Attachment redacted

redacted

SUBMISSION FOR THE RECORD submitted by PanAmSat

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2006-10-19

This document pretains to SAT-MOD-20061018-00123 for Modification on a Satellite Space Stations filing.

IBFS_SATMOD2006101800123_533481

OCT 19 2006 Chin Kyung Yo0 1776 K STREET NW October 19,2006 Federal Communications Commission 202.719.3581 WASHINGTON, DC 20006 PHONE 202.7119.7000 Office of the Secretary . cyoo@w rf corn FAX 202.729.7049 Virginia Office BY HAND DELIVERY 7925 JONES BRANCH DRIVE SUITE 6200 Ms. Marlene H. Dortch, Secretary McLEAN, VA 22102 Federal Communications Commission PHONE 703.905.2800 FAX 703.905.2820 445 12th Street, S.W. Washington, D.C. 20554 www. wrf .corn Re: REDACTED - FOR PUBLIC INSPECTION PanAmSat Licensee Corp. Request for Confidential Treatment, File No. SAT-MOD-20061018-00123 Dear Ms. Dortch: By its attorneys, PanAmSat Licensee Corp. (“PanAmSat”) respectfblly requests that, pursuant to Sections 0.457 and 0.459 of the Commission’s rules, 47 C.F.R. $6 0.457 and 0.459, the Commission withhold fiom public inspection and accord confidential treatment to an amendment to an agreement regarding PAS-9 (commercially known as PAS-5), which is being filed in both redacted and un- redacted form with a copy of this letter. This agreement contains commercially sensitive information that falls within Exemption 4 of the Freedom of Information Act (“FOIA”). See 5 U.S.C. Q 552(b)(4); 47 C.F.R. Q 0.457(d). Exemption 4 permits parties to withhold fiom public information “trade secrets and commercial or financial information obtained fi-om a person and privileged or confidential-categories of materials not routinely available for public inspection.” Id. Applying Exemption 4, the courts have stated that commercial or financial information is confidential if its disclosure will either (1) impair the government’s ability to obtain necessary information in the fbture; or (2) cause substantial harm to the competitive position of the person fiom whom the information was obtained. See National Parks and Conservation Ass’n v. Morton, 498 F.2d 765,770 (D.C. Cir. 1974) (footnote omitted); see also Critical Mass Energy Project v. NRC, 975 F.2d 871,879-80 (D.C. Cir. 1992), cert denied, 507 U.S. 984 (1993). Section 0.457(d)(2) allows persons submitting materials that they wish be withheld fiom public inspection in accordance with Section 552(b)(4) to file a request for non-disclosure, pursuant to Section 0.459. In accordance with the requirements contained in Section 0.459(b) for such requests, PanAmSat hereby submits the following:

i i n r October 19,2006 Page 2 (1) Identi9cation of Specijk Informationfor which Conjidential Treatment is Sought (Section 0.459@)(1)). PanAmSat seeks confidential treatment for the enclosed Amendment #2 to the February 14,2002 agreement between PanAmSat Corporation (now known as Intelsat Corporation) and Arab Satellite Communications Organization (“ARABSAT”). This amendment relates to PanAmSat’s continued operation of the PAS-9 satellite at the 26.15’ E.L. orbital location through September 30,2008. PanAmSat is current1 authorized by the FCC to operate PAS-9 at this location until January 2,2007.J The ITU filings for this orbital slot are held by ARABSAT and the government of Saudi Arabia, as the coordinating administration for the ARABSAT system, has coordinated use of the C-band frequencies utilized by PAS-9 at that orbital 10cation.~PanAmSat has coordinated the satellite’s TT&C frequencies with all satellite operators within five degrees of the 10cation.~The amendment contains commercially sensitive information that falls within Exemption 4 of FOIA. (2) Description of Circumstances Giving Rise to Submission (Section 0.459@)(2)): PanAmSat submits this agreement in connection with its application to modi@ the license for the PAS-9 satellite because the Commission has in the past required an applicant to submit the underlying commercial agreement when it deploys a satellite to a non-U.S. location. As noted above, PanAmSat seeks to continue to operate the PAS-9 satellite at 26.15’ E.L., an ARABSAT location. (3) Explanation of the Degree to which the Information is Commercial or Financial, or Contains a Trade Secret or Is Privileged (Section 0.459(b)(3)): The amendment contains sensitive commercial and financial information that competitors could use to PanAmSat’s disadvantage. The courts have given the terms “commercial” and “financial,” as used in Section 552(b)(4), their ordinary meanings. See Board of Trade v. Commodity Futures Trading Comm ’n, 627 F.2d 392,403 & n.78 (D.C. Cir. 1980). The Commission has broadly defined commercial information, stating that “‘[clommercial’ is broader than information regarding basic commercial operations, such as sales and profits; it includes 1 Amendment #1 to the agreement addressed a change in beam pointing and was previously submitted to the FCC, as was the February 14,2002 agreement, under a request for confidential treatment. 2 See PanAmSat Licensee Corp. Application for Modijication of License for the PAS-9 Satellite, Order and Authorization, 19 FCC Rcd 16,642 (2004). 3 Id., 19 FCC Rcd at 16,644 (75). 4 Id.

October 19,2006 Page 3 information about work performed for the purpose of conducting a business’s commercial operations.” Southern Company Requestfor Waiver of Section 90.629 of the Commission’sRules, Memorandum Opinion and OrderJ4 FCC Rcd 1851, 1860 (1998) (citing Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983)). The amendment to the agreement with ARABSAT contains financial information regarding the continued operation of PAS-9 at 26.15” E.L. The information contained in this agreement meets both definitions of “confidential.” First, a decision not to treat this information as confidential could affect the Commission’s ability to obtain necessary information in the future. Second, disclosure of this information likely will cause substantial harm to the competitive positions of PanAmSat and ARABSAT. (4) Explanation of the Degree to Which the Information Concerns a Service that is Subject to Competition (Section 0.459@)(4)): Substantial competition exists in the telecommunications satellite industry. Other large players in the geostationary satellite service market include Eutelsat and SES Americom. The presence of these large competitors makes imperative the confidential treatment of sensitive commercial information. (5) Explanation of How Disclosure of the Information Could Result in Substantial Competitive Harm (Section 0.459@)(5)): Release of the amendment could have a significant impact on PanAmSat’s commercial operations. If business partners/customers or competitors had access to this information, it could negatively affect PanAmSat’s future negotiations with potential and existing business partners/customers. Specifically,business partners/customers could use the information gleaned fiom the agreement to negotiate more favorable terms in their own service or capacity agreements. Competitors could use this information to better compete against PanAmSat. Thus, it is “virtually axiomatic” that the information qualifies for withholding under Exemption 4 of FOIA, see National Parks and Conservation Ass’n v. Kleppe, 547 F.2d 673,684 (D.C. Cir., 1976), and under Sections 0.457(d)(2) and 0.459(b). (6) Identijkation of Any Measures Taken to Prevent Unauthorized Disclosure (Section 0.459@)(6)): None of this information is provided to the public, and PanAmSat does not provide this information to third parties except pursuant to agreements to maintain confidentiality.

r October 19,2006 Page 4 (7) Identification of Whether the Information is Available to the Public and the Extent of Any Previous Disclosure of the Information to Third Parties (Section 0.459@)(7)): PanAmSat has not made this agreement available to the public and has not disclosed this agreement to any third parties. (8) Justification of Period During Which the Submitting Party Asserts that the Material Should Not be Available for Public Disclosure (Section 0.459@)(8)): PanAmSat respectfully requests that the Commission withhold this agreement from public inspection indefinitely. On balance, the need to protect PanAmSat from competitive harm as a result of disclosure of this agreement outweighs any benefit of public disclosure which, in the ordinary course of business, would not otherwise occur. Accordingly, for the foregoing reasons, PanAmSat respectfully requests that the information contained in its amendment to its agreement with ARABSAT be kept confidential and be withheld fi-om public inspection at all times. Please contact the undersigned with any questions. Thank you for your assistance. Sincerely, CarlR.Frank Chin Kyung Yo0 Counsel for PanAmSat Licensee Corp. cc: Robert Nelson Karl Kensinger Cassandra Thomas Fern Jannulnek Jabin Vahora

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REDACTED - FOR PUBLIC INSPECTION Each of the parties have duly executed and delivered this Amendment as of the day and year f i r s t w r i t t e n above. .. ARAB SATELLITE COXMUXICATIONS ORGANXZATIOW (ARABSAT) Bv: Khrlid A. Balkheyom X T k A S T i t l e : PreBid t and CEO and . . _ . Name : Title Chief HnancJaI Officer . . .. 4 . ..


Document Created: 2006-10-23 15:49:46
Document Modified: 2006-10-23 15:49:46
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