Attachment request

request

REQUEST submitted by EchoStar

request

2005-11-17

This document pretains to SAT-LOA-20030827-00177 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA2003082700177_466079

STEPTOE&JOHNSON« artomneys at taw Pancls Mictalopoulos 1110 Comnectiut Avenve.NY ro2mein Washingon. DC 2005695 prichalopsteptoc.com Tel2024203000 tac2024003002 steproccom * November 17, 2008 FatentCom «meb ss AECEIVED Marlene H. Dortch Secretary ) NOV 1 7 2005 Federal Communications Commission The Portals, Room TW—A325 455 12th Street, S.W. P m emnyictnsonnimipConia a Feden Conrmineaton Washington, D.C. 20554 CONFIDENTIAL 0T FOR PUBLIC INSPECTION Re: EchoStar Satellite Operating Corporation, File Nos. SAT—MOD—20041008—00196 and SAT—LOA—20030827—00177 Dear Ms Dortch This letter is to notify the Commission that EchoStar Communications Corporation and EchoStar Satellite Operating Corporation ("EchoStar") have entered into a satellite construction contract with Space SystemsLoral, Inc. (*SSL®) for the EchoStar Ka—band satelite to be located at the 117° W.L. orbital location. ‘This satellte construction contract will replace the satellte construction contract between EchoStar and Lockheed Martin Corporation for the 117° W.L. Ka— band satellit that was filed with the Commission on December 8, 2004. A copy ofthe contract between EchoStar and SSL for the 117° W.L. Ka—band satellit is attached with this ltter. Pursuant to Sections 0.457 and 0.459 of the Commission Rules governing the submision of confidential materials, 47 C.F.R. §§ 0.457, 0.459, EchoStar, respectfully request that certain portions ofthe attached contract! between EchoStar Orbital Corporation IIP and SSL for the ‘‘To the extent the contract and specifications reflect enhanced capabilities not included in any authorization, EchoStar is proceeding with construction of the satelliteatits own risk. See 47 CRR.§25.1130. ° EchoStar Orbital Corporation II is one hundred percent indirectly owned by EchoStar CommunicationsCorporation, the ultimate parent of EchoStar Satellite Operating Corporation RECE (Continued...) No1 1 2005 Fateaic 0 wasitimeton + New vork +. rwornix +/ tos anories + tonbon + sausseus _A

STEPTOE &JOHNSON« Marlene H. Dortch November 17, 2005 Page 2 construction of a Ka—band satellite to be located at the 117° W.L. orbital location, and materials related to the contract, be afforded confidental treatment and not be placed in the Commission‘s public files. Also attached are Exhibits A—E for the satelite, for which EchoStar also requests confidential treatment Please note that the Critical Design Review will be conducted in December, 2005 and the scheduled delivery date of the satellie is a number of months before the launch and operation milestone. Accordingly, this documentation establishes that EchoStar continues to have a binding agreement for the construction ofa Ka—band satellte that is scheduled to be delivered in time to meet the remaining milestones set forth in EchoStar‘s space station authorization." In a separate submission, EchoStar is providing the Commission with a public, redacted version ofthis contract and the related materials for the satellte, and this request for confidential treatment relates only to the portions of these materials redacted from the public version.‘ The redacted portions of the contract and related materials contain information that qualifies as "commercial or financial information® that "would customarily be guarded from competitors" regardless ofwhether or not such materials are protected from disclosure by a privilege. 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) (‘{WJe 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 ofa kind that would customarily not be released tothe public by the person from whom it was obtained."). In addition, the redacted portions ofthe contract contain sensitive information that if disclosed could place EchoStar and/or SSL at a competiive disadvantage, including specific information regarding price terms, interest terms, insurance terms and obligations, allocation of Hiability, and termination provisions, and therefore warrant protection under 47 C.F.R. § 0.459. Both EchoStar and SSL would be placed at a significant disadvantage if these detailed terms of (consistent with the relationship between the contracting party for the EchoStar 9 satellte and EchoStar Satelite LLL.C.). * See Grant Stamp, SAT—MOD—20041008—00196, Condition 2. (establishing December 8, 2005 as the Critical Design Review and December 8, 2008 as the launch and operation milestoncs). * See Leter from Pantelis Michalopoulos, Counselto EchoStar, t Marlene H. Dortch, Secretary, FCC, dated November 17, 205.

STEPTOE &JOHNSON« Marlene H. Dortch November 17, 2005 Page3 their contract were revealed to competing service providers and satellite manufacturers, who stand to benefit competitively from any knowledge of the redacted commercial terms included in these materials. In support ofthis request, and pursuant to 47 C.F.R. § 0.459(b), EchoStar herebystates as follows: 1 The information for which confidental treatment is sought is contained in EchoStar‘s submission to update the Commission on its contract for the 117° W.L. Ka—band satellite and includes specific information regarding the price and other critical non—price terms agreed upon with SSL, a satellite contractor. As noted above, EchoStaris filing a redacted version of this contract and related materials,and this request for confidential treatment pertains only to provisions of contract that are redacted from the public version. 3 The information is being submitted to update the Commission on its contract for the 117° W.L. Ka—band satellte 3 This information contains extremely sensitive commercial and financial information that would customarily be kept from competitors. Specifically, the information consists ofthe price terms and commercially sensitive non—price terms agreed upon with SSL for the construction of a Ka—band satellite for EchoStar. EchoStar would be severely prejudiced in its ability to compete if specific information regarding SSL‘s price and ritical non—price terms were released to competitors. Moreaver, SSL would be prejudiced in any future negotiations regarding construction of satelites ifits pricing, technical and insurance—related information were available to other satellite construction companies or to prospective purchasers of satellites —— as a result, SSL has requested that EchoStar redact this information. 4. The information for which non—disclosure is sought pertains to Ka—band satellite services, for which numerous competitors have received licenses. EchoStar‘s competitors (as well as the competitors of SSL) for Ka—band services stand to benefit competitively from any knowledge ofthe price and critical non—price terms contained in the contract between EchoStar and SSL. . Disclosure of the information for which non—disclosure is sought could result in substantial harm to EchoStar and SSL by revealing to their

STEPTOE &JOHNSON« Marlene H. Dortch November 17, 2005 Page4 competitors,the satellite construction industry and the public EchoStar‘s agreed—upon price terms and critical non—price terms for it satellite system. Such information could be used by the competitors of EchoStar to develop competing service offerings. See /n re Application ofMobile Communications Holdings, Inc. for Authority to Construct the ELLIPSO Elliptical Orbit Mobile Satellite System, 10 ECC 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."). Moreover, EchoStar would be prejudiced in any future negotiations regarding construction of satellites ifpricing and other critical non—pricing information were available to satelite construction companies. EchoStar takes significant measures to ensure that this information is not disclosed to the public The attached material for which non—disclosure is sought is not available to the public. EchoStar requests thatthe attached material be withheld from disclosure for an indefnite period. Disclosure of this information at any time could jeopardize the competitive position of EchoStar and SSL Finally, EchoStar notes that denying its request that this information be kept confidential would impair the Commission‘s ability to obtain this type ofvoluntarily disclosed information in the future. The ability of a government agency to continually obtain confidentialinformation was bchind the legislative purpose in developing exemptions from the Freedom of Information Act. See Critical Mass Energy Project v. NRC, 975 F.2d 871, 878 (D.C. Cir. 1992) (*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 liklihood, refuse further cooperation."). The U.3. Court of Appeals for the D.C. Circuit has recognized a "private interest in preserving the confidentialty of information that is provided the Government on a voluntary basis." 1¢. at 879. The Commission should extend a similar recognition to the enclosed materials EchoStar requests that the Commission not release these redacted materials if ts request for confidentialityis denied in whole or in part without first consulting with EchoStar.

STEPTOE&JOHNSON= Marlene H. Dortch November 17, 2005 Page 5 Respectfully submitted, David K. Moskowitz MarbnbrepothiefPD ban Pantelis Michalopoulos Executive Vice President and General Counsel Steptoe & Johnson LLP and Secretary 1330 Connecticut Ave, N.W. EchoStar Satellite Operating Corporation Washington, D.C. 20036 9601 S. Meridian Blvd. (202) 429—3000 Englewood, C 80112 (303) 723—1000 Counselfor EchoStar Communications Corp. and EchoStar Satellie Operating Corporation Enclosures


Document Created: 2005-11-22 14:02:07
Document Modified: 2005-11-22 14:02:07
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