Attachment request

request

REQUEST submitted by EchoStar

request

2006-03-08

This document pretains to SAT-MOD-20050308-00059 for Modification on a Satellite Space Stations filing.

IBFS_SATMOD2005030800059_488095

STEPTOE &JOHNSON«w atrorneys at caw Pantels Mictulopoulos 30 Commectiut Arenve. NW rorameane Wastingon. DC 200361795 pmichalopsteproccom a Tei2024293000 ol Faczor203002 steproccom —puBuC alBu March 8, 2006 xob Enrten RECEIVED Marlene H. Dortch maR ~8 2006 Secretary . Federal Communications Commission etenCommuneatonn Gonniason ofSerntay The Portals, Room TW—A325 455 12th Street, S.W. Washington, D.C. 20554 REQUEST FOR C IDENTIAL TREATMENT Re: EchoStar Satellite Operating Corporation, File No. SAT—MOD—20050308—00059, Call Sign $2499 Dear Ms Dortch Pursuant to Sections 25.164(d) ofthe Commission‘s rules‘ and the Commission‘s First Space Station Licensing Reform Order." EchoStar Satellte Operating Corporation ("EchoStar") hereby submitsa certification of completion of the critical design review ("CDR") milestone set forth in its authorization to operate a Ka—band fixed—satellit service ("FSS") satellte at 97° W.L.‘ See Attachment 1. EchoStar also is providing documentation demonstrating completion of ts CDR,including the CDR report produced pursuant to ‘a7 CR ga5.164(0) * n the Matter of Amendment of the Commission‘s Space Station Licensing Rules and Policles; Mitigation of Orbital Debris, ECC 03—102, First Report and Order and Purther Notice of Proposed Rulemaking in IB Docket No. 02—34, and First Report and Order in 1B Docket No: 02—54, 18 FCC Red 10760, at 9 191 (2003) (requiring that a licensee submit evidence thatit has met the critical design review milestone.) (*Airst Space Station Licensing Reform Order®). * See Stamp Grant, File No. SAT—MOD—20050308—00059 (granted April 20, 2005) FoR INTErnause onty NON—PuBLiG wasiincton +. Newvork /+ rwotnix + tos anorits + tonbon + srussiis

STEPTOE &JOHNSON= Marlene H. Dortch March 8, 2006 Page2 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 Ka— band authorization for the 97° W.L. orbitallocation." EchoStar hereby requests that Attachment 2 be treated as confidential and not routinely available for public inspection pursuant to 47 C.F.R. §§ 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. § 0.457(d); see also Critical Mass Energy Project v. NRC, 975 F.24 871, 879 (D.C. Cir. 1992) (*[WJe conclude that financial or commercial information provided tothe Govenment on a voluntary basis is ‘confidential" for the purpose of Exemption 4 ifi is of a kind that would customanily not be released to the public bythe 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. §§ 0.457 and 0.459.° A cover sheet representing the redacted version ofthe attachment is being submitted separately for the publicfile, together with EchoStar‘s eertification of compliznce with the CDR milestone. In support of this request for confidentialtreatment, and pursuant to 47 C.FR. § 0.459(b), EchoStar herebystates as follows: +. The information for which confidentialtreatment is sought is contained in EchoStar‘s submission to demonstrate compliance with its CDR stone 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. * EchoStar recently submitted a replacement contract for the construction of the EchoStar—97W satellite. See Letter from Pantelis Michalopoulos, Counsel for EchoStar, to Marlene H. Dortch, dated November 17, 2005. * See Stamp Grant, File No. SAT—LLOA—20030827—00186, at Condition 2(b) ®47 C.RR. §50.457, 0.450.

STEPTOE &JOHNSON«» Marlene H. Dortch March 8, 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 Ka—band license for the 97° W.L. orbital lcation." 3. This information contains extremely sensitive commercial, financial, and technical information that would customarily be kept from competitors. Specifically, the information consists ofdetails ofthe design and construction status of EchoStar‘s proposed Ka—band satellite, as agreed upon with SSL. EchoStar would be severely prejudiced in its abilty to compete if such information were released to competiors. Moreover, SSL could be prejudiced in future negotiations regarding construction of satelltes if information aboutits arrangements with EchoStar were to be available to other satellite construction companies orto prospective purchasers of satellites. 4. The information for which non—disclosure is sought pertains to Ka—band satellte services, for which numerous competitors have received licenses. EchoStar‘s competitors (as well as the competitors of SSL) for Ka—band services stand to benefit competitively from any knowledge of the constructionstatus and progress ofEchoStar‘s proposed satellite contained in Attachment 2 5.. Disclosure ofthe 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 satellte system, as agreed— upon with SSL. Such information could be used by the competitors of EchoStar to develop competing service offerings. See /n re Application of Mobile Communications Holdings, Inc. or Authority to Construct the ELLIPSO Elliptical Orbit Mobile Satelite System, 10 FCC Red. 1547, 1548(InrBur, 1994) ("buyers receive a clear competitive advantage if theyknow 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 satellitesif such information were available to other satellte manufacturers * See Stamp Grant, File No. SAT—LOA—20030827—00186, at Condition 2(b) (establishing a CDR milestone of March 8, 2006). See also First Space Station Licensing Reform Order at 1 191.

STEPTOE &JOHNSON Marlene H. Dortch March 8, 2006 Page 4 6 EchoStar takes significant measures to ensure that the timing, payment terms and technical criteria contained in ts satellite manufacturing contractsare not disclosed to the public including confidentialty clauses in such contracts. 7. The attached material for which non—disclosure is sought is not available to the public. 8. EchoStar requeststhat tattached material be withheld from disclosure for an indefinite period. Disclosure of thiinformation at any time could jeopardize the competitive position ofEchoStar and SSL. 9. Finally, EchoStar notes that denying itsrequest that thisinformation be kept confidential would impair the Commission‘s ability to obtain this type of voluntarilydisclosed information in the future, ‘The ability of a government ageney to continually obtain confidential information was behind the legislative purpose in developing exemptions from the Freedom ofInformation Act. See Critical Mass 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 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.". Id. at 879. The Commission should extend a similar recognition to the enclosed materials.

STEPTOE &JOHNSON« Marlene H. Dortch March 8, 2006 Page 5 EchoStar requests that the Commission not release the information contained in Attachment 2 ifits request for confidentialty is denied in whole or in part without first consulting with EchoStar. Respectfully submitted. David K. Moskowite Wucliopanins/BDK 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 $0120 (202) 420—3000 (303) 723—1000 Counselfor EchoStar Communications Corp. and EchoStar Satellite Operating Corporation Enclosures

Attachment 1 Certification of David Bair

certirication 1, David Bair, cenify under penaly ofpegurythan 1. am the Senior Viee President, Space Programs and Operations of EchoStar Communications Corporation ("EchoStar"), the uimate parent of EchoStar Satelite Operating Coporation 2.. To the best of my knowledge,information, and belie, BchoStar has completed eriical design review of ts proposed Ka—band esostitioniy orbit fixed—sstelite service ("FS") satelite to be located a he 97° W L.orbital location 3. To the best of my knowledge,information, ind belie, EchoStarhas met every milestone and ilfiled all oitobligations under ts menifcturing contract with Space Systems/Lona, as of the date hereok David Bair Murch 8, 2006 || i

Attachment 2 CD of CDR Report Contents of CD Are Confidential and Proprietary — Notfor Public Disclosure


Document Created: 2006-03-13 15:04:36
Document Modified: 2006-03-13 15:04:36
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