Attachment certification

This document pretains to SAT-LOA-20031215-00355 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA2003121500355_534375

                                S T EP T O E &IO
                                               H N S ON
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Panteiis Michaiopoulos                                                                                       1330 Connecticut Avenue. NW
202.429.6494                                                                                                 Washington, DC 20036-1795
prnichalo@steptoc.com                                                                                                  Tel 202.429.3000
                                                                                                                        Fax 202.429.3902
                                                                                                                                 sreptoe.com
                                          NON-PUBLIC



   September 30, 2006


  Marlene H. Dortch
  Secretary
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  455 12th Street, S.W.
  Washington, D.C. 20554

                         REQUEST FOR CONFIDENTIAL TREATMENT

  Re:      EchoStar Satellite Operating Corporation, File Nos. SAT-LOA-2003121 1-00350,
           SAT-AMD-20051118-00249, SAT-MOD-20050930-00195, Call Sign S2607

  Dear Ms Dortch:

                  Pursuant to Sections 25.164(d) of the Commission’s rules’ and the Commission’s
  First Space Station Licensing Reform Order,2 EchoStar Satellite Operating Corporation
  (“EchoStar”) hereby submits a certification of completion of the critical design review (“CDR’)
  milestone set forth in its authorization to operate an Extended Ku-band satellite in the Fixed
  Satellite Service at 109” W.L.3 See Attachment 1. EchoStar also is providing documentation


           ’ 47 C.F.R. $25.164(d).
           2
            Amendment of the Commission ’s Space Station Licensing Rules and Policies;
  Mitigation of Orbital Debris, First Report and Order and Further Notice of Proposed Rulemaking
  in IB Docket No. 02-34, and First Report and Order in IB Docket No. 02-54, 18 FCC Rcd 10760,
  at 11 191 (2003) (requiring that a licensee submit evidence that it has met the critical design
  review milestone.) (“First Space Station Licensing Reform Order”).

           See Echostar Satellite LLC Application for Authority to Construct, Launch and Operate
  a Geostationary Satellite Using the Extended Ku-band Frequencies in the Fixed-Satellite Service
  at 109 O N L . Orbital Location, Order and Authorization, 20 FCC Rcd. 930,n 37 (2004) (“I 09”
                                                                                   (Continued.. .)




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Marlene H. Dortch
September 30, 2006
Page 2


demonstrating completion of CDR for this satellite produced pursuant to Echostar’s contract
with Space Systems/Loral (“SSL”) (Attachment 2). This information is being provided to
demonstrate that EchoStar has met the CDR milestone contained in its Extended Ku-band,
authorization for the 109’ W.L. orbital 10cation.~

                 EchoStar hereby requests that Attachment 2 be treated as confidential and not
routinely available for public inspection pursuant to 47 C.F.R. 55 0.457 and 0.459. Attachment 2
contains highly sensitive information that qualifies as commercial, financial, or technical
information that “would customarily be guarded from competitors” regardless of whether or not
such materials are protected from disclosure by a privilege. See 47 C.F.R. 5 0.457(d); see also
Critical Mass Energy Project v. NRC, 975 F.2d 871,879 (D.C. Cir. 1992) (“[Wle conclude that
financial or commercial information provided to the Government on a voluntary basis is
‘confidential’ for the purpose of Exemption 4 if it is of a kind that would customarily not be
released to the public by the person from whom it was obtained.”). In addition, the information
contained in Attachment 2 includes sensitive information regarding the design and construction,
status of the proposed satellite that if disclosed could place EchoStar and SSL at a competitive
disadvantage. Such information warrants protection under 47 C.F.R. $4 0.457 and 0.459.5 A
cover sheet representing the redacted version of the attachment is being submitted separately for
the public file, together with Echostar’s certification of compliance with the CDR milestone.

                 In support of this request for confidential treatment, and pursuant to 47 C.F.R.
4 0.459(b), EchoStar hereby states as follows:
                 1.     The information for which confidential treatment is sought is contained in
                        Echostar’s submission to demonstrate compliance with its CDR milestone
                        and includes specific information regarding the timing, payment schedules
                        and technical criteria agreed upon with SSL with regard to the proposed
                        satellite. As noted above, EchoStar is filing a public version of the
                        attached materials, and this request for confidential treatment pertains only
                        to Attachment 2 that is redacted from the public version.



W.L. Order”). See also Stamp Grant of File No. SAT-MOD-20050930-00195, Condition 2
(granted Dec. 21, 2005).
       4
           See 109” W.L. Order at f 37.
       5
           47 C.F.R. 55 0.457, 0.459.


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          Marlene H. Dortch
          September 30,2006
          Page 3


                                2.     The information is being submitted, as required under 47 C.F.R.
                                       §25.164(d), to demonstrate compliance with the CDR milestone contained
                                       in Echostar’s Extended Ku-band license for the 109’ W.L. orbital I
                                       location.‘

                                3.     This information contains extremely sensitive commercial, financial, and
                                       technical information that would customarily be kept from competitors.
                                       Specifically, the information consists of details of the design and
                                       construction status of EchoStar’s proposed Extended Ku-band satellite, as
                                       agreed-upon with SSL. EchoStar would be severely prejudiced in its
                                       ability to compete if such information were released to competitors.
                                       Moreover, SSL could be prejudiced in future negotiations regarding
                                       construction of satellites if information about its arrangements with
                                       EchoStar were to be available to other satellite construction companies or
                                       to prospective purchasers of satellites.

                                4.     The information for which non-disclosure is sought pertains to Extended
                                       Ku-band satellite services, for which other competitors have received
                                       licenses. Echostar’s competitors (as well as the competitors of SSL) stand
                                       to benefit competitively from any knowledge of the construction status
                                       and progress of Echostar’s proposed satellite contained in Attachment 2.

                                5.     Disclosure of the information for which non-disclosure is sought could
                                       result in substantial harm to EchoStar and SSL by revealing to their
                                       competitors, the satellite construction industry and the public, the design
                                       and construction status of Echostar’s proposed satellite system, as agreed-
                                       upon with SSL. Such information could be used by the competitors of
                                       EchoStar to develop competing service offerings. See In re Application of
                                       Mobile Communications Holdings, Inc. for Authority to Construct the
                                       ELLIPSO Elliptical Orbit Mobile Satellite System, 10 FCC Rcd. 1547,
                                       1548 (Int’l Bur. 1994) (“buyers receive a clear competitive advantage if
                                       they know the prices that other buyers have been charged as a result of
                                       individual negotiations.”). Moreover, EchoStar would be prejudiced in
                                       any future negotiations regarding construction of satellites if such
                                       information were available to other satellite manufacturers.


                      6
                          See 109” W.L. Order at 7 37. See also First Space Station Licensing Reform Order at 7
          191.




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      Marlene H. Dortch
      September 30, 2006
      Page 4


                       6.   EchoStar takes significant measures to ensure that the timing, payment
                            terms and technical criteria contained in its satellite manufacturing
                            contracts are not disclosed to the public, including confidentiality clauses
                            in such contracts.

                       7.   The attached material for which non-disclosure is sought is not available
                            to the public.

                       8.   EchoStar requests that the attached material be withheld from disclosure
                            for an indefinite period. Disclosure of this information at any time could
                            jeopardize the competitive position of EchoStar and SSL.

                       9.   Finally, EchoStar notes that denying its request that this information be
                            kept confidential would impair the Commission’s ability to obtain this
                            type of voluntarily disclosed information in the hture. The ability of a
                            government agency to continually obtain confidential information was
                            behind the legislative purpose in developing exemptions from the
                            Freedom of Information Act. See Critical Muss Energy Project v. NRC,
                            975 F.2d 871, 878 (D.C. Cir. 1992) (“Where, however, the information is
                            provided to the Government voluntarily, the presumption is that [the
                            Government’s] interest will be threatened by disclosure as the persons
                            whose confidences have been betrayed will, in all likelihood, refuse
                            further cooperation.”). The U.S. Court of Appeals for the D.C. Circuit has
                            recognized a “private interest in preserving the confidentiality of
                            information that is provided the Government on a voluntary basis.” Id. at
                            879. The Commission should extend a similar recognition to the enclosed
                            materials.




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Marlene H. Dortch
September 30,2006
Page 5


               EchoStar requests that the Commission not release the information contained in
Attachment 2 if its request for confidentiality is denied in whole or in part without first
consulting with Echostar.                                                                   I




                                                   Respectfully submitted,




David K. Moskowitz                                 Pantelis Michalopoulos
Senior Vice President and General Counsel          Steptoe & Johnson LLP
EchoStar Satellite Operating Corporation           1330 Connecticut Ave., N.W.
5701 South Santa Fe                                Washington, D.C. 20036
Littleton, CO 80120                                (202) 429-3000
(303) 723- 1000

                                                   Counsel f o r EchoStar Satellite Operating
                                                   Corporation



Enclosures


             ATTACHMENT 1
Certification of Critical Design Review Completion


       ,   *


                                        CERTIFICATION


I, David Bair, certify under penalty of perjury that:

1.   I am the Senior Vicc President, Space Programs and Operations of EchoStar
     Communications Corporation (“EchoStar”), the ultimate parent of EchoStar Satellite
     Operating Corporation.

2. To the best of my knowledge, infomiation, and belief, EchoStar has completed critical design
   review of its proposed extended Ku-band geostationary orbit fixed-satellite service satellite
   to be located at the 109” W.L. orbital location.




September 29, 2006


      ATTACHMENT 2
Critical Design Review Documentation



Document Created: 2006-10-11 13:37:30
Document Modified: 2006-10-11 13:37:30

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