Attachment request

request

REQUEST submitted by DIRECTV

request

2006-06-20

This document pretains to SAT-LOA-20040909-00168 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA2004090900168_509770

HARRIS, nwresizesw eporns m WirsHire & mamnase masnaoo wervousmmeazomcon C Sfo arrowers ar uw Coxrentiat Trextneyt Requesten April 21, 2006 py Hanp pevrvery APR 2 Marlene H. Dortch Secretary RECEIVED Federal Communications Commission 445 Twelfth Street, S.W APR 2 1 Washington, DC 20554 Fedent Communcates Comniion Re: The DIRECTY Group, Inc. Oites o Serbny SAT—LOA—20040909—00168 (§2640) SAT—LOA—20040909000169 (S2641) Dear Ms. Dortch As requested by the International Bureau,‘ The DIRECTV Group, Inc. ("DIRECTV) hereby submits a non—redacted copy of its contract for construction ofthe DIRECTV 10 and DIRECTV 11 satellites by Bocing Satellite Systems, Inc.(the "Contract"). DIRECTV respectfully requests that, pursuant to Sections 0.457 and 0.459 ofthe Commission‘s rules, 47 C.F.R. §§ 0.457 and 0.459, the Commission withhold from public inspection and accord confidential treatment to redacted portions ofthe Contract, submitted for the International Bureau‘s consideration in connection with DIRECTV‘s demonstration of milestone compliance. This document contains sensitive trade secrets, and commercial and financial information that fll within Exemption 4 ofthe Freedom of Information Act ("FOIA®)." Exemption 4 of FOIA provides that the public disclosure requirement ofthe statute "does not apply to matters that are... (4) trade secrets and commercial or financialinformation obtained from a person and privileged or confidentia." DIRECTV _ See Leter rom Andrea 1. Kelly to Willam M. Wikshire (Apri 12, 2006) *. suso3s90®) °on

Hamus, Wicrsime & Granns cur Marlene H. Dortch April 21, 2006 Page 2 of S is voluntarily providing this trade seeret and commercial and financial information "ofa kind that would not customarily be released to the public‘in response to a request from the Commission staff, therefore, this information is "confidential" under Exemption 4 of FOIA.* Moreayer, DIRECTV would suffer substantial competitive harm ifthe Contract were disclosed." in support ofthis request and pursuant to Section 0.459(b) ofthe Commission‘s ules,® DIRECTV hereby states as follows: 1. Inevmirication or tie Sreciric Inrormrion ror Wincw Conriventiat Treatmeyt Is Soucur‘ DIRECTV seeks confidential treatment of those portions ofthe Contract that were redacted from the version publicly filed with the original milestone showing. These portions ofthe Contract reflect key economic terms and technological attributes ofthe satellites and therefore should be treated in their entirety as a trade secret. In the context of FOIA, a trade secret is defined as as secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort."* The parties have extensively negotited the terms of the Contract, which reflects the design of state—o—the—art satellits and the confidential commercial and financialterms for their procurement. 2. Descrurtion or Circumistances Givinc Rise To ie Summission® DIRECTV is submitting the Contract to the Commission in response to a request from the staff for purposes ofprocessing DIRECTYV‘s milestone compliance showing and request for bond reduction.‘" DIRECTV submitted a redacted version of this document with its publicly filed application. See CritealMass Energy Project v. NRC,975 F24 $71, 79 (D.C. Ci.1992) * See National Parks and Conservation Ass‘n . Morton 498 2d 765 (D.C. Ci. 194. arcr® goasot). a7 Cr® 50459000 Public Ciizen Health Research Group . FDA, T04 F2d 1280, 1288 (D.C. Ci,1983);see also AT&T Information Systens, Inc. v. GSA, 627 E. Supp. 1396,101 n3 (D.D.C. 1986) * arore goasm0) In addion the Commisionha indicated that Hcensces are require tosubmitnon—redacted copies of their satellte constrition contract in orde o demonstrte complance with thecontract execution imileston requirement. See Amendiment ofthe Commission‘s Space Staion Licensinges and Polices, 18 FCC Red. 10760, 10832.23 (2003)

Hammis, Wiursime & Granys cur Marlene H. Dortch April 21, 2006 Page3 of$ 3. Exrianation or rue Deceee to Wiice titInrormation Is Commerciat. or FinanciaL, or Contais a Trape Secret or Is Priviuecen" The Contract contains highly sensitive, confidentia, and proprictary commercial and technical information,including trade seerets regarding the construction ofsatelite spacecraft. The Contract also contains highly sensitive, confidential and proprietary commercial and financial information regarding the prices, terms and conditions upon which DIRECTV and Boeing enter into satelite manufacturing arrangements with customers and suppliers. DIRECTV and Bocing treat such information as highly confidential and do not disclose it to third parties. As such, the information qualiies as material that "would customarily be guarded from competitors.""" The redacted information contained in the Contract would not customarily be released by the persons from whom they are obtained and are therefore covered by Exemption 4 ofFOIA when, as here, it is submitted by such persons to the Govenment. 4. Exreanation or tie Deoree To Witci ie Inrormation Concernsa Service Trat Is Sumecr to Comretimion® Confidential information in the Contract concems highly competitive markets in which both DIRECTV and Bocing participate. The Contract contains trade secrets and confidentialinformation that is commercially sensitive within the satellte manufacturing industry. The satellite manufacturing industry is extremely competitive, with the current global supply ofsatellite manufacturing capacity greatly exceeding the actual demand for satellite construction services. Similarly, DIRECTV competes in the MVPD marketplace and faces competition from terrestril and satellite MVPD competitors. U.S. DBS competitors to DIRECTV with deployed U.S. DBS systems include EchoStar Communications Corporation, and a number offoreign DBS systems have sought or may seek aceess to U.S. consumers, which will further increase competition to DIRECTV."" © arcrn goast0) © arorn 50457 " arcrngoimt0). !* See, . Pettion ofDIRECTV Enterpries,LLC for a Rulemaking on the Feasiblity ofReduced Orbital Spacing in thU.S, Diect Broadeast Satelite Service (Rled Sept. , 2003) (discussingthe proposed enty offreign DBS systems in the U.S. MVPD murke)

Huous, Wirsume & Grans cur Marlene H. Dortch April 21, 2006 Page 4 ofS 5. Exrianation or HowDiscrosurt or tut Inrormation Cout.o Resurr I Supstantiat Courermve Hamy‘® Bocing is a major manufacturer ofsatelite and aerospace systems. Bocing maintains a competitive edge vis—i—vis other satellte manufactures by offering customers the benefits of Bocing‘s experience and expert technical design capability. Bocing also competes in the highly competitive satelite manufacturing market based on the cost advantages of Boeing‘s economics of scale. Release of the technical, cost or pricing information contained in the Contract could compromise Bocing‘s competitive edge in the satellite manufacturing market,resulting in substantial competitive harm to Bocing. Similarly, this information would ensble DIRECTV‘s competitors to unfairly benefit from the time and resources that DIRECTV has expended in designing and negotiating for construction ofits most advanced satelltes. 6. Inextirication or Avy Mcasures Taken By TiSummtrTinc Patry to Prevent UnaurioRizen Discosure"* DIRECTV and Bocing do not permit the dissemination of the Contract to non— employees without the execution ofa confidentiality agreement. Furthermore, Bocing requires is satellte customers to request confidentialtreatment as a part of any submission ofa satellite construction contract to govemment agencies, such as the Commission. The Contract must state on every page oevery printed copy that "This document contains DIRECTV proprietary information"" and "This document contains Bocing proprictary information.". in addition, the Contract contains technical data potentally subject to the U.S. Government‘s Intemational Traffc in Arms Regulations ("TTAR®).""_As such, its dissemnination to non—U.S. citizens or companies without prior approval may be a violation of federal lw. 7. Inevtinicamioor WitenitErcrie Inrormarion ts Avaicapue to ue Pusuicanb ue Exrent or Any Previous Disc.osure or The Information To Tmp Parties® The Contract is not available to the public and, o the best of DIRECTV‘s knowledge, has not been disseminated t non—DIRECTV or non—Bocing personnel without the execution ofa confidentiality agreement (except for the redacted version previously submitted to the Commission). Accordingly, DIRECTV requests that the ® arCr®$04906) * arcr® 50490@ _ See Section 22 CER§120.0. ® aror® go4st)0)

Hamis, Wiersme & Grnns tur Marlene H. Dortch April 21, 2006 Page S ofS Commission accord the information covered by this Request confidential treatment under Sections 0.457 and 0.459 of the Commission‘s rules. 8. dustirication or titePervon Durinc Wincirie SummtrmNc Party Assers Trar Materiat Stouu Nor Be Avaicance For Pustic Discrosure" DIRECTV requests that the Contract be permanently withheld from public disclosure. Release of this information at any time in the future would cause substantial competitive harm to DIRECTV and Bocing. This period matches the nondisclosure commitment ofthe parties tothe agreement,"" which is market evidence ofthe time period necessary to protect the confidentiality of competitively sensitive proprictary information contained therein. Therefore, DIRECTV‘s request for confidential treatment for a period of five years is reasonable. & « « For the foregoing reasons, DIRECTV respectfully requests thatthe redacted portions ofthe Contract be granted confidentil status and be withheld from public inspection. Ifconfidential treatment is not granted forall or any part of this confidential material, DIRECTV requests thatall non—redacted copies ofthe Contract be returned to DIRECTV. If you have any questions, please do not hesitate to contact undersigned counsel. Respectfully submitted, > William ilishire Counselfor The DIRECTV Group, Inc. Enclosure cc: Jay Whaley 5 «rorr go«s90)® ® See Contractat Article 21 (Propritary Information)and Section 344 (Article 21 survives ermination ofthe Contact.


Document Created: 2006-04-28 14:41:15
Document Modified: 2006-04-28 14:41:15
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