Attachment request

request

REQUEST submitted by Hughes

request

2006-04-18

This document pretains to SAT-MOD-20050523-00106 for Modification on a Satellite Space Stations filing.

IBFS_SATMOD2005052300106_497945

3@ ORIGINAL LEVENTHAL SENTER & LERMAN PC April 19, 2006 Rauc®. Roomover con cnaron wooncueras.sawcon CONFIDENTIALITY REQUEST PURSUANT TO 47 C BY HAND DELIVERY RECEIVED — FCC Mr. Robert Nelson Chief, Satellite Division hPR 19 2006 International Bureau A6€ a Federal Communications Commission is FederaConmunienio Connisien 445 12" Street, SW h Suoes / Oe Washington, DC 20554 Fiems Res Hughes Communications, Inc.‘s Demonstration of Compliance with Satellite Implementation Milestones for Its Ka—Band FSS Satellite at 95° W.L. (Call Sign $2663; FCC File Nos. SAT—LOA—20050214—00038, SAT—MOD—20050523—00106. and SAT—AMD—20060306—00025] Dear Mr. Nelson: Hughes Communications, Inc. ("Hughes"), by counsel, hereby requests that the documents being submitted herewith in connection with its Demonstration of Compliance with Satelite Implementation Milestones forthe above—referenced facility be held in confidence and not made available for public inspection pursuant to Section 0.459 of the Commission‘s rules. Confidential reatment in this circummstance is fully consistent with the Administrative Procedure Act and past Commission practice. Hughes is submitting under cover ofthis request a complete copy ofthe fully—executed, non—contingent agreement, and all amendments thereto (collectively, the "Agreement"), between Hughes and Bocing Satellite Systems International, Inc. ("Boeing")," which details the work performed thereunder. Due to the voluminous nature of these documents, they are being submitted in electronic format only and without any redaction of sensitive data.. Also included, and subject to this request, is a copy ofa certification letter from Bocing detailing the progress toward completion of construction of the spacecraft, a Declaration of Hughes Network Systems, LLC, and the Bill of Sale and Assignment and Assumption Agreement and photographs of ! As explaine fuly in the Milstone Compliance Demonstation iselfatthtme that the contact was executed, Bocing was called Hughes Space and Communications Inernational, Ic. (HSCT") and bothparties the Agreement were subsiiariesof Hughes BlectronicsCorporation. Subsequenty HSCH was sold to The Bocing Corportion andwas renamed

Mr. Robert E. Nelson " April 19, 2006 Page 2 of 5 SPACEWAY 3 under construction. Confidentialtreatment ofthese documents is appropriate under Exemption 4 of the Freedom of Information Act (‘FOIA"), which applies to information constituting "trade secrets and commercial or financial information" that "would not customanily be released to the public." See 5 U.S.C. § 552b)(4); 47 C.BR. § 0.457(d). In support ofthis request, Hughes provides the following information, as required under Section 0.459(b) of the Commission‘s Rules — 1. Specific Information For Which Confidential Treatment Is Sought — §0459(b)(1): Hughes seeks confidential treatment for the satellite construction contract between it and Bocing (the Agreement), as well as related documents which contain specific technical characteristics of the satellte, as well as the financial terms agreed to by the parties. This includes an April 10, 2006 leter from Bocing to Hughes detailing the progress of construction of the satellite and including information conceming the current and total amounts to be paid under the Agreement, as well as a Declaration, dated Aril 12, 2006, of Hughes Network Systems, LLC regarding the progress of the construction of the satellite and a Bill of Sale and Assignment and Assumption Agreement. 2. Cireumstances Giving Rise To The Submission — § 0.459(b)2): Submission of information sufficient to demonstrate Hughes® compliance with the milestone conditions of its satelitelicense is necessary at thi time pursuant to paragraph two of Hughes authorization and Section 25.164(c) of the Commission‘s Rules. In particular,the rule states that all satellte licensees whose authorizations were granted on or after September 11, 2003 are "required to submit a copy of their binding non—contingent contract with the Commission on or before the date"established in the licensees space station authonization. 47 C.FR. § 25.164(c). Hughes® authorization, in turn,states that this initial implementation milestone must be satisied no later than April 19, 206. Failure to comply with this requirement would result i the license becoming automatically null and void. See SkyTerra Communications, Inc. SAT—LOA— 20050214—00038, Grant Stamp, April 19, 2008, at4 2." 3. Degree To Which The Information Is Commercial Or Financial, Or Contains A Trade Secret Or Is Privileged — § 0.459(b)(3): ‘The Agreement and the other documents for which Hughes is requesting confidentialtreatment contains commercially sensitive information "which would customarily be guarded from competitors."" This information includes, but is not * Seealso Publc Notie, DA 05—1130 (rl. April 22, 2005). Pursantto an August 2008 applcationfor proorma assinment of icense, thlense of kyTerra Communictions, In. was assigned tSkyTerra Holdings nc. See Pile No. SAT—ASG—20050826—00168. In December 2005, SiyTerra Holdings, nc. nformed the Commission that is name had changed to Hughes Communications, Ic. See Leter dated December 20,2005, rom counsel for Haghes and SkyTerr o the Seerety of the Commision, File No. SAT—ASG—20050826—00168, In this submission, references t"Hughes" shallinclude Hughes Communications, In. and.as aplicable,is predecessors in intereswith respect o the 95W License Grant, SkyTera Communictions, nc. and SkyTerea Holdings,Inc * James A. Kay, J 17 FCC Red 1834 (2002) (withholding such information from public inspection).

Mr. Robert E. Nelson 0 April 19, 2006 Page 3 of S limited to, specific confidential terms,including payload design characteristis and operational and financial details. These terms reflect arrangements between these parties the disclosure of which would not only be competitively harmful if disclosed to competitors, but could also adversely impact future negotiations between Hughes and Bocing, as well as between both Hughes and Bocing and their potential contractors or customers. Disclosure of these terms would therefore be damaging to both companies. Accordingly, public disclosure of the confidential terms of these documents could materially impair the Agreement. 4. Degree To Which The Information Concerns A Service That Is Subject To Competition — § 0.459()(4): As the Commission is aware, there is substantial competition in the sutelliteindustry among both service providers and systems manufacturers. The commercial provision of Ka—band FSS is a relatively new segment of the industry, and Hughes believes one that will continue to attrct competiive offerings. 5. How Disclosure Of The Information Could Result In Substantial Competitive Harm — § 0.459(b)(5): Information about both the status and content ofthe operational arrangements between Hughes and Boeing reflected in the attached Agreement and the other documents could be misused by porential competitors to gain commercially exploitable knowledge of the company‘s technical arrangements for Ka—band FSS, thereby allowing them to reap unfair advantages in formulating their own plans, pursuing technical development of competing systems, and/or negotiating their own satellte construction arrangements. Because Ka—band FSS services are emerging in the marketplace, now is a particularly critical time for Hughes to protect its plans from disclosure.. Release ofthe details ofthis project to potential competitors would allow others to benefit from plans and information that Hughes has spent considerable time and money developing, and to adapt their own plans based on Hughes‘s approach. 6. Measures Taken By Hughes To Prevent Unauthorized Disclosure — § 0459(b)(6): Under Article 9 of the Agreement between Hughes and Bocing, the parties specifically agree to strictlimitations on use and disclosure of the proprietary information.. In accordance with these contract provisions, Hughes has limited access to the information solely to those officers, directors, employees, contractors and consultants who require knowledge ofthe Agreement‘s terms in order to perform their duties and fulf}Ithe company‘s obligations under the Agreement. Any other disclosure not compelled by law requires prior written consent of the other party. The Agreement itself, the assignment ltter,the HNS declaration and the related certification leter are, or contain, proprietary information under the terms of the Agreement. 7. The Information Submitted Is Not Available To The Public and Has Not Previously Been Disclosed To Third Parties, Except For Appropriately Limited Circumstances — § 0.459(b)(7): No part ofthe Agreement between Hughes and Boeing has been publicly disclosed. As set forth in the Agreement, disclosure has been limited by the partes "to those officers, directors and employees within the receiving party‘s organization who reasonably

Mr. Robert E. Nelson " April 19, 2006 Page 4 of 5 require access" under the Agreement, as well as to any contractors and consultants ofthe parties pursuant to the confidentiality provisions ofthe Agreement. See Agreement at $§.9.8 & 9.9. 8. Period During Which The Submitted Material Should Not Be Available For Public Disclosure — § 045¥(b)(8): Hughes respectfully requests that the confidential information attached hereto be kept confidential indefinitely. Under the Agreement, the parties are required to protect all proprietary information throughout the term of the Agreement, and to retur or destroy such information upon termination ofthe Agreement. See Agreement at § 9.10. Accordingly, Hughes requests that the Commission maintain confidential treatment ofthe Agreement and related documents until t notifies the Commission that confidentialtreatment is no longer required. 9. Other Information Supporting Request For Confidential Treatment — §0459(®b)(9): The Commission has long recognized that satellite space segment construction contracts contain competitively sensitive information." ‘The Commission has therefore adhered to a policy of declining to disclose such contracts "on the mere chance" that such disclosure might be helpful to a third party in some fashion, and has typically required a showing prior to disclosure that the information provides "a necessary link in a chain of evidence"that will resolve an open issue before the Commission:® These policies and practices apply fully to the Agreement and related documents being provided by Hughes. & k k k % * See Amendment oSpace Station Licensing Rales and Polices, 18 FCC Red 10760,% 187 (2003) * See Exumination of Current Policy Concemmingthe Treamentof ConfadentaIformation Submited to the Commission, 13FCC Red 24816,4 $ (1998)

Mr. Robert E. Nelson 4’ April 19, 2006 Page 5 of 5 For all ofthe foregoing reasons, Hughes requests that the Commission withhold the attached documents from publicinspection, according them fully confidentialtreatment. In the event that a request for examination of these documents are fled, Hughes requests an opportunity to respond and to provide redacted versions ofthe documents submitted herewith,in liew of full disclosure, and to enter ito an appropriate protective order covering any party seeking review. Respectfully submitted, HUGHES COMMUNICATIONS, INC. By: RapHt Rodnguer Stephen D. Baruch David S. Keir Leventhal, Senter & Lerman PLLC 2000 K Street, NW, Suite 600 Washington, DC 20006 (202) 420—8970 Its Attormeys

ATTACHMENTS SUBMITTED SEPARATELY PURSUANT TO REQUEST FOR CONFIDENTIAL TREATMENT


Document Created: 2006-04-28 13:45:18
Document Modified: 2006-04-28 13:45:18
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