Attachment letter

letter

LETTER submitted by Pegasus

letter

2005-08-30

This document pretains to SAT-LOA-20031119-00336 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA2003111900336_453101

pustury REceivEeD — EOO PSXETEGG.e in HHEF Shaw Aus 3 0 2005 Fitmam.. Fete CommunicatonCommisins "~ORIGINAL August 30, 2008 umt Hruce D. ncobs bncticoGpiitertewcom VIA COURIER Managing Director Attn: FOIA Officer Federal Communications Commission 445 12" Street, S.W. Washington, DC 20554 Res Pegasus Development Corporation FOIA Control No: 2005—512 Supplement to Opposition to Freedom of Information Act Request To whom it may concem: Pegasus Development Corporation ("Pegasus") hereby submits this letter in response to the additional comments of Highcast Network, Inc. filed in the above— referenced proceeding. See Letter to Managing Director from Mark 3. Halpren (August 25, 2005) ("Additional Comments"). The International Bureau (*Bureau") should refect Highcast‘s unauthorized and procedurallyimproper filing. Despite Highcast‘s claim, Bureau staff expressly informed the parties that it did not seck additional pleadings from either party, and nothing in the Commission‘s rules permit supplementalfilings." In any event, if the Bureau considers the fling on its merits, the letter provides no justification for deviating from the Bureau‘s proposalto issue a protective order consistent with well— established Commission precedent in the satellte context. Accordingly, to the extent Highcast is unvwilling to accept the Bureau proposal, Pegasus urges the Bureau to dismiss the FOIA request outright. The sole new issue raised in Highcast‘s recent letter is whether its President, Mr. John Hane, should be permitted to review Pegasus® confidential satellite contract. However, Bureau determination ofthis issue would be premature. 1t is not relevant for purposes of assessing the confidentiality of the redacted provisions of the satellte ‘ See 47 CR § 046. If the Bureau nonethcless considersthe Additional Comments, Pegasus requests thatit also accept this fling.

Managing Director August 30, 2008 Page 2 contract, and Highcast cites no precedent requiring the FCC to "pre—approve" the review ofconfidential documents by a specific individual, In any event, Higheast‘s stated justifications for its extraordinary request fail on the merits. As Pegasus stated in its Opposition, there are genuine concerns regarding the propriety of Mr. Hane‘s personal review of the confidential material in light ofhis ongoing litigation, as an individual, with Pegasus.® In its FOIA request, Highcast failed to identify any specific reason whyit would be interested in the confidential satellite contract, other than an apparent abstract interest in ensuring that licensees comply with FCC regulations. Only when challenged did Highcast assert, infer alia, that it was a prospective satellite licensee considering the 87°W orbital location — a position it now tetracts." Under such circumstances, it would be eminently reasonable for the Bureau to prevent Mr. Hane‘s review of the confidential documents in orderto "minimize the potential forinadvertent misuse of such information." Additionally, as noted above, Highcast itselfat one point stated that it is a potential competitor to Pegasus, and the FCC has consistently issued protective orders " Contrary to Higheast‘s misleading statement, Pegasus has never stated that it is i Kiigation with Higheast,as opposed to Mr. Hane. See Leter to Managing Director from Mark Halpren, at3 n3 (August9, 2005). In any event, Higheast has asserted that Pegasus "defaulted on ts obligations to Highcast" (it. at 2) and has orally threatened Pegasus with itigation. * Leter t Managing Director from Mark Halpren, t 2 (August 9, 2008) (‘If(Pegasus)is not in complianee{,) Higheast must look elsewhere for access tosmllm broadcastingservices. Filing proceed orallying wi -mhuK-h-ndhwuewr-pp ieant are among the most likely options.") (emphasis added); compare Additional Comments,at1—2 (Higheast does not now and has never sought to be operate sic] a satellite or to provide satelte services directly ... ."). Higheast‘s contradictory statements further support the conclusion that Higheast secks review ofthe confidential materia for no legitimate FCC purpose. * Examination ofCurrent Policy Concerning the Treatment ofConfidentialInformation Submitted to the Commision, 13 FCC Red 24816, at§ 26 (1998) (*Confidential Information Policy Order");see also In Re RequestofLouls 4. Goodman, 81 ECC 2d 124 (1980) ("The Commission generally has denied requests foinspection .. where the [confidential) information is to be used for the resolution ofessentially private dispates, unrelated to publicinterest dterminations required by the Communications Act"); Meleon Construction Go,21 RR 2d 919 (1971) (denying FOIA request by entty secking confidentia information ofFCC licensee because such material was soughtin non—FCC relted litigation and discoverable in that proceeding).

Managing Director August 30, 2005 Page3 preventing the review of satellite construction contracts by individuals in the industry engaged in compettive decision—making.® The fact that Highcast‘s President is also coincidentally ts in—house counsel® or that Highcast has voluntarily chosen outside counsel unfamiliar with FCC practice does not warrant an exception to this well— established rule. Any contrary conclusion would establish a dangerous loophole and deny Pegasus basic FOIA protection against disclosure ofcompetiively sensitive materials. There is no merit to Highcast‘s argument that the specific facts of this proceeding warrant the issuance of a non—standard protective order. To Pegasus‘ knowledge, Bureau staff elected the DirecTV/Pegasus protective order to be used as a template for this proceeding simply because it was a recent satellite matter and one in which Pegasus had participated. In fact, that protective order is not substantially different from any ofthe protective orders cited by Highcastin its FOIA request. Thus, contrary to Highcast‘s arguments otherwise, the facts of that case are simply irelevant. There is also no reason to adopt the "Model Protective Order" established by the Commission in 1998, as Highcast urges. That dated template has long been in disuse, and there is no reason to believe that it would be appropriate here. In fact,in an analogous case nearly four years ago, /1 the Matter ofMotorola, Inc. and Teledesic, LLC, DA 01—2231 (September 25, 2001), the Bureau rejected a similar request to use the Model Protective Order. See Comments on Proposed Protective Order, File No. SAT— ASG—20010109—00005, at4—5 (August 2, 2001). Accordingly, nothing in this case warrants deviation from the FCC‘s well— established precedent. To the extent Highcast is unwilling to accept the review ofthe confidential material under the terms of a standard protective order, Pegasus urges the Commission to dismiss the FOIA request outright. * The numerous cases cted by Higheasti ts iniial FOIA request contirm this conclusion. See Letter to Managing Director from Mark Halpem,at 3 n. 6 uly 14, 2005). * n light ofthe wel—established Commission precedent, there was no logical need for Pegasus to requestatthe time ofthe submission ofts request for confidentil treatment thatin—house counsel engaged in competitive decision—making be barted from reviewing the competitively sensitive documents.

Managing Director August 30, 2005 Page4 Very truly yours, S# Bfice D. Jacobs Tony Lin Counselfor Pegasus Development Corporation css Andrea Kelly

Certificate of Service 1, Melanie Gamble, hereby certify that on the 30th day of August, 2005, the foregoing Supplement to Opposition to Freedom of Information Act Request was served by first—class U.S. mail on the following: Mark S. Halpern Halpem & Levy, P.C. GSB Building One Belmont Avenue, Suite 400 Bala Cymwyd, PA 19004


Document Created: 2005-09-01 14:53:07
Document Modified: 2005-09-01 14:53:07
© 2024 FCC.report
This site is not affiliated with or endorsed by the FCC