Attachment review

This document pretains to SAT-MOD-20031118-00333 for Modification on a Satellite Space Stations filing.

IBFS_SATMOD2003111800333_376204

                                                                            ORIGINAL
                                    BEFORE THE
                         FEDERAL COMMUNICATIONS COMMISSION
                                WASHINGTON, D.C. 20554

    In the Matter of

    Inmarsat Ventures Limited
    Freedom of Information Act Request
    Regarding Mobile Satellite Ventures             SAT-AMD-200311 18-00332
    Subsidiary LLC Ex Parte Proceedings             SES-MOD-200311 18-01879

    Order Adopting Protective Order

                                                                              2 4 2004
To:        The Secretary
           The Commission

                               APPLICATION FOR REVIEW
                       REVIEW OF FREEDOM OF INFORMATION ACTION

           Mobile Satellite Ventures Subsidiary LLC (“MSV”) hereby files this Application for

                                                                        ’
Review of the above-captioned International Bureau (“Bureau”) order. The Bureau erred in

granting Inmarsat Ventures Limited (“Inmarsat”) authority to review, pursuant to a protective

order, confidential commercial information submitted by MSV.2 The information Inmarsat seeks

is in no way relevant or material to the interference issues Inmarsat has raised regarding MSV’s

ATC application, and neither Inmarsat nor the Bureau provided the analysis or justification

required for grant of a Freedom of Information Act (“FOIA”) request to review such




I
    In the Matter of Inmarsat Ventures Limited, DA 04-1299 (May 7,2004) (“FOIA Order”).

 See Letter from Bruce D. Jacobs, Counsel for MSV, to Ms. Marlene H. Dortch, FCC, File No.
SAT-MOD-20031 118-00333, File No. SAT-AMD-2003 1118-00332, File No. SES-MOD-
2003 1118-01879 (December 30,2003) (“MSV Letter”).


information. Accordingly, the Commission should reverse the Bureau’s order and deny

Inmarsat’s FOIA r e q ~ e s t . ~

                                            Background

        On November 18,2003, MSV filed an application to add authority to operate an

Ancillary Terrestrial Component (“ATC”) in connection with the existing and planned L-band

Mobile Satellite Service (“MSS”) systems of MSV and Mobile Satellite Ventures (Canada) Inc.

(“MSV Canada”).4 Among the Commission’s rules governing ATC is the requirement that an

ATC provider have a spare satellite on the ground within one year of commencing ATC

operations. See 47 C.F.R. 6 25.149(b)(2)(ii). In its application, MSV requested a waiver of this

requirement and, instead, proposed to use in-orbit satellites as spares for one another. See MSV

ATC application, at 8-9.

        On December 16,2003, the Bureau requested certain information from MSV to facilitate

its review of MSV’s request to use an in-orbit spare to meet the ATC gating requirement,

including the following: (i) the current and projected loading on each of the existing satellites

and (ii) the projected lifetimes of the current   satellite^.^   On December 30, 2003, MSV replied to



  Because the Bureau did not specify in the FOIA Order the regulatory provisions through which
it was effectively granting Inmarsat’s FOIA request, MSV has sought to comply with all
potentially applicable provisions. See, e.g., 47 C.F.R. $5 0.459(g), 0.461(i).
4
 See File No. SAT-MOD-200311 18-00333 (minor modification of license for AMSC-1); File
No. SAT-AMD-20031118-00332 (minor amendment of pending application to launch and
operate replacement satellite); File No. SES-MOD-20031118-01879 (minor modification of
earth station license authorizing access to MSAT- 1 in the United States) (collectively, “MSV
ATC Application”).
5
 See E-mail from Breck Blalock, FCC, to Bruce D. Jacobs, Counsel for MSV, File No. SAT-
MOD-2003 1118-00333, File No. SAT-AMD-20031 1 18-00332, File No. SES-MOD-20031 118-
01879 (December 16,2003). The Bureau also inquired as to the proposed capacity of the next



                                                     2


the Bureau request, but redacted commercially sensitive information from the public version of

its filing.

         Pursuant to Sections 0.457(d) and 0.459(b) of the Commission’s rules, MSV sought

confidential treatment of the redacted information. See MSV Letter, at 1-3. MSV explained that

disclosure of the redacted information would affect MSV’s negotiating position with current and

potential customers and would provide commercially sensitive information to MSV’s

competitors. See id.at 2. Disclosure of the current and projected demand for MSV’s satellite

services would also impact the ongoing international L-band frequency coordination

negotiations. See id.

         On March 17,2004, Inmarsat, a competitor to MSV, filed a FOIA request for access to

the redacted information in the MSV Letter.6 Inmarsat did not dispute that the redacted

information is confidential commercial information. See FOIA Request, at 2.

        Inmarsat acknowledged that in order to review the confidential information it was

required to make a “persuasive showing” as to the reasons for in~pection.~
                                                                        Inmarsat asserted that

it met that standard because it is a party to the proceeding regarding MSV’s ATC application and

because its L-band MSS system is potentially subject to interference from MSV’s proposed ATC

network. See FOIA Request, at 2-3. Inmarsat also argued generally that MSV’s responses to the


generation satellites relative to the capacity of the current generation satellites and the anticipated
launch date of the new satellites. MSV provided this information in unredacted form.

 See Letter from John P. Janka, Counsel for Inmarsat, to Andrew S. Fishel, Managing Director,
FCC, File No. SAT-MOD-2003 1118-00333, File No. SAT-AMD-2003 1 118-00332, File No.
SES-MOD-2003 1118-01879 (March 17,2004) (“FOIA Request”).

  FOIA Request, at 2 (citing 47 C.F.R. fj 0.457(d)( 1) (“A persuasive showing as to the reasons
for inspection will be required in requests for inspection of [confidential information] .”)).


Bureau inquiries “are essential to a full examination and discussion of the issues presented by

MSV’s application for ATC authority” (id.at 3), that “[ilf the Commission acts on less than a

full record and authorizes MSV to implement ATC based on unchallenged information provided

by MSV, Inmarsat may be significantly harmed” (id.at 4), and that “any proposed waiver ...

threatens the integrity of the Commission’s ATC licensing scheme.” Id. at 3. Inmarsat did not

further elaborate on the “issues” or “harm” alluded to above. With respect to information

concerning the current and projected demand for MSV’s satellite services, Inmarsat argued that

this type of information is already shared between MSV and Inmarsat pursuant to the Mexico

City Memorandum of Understanding (“MOU”) regarding international coordination of L-band

spectrum and, thus, can be disclosed to Inmarsat without harm to MSV. See id.at 4.

       On March 25,2004, Inmarsat filed the only opposition to MSV’s ATC application.8 In

the opposition, Inmarsat focused on the potential interference of MSV’s proposed ATC facilities

with Inmarsat’s operations. See generally, Inmarsat Opposition, at i-v. Inmarsat challenged

virtually every variance MSV proposed from the Commission’s reference ATC system, but it

specifically took no position regarding MSV’s request for a waiver of the on-ground spare

req~irement.~
           Thus, there was no opposition to MSV’s waiver request.




  See Opposition of Inmarsat Ventures Ltd., File No. SAT-MOD-2003 1118-00333, File No.
SAT-AMD-2003 1118-00332, File No. SES-MOD-20031118-01879 (March 25,2004)
(“Inmarsat Opposition”).

 See Inmarsat Opposition, at 7.




                                                4


          On April 14,2004, MSV filed a letter opposing Inmarsat’s FOIA request.” MSV

demonstrated that Inmarsat failed to make the required “persuasive showing” as to the reasons

for its need to see the confidential information. See Opposition to FOIA, at 3. MSV noted the

irrelevance of the confidential information to the issues Inmarsat had raised in its opposition to

the MSV ATC application. See id.at 2-3. MSV also pointed out that the harm from disclosing

the confidential commercial information to a direct competitor would outweigh any benefit from

disclosure. See id.at 3. With respect to Inmarsat’s claim that current and projected demand for

satellite services is already shared pursuant to the Mexico City MOU, MSV noted that the

information MSV submitted to the Commission is in a substantially different form. See id. at 4.

For these reasons, MSV concluded that Inmarsat failed to make a “persuasive showing” as to

why it should be accorded access to the unredacted MSV Letter.

          On May 7,2004, the Bureau released the order at issue providing Inmarsat, and any other

entity willing to adhere to the associated Protective Order, the right to review the unredacted

MSV Letter. l 1 The Protective Order restricts review of the unredacted MSV Letter to outside

counsel and to in-house counsel not involved in competitive decision-making.12 In general,

individuals reviewing the confidential information are prohibited from disclosing such

information to any person other than the Commission and its staff. See Protective Order, at 5.




lo See Letter from Bruce D. Jacobs, Counsel for MSV, to Andrew S. Fishel, Managing Director,
FCC, File No. SAT-MOD-2003 1118-00333, File No. SAT-AMD-2003 1118-00332, File No.
SES-MOD-2003 1 1 18-01879 (April 14,2004) (“Opposition to FOIA”).
11
     See FOIA Order, at T[ 3. The Protective Order is attached as Appendix A to the FOIA Order.
l2   See Protective Order, at TI 3.



                                                 5


Such prohibition would also apply to communications to Inmarsat from its counsel. See id. at T[

12.

       While the Bureau appeared to concede that the submitted information was confidential, it

did not address whether Inmarsat had made a “persuasive showing,” as required by the

Commission’s rules. 47 C.F.R. fj 0.457(d)(1). Rather, the Bureau stated without any analysis

that “[wle conclude that requiring MSV to disclose the redacted information contained in the

MSV December 30,2003 letter to a Reviewing Party pursuant to the terms of a protective order

will provide adequate protection to the confidential information included in the documents,

without depriving a Reviewing Party of a meaningful opportunity to comment, as required by the

Administrative Procedure Act.’’ FOIA Order, at 3.

       On May 11,2004, outside counsel for Inmarsat submitted Confidentiality

Acknowledgements, as required under the Protective Order for review of the confidential

information.l 3 On May 12,2004, Inmarsat’s engineering consultant submitted a Confidentiality

                and Inmarsat withdrew its FOIA request in light of the FOIA Order.”
A~knowledgement,’~




l 3 See Letter from Alexander D. Hoehn-Saric, Counsel for Inmarsat, to Thomas S. Tycz, Chief,
Satellite Division, FCC, File No. SAT-MOD-200311 18-00333, File No. SAT-AMD-20031118-
00332, File No. SES-MOD-20031118-01879 (May 11,2004).

l4 See Letter from Alexander D. Hoehn-Saric, Counsel for Inmarsat, to Thomas S. Tycz, Chief,
Satellite Division, FCC, File No. SAT-MOD-20031118-00333, File No. SAT-AMD-20031118-
00332, File No. SES-MOD-20031118-01879 (May 12,2004).

  See Letter from Alexander D. Hoehn-Saric, Counsel for Inmarsat, to Andrew S. Fishel,
Managing Director, FCC, File No. SAT-MOD-20031118-00333, File No. SAT-AMD-
2003 1 118-00332, File No. SES-MOD-20031 1 18-01879 (May 12,2004).




                                               6


                                            Discussion

       Under the Commission’s rules, the FCC will permit the review of confidential

commercial information only if the requesting party makes a “persuasive showing as to the

reasons for inspection.”16 In assessing such a request, the Commission, on a case-by-case basis,

“will engage in a balancing of the public and private interests when determining whether the

‘persuasive showing’ standard has been met.”’7 This demonstration is necessary even if the

Commission conditions review of the confidential information on the reviewing entity’s

adherence to a protective order.”

       The Bureau failed to demonstrate that the standard had been met. The FOIA Order itself

provides no analysis or justification for the Bureau’s effective grant of Inmarsat’s FOIA request,

and nothing in Inmarsat’s filings meets the “persuasive showing” standard. Accordingly,




l 6 47 C.F.R. Q 0.457(d)( 1). Inmarsat did not dispute that the redacted information is confidential
(FOIA Request, at 2), and the Bureau also appears to acknowledge that the submitted
information is confidential. See FOIA Order, at 7 3 (stating that the “protective order will
provide adequate protection to the confidential information included in the document”)
(emphasis added); see also In the Matter of Southern Company, 14 FCC Rcd 185 1, at 7 17
(1998) (concluding, inter alia, that “information about system use” is confidential commercial
information).

l7See Examination of Current Policy Concerning the Treatment of Confidential Information
Submitted to the Commission, Report and Order, 13 FCC Rcd 248 1 6 , l 16 (1998)
(“Confidentiality Order’’).

  See Confidentiality Order, at 7 9 (noting that under 47 C.F.R. Q 0.461(f)(4) the FCC has
authority to grant conditional review of confidential information only after weighing the
considerations favoring disclosure and those favoring non-disclosure); see also In the Matter of
Application of Mobile Communications Holdings, Inc., 10 FCC Rcd 1547, at 7 8 (1994)
(Commission may permit limited disclosure of confidential information, pursuant to a protective
order, where it is “necessary” for other parties’ participation in a licensing proceeding).




                                                 7


Commission review and reversal of the Bureau decision is appropriate. See 47 C.F.R. 4

1.115(b)(2)(i).

        Inmarsat identified no legitimate grounds for review of the confidential information

regarding MSV’s proposal to use an in-orbit satellite. In its FOIA request and opposition to the

MSV application, Inmarsat expressed concerns regarding the potential interference of MSV’s

ATC network to Inmarsat’s operations. Those technical interference issues, however, have no

relevance to MSV’s request to use an in-orbit satellite in lieu of an on-ground spare. Inmarsat

admitted as much in declining to challenge or raise any specific issues regarding that request in

its opposition to MSV’s ATC application.

        Inmarsat’s unspecified claims of harm and generic concerns about the legitimacy of the

FCC’s ATC licensing requirements provide no concrete basis for granting Inmarsat’s FOIA

request. As the Commission has explained, it will not require disclosure of confidential

information “’on the mere chance that it might be helpful, but [will insist] upon a showing that

the information is a necessary link in a chain of evidence’ that will resolve an issue before the

             Thus, for example, the FCC has permitted petitioners, alleging that a proposed
Commi~sion.’”~

transaction violates the Commission’s anti-trafficking rule, to review, pursuant to a protective

order, financial information describing the consideration paid for the license.20 Because Inmarsat



  Confidentiality Order, at 7 8 (citations omitted and emphasis added); see also In the Matter of
Application of Mobile Communications Holdings, Inc., 10 FCC Rcd 1547, at 7 8 (1994) (“While
the [detailed cost and pricing information] that MCHI seeks to protect ‘might be helpful,’ it falls
far short of ‘necessary’ to the other ... applicants’ participation in the licensing process, and we
therefore decline to authorize discretionary disclosure here.”).
20
  See, e.g., In the Matter of Applications of Mobile Communications Holdings, Inc. et al., 18
FCC Rcd 133, at 1[ 5 (2003); In the Matter of Motorola, Inc. and Teledesic LLC, 16 FCC Rcd
17056 (2001); see also In the Matter of GE American Communications, Inc., DA 01-173



                                                 8


here has failed to identify specific, relevant issues associated with MSV’s application for which

this information is relevant or material, there are no potential benefits associated with disclosure

of the confidential information, and release of the redacted information, even pursuant to a

protective order, would be both unnecessary and inappropriate.2’ For this same reason,

Commission denial of the FOIA Request will not deprive a party to the proceeding of a

meaningful opportunity to comment on a relevant issue. See FOIA Order, at 7 3.

         Moreover, from a practical standpoint, it is not clear what disclosure would accomplish.

Because Inmarsat has expressly taken no position with respect to MSV’s waiver request of the

on-ground spare requirement, there is no context for individuals, for whom disclosure is

permitted, to evaluate or act on the confidential information.

         In contrast, there is no dispute that the potential harm to MSV from disclosure of the

confidential information is substantial. The confidential information reveals the current and

projected demand for MSV’s satellites. Such information can be used to MSV’s detriment by

current or potential MSV customers during negotiations for satellite service. Disclosure of such

commercially sensitive information would also provide competitors, such as Inmarsat, unfair

knowledge of MSV’s business operations and expectations. The same is true of the disclosure of

MSV’s response regarding the projected lifetimes of MSV’s current satellites.


(January 25,2001) (granting a party the authority to review, pursuant to a protective order, a
licensee’s satellite construction contract to determine the licensee’s compliance with its
milestones).

21 See Conjdentiality Order, at 7 16 (The Commission is “sensitive to ensuring that the
fulfillment of its regulatory responsibilities does not result in the unnecessary disclosure of
information that might put its regulatees at a competitive disadvantage.”); see also In the Matter
of Application of Mobile Communications Holdings, Inc., 10 FCC Rcd 1547, at 7 9 (1994)
(overuse of protective orders could lead to a result contrary to the public interest).




                                                  9


                                           Conclusion

       For the reasons stated above, MSV requests that the Commission reverse the FOIA Order

and deny Inmarsat’s FOIA request to review the unredacted MSV Letter.



                                      Respectfully submitted,




                                          David S. Konczal
                                          Tony Lin

                                          Shaw Pittman LLP
                                          2300 N Street, NW
                                          Washington, DC 20037-1 128

                                          Counselfor Mobile Satellite Ventures
                                           Subsidiary LLC




Dated: May 14,2004




                                             10


                                     Certificate of Service

        I hereby certify that a true and correct copy of the foregoing Application for Review was
sent by hand-delivery (*) on May 14,2004 to the following:

         John A. Rogovin *                            Andrea Kelly *
         Office of General Counsel                    International Bureau
         Federal Communications Commission            Federal Communications Commission
         445 12th Street, SW                          445 12th Street, SW
         Washington, DC 20554                         Washington, DC 20554

         John P. Janka *
         Alexander D. Hoehn-Saric
         Latham & Watkins
         555 Eleventh Street, NW
         Washington, DC 20004- 1304
         Counselfor Inmarsat Ventures Limited




Document #: 1401235 v.6



Document Created: 2004-06-01 12:07:05
Document Modified: 2004-06-01 12:07:05

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