Attachment DIRECTV - req confi

DIRECTV - req confi

REQUEST submitted by DIRECTV

Confidential Treatment of Construction Contract

2013-07-12

This document pretains to SAT-LOA-20120316-00051 for Application to Launch and Operate on a Satellite Space Stations filing.

IBFS_SATLOA2012031600051_1006042

WG WILTSHIRE FILED/AccEPTED & GRANNIS ur JVI 12 2013 Federal Commun ications Comm ission Office of the Se cretary NON-PUBLIC CONFIDENTIAL TREATMENT REQUESTED FOR INTERNAL USE onLy July 12, 2013 BY HAND DELIVERY Marlene H. Dortch Secretary Federal Communications Commission 445 Twelfth Street, S.W. Washington, DC 20554 Re: DIRECTYV Enterprises, LLC IBFS File Nos. SAT—LOA—20120316—00051 and SAT—AMD—20120420—00071 (Call Sign $2861) Dear Ms. Dortch: Pursuant to Section 25.164(c) of the Commission‘s rules and Paragraph 6a of the authorization issued in the above referenced proceedings,‘ DIRECTV Enterprises, LLC ("DIRECTV") hereby submits a non—redacted copy ofits contract for construction of the DIRECTV KU—79W satellite (the "Contract") by Orbital Sciences Corporation ("OSC"). DIRECTV respectfully requests that, pursuant to Sections 0.457 and 0.459 of the 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 of the 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 fall within Exemption 4 of the Freedom of Information Act ("FOIA")." Exemption 4 of FOIA provides that the public disclosure requirement of the statute "does not apply to matters that are . . . (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential."" DIRECTV is voluntarily providing this trade secret and commercial and financial information "of a kind that would not customarily be See Stamp Grant, IBFS File Nos. SAT—LOA—20120316—00051 and SAT—AMD—20120420—00071, Condition 6a (granted July 12, 2012). See also 47 C.F.R. §25.164(c). 2 5 U.S.C. § 552(b)(4). 3 1d. NON—PUBLIC FOR INTERNAL USE onLy 1200 18TH STREET, NW | SUITE 1200 | WASHINGTON, DC 20036 | TEL 202—730—1300 | FAX 202—730—1301 | WILTSHIREGRANNIS.COM

WILTSHIRE & GRANNIS LLP Marlene H. Dortch July 12, 2013 Page 2 of 5 released to the public‘ in order to demonstrate compliance with a regulatory requirement; therefore, this information is "confidential" under Exemption 4 of FOIA.* Moreover, DIRECTV would suffer substantial competitive harm if the Contract were disclosed." In support of this request and pursuant to Section 0.459(b) of the Commission‘s rules,° DIRECTV hereby states as follows: 1. IDENTIFICATION OF THE SPECIFIC INFORMATION FOR WHICH CONFIDENTIAL TREATMENT Is SoucHt‘ DIRECTV seeks confidential treatment of those portions of the Contract that were redacted from the version that is being publicly filed concurrently herewith. These portions of the Contract reflect key economic terms and technological attributes of the satellite 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 negotiated the terms of the Contract, which reflects the design of a state—of—the—art satellite and the confidential commercial and financial terms for its procurement. 2. DESCRIPTION OF CIRCUMSTANCEsS Givinc RisE To THE SUBMISSION® DIRECTV is submitting the Contract to the Commission as required by rule and by licensing condition in order to demonstrate compliance with the first performance milestone, which would also result in reduction of DIRECTV‘s performance bond. DIRECTV is also submitting a redacted version of this document for the public record. * See Critical Mass Energy Project v. NRC, 975 F.2d §871, 879 (D.C. Cir. 1992). ° See National Parks and Conservation Ass‘n v. Morton, 498 F.2d 765 (D.C. Cir. 1974). 6 47 CFR. § 0.459(b). 7 47 C.F.R. § 0.459(b)(1). 8 Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983); see also AT&T Information Systems, Inc. v. GSA, 627 F. Supp. 1396, 1401 n.9 (D.D.C. 1986). ° 47 C.F.R. § 0.459(b)(2).

WILTSHIRE & GRANNIS LLP Marlene H. Dortch July 12, 2013 Page 3 of 5 3. EXPLANATION OF THE DEGREE TO WHICH THE INFORMATION Is COMMERCIAL OR FINANCIAL, OR CONTAINS A TRADE SECRET OR Is PrivilLEcrp" The Contract contains highly sensitive, confidential, and proprietary commercial and technical information, including trade secrets regarding the construction of satellite spacecraft. The Contract also contains highly sensitive, confidential and proprietary commercial and financial information regarding the prices, terms and conditions upon which DIRECTV and OSC enter into satellite manufacturing arrangements with customers and suppliers. DIRECTV and OSC treat such information as highly confidential and do not disclose it to third parties. As such, the information qualifies 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 of FOIA when, as here, it is submitted by such persons to the Government. 4, EXPLANATION OF THE DEGREE TO WHICH THE INFORMATION CONCERNS A SERVICE 2 THAT Is SUBJECT To COMPETITION® Confidential information in the Contract concerns highly competitive markets in which both DIRECTV and OSC participate. The Contract contains trade secrets and confidential information that is commercially sensitive within the satellite manufacturing industry. The satellite manufacturing industry is extremely competitive, with the current global supply of satellite manufacturing capacity greatly exceeding the actual demand for satellite construction services. Similarly, DIRECTV competes in the satellite services and MVPD marketplaces and faces competition from other satellite operators as well as terrestrial and satellite MVPD competitors. Such competitors to DIRECTV include DISH Network, Intelsat S.A., and SES S.A. 5. ExPLANATION oOF How DISCLOSURE OF THE INFORMATION COULD RESULT IN SUBSTANTIAL COMPETITIVE Harm" OSC is a major manufacturer of satellite and aerospace systems. OSC maintains a competitive edge vis—a—vis other satellite manufactures by offering customers the benefits of its experience and expert technical design capability. OSC also competes in the highly competitive satellite manufacturing market based on the cost advantages ofits economies of scale. Release of the technical, cost or pricing information contained in the Contract could compromise OSC‘s competitive edge in the satellite manufacturing market, resulting in substantial competitive harm to OSC. Similarly, this information would enable DIRECTV‘s competitors to unfairly benefit 9 47 C.F.R. §0.459(b)(3). 1 47 C.F.R. § 0.457. " 47 C.F.R. § 0.459(b)(4). 3 47 C.F.R. § 0.459(b)(5).

WILTSHIRE & GRANNIS LLP Marlene H. Dortch July 12, 2013 Page 4 of 5 from the time and resources that DIRECTV has expended in designing and negotiating for construction of advanced satellites. 6. IDENTIFICATION OF An¥y MEASURES TAKEN BY THE SUBMITTING PARTY TO PREVENT UnNnAUTHORIZED Discrosure" DIRECTV and OSC do not permit the dissemination of the Contract to non—employees without the execution of a confidentiality agreement. Furthermore, OSC requires its satellite customers to request confidential treatment as a part of any submission of a satellite construction contract to government agencies, such as the Commission. In addition, the Contract contains technical data potentially subject to the U.S. Government‘s International Traffic in Arms Regulations ("ITAR")."" As such, its dissemination to non—U.S. citizens or companies without prior approval may be a violation of federal law. 7. IDENTIFICATION OF WHETHER THE INFORMATION ISs AVAILABLE TO THE PUBLIC AND THE EXxTENT OF Any PREvIOUS DISCLOSURE OF THE INFORMATION To THIRD ParTiEs‘" The Contract is not available to the public and, to the best of DIRECTV‘s knowledge, has not been disseminated to non—DIRECTV or non—OSC personnel without the execution of a confidentiality agreement (except for the redacted version being submitted to the Commission). Accordingly, DIRECTV requests that the Commission accord the information covered by this Request confidential treatment under Sections 0.457 and 0.459 of the Commission‘s rules. * 47 C.F.R. § 0.459(b)(6). 5 See 22 C.F.R. § 120.10. 16 47 C.F.R. §0.459(b)(7).

WILTSHIRE & GRANNIS LLP Marlene H. Dortch July 12, 2013 Page 5 of 5 8. JUSTIFICATION OF THE PERIOD DURING WHICH THE SUBMITTING PARTY AsSERTS THAT MATERIAL SHOULD NOT BE AVAILABLE FOR PUBLIC DISCLOSURE"" DIRECTV requests that the Contract be withheld from public disclosure for at least five years. Release of this information prior to that time would cause substantial competitive harm to DIRECTV and OSC. This period matches the nondisclosure commitment of the parties to the agreement," ° which is market evidence of the time period necessary to protect the confidentiality of competitively sensitive proprietary information contained therein. Therefore, DIRECTV‘s request for ongoing confidential treatment is reasonable. ve # ¥e For the foregoing reasons, DIRECTV respectfully requests that the redacted portions of the Contract be granted confidential status and be withheld from public inspection. If confidential treatment is not granted for all or any part of this confidential material, DIRECTV requests that all non—redacted copies of the Contract be returned to DIRECTV. If you have any questions, please do not hesitate to contact undersigned counsel. Respectfully submitted, * ;Jliam M. Wilitshire Counselfor DIRECTY Enterprises, LLC Enclosure 7 47 C.F.R. § 0.459(b)(8). 8 See Contract at Article 20.1 (Proprietary Information).


Document Created: 2013-08-02 15:47:11
Document Modified: 2013-08-02 15:47:11
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