Attachment objection

objection

OTHER submitted by Pegasus

objection

2005-10-19

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

IBFS_SATLOA2003111900336_461587

BeroRE THE rEperaL communNications commussion RECEIVED wasnneron 5C mtE omed Oc 1 9 205 In the Matter of )) OCT 2 4 2005 F‘“"“'mg‘,m‘mmssbn Freedom of Information Act Request for ) File N rsfs?f‘ BAZ30n31110.00336 Satellite Construction Contract filedby ) FOrA File No. 20 Pegasus Development Corporation ) Da os—2440 OBJECTION TO ACKNOWLEDGEMENT OF CONFIDENTIALITY Pegasus Development Corporation (‘Pegasus") hereby filesthis objection to the review by Mr. John Hane of the confidentialinformation submitted by Pegasus in the above—captioned proceeding. Mr. Hane controls and is the sole employee ofHighcast Network, Inc. ("Higheast"), which has stated that it is a potential competitor to Pegasus. Accordingly, Mr. Hane is necessarily a "competitive decision—maker," and his personal review of confidentially sensitive material violates the express language ofthe Profective Order issued in this proceeding. See DA 05—2450 (September 13, 2005). Additionally, Mr. Hane is a former employee of Pegasus who is in litigation with Pegasus regarding the termination of his employment, and there are strong, legitimate concerns that his review of confidentialsensitive materials would be improper. Under such circumstances, the Intemational Bureau (*Burcau") should deny Mr. Hane‘s request to review personally the confidential material submitted in this proceeding by Pegasus. On September 13, 2005, the Bureau released two orders addressing a request for confidentialtreatment by Pegasus of certain redacted documents submitted as proofof ts compliance with ts construction commencement milestone and a Freedom of Information Act (FOIA®)request by Highcast regarding that same material. See Order, DA 05—2450 (September 13, 2005); Protective Order, DA 05—2449 (September 13, 2005). The Bureau concluded that

with the exception of a single one—page exhibit, half ofwhich the Bureau determined was confidential, all of the redacted information submitted by Pegasus warranted confidential treatment.‘. As the Bureau stated, with respect tothe main body of the contract,"Pegasus only redacted payment terms, terms regarding the distribution ofrisk and liability between the satellite license and manufacturer,intellectual property rights, and costs in the event oftermination." Order, it 4. The Burea further noted that"({he majority of [the attachments and exhibits] are the epitome of information thatis closely held and customarily guarded from competitors, Le. proprietary technical information."" With respect to this confidential and competiively sensitive information, the Bureau issued a protective order permitting Highcast to review that information only under certain terms and conditions. See Profective Order, at 4—8. Consistent with Commission precedent,? among the restrictions is the limitation that only outside counsel of record or in—house counsel "not involved in competitive decision—making" be permitted to review the confidential material." Mr. Hane purports to be general counsel for Highcast and secks review of the confidential information. However, his personal review of the documents would violate the restriction of the Protective Order. ‘ See Order, at 8. * 1d. (emphasis added). * See, eg., In the Matter ofPandmSat Corporation, FOLA No. 2002—124, DA 02—609 (March 15, 2002); Letter Order, VisionSter, Incorporated Transfer ofControl Application, FOIA Request No. 21—220 (August 8, 2001); /n the Maiter ofGE American Communications, Inc., DA O1—173 (January 25, 2001). * See Protective Order, at 5.

The Protective Order defines "In—House Counse!" as "the attomey or attomeys employed by ... a Reviewing Party ... provided that, such counsel are not involved in competitive decision—making, .e., I—House Counsel‘s activites, association, and relationship with a client are not such as to involve such counse!‘s advice and participation in any or all of the client‘s business decisions made in light of similar or corresponding information about a competitor ... "* Highcast itelf t one point has stated that it is a potential compstitor to Pegasus®— a fact that cannot be easily dismissed in light ofMr. Hane‘s prior employment for Pegasus as Senior Vice President working, inter alia, on satelite deployment, contract negotiations, and related FCC proceedings. As the principal owner and sole employe of Highcast, Mr. Hane would necessarily engage in all decision—making for Highcast, including those that could affect Pegasus on a competitive level." The fact that Mr. Hane is also purportedly Highcast‘s general counsel provides no logical basis to warrant an exception to this rule. Any contrary conclusion would establish a dangerous loophole and deny Pegasus basic FOIA protection against disclosure of competiively sensitive materials. 5 See Protective Order, at 5. ® Letter to Managing Director from Mark Halpren, at 2 (August 9, 2005) ("If [Pegasus] is not in compliance hcast must look elsewhere for access to satllite broadcasting services. Eiling ts own apoli for a Ka band orbitalst (includi erhaps the 87 degree WL slot should [Pegasus) not proceed with developing i) or allying with another Ka band licensee or applicant are among the most likely options.") (emphasis added); compare Additional Comments, at 1—2 (*Higheast does not now and has never sought to be operate [sic] a satellite oto provide satellite services directly .. .."). " The Bureau has concluded in at east one FOIA proceeding that the scope of in—house counsel permitted to review confidential satellite contracts should be interpreted narrowly.. See /n he Matter ofApplication ofMotorola Inc. and Teledesic, LLC, File No. SAT—ASG—20010109—00005 (October 26, 2001) (rejecting request for review of satellite contract by in—house counsel of parent company of entity submitting FOIA request).

Moreover, Highcast has already obtained outside counsel in this proceeding and indicated in a prior email that such counsel would be reviewing the confidential material." Accordingly, there is no concem that Highcast would be denied an opportunity to review the confidential materials. As an additional matter, as Pegasus stated in ts inital Opposition to Highcast‘s FOIA request,there are genuine concems regarding the propriety ofMr. Hane‘s personal review of the confidential material in light of his ongoing employment litigation, as an individual, with Pegasus," In its FOIA request, Highcast failed to identify any specific reason why it would be interested in the confidential satelite contract, other than an apparent abstract interest in ensuring that licensees comply with FCC regulations."" Only when challenged did Highcast assert, mter alia, that it was a prospective satelite licensee considering the 87°W orbital location —a position it has since retracted. Under such circumstances, it would be eminently reasonable for the Bureau to prevent Mr. Hane‘s review ofthe confidential documents in order to "minimize the potential forinadvertent misuse of such information.""" * See attached Exhibit 1,at 4—5 (providing email correspondences between the parties and the ECC). * See Letter to Managing Director from Bruce Jacobs, at1 (July 22, 2005). ‘° See generally Letter to Managing Director from Mark Halpren (July 14, 2005). ‘‘ Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the Commission, 13 FCC Red 24816, at1 26 (1998) ("Confidential Information Policy Order"); see also In Re Request ofLouis A. Goodman, 81 FCC 24 124 (1980) ("The Commission generally has denied requests for inspection ... where the [confidental} information is to be used for the resolution of essentially private disputes, unrelated to public interest determinations required by the Communications Act"); MeKeon Construction Co., 21 RR 24 919 (1971) (denying FOIA request by entity secking confidentialinformation ofFCC

Conclusion For these reasons, Pegasus requests that the Bureau deny Mr. Hane‘s request to review personally the confidentialinformation submitted by Pegasus in this proceeding. Respectfully submitted, Pegasus Development Corporation By: fuceB. Sakbs Tony Lin Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, N.W. Washington, D.C. 20037 (202) 6e3—3000 Its Attomeys Dated: October 19, 2005 Hicensee because such material was sought in non—FCC related litigation and discoverable in that proceeding).

CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the foregoing Objection to Acknowledgement of Confidentiality was sent by electronic mail and by first—class mail, postage prepaid, or hand delivery (*) on October 19, 2005 to the following: Andrea Kelly* Chief, Satellite Division Policy Branch International Bureau Federal Communications Commission 445 12" Street SW Washington, DC 20554 Mark S. Halper Halpren & Levy, P.C. GSB Building One Belmont Avenue, Suite 400 Bala Cymwyd, PA 19004 John K. Hane Highcast Network, Inc. 4938 Hampden Lane #167 Bethesda, Maryland 20814 Renfe Williams

Exhibit1

ory Lin To: john@highcastnet 4 Sutject. RE: Freedom of Informaton Act Requestforsataite constructon Seieimtondese mt documents fled by Pegasus Development CornC1 Highcast‘s contentions are without merit and should be rejected. Pegasus consented to Highcast® s review of the confidentialsatellite contract pursuant to a protective order, under the logical assumption that the order would be consistent with the numerous protective orders issued by the Bureau in similer proceedings. To Pegasus‘ knowledge, the DirecTV/Pegasus protective order was selected by Bureau staffto be a template for this proceeding simply because it was a recent satellite matter and one in which Pegasus had participated. Thus, contrary to Highcast‘s belie, the facts of that case are irelevant and do not serve as a basis for issuing a non—standard protective order in this case. FCC protective orders have consistently restricted individuals engaged in competitive decision—making from reviewing confidential materials, such as satelite construction contracts. In fact,the numerous cases cited by Highcast in is inital FOIA request confirm this conclusion: Accordingly, contrary to Highcast‘s assertion, there was no need, much less obligation, for Pegasus to state in advance that it would object to Mr. Hane‘s review ofthe confidential documents. Such a routine provision does not deny Highcast a reasonable opportunity to review the redacted confidentil information, as Highcast alleges. Highcast has already engaged outside counsel in the preparation of the FOIA request and has stated no reason why counsel‘s review would be inadequate. As to Mr. Hane‘s role as a "competitive decision—maker," that is an issue not presently before the Bureau and not relevant for purposes ofassessing the confidentiality ofthe redacted provisions of the satellite contract. Even ifit were, Highcast‘sfilings make clear that it considers itslf a potential competitor to Pegasus, and as the sole officer and employee, Mr. Hane would necessarily engage in competitive decision—making. Additionally, as Pegasus has stated, Mr. Hane, as an individual, is presently in litigation with Pegasus, and his direct or indirect use in other proceedings ofmaterial obtained pursuant to a FOIA request in an FCC proceeding would be improper 1fHighcast is not satisfed with the Bureau‘s reasonable attemptto reach a mutual compromise by issuing an established, non—controversial protective order, Pegasus urges the Bureau to dismiss the FOIA request outright. Tony Lin Pilsbury Winthrop Show Pitman LLP 2300 N Street, NW Washington, DC 20037—1128 202.663 8452 (telephone) 202.063.8007 (fecsimile) tory.In@pilsburylaw.com

"John Hane* <john@highcastnet> ~John Hone® To: Andreakaly@tecgor <john@highcastnet= : "Angels Wints" <angelo@halpemien.com>. nersztos ooz om brien incobs@nllsburywcom, "Mark . Halport® Please respond tjohn <tflem@halpernien.com>. "Tory Ln" <TonyLin@pilsburgancom>,"Lisamne Mikula® «Lisanne@alperiny.com> Sutject: RE: Freedom f Informaton Act Requestforsatalite construcion documents ied by Pegasus Develcpment Co. Andrea, Highcast has consented to wihdrawing ts FOIA request provided ts given a reasonable opportunty to review the redacted information pursuantto a protectve order. Pegasus isell volunteered that it id not object to diclosure pursuant to a protectve order, and notably,in ts Juy 22 ettr making that commiment, t id notstate that Mr.Hane should be precluded from review under the terms of such an order even though Pogasus was well aware atte time that Mr. Hane is the only employee of Highcost To the contrary,as discussed below, Pegasus argued thathe contract is not even relevent to Highcasts business 1tis worth notig that at the time ofthe leterfom Pegasuscounsel consentingt the protectve order procedure netther Higheast nor Pegasus had any way of knowing what the precise terms of a protectve order proposed by th 1B mightbe. in our iscussion on Monday you proposed use of a protectve order that was negotated among the IB, Pegasus isell and DIRECTV back in 2004. That rder reflcts the extraordinarly unusual and almost incomprehensivey complex seriesof lega, business, and policy isputes between DIRECTV and Pegasus, which had aleady played out fr severayears in court before the FOG, and in the day—1o—day cutthroat compotiion of the DBS retalbusiness.. The circumstances ghing ise t the DIRECTV protective order tselfnvolved DIRECTV‘s attemiptsto provide services from Canaian — ieensed slots va an exemption from the general prohlbiion againstsuch. Authorizaton pursuant to that exemption was a rare and prized compeltive advantage for thase seeking to enter the faciites—based DBS service business,as Pegasus then was. Moreover, the poley, as writen, essent preciuded the dorminant DBS plaforms in the US —— DIRECTV and Echostar— fom qualiying for the exemption.. in the DIRECTV case that serves as the template forthe protective order proposed in the current case, DIRECTV was seking an authorization that would largely eviscerate he value of Pegasus‘ own authoriy to provide service into the United Statesfrom Ganacian satelites or sots. Indeed, Pegasus expressed a concern hatthe terms of agreement between Telesat and DIRECTV that had been redacted mightin fact give DIRECTV theright to preciude use of certain Ganacian spectrum or satelies by Pegasus. The agreement between Telesat and DIRECTV had other ramfications that may have affected Pegasus, though, and in ways that could potentaly be far more damaging to Pegasus than the loss of ts authorizaton to provide service from Canadian satelites. DIRECTV and Pegaus were enaged in enormously complex commercialiigation in federal court —— itigation in which the precise slot placement, usage, and expected Ife of verious DIRECTV satelies were the most exceedingly mportantfats in ispute, The terms of the Telesat—DIRECTV agreement sought would shad light on those facts and,if freely shared with Pagesus counse!in hat iigation, might be used for purposes bayond the issues relevantto FGC review of DIREGTV‘s applicaton. Simiarly, fthe confidnetial data were to be shared wih Pegasus business executves responsible for obtaining satelite capaciy for DBS grouth they could have potentialy used that nformation n a way to compete more effecivel with DIRECTV forthe same resources

in ght ofthe extensive and acrimonious tigation between Pogasus and DIRECTV and the drect compeition between the two for access to Canadian orbtalresources (as well as US retal DBS customers) the FGC erafed a protective order that sticty limited the numberof Pegasus personnel who might be given access to the nformation The present case could hardly beless ke the PegasusDIRECTV case. As previously noled, Highcast and Pegasus are not in igation with each other. More important,though,is Pegasus‘s own admission that Highcast is not a competitor: ~Pegasus‘ satelie construcion contact ... is not germane to Higheasts business * * * Highcast is not a Ka—band sateite applicant and has no real reason for seeking review of the confidentalfling.* See Letterfom Bruce Jacobs dated July 22, 2005. Pegasus should be reauired to provide some explanalion of what sort of "compettive decisionmaking" Mr. Hane is engaged in that mightjeopardize any of Pegasus‘leglimateinterests in the confdentalty of the nformation. Higheast has a single employee — me — who serves as President and i—house counsel.IfI cannot review the confidentiainformation, then Highcast cannot do a meaningful job of assessing Pegasus‘ compliance wih its frst mlestone. The protectiv order sticty limts the purposes for which the disclosed information can be used. I am an experienced communicatons attorney who frst practiced before the FCC in 1987. My eredentals are well known to the International Bureau. Visltion of e protective order wauldput at risk my abiity to practice before the FCC. Absent Pegasus‘ abity toariculate some compolitve harm that might reasonably occurfrom my review ofthe document subjectto the strictures of the protective order then Highcast submis that Pegasus is not etiled to black my review thereunder. Itis Highcasts desire to achieve a reasonable resoluion o this as quickly and effcienty as possible. We stand ready and wiling to adjust theterms ofthe protective order — and to do so expeditously— to meet the legtimate interests o both partes. However, Highcast opposes Interational Bureau action accepting Pegasus‘ assertion of mlestone compliance before Highcast has had a reasonable apportunty to review the redacted iformation and subnit nformed comments. Best regards, wlotn ——Orignal Message— From: Tory Lin {malto:TonyLin@pllsburylaw.com} Sent: Thursday, August 18, 2005 1:37 PM To: john@highcast.net C: Andrea kelly@fcc.gov; ‘ingela Wintz; brucejocobs@pilsburylan.comy ‘Mark S. Halpern‘ Subject: Re: Freedom of Information Act Request for satelite construction documents fled by Pegasus Development Corp. Andres, Pegasus would oppose the review ofthe confidentialinformation by John Hane, who is the President of Higheast and is engaged in competitive decision—making. eevecesncsseccrvecsecenecessecesseccessnccns Tony Lin Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037—1128

202.663.8452 (telephone) 202.663.8007 (Facsimile) tony.lin@pillsburylaw.com vreervenerneermecrresecsssccsssecssecssecccee "John Hane* <john@highcast.net> "Joh N_ To: Andreakely@egov MR co; onlin@pilsbarylawcom, "Mark 5. Halpern® z_ <Miaipern@halpernevy.com>, "Angela Wint#® Th conseia@halperidess.con>, bricedacobn@pllibarylencom MB SupjectFreedom of nformation Act Requestfo stelite flz constriction document filed by Pegasus Development Comn «o osn To os cae orm Pleas ndto john Andrea, Pursuant to our conversations on Monday and earlier this afternoon, it is the understanding of Highcast Network Inc. ("Highcast") that the International Bureau will permit Mighcast to review unredacted versions of the documents submitted by Pegasus Development Corp. ("Pegasus") to the FCC in connection with its performance milestones for its 87 WL Ka band license. Highcast‘s review would be subject to a protective order to be issued by the International Bureau and conditioned on each reviewing person executing an acknowledgement of confidentiality. Higheast further understands that Mark Halpern and Lisanne Mikula of Halpern and Levy, outside counsel to Higheast and John Hane, in—house counsel to and President of

Righcast, will be eligible to review the unredacted documents subject to the terms of the protective order and upon execution of the acknowledgement of confidentiality. we understand that the protective order review procedure is conditioned. on Righcast withdrawing its pending FOTA request without prejudice to re—filing. The protective order procedure seems to be a reasonable and efficient option; accordingly, Highcast withdraws its July 14, 2005 rotm request. Regards, John s/John K. Hane +1 202.258.0224 No virus found in this outgoing message. Checked by AVG Anti—Virus Version: 7.0.338 / Virus Database: 267.10.11/74 — Release Date: 8/17/2005 (See attachedfile: Hane John.vep The contents ofthis message, together with any attachments, are intended only for the use of the individual or entity to which they are addressed and may contain information that is Hegally privileged, confidential and exempt from disclosure. Ifyou are not the intended recipient, you are hereby notified that any dissemination, distribution, or copying ofthis message, or any attachment, is strietly prohibited. Ifyou have received this message in error, please notify the original sender orthe Pillsbury Winthrop Shaw Pittman Help Desk at Tel: $00—477—0770 x4860 immediately by telephone or by return E—mail and delete this message, along with any attachments, fom your computer. Thank you. No viusfound in thisincoming message

Chesied by AVG AntVins. Verion:7.0.338 / VirusDatabase: 267.10.12775 — Relese Date:811772008 No vins found in this outoing message Checked by AVG AntVins. Verion: 7.0.338 / Virus Database: 267.10.12775 — Release Date:87172005


Document Created: 2005-10-24 15:47:50
Document Modified: 2005-10-24 15:47:50
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