have a direct impact on Leo One USA, based only on general claims of proprietary information. Final Analysis‘ position is further undermined by the fact that General Dynamics now has a financial interest in favorable treatment of the Final Analysis Application for Review. Its technical analysis cannot be viewed asimpartial. Analysis and comment by other parties on what is most likely a self—serving document is especially critical in this situation. Disclosure of the General Dynamics letter is consistent with the International Bureau‘s recent handling of confidentiality requests. In the Big LEO proceeding, the International Bureau rejected Mobile Communications Holdings, Inc.‘s ("MCHI") broad requests to withhold from public inspection entire agreements.The Bureau found in that instance that withholding entire documents which contain relevant factual information would be inappropriate. Where MCHI requested protection for limited portions of documents pertaining to cost and pricing information, the Bureau found confidential treatment to be acceptable. Leo One USA recognizes that the General Dynamics letter may contain limited amounts of proprietary cost and price information and would not oppose a narrowly tailored request to redact very limited portions of the document. Final Analysis‘ generalized request for non—disclosure, however, is inconsistent with the Commission‘s interest in seeking public comment. The need to 14 See Letter from Donald H. Gips, Chief, International Bureau to Jill Abeshouse Stern dated Oct. 29, 1996. 15 Application ofMobile Communications Holding, Inc., 10 FCC Red 1547, Order on Reconsideraticon (1994).

—6— include the letter in the public record is particularly important where, as in this case, the document may address factual questions which are central to the controversy among the parties and where the party that filed the opposition to the application in question would be denied access to the information. III. Conclusion For the foregoing reasons, Leo One USA Corporation requests that the Commission reject the Final Analysis Request, and afford Final Analysis the option to withdraw its filing or resubmit the information in the public record. In the event Final Analysis chooses to resubmit the information, interested parties should be provided an additional 10 days from the date of resubmission for public comment. Respectfully submitted, Robert A. Mazer Albert Shuldiner Vinson & Elkins 1455 Pennsylvania Avenue, N.W. Washington, D.C. 20004—1008 (202) 639—6500 Counsel for Leo One USA Corporation Dated: January 27, 1999

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Opposition to Request for Non—Disclosure of Leo One USA Corporation was sent by first—class mail, postage prepaid, this 27th day of January, 1999, to each of the following: *# Chairman William E. Kennard Mr. Thomas S. Tycz Federal Communications Commission Division Chief, Satellite & The Portals, Suite 8B201 Radiocommunication Division 445 Twelfth Street, S.W. International Bureau Washington, D.C. 20554 Federal Communications Commission 2000 M Street, N.W., Room 520 Commissioner Harold Furchtgott—Roth Washington, D.C. 20554 Federal Communications Commission The Portals, Suite 8¥A302 Mr. Harold Ng 445 Twelfth Street, S.W. Engineering Advisor Washington, D.C. 20554 Satellite & Radiocommunications Division Commissioner Michael Powell International Bureau Federal Communications Commission Federal Communications Commission The Portals, Suite 8¥A204 2000 M Street, N.W., Room 801 445 Twelfth Street, S.W. Washington, D.C. 20554 Washington, D.C. 20554 Ms. Cassandra Thomas Commissioner Susan Ness International Bureau Federal Communications Commission Federal Communications Commission The Portals, Suite 8B115 2000 M Street, N.W., Room 810 445 Twelfth Street, S.W. Washington, D.C. 20554 Washington, D.C. 20554 Ms. Tania Hanna Commissioner Gloria Tristani International Bureau Federal Communications Commission Federal Communications Commiuission The Portals, Suite 8C302 2000 M Street, N W., Room 506 445 Twelfth Street, S.W. Washington, D.C. 20554 Washington, D.C. 20554 Mr. Alex Roytblat Ms. Regina Keeney International Bureau Federal Communications Commission Chief, International Bureau 2000 M Street, NW., Room 502 Federal Communications Commission Washington, D.C. 20554 2000 M Street, NW., Room 830 Washington, D.C. 20554 Daniel Harrold Mr. Daniel Connors Office of General Counsel International Bureau Federal Communications Commission Federal Communications Commission The Portals, Suite 8A623 2000 M Street, NW., Room 506—A 445 Twelfth Street, S.W. Washington, D.C. 20554 Washington, D.C. 20554

Alexandra Field Mr. William T. Hatch International Bureau Associate Administrator Federal Communications Commission Spectrum Management 2000 M Street, NW., Room 500 U.S. Department of Commerce Washington, D.C. 20554 National Telecommunications & Information Administration Albert Halprin, Esq. 14th and Constitution Avenue, N.W. Stephen L. Goodman, Esq. Washington, D.C. 20230 Halprin, Temple & Goodman Suite 650 East Kira Alvarez, Esq. 1100 New York Avenue, N.W. Attorney Advisor Washington, D.C. 20005 Office of General Counsel Counsel for Orbcomm National Atmospheric & Oceanic Administration Henry Goldberg, Esq. Department of Commerce Joseph Godles, Esq. 1325 East West Highway 18111 Mary Dent, Esq. Silver Spring, MD 20910 Goldberg, Godles, Wiener & Wright 1229 Nineteenth Street, N.W. SMC/CIHIS Washington, D.C. 20036 Attn: Lt. Dave Meyer Counsel for Volunteers in 2420 Vela Way, Suite 1467—A8 Technical Assistance Los Angeles AFB El Segundo, CA 90245—4659 Aileen Pisciotta, Esq. Kelley, Drye &Warren Mr. Nelson Pollack 1200 19th Street, N.W. AFFMA Suite 500 4040 North Fairfax Drive, Suite 204 Washington, D.C. 20036 Arlington, VA 22203—1613 Counsel for Final Analysis Mr. Richard Barth Mr. Charles Ergen, President U.S. Department of Commerce E—SAT, Inc. National Oceanic & Atmospheric 90 Inverness Circle, East Administration, Office of Radio Englewood, CO 80112 Frequency Management Room 2246, SSMC—2 Leslie Taylor, Esq. 1325 East West Highway Leslie Taylor Associates, Inc. Silver Spring, MD 20910 1333 H Street, N.W., Suite 1100 West Washington, D.C. 20005—4707 Counsel for E—Sat W CAwy/h— * By Hand Delivery


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Document Modified: 2012-11-02 11:46:45
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