Attachment request

request

REQUEST submitted by EchoStar

request

2006-10-10

This document pretains to SAT-MOD-20051007-00198 for Modification on a Satellite Space Stations filing.

IBFS_SATMOD2005100700198_533449

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                                             STE P TO E &J o H N s o N              LLP
    b
                                                      ATTORNEYS      AT   LAW


            Pantelis Michalopoulos                                                             1330 Connecticut Avenue. NW
            202.429.6494                                                                        Washington, DC 20036-1795
            pmichalo@scepcoe.com                                                                         Tel 202.429.3000
                                                                                                          Fax 202.429.3902
                                                                                                                steptoe.com




              October 8,2006
                                                                                            REEiVED
              Marlene H. Dortch                                                               OCT 1 8 2006
              Secretary
              Federal Communications Commission
              The Portals, Room TW-A325
              455 12th Street, S.W.
              Washington, D.C. 20554

                                     REQUEST FOR CONFIDENTIAL TREATMENT

              Re:     EchoStar Satellite Operating Corporation, File Nos. SAT-LOA-20040803-00154,
                      SAT-MOD-20051 007-00198, SAT-AMD-20051118-00248 and SAT-AMD-20060724-
                      00081, Call Sign S2636

              Dear Ms Dortch:

                             Pursuant to Sections 25.164(d) of the Commission’s rules’ and the Commission’s
              First Space Station Licensing Reform Order,’ EchoStar Satellite Operating Corporation
              (“EchoStar”) hereby submits a certification of completion of the critical design review (“CDR”)
              milestone set forth in its authorization to operate a Ka-band satellite in the Fixed Satellite Service
              at 1 13” W.L.3 See Attachment 1. EchoStar also is providing documentation demonstrating


                      ’ 47 C.F.R. §25.164(d).
                      2
                       Amendment of the Commission’s Space Station Licensing Rules and Policies;
              Mitigation of Orbital Debris, First Report and Order and Further Notice of Proposed Rulemaking
              in IB Docket No. 02-34, and First Report and Order in IB Docket No. 02-54, 18 FCC Rcd 10760,
              at 7 191 (2003) (requiring that a licensee submit evidence that it has met the critical design
              review milestone.) (“First Space Station Licensing Reform Order”).
                      3
                      See Stamp Grant of File No. S                                       ition 2(b) (granted Oct.
              8,2006) (“1 13” W.L. Grant”). EchoSt                                        ation to modify its
                                                                                                     (Continued.. .)




                          WASH I NCTON       PHOENIX         LOS ANCELES           LONDON         BRUSSELS


                                                                            S T E P T o E &J o H N s o N   LLP




Marlene H. Dortch
October 8,2006
Page 2


completion of the CDR for this satellite produced pursuant to 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 113” W.L.
orbital 10cation.~

                 EchoStar hereby requests that Attachment 2 be treated as confidential and not
routinely available for public inspection pursuant to 47 C.F.R. $5 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 fi-om disclosure by a privilege. See 47 C.F.R. 8 0.457(d); see also
Critical Mass Energy Project v. NRC, 975 F.2d 871, 879 (D.C. Cir. 1992) (“[Wle conclude that
financial or commercial information provided to the Government 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 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. 55 0.457 and 0.459? A
cover sheet representing the redacted version of the attachment is being submitted separately for
the public file, together with Echostar’s certification of compliance with the CDR milestone.

                In support of this request for confidential treatment, and pursuant to 47 C.F.R.
tj 0.459(b), EchoStar hereby states as follows:

                1.     The information for which confidential treatment is sought is contained in
                       Echostar’s submission to demonstrate compliance with its CDR milestone
                       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.

authorization to specify the TT&C frequencies for the proposed satellite and to submit
information on orbital debris mitigation and post-mission disposal. The modification application
(and its amendments) are still pending. See File Nos. SAT-MOD-20051007-00198, SAT-AMD-
2005 11 18-00248 and SAT-AMD-20060724-0008 1.
       4
           113” W.L. Grant at Condition 2(b).

           47 C.F.R. $5 0.457,0.459.


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Marlene H. Dortch
October 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 113’ W.L. orbital location!

               3.      This information contains extremely sensitive commercial, financial, and
                       technical information that would customarily be kept from competitors.
                       Specifically, the information consists of details of the design and
                       construction status of Echostar’s proposed Ka-band satellite, as agreed-
                       upon with SSL. EchoStar would be severely prejudiced in its ability to
                       compete if such information were released to competitors. Moreover, SSL
                       could be prejudiced in fwture negotiations regarding construction of
                       satellites if information about its arrangements with EchoStar were to be
                       available to other satellite construction companies or to prospective
                       purchasers of satellites.

               4.      The information for which non-disclosure is sought pertains to satellite
                       services, for which other competitors have received licenses. Echostar’s
                       competitors (as well as the competitors of SSL) stand to benefit
                       competitively from any knowledge of the construction status and progress
                       of Echostar’s proposed satellite contained in Attachment 2.

               5.     Disclosure of the 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 satellite system, as agreed-
                      upon with SSL. Such information could be used by the competitors of
                      EchoStar to develop competing service offerings. See In re Application of
                      Mobile Communications Holdings, Inc. for Authority to Construct the
                      ELLIPSO Elliptical Orbit Mobile Satellite System, 10 FCC Rcd. 1547,
                      1548 (Int’l Bur. 1994) (“buyers receive a clear competitive advantage if
                      they know the prices that other buyers have been charged as a result of
                      individual negotiations.”). Moreover, EchoStar would be prejudiced in
                      any fbture negotiations regarding construction of satellites if such
                      information were available to other satellite manufacturers.

               6.     EchoStar takes significant measures to ensure that the timing, payment
                      terms and technical criteria contained in its satellite manufacturing

      6
          113” W.L. Grant at Condition 2(b).


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Marlene H. Dortch
October 8, 2006
Page 4


                    contracts are not disclosed to the public, including confidentiality clauses
                    in such contracts.

             7.     The attached material for which non-disclosure is sought is not available
                    to the public.

             8.     EchoStar requests that the attached material be withheld from disclosure
                    for an indefinite period. Disclosure of this information at any time could
                    jeopardize the competitive position of EchoStar and SSL.

             9.     Finally, EchoStar notes that denying its request that this information be
                    kept confidential would impair the Commission’s ability to obtain this
                    type of voluntarily disclosed information in the fkture. The ability of a
                    government agency to continually obtain confidential information was
                    behind the legislative purpose in developing exemptions from the
                    Freedom of Information 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 likelihood, 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
                    mat eria1s .


                                                                         STEPTO E    &IOH N SON   LLp




Marlene H. Dortch
October 8,2006
Page 5


               EchoStar requests that the Commission not release the information contained in
Attachment 2 if its request for confidentiality is denied in whole or in part without first
consulting with Echostar.



                                                   Respectfully submitted,




                                                                                        la-.
David K. Moskowitz                                 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 80120                                (202) 429-3000
(303) 723-1000

                                                   Counsel for EchoStar Satellite Operating
                                                   Corporation



Enclosures


                                             STEPTOE &JOHNSONw




             ATTACHMENT 1
Certification of Critical Design Review Completion


    .
.
                                           CERTIFICATION


    I, David Bair, certify under penalty of perjury that:

        1. 1 am the Senior Vice President, Space Programs and Operations of EchoStar
           Communications Corporation (“EchoStar”), the ultimate parent of EchoStar Satellite
           Operating Corporation.

    2. To the best of my knowledge, information, and belief, EchoStar has completed critical design
       review of its proposed Ka-band geostationary orbit fixed-satellite service satellite to be
       located at the 113” W.L. orbital location.
                                                                ,-,.           l r   f-)
                                                                       $   1




                                                            David Bair

    October 6 , 2006


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                                           ST E P T O E &IO
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          ATTACHMENT 2
    Critical Design Review Documentation



Document Created: 2006-10-23 15:54:43
Document Modified: 2006-10-23 15:54:43

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