Attachment request

request

REQUEST submitted by EchoStar

request

2005-11-17

This document pretains to SAT-LOA-20030827-00186 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA2003082700186_466085

STEPTOE &JOHNSON« atrorneys at caw Pancls Michlopoutes 1110 ConnectioAverve, NY 202000 Washington. DC 2003605 pmichalotsteptoccom Tel 2024293000 Fax 2024003002 steproecom November 17, 2005 Marlene H. Dortch $ Secretary 2005 Federal Communications Commission in The Portals, Room TW—A325 ® &a,.!‘;‘"'"'mu., 455 12th Street, S.W. Washington, D.C. 20554 CONFIDENTIAL T FOR PUBLIC INSPECTION Re: EchoStar Satellite Operating Corporation, File Nos. SAT—AMD—20031203—00345 and SAT—LOA—20030827—00186 Dear Ms Dortch: This letr is to notify the Commission that EchoStar Communications Corporation and EchoStar Satelite Operating Corporation ("EchoStar®) have entered into a satellte construction contract with Space SystemsLoral, Inc. (*$SL") for the EchoStar Ka—band satellite to be located at the 97° W.L. orbitallocation. This satellite construction contract will replace the satellite construction contract between EchoStar and Lockheed Martin Corporation for the 97° W.L. Ka— ‘band satelite that was filed with the Commission on March 8, 2005. A copy of the contract between EchoStar and SSL for the 97° W.L. Ka—band satellteis attached with this letter 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 request that certain portions of the attached contract! between EchoStar Orbital Corporation 1I" and SSL for the ‘ To the extent the contract and specifications reflect enhanced capabiliies not included in any authorization, EchoStar is proceeding with construction of the satellteat is own risk. See 47 CBR. $25.130 * EchoStar Orbital Corporation II is one hundred percent indirectly owned by EchoStar Communications Corporation, the ultimate parent of EchoStar Satellite Operating Corporation (Continued...) jor: onn waswimaron + new vork /+ rhornix +. tos anotits + Loxbon +. saussris

STEPTOE &JOHNSON« Marlene H. Dortch November 17, 2005 Page 2 construction of a Ka—band satellite to be located at the 97° W.L. orbital location, and materials related to the contract, be afforded confidential treatment and not be placed in the Commission‘s publicfiles. Also attached are Exhibits A—E for the satellite,for which EchoStar also requests confidentialtreatment. Please note that the Critical Design Review will be conducted in March, 2006 and the scheduled delivery date of the satellite is a number ofmonths before the launch and operation milestone. Accordingly, this documentation establishes that EchoStar continues to have a binding agreement for the construction of a Ka—band satelite 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 ofthese 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.FR. § 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 Goverment on a voluntary basis is ‘confidential‘ for the purpose of Exemption 4 if it is of a kind that would customarily not be released to the public by the person from whom it was obtained.") In addition, the redacted portions of the contract contain sensitive information thatif disclosed could place EchoStar andor SSL at a competitive 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 ata significant disadvantage if these detailed terms of their contract were revealed to competing service providers and satellite manufacturers, who (consistent with the relationship between the contracting party for the EchoStar 9 satellite and EchoStar Satellite LL.C). * See Grant Stamp, SAT—AMD—20031203—00345, Condition 2. (establishing March 8, 2006 as the Critical Design Review and March 8, 2009 as the launch and operation milestones). * See Letter from Pantelis Michalopoulos, Counsel to EchoStar, to Marlene H. Dortch, Secretary, FCC, dated November 17, 2005

STEPTOE &JOHNSON« Marlene H. Dortch November 17, 2005 Page 3 stand to benefit competitively from any knowledge of the redacted commercial terms included in these materials. In support of this request, and pursuant to 47 C.F.R. § 0.459(b), EchoStar hercby states as follows: 1. The information for which confidential treatment is sought is contained in EchoStar‘s submission to update the Commission on its contract for the 97° W.L. Kacband satellite and includes specific information regarding the price and other critical non—price terms agreed upon with SSL, a satellite contractor. As noted above, EchoStar is fling a redacted version of this contract and related materials,and this request for confidentialtreatment 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 97° W.L. Ka—band satellite. 3. Thisinformation 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 EchoSter. EchoStar would be severely prejudiced in its ability to compete if specific information regarding SSL‘s price and critical non—price terms were released to competitors. Moreover, SSL would be prejudiced in any future negotiations regarding construction of satelltes ifi pricing, technical and insurance—related information were available to other satelite construction companies or to prospective purchasers ofsatellites —— as a result, SSL has requested that EchoStar redact thisinformation: 4. The information for which non—disclosure is sought pertains to Ka—band sutelliteservices, for which numerous competitors have received licenses. EchoStar‘s competitors (as well as the compettors of SSL) for Ka—band services stand to benefit competitively from any knowledge of the price and critical non—price terms contained in the contract between EchoStar and SSL. 5.. Disclosure ofthe information for which non—disclosure is sought could resultin substantial harm to EchoStar and SSL by revealing to their competitors, the satellte construction industry and the public EchoStar‘s

STEPTOE &JOHNSON«w Marlene H. Dortch November 17, 2008 Page 4 agreed—upon price terms and critical non—price terms for ts satellte system. Such information could be used by the competitors of EchoStar to develop competing service offerings. See In re Application ofMobile Communications Holdings, Inc. for Authority to Construct the ELLIPSO Elliptical Orbit Mobile Satellie System, 10 ECC Red. 1547, 1548 (In‘l Bur, 1994) ("buyers receive a clear competitive advantage ifthey 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 if pricing and other critical non—pricing information were available to satellite 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 that te attached material be withheld from disclosure for an indefinite period. Disclosure ofthis information at any time could jeopardize the competitive position of EchoStar and SSL. Finally, EchoStar notes that denying its request that thiinformation 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 confidential information was behind the legislative purpose in developing exemptions from the Freedom of Information Act. See Criical Mass Energy Project v. NRC, 975 F.2d 871, 878 (D.C. Cir. 1992) ("Where, however, the information is provided to the Government voluntarly, the presumption is that[the Government‘s] interest will be threatened by disclosure as the persons whose confidences have been betrayed will, n alllikelihood, refuse further cooperation."). The U.S. Court of Appeals for the D.C. Circuit has recognized a "private interestin preserving the confidentiality of information that is provided the Government on a voluntary basis." 14. at 879. The Commission should extend a similar recognition to the enclosed materials. EchoStar requests that the Commission not release these redacted materialsifits request for confidentiality is denied in whole or in part without first consulting with EchoStar.

STEPTOE &JOHNSON= Marlene H. Dortch November 17, 2005 Page 5 Respectfully submitted, fanilalo Mubebptoules. JODK David K. Moskowite 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 5. Meridian Blvd. (202) 429—3000 Englewood, CO 80112 (303) 723—1000 Counselfor EchoStar Communications Corp. and EchoStar Satellite Operating Corporation Enclosures


Document Created: 2005-11-22 14:22:33
Document Modified: 2005-11-22 14:22:33
© 2024 FCC.report
This site is not affiliated with or endorsed by the FCC