Attachment DA 06-1037

DA 06-1037

ORDER submitted by IB,FCC

DA 06-1037

2006-05-15

This document pretains to SAT-LOA-20030827-00174 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA2003082700174_500490

Federal Communications Commission DA 06—1037 Before the Federal Communications Commission Washington, D.C. 20554 In the matter of Mobile Satellite Ventures LP Call Sign $2358 (MSV—1) Mobile Satellite Ventures Subsidiary LLP File No. SAT—LOA—19980702—00066 MSV International LLC Request for Confidential Treatment s Call Sign: 82487 (MSV—SA) File No. SAT—LOA—20030827—00174 ORDER To DISCLOSE PURSUANT T PROTECTIVE ORDER Adupted: May 15, 2006 Released: May 15, 2006 By the Chict, International Bureau: 1. On January11, 2006, Mobile Satellite Ventures LP, Mobile Satellite Ventures Subsidiary LLC and MSV International, LLC (collectively, "MSV") filed with the Commission an unredacted copy of a satellite construction contract and accompanying exhibits (MSV Contract") executed between MSV and Bocing Satellite Systems, Inc. The cover letter transmitting the contract requested confidential treatment of the documents submitted.. Pursuant to the Commission‘s rules and policies, MSV also submitted a redacted version of the MSV Contract for the public record. MSV submitted the MSV Contract to demonstrate its compliance with itsinitial FCC milestones for MSV—1 and MSV—SA, File Nos. SAT—LOA—19980702—00066, SAT—LOA—20030827—00174, Call Signs: §2358 and 82487, respectively." 2. On March 24, 2006, Inmarsat Ventures Limited ("Inmarsat") filed, pursuant to the Freedom of Information Act (‘FOIA®)," a request to inspect an unredacted copy of the MSV Contract. Inmarsat asserts that "MSV has redacted from the public version of the MSV Contract contractual terms that are essential to a full analysis as to whether MSV has in fact entered into a non—contingent construction contract, such as payment schedules and provisions governing termination for convenience."". On April 5, 2006, MSV filed an Opposition to the * On Aprl 21,200,the Intemational Bureau (*Burea") cancluded tht MSV had met ts inital PCC milestone for both Heenses. See Publc Notie, Report No. SAT—00386 (April 21 2006) * 5U8.C. § 522 etseq. * See FOIA Request, FOIA 2006—281 (filed on March 24, 2006) (FOIA Request).. Inmarsat has agreed to withiraw is FOIA Request * FOIA Requestat2

Federal Communications Commission DA 06—1037 FOIA Request. MSV asserts that "the type of commercial, financial, and technical information that is at issue here is competitively sensitive and should be withheld from public disclosure pursuant to Exemption 4 of the FOIA."" On April 17, 2006, Inmarsat submitted a Reply to Opposition responding to MSV‘s arguments.® 3. As a result of discussions between MSV and Inmarsat, MSV has agreed to disclose to Inmarsat, pursuant to the attached FCC protective order, certain confidential information in the MSV Contract (hereafter the "Confidential Submission®).‘ We conclude that the voluntary agreement reached by the parties serves the public interest. MSV‘s disclosure to Inmarsat of the confidential information identified above pursuant to the terms of the attached protective order will provide adequate protection of the confidential information and allow. Inmarsat the opportunity to evaluate whether it will seck review of the Interational Bureau‘s milestone determination.® We require MSV to provide the Confidential Submission to Inmarsat, once Inmarsat has executed and delivered the Acknowledgment of Confidentiality that is part of the Protective Order attached to this Order." 4. Accordingly, IT IS ORDERED that MSV SHALL provide to Inmarsat a copy of the Confidential Submission, under the terms of the Protective Order attached to this Order, once Inmarsat has executed such Protective Order. * See Oppositon to FOLA Request, t 1 (iled on April5, 2000) * See Replyto Opposition (Rled on Aprl 17,2006) * ‘The specificextibtsand provisions ofthe MSV Contract thatwill t be provided itConfidetal Submission are as follows: Section 19.2 reparting intllmal propenty indemification, Section 28.1 regarding major subcontractos, Section 26.1.1reparding contrctoinsurince requirements, vaious sections ofAricle 27 reparding personneland key personne, various sections of Artiele 30 regarding intellectuaproperty ights, Section 35.16 resarding cooperation before goverment agencis, Extibit A: L—Band Space Based Network Statement of Work, Exhibit : Technical Requirementsfor MSV L—Band Space Based Network, Exhibit C: L—Band SBN System Test Plan, Exhibit D: Satellte Program Test Plan Exhbit E: Ground Scgment Test Plan, Exhibi : Stelite Product Assurance Plan, Exhibt G: Ground Seement Product Assurance Plan, Exhibit : Dynamic Satelte Simulator Specifiation, Exhbit L:Spares Equipment itand Extbit M Certiieation Leter. * As of May 15, 2006, Inmarsathas not Aied a chillenge t the milestone determination. Thus, theissuance of his order does notin any way affet he milestonc determintion and is without prefudice to the legal or procediral positons the Commision may akeifth milestone detrmination is challnged by Inmarsat o any other paty. * MSV has informed the Buresu staff in advance thatit would not object to the review of the Confidental Submission by ceriain Outside Counsel o Record for Inmarsat. Email from Tony Lin o Andea Kelly, Willam Bell and Karl Kensinger,sent May 2,2006 at11:14 AM.

Federal Communications Commission Da_06—1037 5. This Order is issued pursuant to Section 4) of the Communications Act of 1934, as amended, 47 U.S.C. § 1540), Exception 4 of the Freedom of Information Act, 5 U.S.C. § 552(b)(4), and authority delegated under Sections 0.51 and 0.261 of the Commission‘s rules, 47 C.F.R. 5§ 0.51, 0.261, and is effective upon itsrelease. FEDERAL COMMUNICATIONS COMMISSION oderick Pon Deputy Chief, Intemational Bureau

Federal Communications Commission DA_06—1037 In the matter of Mobile Satellite Ventures LP Call Sign: 82358 Mobile Satellite Ventures Subsidiary LLP File No. SAT—LOA—19980702—00066 MSV International LLC Request for Confidential Treatment Call Sign: 82487 File No. SAT—LOA—20030827—00174 APPENDIX A: PROTECTIVE ORDER 1. Inroduction. On January 11, 2006, Mobile Satellite Ventures LP, Mobile Satellte Ventures Subsidiary LLC and MSV International, LLC (collectively, "MSV") filed with the Commission an unredacted copy of a satellite construction contract and accompanying exhibits (‘MSV Contract") executed between MSV and Bocing Satellite Systems, Inc.. The cover letter transmitting the contract requested confidential treatment of the documents submitted. Pursuant to the Commission‘s rules and policies, MSV also submitted a redacted version of the MSV Contract for the public record. On March 24, 2006, Inmarsat Ventures Limited ("Inmarsat") filed, pursuant to the Freedom of Information Act ("FOIA®),‘ a request to inspect an unredacted copy of the MSV Contract.? As a result of the voluntary agreement reached by MSV and Inmarsat, MSV has agreed to provide certain confidential information in the MSV Contract to Inmarsat (hereafter the "Confidential Submission®) purstant to a protective order. Consequently, the Intenational Bureau ("Bureau") has adopted this Protective Order to ensure that "Confidential Information," as defined herein, provided to Inmarsat (hereater referred to as a "Reviewing Party®) is afforded adequate protection. The Protective Order reflectsthe manner in which Confidential Information is to be treated and is notintended to constitute a resolution of the merits concerning whether any Confidential Information would be released publicly by the Commission upon a proper request under FOTIA or other applicable law or regulation, including 47 CR §0.400. 2.. Definitions. As used herein, capitalized terms, not otherwise defined herein, shall have the following meanings: "Confidential Information" means any information contained in the Confidential Submission or derived therefrom thatis not otherwise available from publicly available sources; "Counsel" means Outside Counsel of Record; ! $ U8.C. § 522 erseq * See Freedom of nformation Act Request, FOIA 2006281 (Rled on March 24, 2006)(*FOIA Request*)

Federal Communications Commission DA 06—1037 "Outside Counsel of Record" means the firm(s) of attomeys, or sole practitioner(s), as the case may be, representing a Reviewing Party; "Relevant Proceedings" means proceedings that involve the April 21, 2006 International Bureau determination that MSV had metitsinitial contract execution milestone for both licenses and any administrative or judicial review ofthe April 21, 2006 determination. See Public Notice, Report No. SAT—00356 (April 21, 2006)." 3. Use of Confidential Information. Persons obtaining access to Confidential Information under this Protective Order shall use the information solely for preparation and conduct of Relevant Proceedings as delineated in this paragraph and paragraphs 5, 10, and 11, and any subsequent judicial proceeding arising directly from these proceedings and, except as‘ provided herein, shall not use such documents or information for any other purpose, including without limitation business, governmental, or commercial purposes, or in other administrative, regulatory or judicial proceedings. 4. Non—disclosure of Confidential Information. Except with the prior written consent of MSV, or as hereinafter provided under this Protective Order, no Confidential Information may be disclosed by a Reviewing Party to any person other than the Commission and it staff. 5. Permissible Disclosure.. Subject to the requirements of paragraph 8, Confidential Information may be reviewed by Counsel. Subject to the requirements of paragraph 8, Counsel may disclose Confidential Information to: (1) outside consultants or experts retained for the purpose of assisting Counsel in these proceedings, provided that the outside consultants or experts are not involved in the analysis underlying the business decisions of any competitor of MSV nor do they participate directly in those business decisions; (2) paralegals or other employees of such Counsel not described in clause 3 ofthis paragraph 5 assisting Counsel in this proceeding; (3) employees of such Counsel involved solely in one or more aspects of organizing, filing, coding, converting, storing, or retrieving documents or data or designing programs for handling data connected with these proceedings, or performing other clerical or ministerial functions with regard to documents connected with these proceedings; and (4) employees of third—party contractors performing one or more of the functions set forth in clause 3 of this parsgraph 5.. Individuals who have obtained access to Confidential Information in accordance with the provisions of this paragraph 5 and paragraph 8 may discuss and share the contents ofthe Confidential Information with any other person who has also obtained access in accordance with the provisions of this paragraph 5 and paragraph 8, and with Commission and its staff. 6. Protection of Confidential Information. Persons described in paragraph 5 shall have the obligation to ensure that access to Confidential Information is stritly limited as prescribed in this Protective Order. Such persons shall further have the obligation to ensure that (1) Confidential Information is used only as provided in this Protective Order; and (2) the documents are not duplicated except as necessary for filing at the Commission under seal as provided in paragraph 10 below. * As ofMay 15,2006, Inmarsat has not filed a challenge to the miletone determination.‘Thus, the issuance of this order does notin any way affect the milestone deternination and is without prjudicet the legal or procedural posiions the Commission may take ithe mlestoe determination is challenged by nmarsator any therpaty

Federal Communications Commission DA 06—1037 7. Prohibited Copying. 16 in the judgment of MSV, the documents contain information so sensitive that it should not be copied by anyone, the relevant pages of the documents shall bear the legend "Copying Prohibited," and no copies of such pages, in any form, shall be made. Application for relieffrom this restrction against copying may be made to the Commission, with notice to MSV. 8. Procedures for Obraining Access to Confidential Information.. In all cases where access to Confidential Information is permitted pursuant to paragraph 5, before reviewing or having access to any Confidential Information, each person secking such access shall execute the Acknowledgment of Confidentility ("Acknowledgment") (see Appendix B) and file it with the Bureau, on behalf of the Commission, and serve it upon MSV so that the Acknowledgment is received by MSV at least five business days prior to such person‘s reviewing such Confidential Information. Where the person secking access is one described in cither clause 3 or 4 of paragraph 5, the Acknowledgment shall be delivered promptly prior to the person obtaining access. MSV shall have an opportunity to object to the disclosure of the documents to any such persons.. Any objection must be filed at the Commission and served on Counsel representing, retaining or employing such person within three business days after receiving a copy of that person‘s Acknowledgment (or where the person secking access is one described in either clause 3 or 4 of paragraph 5, such objection shall be filed and served as promptly as practicable after receipt of the relevant. Acknowledgmeng). Until any such objection is resolved by: the Commission and, if appropriate, any court of competent jurisdiction prior to any disclosure, and unless such objection is resolved in favor of the person secking access, persons subject to an objection from MSV shall not have access to Confidential Information. Upon receipt of an Acknowledgment and upon there being no objection by MSV to the person secking access, MSV shall deliver a copy of the documents to such person. 9. Requestsfor Additional Disclosure. If any person requests disclosure of Confidential Information outside of the terms of this Protective Order, requests will be treated in accordance with Sections 0.442 and 0.461 of the Commission‘s rules. 10. Filings with the Commission. Persons described in paragraph 5 may, in any documents that they file in this proceeding, reference Confidential Information, but only if they comply with the following procedure: a. Any portions of the pleadings that contain or disclose Confidential Information must be physically segregated from the remainder of the pleadings; b.. The portions of pleadings containing or disclosing Confidential Information must be covered by a separate leter to the Secretary of the Commission referencing this Protective Order; c. Each page of any party‘s filing that contains or discloses Confidential Information subject to this order must be clearly marked: "Confidential Information included pursuant to Protective Order, DA 06—1037, File Nos. SAT—LOA—19980702—00066 and SAT—L.OA—20030827— 00174;" and d.. The confidential portion(s) of the pleading shall be served on the Secretary of the Commission, the Bureau, and MSV. Such confidential portions shall be served under seal, and shall not be placed in the Commission‘s public file. A party filing a pleading containing Confidential Information shall also file redacted copies of the pleading containing no 3

Federal Communic ons Commission DA 06—1037 Confidential Information, which copies shall be placed in the Commission‘s public fles. Parties should mot provide courtesy copies of pleadings containing Confidential Information to Commision Staff unless the Bureau so requests.. Any courtesy copies shall be submitted under seal. 11. Client Consultation. Nothing in this order shall prevent or otherwise restrict Counsel from rendering advice to their clients relating to the conduct of this proceeding and any subsequent judicial proceeding arising therefrom and, in the course thereof, relying generally on examination of Confidential Information; provided, however, that in rendering such advice and othervise communicating with such client, Counsel shall not disclose Confidential Information. 12. No Waiver of Confidentiality. Disclosure of Confidential Information as provided‘ herein by any person shall not be deemed a waiver by MSV of any privilege or entitlement to confidential treatment of such Confidential Information. Reviewing parties, by viewing this material agree: (1) not to assert any such waiver, (2) not to use Confidential Information to seck disclosure in any other proceeding; and (3) that accidentaldisclosure of Confidential Information by MSV shall not be deemed a waiver of any privilege or entitlement as long as MSV takes prompt remedial action. 13. Subpoena by Courts, Departments or Agencies. If a court, or a federal or state department or agency issues a subpoena or orders production of the documents or any Confidential Information that a party has obtained under terms of this Protective Order, such party shall promply notify MSV of the pendency of such subpoena or order. Consistent with the independent authority of any court, department or agency, such notification must be accomplished such that MSV has a full opportunity to oppose such production prior to the production or disclosure ofthe documents or Confidentil Information. 14. Violations ofProtective Order. Should a person that has properly obtained access to Confidential Information under this Protective Order violate any of its terms, that person shall immediately convey that fact to the Commission and to MSV. Further, should such violation consist of improper disclosre of Confidential Information, the violating person shall take all necessary steps to remedy the improper disclosure. The Commission retains its full authority to fashion appropriate sanctions for violations of this Protective Order, including but not limited to suspension or disbarment ofCounsel from practice before the Commission, forfeitures, cease and desist orders, and denial of further access to Confidential Information in this or any other Commission proceeding. Nothing in this Protective Order shall limit any other rights and remedies available to MSV at law or in equity against any person using Confidential Information in a manner not authorized by this Protective Order.

Federal Communications Commission DA 06—1037 15. Termination of Proceeding. The provisions of this Protective Order shall not terminate at the conclusion of the relevant proceeding. Within two weeks after conclusion of the relevant proceeding and any administrative or Judicial review, persons described in paragraph 5 shall destroy or return to MSV the documents and all copies of the same. No material whatsoever derived from may be retained by any person having access thereto, except Counsel (as described in paragraph 5) mayretain, under the continuing strictures of this Protective Order, two copies of pleadings (one of which may be in electronic format) containing Confidential Information prepared on behalf of the party. All Counsel shall make certification of compliance herewith and shall deliver the same to Counsel for MSV not more than three weeks after conclusion of this proceeding. The provisions of this paragraph 15 regarding retention of Stamped Confidential Documents and copies of same shall not be construed to apply to the Commission or its staff.

Federal Communications Commission DA 06—1037 APPENDIX B Acknowledgment of Confidentiality 1 hereby acknowledge that I have received and read a copy of the foregoing Protective Order in the above—captioned proceedings, and 1 understand it. 1 agree that I am bound by the Protective Order and that 1 shall not disclose or use Confidential Information except as allowed by the Protective Order. 1 acknowledge that a violation of the Protective Orderis a violation of an order of the Federal Communications Commission. Without limiting the foregoing, to the extent that I have any employment, affiliation or ole with any person or entity other than a conventional private law firm (such as, but not limited to, a lobbying or public interest organization), 1 acknowledge specifically that my access to any information obtained as a result of the order is due solely to my capscity as Counsel or consultant to a party or other person described in paragraph 5 of the foregoing Protective Order and that I will not use such information in any other eapacity nor will disclose such information except as specifically provided in the Protective Order. 1 acknowledge that it is my obligation to ensure that:(1) Confidential Information is used only as provided in the Protective Order; and (2) the documents are not duplicated except as specifically permitted by the terms of paragraph 10 of the Protective Order, and 1 certify that 1 have verified that there are in place procedures, at my firm or office, to prevent unsuthorized disclosure of Confidential Information. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Protective Order. Executed at this day of — [Name] [Position] [Address] [Telephone]


Document Created: 2006-05-15 14:54:26
Document Modified: 2006-05-15 14:54:26
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