Attachment EchoStar-req confi t

EchoStar-req confi t

REQUEST submitted by EchoStar

r

2010-07-28

This document pretains to SAT-LOA-20020328-00051 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA2002032800051_837974

we s & \ e h STEPTOE &JOHNSON w ATTORNEYS AT LAW Pantelis Michalopoulos 1330 Connecticut Avenue, NWY 202429.6494 Washington, DC 20036—1795 pmichalo@steptoe.com oo Tel 202.429.3000 FOR INTERNAL USE ONLY Fax 2024203902 steptoe.com NON—PUBLIGC | FilLEDy/a July 28, 2010 EPTED JUL 28 2019 Marlene H. Dortch, . Secretary . ‘ Federal Communication &2 0. Offi § COmmiSSion Federal Communications Commission 16e of the Secretary 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—00051, SAT—AMD—20051118099246, SAT—AMD— 20080114—00019, SAT—AMD—20080213—00042, Call Sign S$2441 Dear Ms. Dortch: Pursuant to Section 25.164(b) of the Commission‘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 110.4° 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—00051, SAT—AMD—20051118099246, SAT—AMD—20080114—00019, SAT—AMD—20080213—00042, Condition 6.a. (granted July 28, 2009). See also 47 C.F.R. §25.164(b). " FOR INTERNAL use oniy { HfFine: NON—PUBLIC WASHINGTON + NEW YORK + CHICAGO + PMOENIX + LOS ANGELES + CENTURY CITY +« 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 CommisBSion 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.24 765 (D.C. Cir. 1974). 5 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 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 if it is of a (Continued...)

STEPTOE&JOHNSON uw Marlene H. Dortch JTuly 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 Id. at 879.

STEPTOE&JOHNSON«» 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 co: Stephen Duall — International Bureau Enclosure


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Document Modified: 2019-04-10 20:30:16
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