Attachment protective order

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

IBFS_SATLOA2003111900336_454606

Federal Communications Commission pa 052409 Before the Federal Communications Commission Washington, D.C. 20554 In the Mater of ) ) Pegasus Development Corporation ) Submission of Executed. Satelite Construction ). File No.SAT—LOA—20031119—00336 Contract and Request for Confidential Treatment ) Call Sign:$2603 ) Order Adopting Protective Order ) rrorEcnivE orpEr Adopted: September 13, 2005 Released: September 13, 2005 By the Chiet, Interational Bureau: 1. On Janary 31, 2008, Pegasus Development Corporation and, its wholly owned subsidiry Pegasus Development 107 Corporation (collectively, Pegusus), filed with the Commission an unredacted copy ofa satelite construction contract and accompanying exhibits(Contract) executed between itself and Space Systems/Loral, Ic." The cover leter transmiting this contract requested confidential ‘ Pegasus Development Corponation, Submission ofExeeuted Stelite Constrction Contract and Requestfor Confidental Treatment, SAT—LOA—20031119—00336,CallSign S2003, led January 31, 2005 (Pegasus Cootrac). "The Pegasus Contract was submited o the Commission in orde to demonstratethe Tcensee‘s compliance with ts fist milestone, execution ofa non—contingent constrction contract, on is authorizationto consrict, Iunch, and aperate a Kachand satelit athe 87° W.L. orbtal location. The documents hatPepasus submited under a request for confidentaliy are as follows: (1) Stelite Porchase Conteact By and Between Pegasus Development Corportionand Space Systems/Loral,In.Terms and Condiions(including () Attachment A,(i) Amnex, Ito Atachment A, Gi) Schedule 1 to Anex I t Atachment A; (is) Schedule IIto Annex o Attachment A,(#) AtachmentB); (2)Exhbit A, Pegasus Development 107 Corporation K:band FSS Satelite, Satement ofWork, August 9, 2002; ) Exhibit B, Atachment1, Pegasus Development 107 Corportion, Ka—Band FSS Satellies, Specifation, August9,2002;(4) ExhbitC,Pegasus Development 107 Corporation, Ka—Band FSS Satelies, Progam Test Plan, August 9, 2002;(5)Exhibit , egasis Development 107 Corporation, Ka—band SS Satlltes, Program Quality Assurance Plan, August9, 2002;(6) Extibit E, Pegasus Development 107 Corporation, Ka—Band ESS Satlites, Program Management Plan, August 9, 2002;(7) Exhbit, Payment Plan and Termination Libiity Amounts, August9, 2002; (8)Atachment1, Stitement ofWork; (®) Atachment 7, Miletone Payment Plan; 9) Atachment8, Maximum Termination Liabily and Lettr of Credit Amount Requirements; (10) Attachment9, Export Laws Compliance Program (11)Atachment 10, Cetfeation(12) Attxchment 11,Form — Bilof Sal; (13) Atachment 12, Opions; (14) Atachment 13, Escrow Agreement To e Suppled EDC + 30 Days; (15) Atachment 14, Anomaly Disclosure Lis, and (16) Atachment 15, Letr ofCredit Form. We note that onlthe redacted copy oft fist document lited above is included in the public fl and uploade to thTntemaional Bureau ilng System (IBFS). See IBFS File No. SATLOA—20031119—00336. Thexhibits and atactment lited in this noteas number 1 — 16 were notincludein the public version ofthe document. We assume here that Pegasus secks confidentality wit respectto these documentsin thir entirey. (cotined...)

Federal Communications Commission ba 05249 treatment ofthe documents submitted. On July 14, 2008, Higheast Network,Inc.(Highcast filed, pursiant to the Freedom ofInformation Act (FOIA),® a requestto inspect an unredacted copy ofthe contract submitted t the Commission by PegasusHigheastassers that without disclosure ofthese documents "tisimpossible to assess Pegasus‘ actual performance" on the satllite construction contract On July 22, 2005, Pegasus filed an oppostion to Highcast‘s FOIA request" Highcast, together with any other individuals oentitiesthat subsequently submit a requestto eview these documents,are each hereafter referred to as a "Reviewing Party." 2.. Pegasus has requested to keep confidential all ofthe redacted information in the Contract requested by Higheast® We conclude that requiring Pegasus to disclose the confidential information in the Pegasus Contzact Submission t a Reviewing Party pursuant to the terms of a protective order will provide adequate protection to the confidential information included in the documents, without depriving a Reviewing Party of a meaningful opportunity o comment, as required by the Administrative Procedure Act. Consequently, the Intermational Bureau (Bureau) hereby adopts the attached Protective Order in Appendix A. We require Pegasus to provide a copy ofthe Pegasus Contract Submission to a Reviewing Party, oncethat Reviewing Party has executed and delivered the Acknowledgement ofConfidentiality that i part ofthe Protective Order attached to this Order. 3. Accordingly, TT IS ORDERED that Pegasus Development Corporation 18 REQUIRED to provide to Higheast Network, Inc. (and any other Reviewing Party that subsequently becomes a party to (...ontinued from previous page) *3 USC. § 522,et sep. * See Freedom ofnformation Act Request, Higheast Network, Inc. filed by igheast on July 14, 2005, FOIA 2005—512 (RigheastPOLA Request. Contemporaneouslywiththe issuance ofthis order, weare granting, in par, and denying, in part, Higheast‘s FOIA Request " See Higheast FOIA Request at2. * See Pegusus Development Corpontion Opposition to Pegasus Freedom of Information Act Request Aled July 2, 2005 (Pegasus Opposition). Pegasusindictestht Highcast is corpontton contrlled by a forme employee of Pegasus who is in liigation with Pegasusrepardingth trmination ofhis employment. Pegasus argues that Pegasisconstrction contrct is unrlated t he basisfothe employmentlitigaton with ts former emplayee and is not germane to Highcasts business,and that therefore the FOLA request should be disnissed or denied. nits oriinal equestfor confidentaliy, Pss argued that disclosure oftheredacted information could allow competitrsto use theinformation to marketserviesto taret Pegasus‘intended customersor to obtain more fivorible terms in thir negotitions withsatelite verdos. See Pegasus Contract Submission. These argiments do notaffect our conclusion below that the release ofth rferenced documents t nterested prtes, subjec to the requirements ofthe protective order, will provideadequate protecton to the confidentil information included in the documents, withoutdepriving a Reviewing Party oa mesningful opportunity t comment * See Pegasus Opposition. * Pri t th issuance ofth protective order, Pegasu‘s counselindicated that Pegasus would object o thereview ofdocuments bya particular individual emplayed by Higheast. We view the issue as premature and notripe for our review un suchindividal acuall executes and dlivrs an Acknowedgment ofConfidentait (see Appendix B) to Pegasus and Pegasustimely fls an objection with the Commission (1 Appendix A, paragaph 5). Tfan objecion i timely Ailed, t that poin in imethe Commission will addressthe meris ofthe objecton. See Appendix A,pargraph 8 (deailing how Confidental Iformation should be reted during the review ofan objecion t an Acknowledgment ofConfidentialiy).

Federal Communications Commission pa os249 the Protective Order),a copy ofthe documents submited to the Commission on January 31, 2005, under the terms ofthe Protective Orderatached tothis Order, onee HigheastNetwork, Inc., o any other Reviewing Party, as appropriate, has executed such Protective Order. 4.. This Order s isued pursuant to Sections 46) and 310(d) ofthe Communications Act of 1934, as amended, 47 U.S.C. §§ 154G)and 310(d), Exeeption 4 ofthe Freedom ofInformation Act, 5 U.S.C. § 552(b)4), and authoriy delegated under Setions 0.51 and 0.261 ofthe Commission‘s ules, 47 CFR. §§ 0.51, 0.261, and is effective upon its adoption. r co lons commssion Donald Abelson Chic, Iternational Bureau

Federal Communications Commission Da 052449 In the Matter of ) ) Pegasus Development Corporation ) Submission of Executed. Satelite Construction ) File No.SAT—LOA—20031119—00336 Contract and Request for Confidential Treatment ) Call Sign: 82603 ) Order Adopting Protective Order ) APPENDIX A To PR 1. Introduction. On January 31, 2005, Pegasus Development Corporation and its wholly owned subsidiry Pegasus Development 107 Corporation (collectively, Pegasus)filed with the Commission an unredacted copy ofa stelite construction contract and accompanying exibits (Contrac) executed between itselfand Space Systems‘Loral, nc The cover letter transmitting this Contract requested confidentil reatment of the documents submitted. On July 14, 2005, Highcast Network, Inc. (Highcasy filed, pursuantto the Freedom ofInformation Act (FOLA},‘a request to inspect an unredacted * Pegasus Development Corporition, Submision ofExecuted Stelite Constuction Conteact and Requestfor Confidenial Treatment, SAT—LOA—20031 119—00336,CallSign $2603,ied January 31, 2005 (Pegasus Contact. "The Pegasus Contract was submited t he Commission in order to demonstateth lcensee‘s compllance with ts fismilestone, execution ofa non—contingent constrction contract, on is authorizationto construct lnch, and operate a Ka—band satelite at the 87° W.L. orbtal location. The documents hat Pepasus submited under arequest for confientiality ae as fllows: (1) Satelite Porchase Contract By and Between Pegasus Development Corporation and Space Syatema/Loral, In.Terms and Conditions (including () Attachment A, (i) Amnex, Ito Asachment A, Gi)Schedule 1 to AnnexI o Atixchment A; (s)Schedule TL o Anner I to Atachment A, () Arachment B}; (2) Exhibit A, Pegasus Development 107 Corporation K.band FSS Satelit, SutementofWork, August9, 2002;(3) ExhbitB, Attachment1, Pegasus Development 107 Corporation, Ka—Rand FSS Satllies, Specification, August 9, 2002;(4) ExhbitC, Pepasus Development 107 Corporation, Ka—Band FSS Setelies, Program Test Plan, August 9, 2002;(5) ExhibitD, Pegasus Development 107 Corporation Ka—band FSS Satelites, Program Qualiy Assurance Plan, August9,2002; (6) Exhibit , Pegasus Development 107 Comportion, Ka—Band SS Satelltes, Propram Management Plan, August9, 2002;(7) Exhbit, Payment Plan and Termination Lility Amounts, August9, 2002;(8) Atischment1, Stement ofWork; (®) Atachment 7, Miletone Payment Plan 9) Actachment 6 Maximur Termination Lisily and Leter ofCredit Amount Requirements(10) Atactment 9, Export Laws Compllance Programs (11)Atachment 10, Cenifcation(12) Attxchment 11, Form — Bil ofSale; (13) Atachment 12, Options; (14) Atachment 13, Escrow AgreementTo Be Supplied EDC + 30 Days; (15) Atachment 14, Anomaly Disclosire List and (16) Atachment 15, Letr ofCredit Form. We note that only the tedacied capy ofth fist documentlited above is include in the publicfil and uploaded to th Itemational Bureau Filing System (BFS), See IBFS Fie No. SAT—LOA—20031119—00336. ‘The exhibitsand atachment lited in thi note as number 1 — 16 werenot included in the public versionofthe document. We assume here that Pegasus se¢ks confidentality wit respect to these documents in thir entiet. *$ USC. 522 e seg

Federal Communications Commission ba 052449 copy ofthe contract submitted to the Commission by Pegasus.® Higheast,together with any other individuals or entities that subsequently submit a request, pursuant to FOIA, to review these documents, are each hereafte referred to asa ‘Reviewing Party." Consequently, the Intemational Bureau (Bureau) has adopted this Protective Order to ensure thatthese documents are afforded adequate protection.. This Order reflets the manner in which "Confidentia Information,"asthat term is defined herein,isto be treated and is not itended to constfut a resolution of the merits concemning whether any Confidential Information would be released publicly by the Commission upon a proper request under the Freedom of Information Actor other applicable law or regulation,including 47 C.ER. § 0.442. 2. Defintions. As used herein, capitalized terms, not otherwise defined herein, shallhave the fllowing meanings: "Confidential Information" means any information contained in the Pegasus Contract Submission or derived therefrom that is not otherwise available from publicly available sources; "Counsel" meansIn—House Counsel and Outside Counsel of Record; "In—House Counsel" means the attomey or attomeys employed by Pegasus or a Reviewing Party or who is emplayed by an affiated entity and who are actively engaged in he conduct ofthis procecding, i. therelevant proceedings, provided that,such counsel are not involved in competitive decision— making, £e. In—House Counsel‘s activies, ssociation, and relationship with a client are not such as to involve such counsel‘s advice and participation in any or all ofthe client‘s business decisions made in light osimiler or corresponding information sbout a compettor; and "Outside Counsel ofRecord" means the firm(s) ofattomeys, or sole proctitioner(s)as the case may be, representing Pegasus or a Reviewing Party. "Relevant Proseedings" means proceedings that involve: Pegasus‘ Contract submited under SAT—LOA—20031119—00336, Call Sign $2603. 3. Use ofConfidentil Iformation. Persons obtaining access to Confidential Information wunder this Protectve Order shal use the information solely for preparation and the conduct ofRelevant Proceedings as delineated in this paragraph and paragraphs 5,10, and 11, and any subsequentJudicial proceeding arising diectly from these proceedings and, except as provided herein, shall not use such documents or information for any other purpose, including without limitation business, govemmental, or commercial purposes, oin other administative, regulatory orjudiciaproceedings. 4. Non—Disclosure ofConfidential Information. Except with the prior written consent of Pegasus, or as hereinafter provided under this Protective Order, no Confidential Information may be disclosed by a Reviewing Part to any person other than the Commission and its staff. 5.. Permissible Disclosure. Subjectto the requirements ofparagraph 8,Confidential Information may be reviewed by Counsel. Subjectto the requirements ofparagraph 8, Counsel may disclose Confidential Information to: (1) outside consultants or expertsretained for te purpose of assisting Counsel in these proceedings, provided, tat,the outside consultants or expertsare notinvolved !* See Freedom ofInformation Act Request, Highcast Nemork, In. filed by Higheaston July 14, 200, FOLA 2005—512 (Higheast FOIA Request.

Federal Communications Commisson pa 052449 in the analysis underlying the business decisions ofany compettor ofPegasus nor do they participate direetly in those business decisions; (2)paralegals or other employees of such Counsel not described in lause 3 ofthis paragraph 5 assisting Counsel in this proceeding; (3) employees of such Counselinvolved solely in one or more sspects oforganizing, fling, coding, converting, storing, or retrieving documents or data or designing programs for handling data connected with these proceedings, or performing other lereal or ministerialfunctions with regard to documents connected with these proceedings; and (4) employees of third—party contractors performing one or more ofth functions seforth in clause 3 ofthis paragraph 5. Individuals who have obtrined access to Confidential Information in accordance with the provisions ofthis paragraph 5 and paragraph 8 may discuss and share the contents ofthe Confidential Information with any other person who hasalso obtained access in accordance with the provisions ofthis parsgraph 5 and paragraph , and withthe Commission and is staf 6. Protection ofConfidentialIformation. Persons described in paragraph 5 shall have the obligation to ensure that access to ConfidentialInformation is stretly limited as prescribed in this Protective Order. Such persons shall frther 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 sealas provided in paragraph 10 below. 7. Prohibited Copying. 1f,in te judgment ofPegasus, the documents contain information so sensitive that it should not be copied by anyone, the relevant pages othe documents shall bear the Tegend "Copying Prohibited,"and no copies ofsuch pages, in any form,shall be made. Application for relief from this restriction agninst copying may be made to the Commission, with notice to Pegasus. 8. Proceduresfor Obtaining Access to Confidential Information. In all cases where access to ConfidentialIformation is permitted pursuant to paragraph 5, before reviewing or having access to any Confidentia Information, each person secking such access shall execute the Acknowledgment of Confidentiality ("Acknowledgment")(see Appendix B) and filit with the Bureau, on behalfofthe Commission, and serve it upon Pegasus sothat the Acknowledgment is received by Pegasus atlastfive ‘usiness days prirto such person‘s reviewing such Confidental Information.. Where the person secking sccess is one described in either lause 3 or 4 ofparagraph 5, the Acknowledgment shall be delivered prompily prioe to the person obtaining access. Pegasus shall have an opportunity to objectto the disclosure ofthe documents to any such persons. Any objection must be filedat the Commission and served on Counsel representing,retaining or employing such percon within three business days after reeeiving a copy ofthat person‘s Acknowledgment (or where the person secking access is one described in either lause 3 or 4 ofparagraph 5,such objection shall be filed and served as promptly as practicable affer eceipt ofthe relevant Acknowledgment). Until ny such objection is resolved by the Commission and, ifappropriate, any court of competentjuisdiction prio to any disclosure, and unless such objection is resolved in favor ofthe person secking access, persons subject to an objection from Pegasus shall not have access o Confidential Information. Upon receiptofan Acknowledgement and upon there being no objection by Pegasus to the person secking access, Pegasus shall deliver a copy ofthe documents t such person. 9. RequestsforAdditional Disclosure, 1fany person requests disclosure of Confidentil Information outside the terms of this Protective Order,requests willbe reated in accordance with Sections 0.442 and 0.461 of the Commission‘s rules. 10. Filings with the Commission. Persons described in parsgraph 5 may,in any documents thatthey fle in this proceeding, reference ConfidentialInformation, but only ifthey comply with the following procedure:

Federal Communications Commison Da 05—2409 . Any portions ofthe pleadings that contain or disclose Confidential Information must be physically segregated from the remainder oftpleadings; b. The portions ofpleadings containing odisclosing Confidential Information must be covered y a separit leter to the Secrctary ofthe Commission referencing this Protective Order; & Each page of any party‘s filing that contains or discloses Confidentil Information subject to this order must be clearly marked: "Confidential nformation included pursuant to Protective Order, File No. SAT—LOA—20031119—00336;" and 4. The confidential portion(s) othe pleading shall be served on the Secretary ofhe Commission, the Bureau, and Pegasus. Such confidential portions shall be served under seal, and shall not be placed in the Commission‘s public file. A part filing a pleading containing Confidental Information shall also file redacted copies oft pleading containing no ConfidentiaInformation, which copies shall be placed in the Commission‘s publicfiles. Parties should not provide courtesy copies of pleadings containing Confidentil Information to Commission Staffunless the Bureau so requests. Any courtesy copies shall be submited under seal. 11. Client Consultation. Nothing in this order shall prevent or otherwise restrct Counsel from rendering adviceto their cliens relating to the conduct ofthis proceeding and any subsequent judicial proceeding arising therefrom and, in the course thereof, elying generally on examination of Confidential Information; provided, however, that in rendering such advice and otherwise communicating with such client, Counsel shall not disclose Confidential Information. 12. No Waiver ofConfidentialiy. Disclosure ofConfidential Information as provided herein by any person shall not be deemed a waiver by Pegasus ofany privlege or entitlement to confidental trestment 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 seek disclosure in any other proceeding; and (3) that accidental disclosure ofConfidential Information by Pegasus shall not be deemed a waiver of any privilege or enttlement as long as Pegasus takes prompt remedial action. 13. Subpoena by Courts, Departments or Agencies, Ifa court, ora federal o stte department or agency issues a subpoena or orders production of the documents or any Confidential Information that party has obtained under terms ofthis Protective Order,such party shall promply notify Pegasus of the pendency ofsuch subpoena or order. Consistent with the independent authority of any court, department or ageney, such notification must be accomplished such that Pegasus has full epportunity to oppose such production prior t the production or disclosure ofthe documents or Confidential Information. 14.\ Violations ofProtective Order. Should a person that has properly obtained access to Confidential Information under this Protective Order violate any ofis terms, that person shall immediately convey that fact to the Commission and to Pegasus. Purther, should such violation consist of improper disclosure ofConfidentil Information, th violating person shall take all necessary steps to remedy the improper disclosure. The Commission retains itsfull authority to fashion appropriate sunctions for violations ofthis Protective Order,including but not limited to suspension or disbarment of Counsel rom practice before the Commission, forfeitures, cease and desist orders, and denial offrther sceess to Confidential Information in this or any other Commission proceeding. Nothing in this

Federal Communications Commission DA 05—2449 Protective Order shall limit any otherrights and remedies available to Pegasus atlaw or in equity against any person using Confidential Information in a manner not authorized by this Protective Order. 15. Termination ofProceeding. Th provisions ofthis Protective Order shall not terminate at the conclusion ofthis proceeding. Within two weeks after conclusion ofthis proceeding and any administrative orjudicil review, persons described by paragraph 5 shall desroy or return to Pegasus the documents and all copiesofthe same. No materil whatsoever derived from may be retained by any person having access thereto,except Counsel (as described in paragraph 5) may retai, under the continuing stritures ofthis Protective Order, two copies ofpleadings (one ofwhich may be in electronic format) containing ConfidentialInformation prepared on behalfofthat party. All Counsel shall make certifation ofcompliance herewith and shall deliver the same to Counsel for Pegasus not more than three weeks after conclusion of this procecding. The provisions ofhis paragraph 15 regarding retention ofStamped Confidential Documents and copies ofsame shall not be construed to apply to the Commission or ts staff

Federal Communications Commission Da 052449 APPENDIX B To PROTECTIVE ORDER Acknowledgment of Confidentality Thercby acknowledge thatI have received and read a copy ofthe foregoing Protective Order in the above—captioned proceeding, and I understand i. I agree that I am bound by the Protective Order and that I shall not disclose or use Confidential Information except as allowed by the Protective Order. 1 acknowledge that a vilation ofe Protective Order is a violation of an order othe Federal Communications Commission. Without imiting the foregoing, to the extent that I have any employment, afiiation or role with any person or entity other than a conventional private lw firm (such as, but not limited t, a lobbying or publicinterest organization), I acknowledge specifially tat my access to any information obtained as a result ofthe order is due solely to my capacity as Counsel or consultant t a party or other person described in paragraph 5 ofthe foregoing Protective Order and tha I will not use such information in any other capacity nor will 1 disclose such information except as specifically provided in the Protective Order. Thereby certif thatI am not involved in "competitve decision—making" as that term is used in the definition ofIn—House Counsel in paragraph 2 of the Protective Order. T acknowledge that it s my obligation to ensure that: (1) ConfidentiaInformation is used only as provided in the Protective Order; and (2) the documents are not duplicated except as specifically permited by the terms ofparagraph 10 ofthe Protective Order, and I certify tat I have verified that there are in place procedures, at my frm or offie, to prevent unauthorized disclosure ofConfidential Information. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed o them in the Protective Order. Exeouted at this __ day of ; [Name] [Position] [Address] [Telephone]


Document Created: 2005-09-13 17:08:49
Document Modified: 2005-09-13 17:08:49
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