Attachment submission

submission

SUBMISSION FOR THE RECORD submitted by AtContact

submission

2007-06-07

This document pretains to SAT-MOD-20060511-00057 for Modification on a Satellite Space Stations filing.

IBFS_SATMOD2006051100057_573937

        f FOR sngNAL US
                        E onLy
        E

       £
       &       _ NON—PUBLIC
                                                      6017 Woodley Road
                                                      McLean, VA 22101
                                                      June 7, 2007

       Marlene H. Dortch
       Secretary
       Federal Communications Commission
       The Portals, Room TW—A325
       455 12"" Street, S.W.
       Washington, DC 20554

       Attn:   Mr. Robert G. Nelson
               Chief, Satellite Division
               International Bureau                                            |


                    REQUEST FOR CONFIDENTIAL TREATMENT
                      ROUTE DIRECTLY TO INTERNATIONAL BUREAU

       Re: Response to International Bureau Letter Dated May 18, 2007

       AtContact Communications, LLC‘s Demonstration of Compliance With the First
       Milestone for its Ka—Band FSS Satellite System;
       File Nos. SAT—MOD—20060511—00056 (NGSO), SAT—MOD—20060511—00059 (83°
       W.L.), SAT—MOD—20060511—00060 (121° W.L.), SAT—MOD—20060511—00058 (34°
       E.L.), SAT—MOD—20060511—00057 (130° E.L.); Call Signs S2346, $2680, S2681,
       $2682, S2683

       Dear Mr. Nelson:

                      This is in response to yourletter of May 18, 2007, concerning AtContact
       Communications, LLC‘s ("@contact") submission of materials on April 13, 2007 to
       demonstrate compliance with its milestones to execute non—contingent satellite
       manufacturing contracts for its Ka—band satellites systems. In that latter, you asked for an
       explanation regarding the disparity between the Ka—band NGSO frequencies contained in
       @contact‘s authorization and those listed in its construction contract. You also asked
       that Exhibit F be resubmitted for both the NGSO and GSO contracts to show greater
       detail regarding payment milestones.

                       At the outset, we are restating in this letter our request for confidential
       treatment of the materials associated with the above—referenced matters, including the
       discussion, exhibits, attachments and materials contained in this response.


FOR INTERNAL USE ONLY


     NON—PUBLIC


                            Confidentiality Treatment Request

                AtContact Communications, LLC ("@contact"), by its counsel, hereby
requests that this letter and the documents submitted herewith responding to the
International Bureau‘s ("IB") letter of May 18 concerning compliance with the contract
execution milestone contained in @contact‘s Ka—band license‘ and the submissions
required by Section 25.164(c) of the Commission‘s rules® and the Commission‘s First
Space Station Licensing Reform Order,3 be held in confidence and not made available for
pubic inspection, pursuant to Section 0.459 of the Commission‘s rules." Confidential
treatment in this cireumstance is fully consistent with the Administrative Procedure Act
and past Commission practice.

               AtContact Communications, LLC ("@contact has filed through IBFS a
public redacted version of the binding, non—contingent contract between @contact and
Space Systems/Loral for the construction of its above—referenced satellite system.
However, the entirety of the materials in this letter and its attachments constitute
information that must remain fully redacted from the public version.

               On April 13, 2007, @contact submitted under cover of a similar request
for confidential treatment an unredacted copy of the fully—executed, non—contingent
agreement. with exhibits, between Space Systems/Loral ("Loral") and @contact. This
agreement covers the five Call Signs referenced above.

                Also, in furtherance of this request, only one copy of this letter and
document is being filed with the Commission. No brackets or shaded text is required
because the entirety of this letter and its attachments are part of the totality of materials
for which confidential treatment has been and continues to be requested. The contents of
all the exhibits are considered part and parcel of this request.




!      Order and Authorization, in the Matter of contactMEO Communications, LLC,
For Authority to Launch and Operate a Non—Geostationary Orbit Fixed—Satellite System
in the Ka—hand Frequencies, 21 FCC Red 4035 (2006) at 168.
>
        47 C.F.R. § 25.164(c) (requiring demonstration of a binding, non—contingent
contract for construction of the licensed satellite system).

3      In the Matter ofAmendment ofthe 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 Red 10760, 10831 ((184) (2003) ("First Space Station Licensing
Reform Order") (requiring that a licensee demonstrate compliance with the one—year
contract execution milestone).

4A     47 C.F.R. § 0.459; see also, id., 187.


                @contact hereby requests that the contents and language of this letter and
all associated exhibits be treated as confidential and not routinely available for public
inspection pursuant to 47 C.F.R. §§ 0.457 and 0.459, and 5 U.S.C. § 552(b)(4). These
components ofthe contract contain 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.2d 871, 879 (D.C. Cir. 1992) ("Critical Mass Energy")
(concluding that financial or commercial information provided to the Government
voluntarily is "confidential" for purposes of Exemption 4 of the Freedom of Information
Act, which applies to information constituting "trade secrets and commercial or financial
information" that "would not customarily be released to the public”)! Revealing the
information in the contract for which confidentiality has been requested could place
@contact and Loral at a competitive disadvantage.                       |

             In support of this request and pursuant to 47 C.F.R. § 0.459(d) of the
Commission‘s rules, @contact provides the following information:

               1. Specific Information For Which Confidential Treatment is Sought
                  — § 0.459(b)(1): @contact seeks confidential treatment for this letter
                  and its attachments, as well as those parts of the satellite construction
                  contract, including all exhibits, between it and Loral that relate to
                  specific technical characteristics, financial terms, payment plans and
                   construction schedules and similar matters. As noted, @contact has
                   also filed a public version of the contract, which reflects redaction of
                   these parts of the contract.

               2. Circumstances Giving Rise to the Submission — § 0.459(b)(2): The
                  information is being submitted pursuant to 47 C.F.R. § 25.164(c) to
                  demonstrate compliance with the binding, non—contingent contract
                  milestone contained at paragraph 68 of @contact‘s Ka—band license,
                  and in response to the International Bureau‘s request of May 18, 2007
                  for additional information associated with the confidential components
                  of the contract..

                   Degree to Which The Information is Commercial or Financial, or
               J




                   Contains a Trade Secret or is Privileged — § 0.459(b)(3): This letter
                   and its associated attachments and exhibits constitute contract
                   materials for which @contact request confidential treatment contain
                   sensitive commercial, financial and technical information that would
                   customarily be kept from competitors. This information includes
                   confidential terms associated with technical information and
                   characteristics, and operational and financial details. @contact would
                   be severely prejudiced in its ability to compete were such information
                   released to become available to a competitor. It could also adversely
                   impact future negotiations between @contact and Loral, as well as
                                             GJ


     between Loral and their potential contractors or customers. Disclosure
     of these terms would therefore be damaging to both companies.

._Degree to Which The Information Concerns a Service That is
  Subject to Competition — § 0.459(b)(4): The commercial provision
  of Ka—band FSS is relatively new in the industry, and there are
  numerous @contact applicants and competitors who would stand to
  benefit competitively from any knowledge of the materials for which
  @contact requests confidential treatment.

.    How Disclosure of The Information Could Result in Substantial
     Competitive Harm — § 0.459(5): Disclosure of the information for
     which confidentiality treatment is requested could result in substantial
     harm to @contact and Loral by revealing to their competitors the
     satellite construction industry and the public information that would be
     useful in negotiating contracts to develop competing service offerings.
     "Buyers receive a clear competitive advantage if they know the prices
     that other buyers have been charged as a result of individual
     negotiations." See In re Application ofMobile Communications
     Holdings, Inc. for Authority to Construct the ILLIPSO Elliptical Orbit
     Mobile Satellite System, 10 FCC Red 1547, 1548 (Int‘l Bur. 1994). In
     addition, @contact would be adversely affected in any future
     negotiations for satellite construction if this information were available
     to other satellite manufacturers.

._ Measures Taken by @contact to Prevent Unauthorized Disclosure
   — § 0.459(b)(6): By the terms of the contract and through non—
   disclosure agreements, @contact and Loral go to great lengths to
   prevent unauthorized persons from having access to the sensitive
   technical and financial information for which confidential treatment is
   requested.

._   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 of
     the materials for which confidential treatment is requested has been or
     is available to the public or any third party without direct "need to
     know" involvement.

._Period During Which the Submitted Material Should Not be
  Available for Public Disclosure — § 0.459(b)(8): @contact requests
  that the materials for which confidential treatment have been requested
  remain withheld from public disclosure indefinitely.

     Other Information Supporting Request for Confidential
     Treatment — § 0.459(b)(9): Denying @contact‘s request for


                   confidential treatment would impair the Commission‘s ability to obtain
                   voluntarily this kind ofinformation in the future. The Commission has
                   long recognized the need for respecting confidentiality of certain
                   materials, as shown by its discussion in its First Space Station
                   Licensing Reform Order at paragraphs 186—87, by §§ 0.457 and 0.459
                   of its rules, and by its and U.S Court of Appeals decisions." These
                   policies and practices apply fully to the enclosed materials.

               For the foregoing reasons, @contact asks that the Colmmission
extend confidential treatment to this letter and the attached information as requested
herein.                                                               ‘




                              Response to Letter of May 18

                 The inconsistency in frequencies contained in @contact‘s authorization
and those listed in the NGSO materials at Exhibit B of the NGSO contract submitted
under request for confidentiality on April 13, 2007 are due in substantial part to
reproduction and assembly anomalies that occurred in the final moments of preparing the
voluminous documents for filing with the Commission. During assembly of the several
thousand pages of materials for filing, there was inadvertent substitution of GSO contract
details into the NGSO contract. As part of the corrective process, we have updated the
NGSO details to reflect the original intent. To be clear, there was and is no intention to
construct or operate the NGSO system on frequencies that are not authorized or for which
notice has not been provided pursuant to Section 25.113(d) of the rules. No application
to modify @contact‘s authorization in this regard is planned. Attached hereto is a
replacement Exhibit B that contains the correct pages and reflects the details intended by
the parties..

               The contract provisions regarding payments on completion of milestones
have been more fully detailed as requested and are contained in the attached Exhibits F
for both the NGSO and GSO satellites. The payment plan milestones are set out along
with references and explanations. In addition, attached is a letter from Loral to @contact
explaining the nature of the needed corrections, as well as a copy of Contract
Amendment No. 1 that formally incorporates these changes into the underlying contract.



5
        See Examination of Current Policy Concerning the Treatment of Confidential
Information Submiitted to the Commission, 13 FCC Red 24816, 1 8 (1998) (declining to
disclose competitively sensitive contracts "on the mere chance" that such disclosure
might be helpful to a third party in some fashion). See also Critical Mass Energy, supra,
at 878 ("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.")


              If there are any further questions, please do not hesitate to contact the
undersigned. We regret any inconvenience these matters may have caused.


                                              Respectfully submitted,~




                                              James M. Talens
                                              703.241.1144

                                              Counselfor
                                              AtContact Communications, LLC




David M. Drucker                                           :
Manager
AtContact Communications, LLC
2539 North Highway 67
Sedalia, CO 80135
303.688.5162

Attachments



Document Created: 2007-06-13 16:06:15
Document Modified: 2007-06-13 16:06:15

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