Attachment request

request

REQUEST submitted by EchoStar

request

2004-12-09

This document pretains to SAT-MOD-20041008-00196 for Modification on a Satellite Space Stations filing.

IBFS_SATMOD2004100800196_411966

STEPTOE &JOHNSON« artorneys at caw Pantes Michatopoutos orangnon 1330 Connectia Avence. NW zse Washington. DC 20036795 prichalotisteproccom Amo sn TiN Tel2024203000 s3iM uoy tec2024093002 seproccom December 8, 2004 RECEIVED DEC — 9 200 n Marlene H. Dortch Federal Communications Commission ‘tmasicaunsconnissen Fateal Conm M The Portals, Room TWA325 455 12th Street, S.W. Washington, D.C. 20554 CONFIDENTIAL —— NOT FOR PUBLIC INSPECTION Re: EchoStar Satellite L.L.C.,File Nos. SAT—LOA—20030827—00177 and SAT—MOD— 20041008—00196, Call Sign $2490 Dear Ms Dortch: Pursuantto Sections 0.457 and 0.459 of the Commission Rules governing the submission of confidential materials, 47 C.F.R. §§ 0.457, 0.459, EchoStar Communications Corporation and EchoStar Satellite LL.C. ("EchoStar®), respectfully request that certain portions of the attached contract‘ between EchoStar Orbital Corporation IF and Lockheed Martin Corporation ("Lockheed") for the construction of a Ka—band satellite to be located at the 117° W.L. orbit location, and materials related to the contract, be afforded confidential treatment and not be placed in the Commission‘s publicfiles. Also attached are the Statement of Work, ‘ To the extent the contract and specifications reflect enhanced capabilities not included in any authorization, EchoStar is proceeding with construction of the satellite atits own risk. See 47 CER.§25.11300 * EchoStar Orbital Corporation 11 is one hundred percent indirectly owned by EchoStar Communications Corporation, the ultimate parent ofEchoStar Satelite L.L.C. (consistent with the relationship between the contracting party for the EchoStar 9 satellite and EchoStar Satellite 103. FOR INTERNAL U € onty E_ howousue wasnimcron rnotnix tos anoties tonbon sxusstes

STEPTOE &JOHNSONw Marlene H. Dortch December 8, 2004 Page 2 Product Assurance Plan, Spacecraft Performance Specifications and Comprehensive Test Plan for the satelite, for which EchoStar also requests confidentia treatment. This information is being provided to demonstrate that EchoStar has met the contract execution milestone contained. in EchoStar‘s Ka—band authorization for the 117° W.L. orbital location." Please note that the effective date ofthe contract is December 8, 2004, and that the scheduled delivery date ofthe satellite is a number ofmonths before the launch and operation milestone. Accordingly, this documentation establishes that EchoStar has entered into a binding contract for the construction ofa Ka—band satellite thatis scheduled to be delivered in time to meet the remaining milestones set forth in EchoStar‘s space station authorization." In a separate submission, EchoStar is providing the Commission with a public, redacted version ofthicontract and the related materials for the satelite, and this request for confidential treatment relates only to the portions ofthese materials redacted from the public version." The redactions are indicated by brackets in the public version. The redacted portions of the contract and related materials contain information that qualifiesas "commercial or financial information"® that "would customarily be guarded from competitors" regardless of whether or notsuch materials are protected from disclosure by a privilege. See 47 C.F.R. § 0.457(d); see also Criical Mass Energy Project v. NRC, 975 F.2d 871, 879 (D.C. Cir.1992) ("[Wie conclude that financial or commercial information provided to * See Stamp Grant, SAT—MOD—20041008—00196, at Condition 2 (granted Dec. 6, 2004) (establishing a contract execution milestone ofDecember 8, 2004). See also 47 CFR. §25.164() and /n the Matter ofAmendment ofthe Commission‘s Space Station Licensing Rules and Policies; Mitigation ofOrbital Debris, FCC 03—102, First Report and Order and Purther Notice ofProposed Rulemaking in TB Docket No. 02—34, and First Report and Order in TB Docket No. 02—54, 18 FCC Red 10760, at 4 185 (2003) (requiring that a licensee submit ts satellite construction contract on or before the contract execution milestone.) (*Pirst Space Station Licensing Reform Order") * See Stamp Grant, SAT—MOD—20041008—00196, at Condition 2 (establishing December 8, 2004 as the contract execution milestone, and December 8, 2008 as the launch and operation milestonc). 5 See Letter from Pantelis Michalopoulos, Counsel to EchoStar,to Marlene H. Dortch, Secretary, FCC, dated December 8, 204. This redacted version is being provided to the Commission in accordance with the Commission‘s order amending its space station licensing 1ules. See First Space Station Licensing Reform Order at 1 187.

STEPTOE &JOHNSONw Marlene H. Dortch December 8, 2004 Page3 the Goverment 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 redacted portions ofthe contract contain sensitive information that ifdisclosed could place EchoStar and Lockheed at a compeitive disadvantage, including specific information regarding price terms, interest terms, insurance terms and obligations, allocation of Hiability, and termination provisions, and therefore warrant protection under 47 C.F.R. § 0.459. Both EchoStar and Lockheed would be placed at a significant disadvantage ifthese detailed terms oftheir contract were revealed to competing service providers, who stand to benefit competiively from any knowledge of the redacted commercial terms included in these materials In support of this request,and pursuant to 47 C.F.R. § 0.459(b), BchoStar hereby states as follows: 1. The information for which confidential treatment is sought is contained in EchoStar‘s submission to demonstrate compliance with its contract execution milestone and includes specific information regarding the price and other critical non—price terms agreed upon with Lockhed, a satellite contractor. As noted above, BchoStaris filing a redacted version of this contract and related materials, and this request for confidentia treatment pertains only to provisions of contract thatare redacted from the public version: 2. The information is being submitted, as required under 47 C.FR. §25.164(c) to demonstrate compliance with the contract execution milestone contained in EchoStar‘s Ka—band license for the 117° WL. orbital location.* 3. This information contains extremely sensitive commercial and financial information that would customarily be kept from competitors. Specifically,the information consists of the price terms and commercially sensitive non—price terms agreed upon with Lockheed forthe construction of a Ka—band satellite for EchoStar. EchoStar would be severely prejudiced in its ability to compete ifspecific information regarding * See Stamp Grant, SAT—MOD—20041008—00196, at Condition 2 (granted Dec. 6, 2004) (establishing a contract execution milestone of December 8, 2004). See also First Space Station Licensing Reform Order at§ 185.

STEPTOE &JOHNSON« Marlene H. Dortch December 8, 2004 Page4 Lockheed‘s price and critical non—price terms were released to competitors. Moreaver, Lockheed would be prejudiced in any fiture negotiations regarding construction of satellits if ts pricing, technical and insurance—related information were available to other satelite construction companies or to prospective purchasers of satellits —— as a result, Lockheed has requested that EchoStar redact this information. The information for which non—disclosure is sought pertains to Ka—band satelite services, for which numerous competitors have received licenses. EchoStar‘s competitors (as well as the competitrs of Lockheed) for Ka— band services stand to benefit competitively from any knowledge of the price and critical non—price terms contained in the contract between EchoStar and Lockheed. Disclosure ofthe information for which non—disclosure is sought could result in substantial harm to EchoStar and Lockheed by revealing totheir competitrs, the satellite construction industry and the public EchoStar‘s agreed—upon price terms and critical non—price terms for its satellite system. Such information could be used by the competitors of EchoStar to develop competing service offerings. See In re Application ofMobile Communications Holdings, Inc. for Authority to Construct the ELLIPSO Elliptical Orbit Mobile Satelite System, 10 ECC Red. 1547, 1548 (Int‘1 Bur. 1994) (‘buyers receive a clear competitive advantage if they know the prices that other buyers have been charged as a result ofindividual negotiations."). Moreover, EchoStar would be prejudiced in any future negotiations regarding construction ofsatelites ifpricing information were available to satellite construction companies. EchoStar takes significant measures to ensure that this information is not disclosed to the public. The attached material for which non—disclosure is sought is not available to the public. EchoStar requests that the attached material be withheld from disclosure for an indefinite period. Disclosure ofthis information at any time could jeopardize the competitive position of EchoStar and Lockhced. Finally, EchoStar notes that denying its request that this information be kept confidential would impair the Commission‘s ability to obtain this type of voluntarly disclosed information in the future. The ability of a

STEPTOE &JOHNSON« Marlene H. Dortch December 8, 2004 Page government agency to continually obtain confidentialinformation was behind the legislative purpose in developing exemptions from the Freedom of Information Act. See Critical Mass Energy Project v. NRC, 975 F2d 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 likelinood, 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.". Z4at 879. The Commission should extend a similar recognition to the enclosed materials. EchoStar requests that the Commission not release these redacted materials if ts request for confidentialty is denied in whole or in part without first consulting with EchoStar. Respectfully submitted, _&Q@Mpfl@/film David K. Moskowite Pantelis Michalopoulos Senior Vice President and General Counsel Steptoe & Johnson LLP EchoStar Satellite Corporation 1330 Comnecticut Ave., N.W. 5701 South Santa Fe Washington, D.C. 20036 Littleton, CO 80120 (202) 420—3000 (303) 723—1000 Counselfor EchoStar Communications Corp. and EchoStar Satellite L LC. Enclosures ces Thomas Tyez, Intemational Bureau


Document Created: 2004-12-30 11:07:54
Document Modified: 2004-12-30 11:07:54
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