Attachment DA 05-2449

DA 05-2449

ORDER submitted by FCC,IB

DA 05-2449

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_454778

Federal Communications Commission pa os2u9 Before the Federal Communications Commission Washington, D.C. 20564 In the Matter of Pegasus Development Corporation Submission of Executed. Satellte Construction File No. SAT—LOA—20031119—00336 Contract and Requestfor Confidential Treatment Call Sign: 52603 Order Adopting Protective Order PROTECTIVE ORDER Adopted: September 13, 2005 Released: September 13, 2005 By the Chief, International Bureau: 1. On January 31, 2005, Pegasus Development Corporation and. its wholly owned subsidiary Pegasus Development 107 Corporation (collecively, Pegasus), filed with the Commission an unredacted copy ofa satelte construction contract and accompanying exhibits (Contract)executed betweenitself and Space SystemsLoral,Inc." The coverleter transmiting this contract requested confidentil treatment of the documents submited. On July 14, 2005, Higheast Network, Inc.(Highcastfild, ‘ Pegasus Development 107 Corportion.Submission of Executed Stelite Constuction Contract and Request for Confidental Treatment SATLOA20031 119—00336,CallSign $2603, iled January 312005 (Pegasus Contac). "The Pegasus Contract was submited to the Commission in ordet demonstrtethe Kcensee‘scompliance with its firsmlestone, execution f a non—contingent constraction contact, onis authorization t constct, faanchand aperate a Kacband steieatth87° W.L. orbtl loction. The documents that Pegasussubmited under a request for confidentalityareas fllows: (1) Satelte Parchase Contrct By and Between Pegasus Development Corporation and Space Systems/Lorl. nc, Terms and Condions (ncluding () Attachment A.(i) Amer 1 to Avachment A.) Schedule 1 to Annex I o Atichment A; (1) Schedul Ito AnnerIto Atachment A. (#) Avachment B); (2) Exhibit A, Pegasus Development 107 Corportion K—band FSS Satelit, Sutement ofWork, August9, 2002;(3)Exhibit B, Atachment 1, Pegasus Development 107 Comportion, Ka—Band FSS Sateltes, Specifation, August9,2002;(4)EchbitC, Pegasus Development 107 Corporation, Ka—Band FSS Saelites, Program Test Plan, August9, 2002(5) Exhiit D. Pegasus Development 107 Corporation, Ka—hand FSS Satlltes Program Quality Assurance Plan, Augus 9, 2002; 6) ExtibtE,Pegasus Development 107 Corporation, Ka—Band ESS Saelites, Program Management Plan, August9,2002and (7)Exhibit, Payment Plan and Termination Liabiiy Amounts, Aupust9,2002. We not hat anly th redacted capy of th fist document litedabove is included in the public ie and uploaded to th Iternational Bureau Fling Syster (BFS). See IBFS Fle No. SAT~ LOA—20031119—00336. Th exhibisand atachments isted in this noteas 2 — 7 were not ncluded n the public versionofthedocument. We assume here that Pegasusseeks confidentality withespectto these documents in theirentreny.

Federal Communications Commission pa 05249 pursuant t the Freedom of Iformation Act (FOIA),a requestto inspect an unredacted copy ofthe contrct submitted to the Commission by Pegasus." Highcast asserts that withoutdiclosure othese documents "it is impossible o assess Pegasus® actual performance" on th satelite construction contract* On July 22, 2005, Pegasus filed an opposition to Highcast‘s FOIA request." Higheast, together with any other individuals or entities that subsequentlysubmit a requestto review these documents, are each hereafter referred o asa "Reviewing Panty." 2. Pegasus has requested t keep confidental all othe redacted information the Contract requested by Higheast® We conclude that requiring Pesasust disclose the confidential information in the Pegusus Contract Submissionto a Reviewing Party pursuant to th terms of a protective order will provide adequate protectionto the confidentialinformation included in the documents, without depriving a Reviewing Party of a meanineful opportunity to comment, as required by the Administrative Procedure Act. Consequently,the Itermational Bureau (Bureau) hereby adoptstheatached Prorective Order Appendix A. We require Pegasus to provide a copy ofthe Pegasus Contract Submission to a Reviewing Pary, once that Reviewing Party hasexecuted and delivered the Acknowledgement of Confidentialty thatis pat of the Protective Order attached to this Order. 3. Accordingly, TT IS ORDERED that Pegasus Development Corporation 1S REQUIRED to provideto Higheast Network, Inc. (and any other Reviewing Party that subsequently becomes a party to the Protective Orden),a copy ofthe documentssubmitted to the Commission on January 31, 2005, under the trms ofthe Protective Order attiched to this Order, once Higheast Network, Inc., or any other Reviewing Party,as appropriate, has executed such Protective Order *3 U.SC. § 522 t seq * See Freedom of Infomation Act Request, Higheast Network, Inc. file by Highcast on Jaly 14, 2008, POIA 2005—512 (Higheast POIA Reques0. Contemporancously wththissuance of his order, waregranting, in pat, and denying,in pat, Higheast‘s FOIA Request * See Higheast POIA Requestat 2. * See Pegasus Development Corporation Opposttoto PegasusFreedom ofIformation Act Request, ied Jly 22, 2005 (Pegasus Oppositon). Pegasusindictes that Highcastisa corporation contraled bya frmer employee of Pegasus who s in itiation with Pegasus regarding thermination of his employment. Pegasus argues that Pegasusconstretion contac is unrlated t he bsisfor theemploymentIigtion wts former employecand is not germane t Highcast‘sbusiness,and thattherforethe FOIA requestshould bedismised ordenied. In ts original request for confidentli. Pegasus argued that disclosureof thredated information could allow compertors to use thinformation to markeservics to target Pegasusinterded customers or t obain more favorableterms in ther negotiations withstelite vendors. See Pegasus Contract Submission. These argumentsdo not affect oconclusion below thatthe release ofthreferenced documents o intrested paries, subject o he requirementsofth proectveorder,will provide adequate prfetiontothe confidenl information included in the documentswithout deprivinga Reviewing Pary o a meaningful opportunity tcomment * See Pegasus Oppostton " Priort heissuance of the protctiv order, Pegasi‘s counsl indicated that Pegasus would oblct t he review of documents by a paticular indvidualemployed by Higheast. We view the issu as prematireand no ipe forour review unil suchindividual acuall executesand delversan Acknowledgmentof Confdentalty (e Appendix B) to Pegasus and Pegasus imely fls anobjectionwith the Commission (ee Apperdix A. paragraph 9 fan objecton is tmelyfiled,at hat point in imethe Commisionwill addressthe merts oftheoblction. See Appendix A.prsgraph 8 (decilinghow Confidental Information shouldb rated during the review ofan objecionto an Acknowledgment ofConfidenialiy)

Federal Communications Commission Da os2u9 4.. This Order is ssued pursuant to Sections 46) and 310(4)ofthe Communications Act of 1934, as amended, 47 U.S.C. §§ 1540)and 310@d), Exception 4 of he Freedom of Information Act, 5 U.S.C. § 552(b)(4, and authority delegated under Sections 0.51 and 0.261 othe Commission‘s rles, 47 CFR. §§ 0.51, 0.261,and is effective upon ts adoption. FEDERAL COMMUNICATIONS COMMISSION Donald Abelson Chict, Intemational Bureau

Federal Communications Commission Da 0s.2409 In the Matter of Pegasus Development Corporation Submission of Executed. Stellte Construction File No. SAT—LOA—20031119—00336 Contract and Requestfor Confidential Treatment Call Sign: 52603 Order Adopting Protective Order APPENDIX A To PROTECTIVE ORDER 1. Introduction. On January 31, 2005, Pegasus Development Corporation and ts wholly owned subsidiary Pegasus Development 107 Corporation (collectively, Pegasus) fled with the Commission an unredacted copy of a satellte construction contract and accompanying exhibits (Contract) executed between itslf and Space SystemsLoral,IncThe coverleter transmiting this Contract requested confidential treatment othe documents subsmited. On July 14, 2005, Highcast Network, Inc. (Higheastfiled, pursuanttothe Freedom of Information Act (FOIA),"a request tinspect an unredacted copy of the contract submited to the Commission by Pegasus.®. Highcast, together with any other individuals or entitiesthat subsequentlysubsmit a request, pursuant to FOIA, to review these documents are each hereafter referred t asa "Reviewing Party." Consequently,the International Bureau (Bureau) * Pegasus Development 107 Corporation,Submissionof Executed Satelite Constrction Contract and Requestfor Confidental Treatment, SAT—LOA—20031119.00336,CllSign $2603, iledJanvary 31,2005 (Pegasus Contacd) "The Pegasus Contract was submited to the Commission in orde to demonsvatethe licensee‘scompliance with is fist milestone, executon ofa non—contingent constraction contract, on ts authoriation toconstruct, launch, and aperate a Kacband satelie atth 87° W.L.orbtal location. The documents that Pegasussubrmited under a request for confidentlity areasfollows: (1) Satelie Parchase Contract By and Between Pepasus Development Corporation and Space System/Lorl, Ic, Terms and Condions (inclading () Attachment A.(i) Anex 1to Attschment A.(i) Schedule1 to Annex to Atachment A; (o)ScheduleII to Annex I to Atachment A.() AtachmentB); (2) Exhibi A, Pegasus Development 107 CorporationKband FSS Stelit, Surement of Work, August 9, 2002; 3)Extibit BAtachment1,Pegasus Development 107 Corporation, K—Band FSS Satelites, Specifcation, August9,2002; 4) EshibitC, Pegasus Development 107 Corporation, Ka—Band FSS Satelite, Program Test Plan, August9,2002;(5)ExhibitD, Pegasus Development 107 Corporation, Ka—band FSS Satelltes, Program Quality Assurance Plan, Augus 9, 2002;(6) ExtibitE,Pegasus Development 107 Corporation, Ka—Band ESS Satelites, rogram Management Plan, August9, 2002;and (7)Exhibit, Payment Plan and Termination Liablity Amouints, August 9, 2002. We note thatonly th edacted copy ohe fist documentlited above is included in the publicfiland uploaded to th Inertional Bureau Filing Sytem (IBFS). See IBFS File No. SAT— LOA—20031119—00336, The extibts and atichments iste in thisnoe as 2 — 7 were not included in the public ersionof the document. We assume here that Pegasusseeks confidentialty withrespectto these documents in theirentiety *5 USC.§322 t see "* See Freedom ofInformation Act Request, Highcast Network, Inc. l by Higheast on July 14, 2005, FOIA 2005—512 (Highcast FOIA Request.

Federal Communications Commission pa os.2u9 has adopted this Proective Order to ensure thatthese documents are afforded adequate protection. This Order reflects the manner in which "Confidentia Information,"as thatterm is defined herein, is to be treated and is not intended t consttute resolution ofthe merits concerning whether any Confidential Information would be released publicly by the Commission upon a proper request under the Freedom of Information Act or other applicable law or regulation, including 47 CER. § 0.442. 2. Definitions. As used herein, capitalized terms,not otherwise defined herein,shall have the following meanings: "Confidentia Information‘® means any information contained in the Pegasus Contract Submission or derived therefrom that is not otherwise available from publicly available sources; "Counsel" means I—House Counsel and Outside Counsel of Record; "In—House Counsel" means th attomey or attomeys employed by Pegasus or a Reviewing Party or who is employed by an affiated entity and who are actively engaged in the conduct of this proceeding, i.the relevant proceedings, provided that, such counsel are notinvolved in competitve decision— making, In—House Counsel‘s activtes, association, and relationship with a client are not such as to involve such counsel‘s advice and partcipation in any or all of th client‘s businesdecisions made in lightof similar o corresponding information about a competitorand "Outside Counsel of Record" means the firm(s) of attorneys,or sole practtioner(s), as the case may be, representing Pegasus or a Reviewing Pary. "Relevant Proceedings" means proceedings that involve: Pegasus‘ Contract submitted under SAT—LOA—20031119—00336, Call Sign $2608. 3. Use ofConfidential Information. Persons obiaining access to Confidential Information under this Protective Order shall use the information solely for preparation and the conduct of Relevant Proceedings as delineated n this paragraph and paragraphs 5, 10, and 11, and any subsequent judicial proceeding arising directly from these proceedings and, except as provided herein,shall not use such documents or information for any other purpose, including withoutlimitation business, governmental, or commercial purposes, or in other adminstrative, regulatory orjudicial proceedings. 4. Non—Disclosure ofConfidential Information. Except with the prir written consent of Pegasus,or as hereinafter provided under this Protective Order, no ConfidentalIformation may be disclosed by a Reviewing Party to any person other than the Commission and its staff. 5. Pernissible Disclosure. Subject to the requirements ofparagraph 8, Confidential Information may be reviewed by Counsel. Subjectto therequirements of paragraph 8, Counsel may disclose Confidential Informationto:(1) outside consultants orexpertsretained for the purpose of assising Counsel n these proceedings, provided, hat,the outside consultantsor experts are notinvolved in the analysis underlying the business decisions of any competitor of Pegasus nor do they paricipate direcly n those business decisions; (2)paralegals or other employees of such Counsel not described in lause 3 ofthis paragraph 5 assisting Counse in this proceeding; (3) employecs of such Counsel involved solely in one or more aspectsof organizing, fling,coding, converting, storing, or retreving documents or data odesigning programs for handlingdata connected with these proceedings,or performing other clerical or ministerial functions with regard to documents connected with these proceedings; and (4) employees of thind—party contractors performing one or more of the functions se forth in clause 3 ofthis

Federal Communications Commission pa os.2u0 paragraph 5. Individuals who have obtained access to Confidentia Information in accordance with the provisions of thisparagraph 5 and paragraph 8 may discuss and share the contents of the Confidential Information with any other person who has also obtained access in accordance with the provisions ofthis paragraph 5 and paragraph 8. and with the Commission and is staf. 6. Protection of ConfidentialIformation. Persons described in paragraph 5 shall have the obligationto ensure that access to Confidential Information istritly limited as prescribed in this Protective Order. Such persons shall further have the obligation to ensure that: (1) Confidental Information is used only as provided in this Protective Order; and (2)the documents are not duplicted except as necessary for filingat the Commission under seaas provided in paragraph 10 below. 7. Prohibited Copying. If, in the judgment of Pegasus,the documents contain information so sensitivethat it should not be capied by anyone, the relevant pages of the documents shall bear the legend "Copying Probibited," and no copies of such pages, in any form, shall be made. Application for relief from this restrction 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 Confidentia Information is permitted pursuantto paragraph S, before reviewing or having access to any Confidential Iformation, each person secking such access shall execute the Acknowledgment of Confidentiality (*Acknowledgment") (see Appendix B) and filit with the Bureau, on betalf of the Commission, and serve it upon Pegasus so that the Acknowledgment is received by Pegasusatlastfive business days prior to such person‘s reviewing such ConfidentalIformation. Where the person secking accesis one described in either lause 3 or 4 of paragraph 5, the Acknowledgment shall be delivered prompily prio to the person obtaining access. Pegasus shall have an opportunity to object to the disclosure of the documents to any such persons. Any objection must be fledat the Commission and served on Counsel representing, retaining or employing such person within three business days after receiving a copy of that person‘s Acknowledament (or where the person secking access is one described in either clause 3 o4 of paragraph 5, such objection shallbe filed and served as prompily as proctcuble afte receipt of the relevant Acknowledgment). Until any such objection i resolved by the Commission and, if approprite,any court of comperentjurisdiction prir to any disclosure, and unless such objction is resolved in favor ofthe person seeking access, persons subjectt an objection from Pegasus shall not have access to Confidential nformation. Upon receipt of an Acknowledgement and upon there being no objection by Pegasus to the person secking access, Pegasusshalldelver capy of the documents to such person. 9. Requestsfor Additional Disclosure. If any person requests disclosure of Confidential Information outside the terms of this Protective Order,requests will be reated in accordance with Sections 0.442 and 0461 of the Commission‘s rules. 10. Filings with the Commission. Persons described in paragraph 5 may, in any documents that theyfil n this proceeding.reference Confidentil Information, but onl if they comply with the following procedure: a. Any portions ofthe pleadings that contain or disclose Confidentia Information must be physically segregated from the remainder of the pleadings; b. The portions of pleadings conaining or disclosing Confidentil Information must be covered by a separate letr o the Secretary ofthe Commission referencing this Protective Order;

Federal Communications Commission a os249 c Each page of any party‘s filing that contains or discloses Confidential Iformation subject to this order mustbe clarly marked: "Confidential Information included pursuant to Protective Order, File No. SAT—LOA—20031119—00336;" and 4. The confidential portion(s) othe pleading shall b served on the Secretary ofthe Commission,the Buresu, and Pegasus, Such confidentil portions shall beserved under seal, and shall not be placed in the Commission‘s public file. A party filinga pleading containing Confidential Information shall also filredacted copies of the pleading containing no ConfidentiaInformation, which copies shall be placed in the Commission‘s public files. Partesshould not provide courtesy copies of pleadings containing ConfidentalIformation to Commission Staff unless the Bureau so requests. Any courtsy copiesshallbe submitted under seal 11. Client Consultation. Nothing in this order shall prevent or otherwise restrct Counsel from rendering advice to their cliens relating to the conduct of his proceeding and any subsequent judicial proceeding aising therefrom and. in the course thereof, relying generally on examination of Confidential Information; provided, however, thatin rendering such advice and otherwise communicating with such client, Counsel shall not disclose ConfidentalIformation. 12. No Waiver ofConfidentialiy. Disclosure of Confidential Information as provided herein by any person shall not be deemed a waiver by Pegusus ofany privilege or entilement to confidential treatment of such ConfidentalIformation. Reviewing parties, by viewing this materalagree:(1) notto assert any such waiver, (2) not to use Confidential Iformation to seek disclosure in any other proceeding; and (3) that accidental disclosure of Confidentil Information by Pegasus shall t be deemed a waiver of any privilege orentitlement as long as Pegasus takes prompt remedial action 13. Subpoena by Courts, Deparments or Agencies. Ifa court, or federal orstte department or ageney issues a subpoena or orders production of the documents or any Confidential Information that partyhas obtained under terms of this Protective Order, such party shall prompily notify Pegasus ofthe pendency of such subpoena or order. Consistent with the independent authorty of any court, department or agency, such notification must be accomplished such that Pegasus has a full opportunity to oppose such production prirto the production or disclosure ofthe documents or Confidentil Information. 14. Vietations ofProtective Order. Should a person that has properly obtained access to Confidential Information under this Protective Order vilate any of ittrms, that person shall immediately convey thatfaetto the Commission and to Pegasus. Further, should such violition consist of improper disclosure of Confidential Information, tviolating person shalltake all necessary steps to remedy the improper disclosure. The Commission retais ts full suthority to fashion appropriate sanctions for vilations of this Protective Order, including but not imited to suspension or disharment of Counselfrom practice before the Commission, forfeitures, cease and desist orders, and denialof further accessto Confidential nformation in this or any other Commission proceeding. Nothing in this Protective Order shall imit any other rights and remedies available to Pegasus at law or in equity against any person using Confidentil Informationin a manner not authorized by this Protective Order. 15. Termination ofProceeding. The provisions othis Protective Ordershall not terminate at the conclusion of this proceeding. Within two weeks after conclusion ofthis proceeding and any administative orjudicial review, persons described by paragraph 5 shall destroy or return to Pegasus the documents and all copiesof the same. No material whatsoever derived from may be retained by any person having access thereto, except Counsel (asdescribed in paragraph 5) may retain, under the

Federal Communications Commission ba 05249 continuing strictures of this Protective Order, two copiesofpleadings (one of which may be in lectronic format)containing ConfidentiaInformation prepared on behalf of hat paty. All Counsel shall make certification of compliance herewith and shall deliver the same to Counsel for Pegasus not more than three weeks after conclusion ofthis proceeding. The provisions ofthis paragraph 15 regarding retention of Stamped Confidential Documentsand copiesosame shall not be construed to apply to the Commission or it saff

Federal Communications Commission pa os2u9 APPENDIX B To PROTECTIVE ORDER Acknowledgment of Confidentality hereby acknowledge that 1 have received and read a copy of the foregoing Protective Order in the above—captioned proceeding, and I understand i. T agree thatI am bound by the Protective Order and that shallnot disclose or use Confidential Iformation except as allowed by the Protective Order. T acknowledge that a violation ofthe Protective Order is a violation ofan order of he Federal Communications Commission. Withoutlimiting the foregoing, to the extent that 1 have any employment, afffation or role with any person or entity other than a conventional private law firm (such as,but notlimited to, a lobbying or public interest organization), I acknowledge specifically that my access to any information obtained as a resultof the order is due solely to my eapacity as Counsel or consultant to a paty or other person described in paragraph S othe foregoing Protective Order and that I wll not use such information in any other capacity nor willIdisclose such information except as specifially provided in the Protective Order. Thereby certify that I am not involved in "compettive decision—making"as that term is used in the defintion of In—House Counsel in paragraph 2 othe Protective Order. T acknowledge that it is my obligation to ensure that: (1) Confidential Information is used only as provided in the Protective Order and (2) the documents are not duplicated except as specificlly permitted by the terms of paragraph 10 of the Protective Order, and I certfy that Ihave veriied that there are in place procedures, at my firm or office, to prevent unsuthorized disclosure of Confidential Information. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Profective Order. Executed at this __ day of sns [Name] [Position} {Address] [Telephone}


Document Created: 2005-09-15 16:34:22
Document Modified: 2005-09-15 16:34:22
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