Attachment DA 05-2450

DA 05-2450

ORDER submitted by FCC,IB

DA 05-2450

2005-09-13

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

IBFS_SATLOA2003111900336_454776

Federal Communications Commission pao5—2450 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Freedom of Information Act Requestfor Satlite Constration Contract filedby Pegasus FOIA File No. 2005—512 Development Corporation IBFS File No. SAT—LOA—20031119—00836 Pegasus Development Corporation and Pegasus Call Sign: $2603 Development Corporation 107 Requestfor Confidential Treatment ORDER Adopted: September 13, 2005 Released: September 13, 2005 By the Chief, Itermational Bureau: 1. By this Order, we grant, in part,and deny, in part, the Freedom of Information Act (FOIA) requestfild by Highcast Network, Inc. (ighcaso) on July 14, 2005," In the FOIA request, Highcastseeks the release of information redacted from the public version of a contract submitted by Pegasus Development Corporation and its wholly owned subsidiary Pegasus Development 107 Corporation (collectively, Pegasus) on January 31, 2005. Atthe same time, we grant, in part, and deny, in part, Pegasus‘ January 31, 2008 requestfor confidentiaityforthe information redacted from the public version of he contract. As we explain more fully below, we determine that only a small portion of he information sought by Higheastis non—confidentia information thatshould be included in the public i. . BACKGROUND 2. On January 31, 2005, Pegasus fled with the Commission an unredacted copy of a stellite construction contract and accompanying exhibits executed between itslf and Space SystemsTLoral,Inc." This submission was made to demonstrate that th licensec, Pegasus Development !5US.C. § 522.etseg. * reedom of Information Act RequestHigheast Network, Inc. filed by Higheast on July 14, 2005, FOLA 2005512 (Higheast POIA Requeso * Pegasus Development 107 Corporation, Submissionof Executed Satelite Constraction Contrct and Requestfor Confidental Treatment, SATLOA—20031119—00336, all Sign S2603, iledJanuary31, 2005 (*Contact" and "Confidenialty Requestrespectively). The docaments that Pegasus submited under a requestfor conidentaity are asfollows: (1) Satlite Purchase ContactBy and Between Pegasus Development Corporationand Space SystemsTLoral,In., Terms and Conditions(including ) Atachment A.(i) Annex 1to Atachment A.Gi) Schedul 1 to Anner Ito Atachment A:(w)ScheduleTto Annex to Atachment A. +) Atactment B); ) (contimoed...)

Federal Communications Commission baos—24s0 107 Corporation, had satisfed the fist milestone for ts license to constrict, launch, and operate a Ka— band geostationary satelite orbit (GSO) fixed—satelite service (FSS) satelite at t 87° W.L. orbital location, ie. the execution ofa non—contingent contrctfor the construction of the satllt. The cover leter transmitting the Contractrequested confidentiatreatment for the redacted information. In addition to the unredacted copy of the Contract submited with requestfor a confidential treatment, Pegasus simultaneously submited a edacted copy ofthe Contractto be placed in the Commission‘s publicfiles 3. On July 14, 2005, Higheast filed, pursuant to FOTA,arequestto inspect an unredacted copy of the Contract submited to the Commission by Pegasus * I ts request, Highcast asserts that withoutdisclosure ofthese documents "itisimpossible toassess Pegasus® actual performance" on the Contract* On July 22, 2005, Pegasus filed an opposition to Highcast‘s FOIA request." On August9, 2005, Higheastfiled a reply to Pegasus‘ opposiion, arguing that Pegasushas not demonstrted thatthe redacted portions o ts Contract are subjectto confidential treatment subjectto Sections 0.457.0.459 of the Commission‘srules" and thattherefore the redacted portions of Pegasus‘ Contractshould be made available for public inspection." On August 25, Highcast submitted further comments in support of ts FOIA request"" On August 30, 2005, Pegasus submitted a supplement to ts oppositionto Highcast‘s FOIA request" (..contined from previous page) Exhibit A. Pegasus Development 107 Corporation K.band FSS Satelite, Sutement of Work, August9,2002; G) Exhibit B, Atachment 1. Pegasus Development 107 Corporation, Ka—Band FSS Satelites, Speciication, Augus 9, 2002;(4) Exhibit C Pegasus Development 107 Corporatio, Ka—Band FSS Satlites Program TestPlan, Augus 9. 2002;(5)ExhibitD, Pegasus Development 107 Corporation, Kachand FSS Satelltes, Propram Quality Assurance Plan, August9,2002;(6)ExhibitE, Pegasus Development 107 Corporation, Ka—Band FSStelites,Program Manigement Plan, Augus 9, 2002; and (7)Exhibt, Payment Plan and Termination Liiity Amouns, August 9, 202. We note that only theredacted copy of h frst document lsted above is included in the publc fil and uploaded t he International Bureau Fling System (IBFS). See IBFS File No. SAT—LOA—20081119—00336. The extibits andatachments isted in hinote as 27 were notincluded ithe publc vrsion of the document. We assume here that egasus secks confidentality with respect o these documents in thirentiesy. * See note 3 above. * See Higheast FOIA Request * See Higheast FOLA Request at2. " See Pegasus Development Corporation Opposition to Pegasus Freedom of Iformation Act Request, filed Jly 2. 2005 (Pegasus Oppostion. * a7 cre 35 04570489 * Highcast Replyto Opposition t Freedom of Information Act Request fled Aupust 9, 2008,a 1—2 (Highcast Reply). " Higheast Network Inc., Additional Comments in Support of Freedom of Information Request, FOTA Contol No: 2005—512, led August25, 2005. " see Pegasus Development Corporation Supplementto Opposiion to Freedom of Information Act Request filed August 30,2005 (Pegasus Opposton Supplement)

Federal Communications Commission pa 0s—2450 1. DISCUSSION 4. Pegasus has requested thatthe Commission withhold from public inspection pursuant to Exception 4 ofthe FOIA"all ofthe redacted informationrequested by Higheast. The Commission‘s rules permit partiesthat have submitted materils or information to the Commission to requestthat such materialsor information be withheld from public inspection."" Parsuant to Section 0.159(b)" such requests shall contain statement ofthereasons for withholding the materials from inspection and of e faets upon which those reasonare based." 5.. In its request for confidentialiy, Pegasus identiiesthe specific information for which confidentilit is soughtand therelevant proceeding. Threquest foinformation discusses the particular types of nformationredacted. 2. costs, chedules regarding delivery and construction,technical specifications, price and payment terms, distibution ofrik and ablity,indermnifcation,intllectual propertyrights). Pegasus asserts that this information pertains tothe constrction of satellites (a commercial venture), and is thus customarily guarded from competitors because it could be used to target Pegasus‘ intended customers, obtain more favorable terms with satelte vendors, orallow competitorsto obtain proprietary technical information that was developed and paid for by Pegasus, thereby causing competitive harm.* In ts request, Pegasus also identifes how it has taken competitive measures to assure that the Contract is not disclosed to the public butis only available to Pegasus employees or agents involved in the contractual negotiation and is not generally available within Pegasus iself" Further, Pegasusindieates thatthere has been no ntentionaldisclosure to third partes." Fially, consistnt with its contractual obligations o Space Systems Loral, Pegasus requeststhat the Contract be withheld from disclosure for an indefinite period, o in the alternativea ten—year period by the end of which Pegasus says that any anticompettive effect of disclosure willbe attenuated." Thus, Pegasus‘ request forthe most part © See Pegasts Contract Submission. 5 USC § 5526)@4)exempt from publidisclosure "trdesecretsand commerciainformation obtained rom a person and privileged or conidental." ®arcr® 304590 "arcrR. 304890 © n partculr, therequestfr confidentaity mustcontinthfllowing information:(1) an idntfcatonof he specifinformationfor which confidental veatment is sought; (2) an idenifiation of the Commissionproceeding in which the nformation was submited or a deseripion of thcireumstances iving se to the submission: ) an explanation ofthe degres to which th information is commercil or financial, r continsa tade secreto s privileged; 4) an explanation ofthdegreeto whichthinformation concerns a srvice that is subjectto competiton: (5) an explanation of how disclosure of thinfrmation could result in subsanta competitve harms (6) n idetifeaton fany measures aken by the submitingparty to prevent unsuthorized discosure; 7)an identifeation f whether theinformation is availabe tothe public andthe extentof any previous disclosireof the information o thrd paies(8) fstiiction of thperiod during which thesubmitingpatyasses that matrial should not be availabl for publicdielosure; and. 0) any other infomation thatthepary secking confidental tretmentbelieves may be seful n assessing whether t requestfor confidentality should be graned. 47 CIER. & o4so0) "* See ConfidentalityRequest 23 "u "u. "u

Federal Communications Commission paos—24s0 contains all othe requisteinformation needed to determine whether itequest for confidentiliy is valid. 6. Where a partyis required to submitinformation to a Federal Government agency, the standard for determining if such commercial orfinancialinformation is "confidental" under Exemption 4 of FOIA is if disclosure of such informationis likely to: (1)impair the Govermment‘s ablty to obtain necessary information in the future; or(2)cause substantial harm to the competitive position of the percon from whom the information was obtained.®. Pegasus was required to submit ts Contract as part of the Commission‘s review of Pegasus® milestones as mandated by ts sateliteauthorization."We note, however,that Higheast argues in its FOLA requestthat the Commission has permited interested patiesto review satelte contracts tdetermine whether thelicensee has met ts construction milestones, and that therefore, Pegasus‘ Contract should be released for publi inspection.®" Instances where the Commission allowed inspection of satllte contrcts under a "Protective Order"® which allows a party to review confidential materials pursuant to certain restrctions, however,is notthe unfettered public disclosure soughtin a FOTA request. Thus, th standard applied i allowing restricted disclosure pursuant to a Protective Order is not relevant in the context ofa FOIA request 7. The majority of the contract submited was not redacted and no confidential weatment was sought"" Pegasus only redacted payment terms, terms regarding the distribution ofrisk and ability between the satellite licensee and manufacture, ntellctual property rights, and costs in the event of termination. We find that the redacted information contained in the Pegasus‘ Contract (excluding extibts and attachments)is confidentialinformation under Exemption 4 of the FOIA. Accordingly, the release of this confidentalinformation is likely to use substantia harm to Pegasus‘ competitive positon. As we explain below, with respect to the Exhibits and Attachments, we do find, however, thata limited amount of nformation is not confidentialinformation prorected from disclosure. 8. Pegasus‘ Contract contained a number of Attachments and Exhibits." The majoriy of these documents arethe epitome of information thatthais losely held and customarily guarded from competitors, Le. proprictary technicalinformation. For example, Exhibit B contains the satelite specification,® Exhibit C contains the est plan."" and Exhibt D contains the quality assurance plan."" ® National Parks and Conseration Assh v. Morton 498 F2 765, 770 (D.C.Ci.1974); CriicalMss Erergy Project . NRC,975 F2d 871879 (D.C.Ci1992) n bane) cert denied 507 U.S. 984 (1993);Examination of Curent Policy Concerning the Trextment ofConfidenialInformation Submited to the Commission, GEN Docket No.96—55, Reportand Order, 13 ECC Red 24816, 24819 (1998) (Confidental nformation Policy Order). Our 1oles rovide thattheparty ntilly claiming confidertalty parsuant o Section 0.459(@) bearsthe burden of provingby a preponderance of th evidence that uch reatment is approprite. 47 C.BR. $ 0.459(a) * Amendment of e Commission‘s Space Sution Licensing Rulesand Poliies, First Report and Order, 1B Docket No.02:34, 18 FCC Red 10760,108279 173 2003) (GpaceStrion Licensing Reform Order) ® Higheast FOIA Request at 3. 2 We note that a protctive ordeallowing Highcasaccessto the Contractsubjet t certain restctions is being issued contemporancously withthis Order * See Redacted Contact in IBFS FileNo. SAT—LOA—20031119—00336. " See foomore 3 sbove. ® See Exhibit B of the Contrct entited "Atachnent 1, Pegasus Development 107 Corporation, KacBand FSG Satelites Specifcation, August9, 2002."

Federal Communications Commisson paos—2450 Each of these documents contains information that is customaril closely held by satelite manufacturers and would be appropriately withheld from the public filin thei entirety. Exhibit P entied "Payment Plan and Termination Liablity Amounts, August 9, 2002," however, should not have been withheld from the public file in iss entirety. 9. Pegssus failure o submita redacted version ofthe one page document entiled, "Exhibit PR Payment Plan and Termination Liablity Amounts, August 9, 2002, Firt Satelte and Satellite Operations Equipment"strain thelimitsof the confidentiaity proection. ‘The payment schedule is a one—page document containing only 21 events (such as "Launch® or "CDR" shortfor eitical design review, and "DELIVERY ON ORBIT*). As such, it appears to be a generic document containing well— known and obvious eventsin tconstruction of a satelite. Thus, we do notfinthe exibit itself to be per se confidentil in its entirety. The monetary amounts attiched tothe progress payments, termination Hiabiity, oboth, however, would be considered confidental information. Accordingly,with respect to Exhibit F, we find thatthe nformation contained in the columns with the fllowing headings is not confidentil:(1) Payment Number: (2) Month Number:(3) Nominal Invoice Month(4) Payment Due: (5) Milestone Event; and (6) Completion Criteria. We do, however, find the information contained i the following columns tobe confidentaland profected from disclosure: (1) Payment %; (2) 1" Satelite; G) Sat. Oper. Equip. (4) Payment Amount; (5) Cum. Payment; and (6) CumTerm. Liablit. 10. We, therefore, conclude that, other than the material that we have justoutlined in Exhibit F, the information subjectto the requestfor confidentiaity falls squarely under Exemption 4 to the FOIA 1ules and meets the requirements of Section 0459and may be withheld from public disclosure. 111. CONCLUSION 11. TT S ORDERED that the request for confidentialty submitted by Pegasus on January 31, 2005 is Granted,in pat,and Denied,in part to the extent provided herein. Accordingly, we will submi a redacted capy of the "Exhibit t Payment Plan and Termination Libility Amounts, August9, 2002," without redacting the information in tfollowing columns, for inclusion in the public fil: (1) Payment Number, (2) Month Nummber:(3) Nominal Invoice Month; (3) Payment Ducs (5) Milestone Event and (6) Completion Criteria." Submission f the redacted materials to the Commission‘s public file as indicated here will not be carried out until thtime period within which to file application for review has expired or Pegasus‘ application for review has been fully and finallyresolved by the Commission (or any appropriate court ofcompetent jurisdiction, whichever oecurs lter. Under 0.461G) ofthe Commission‘s rules, 47 CER. $ 0.4610), Pegasus may file an application for review of the Bureau‘s handling of partial denial of Pegasus‘s requestfor confidentil treatment. Such an application for review must b fled with the Office of General Counsel within 10 days from the date of this order. (..contiued trom previous page) * See Exhibit C of the Contract, entiled"Pegasus Development 107 Corporation, Ka—Band FSS Sateltes,Program Test Plan, August9,2002." * See Exhibit D ofthe Contact, entited "Pegasus Development 107 Corporation, Ka—band FSS Sateltes,Program Qualiy Assurance Plan, August 9, 2002." " arorR 504590 ® Contemporaneausly with thissuance ofthis order, Pegasus will be provided copies of the documents to be submited im the public filto ensure that thee is no confision regarding the documents,or portions thereo, that are determined not o be confidental

Federal Communications Commission pa 0s—2450 12. TT FURTHER ORDERED that Higheast Network Inc.‘s Freedom of Information Act request, HILE NO. 2005—512, is Granted. in part, and Denied, in pat,to the extent provided herein. Under Section 0—161() ofthe Commission‘s rles, 47 CER. § 0.461(), Highcast may fle an appliction for review ofthe Bureau‘s handling of the FOIA request. Such an application forreview must be filed with the Officof General Counsel within 30 days from the date of this order. 13. This Orderis issued pursuant to Sections 4G) and 310(0)of the Communications Act of 1938,as amended, 47 U.S.C. §§ 1540)and 310(0), the Freedom of Information Act, 5 U.S.C. § 552, and authoritydelegated under Sections 0.51 and 0.261 ofthe Commission‘s rules, 47 CER. §§ 0.51, 0.261, and is effective upon its adoption. FEDERAL COMMUNICATIONS commssion Donald Abelson Chict, International Bureau


Document Created: 2005-09-15 16:28:20
Document Modified: 2005-09-15 16:28:20
© 2024 FCC.report
This site is not affiliated with or endorsed by the FCC